In The Matter Of The Application For Revocation Is Generally Binding Decrees Of Kladno

Original Language Title: ve věci návrhu na zrušení obecně závazné vyhlášky města Kladna

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=45543&nr=221~2F1997~20Sb.&ft=txt

221/1997.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 8 June 1998. July 1997 in plenary on the proposal of head

Kladno District Office to repeal generally binding decrees of Kladno

# 17 of 17 May. February 1993 to ensure public order and safety

in the city



as follows:



Generally binding Decree Kladno # 17 about ensuring public

order and safety in the town of 17 May. February 1993 is repealed on the date of

the publication of this finding in the statute book.



Justification



16 December 2002. 4. in 1997, the Constitutional Court received the submission of the head of the District Office

Kladno, annulment of generally binding decrees, the City

the City Government has approved 17 December, to Kladno 2. in 1993, and that carries the name of the

"To ensure public order and safety in the city". With regard to the

the shortcomings of the Administration was the head of the judge-rapporteur is called upon to supplement

their proposal, which has made a submission, which was delivered to the Constitutional Court

18.5. 1997.



The proposal follows that adopted by the generally binding Decree against the use

Kladno District Office your permissions already on 22 November. 3. in 1993, when her performance

suspended and to redress has set the deadline of 18. 4.1993.

Due to the fact that the meeting of the City Council, which was held

on 19 December. 4.1993, refused to cancel the Decree, head of the thing under

the provisions of § 62 para. 1 of Act No. 367/1990 Coll. on decision

The Chamber of deputies of the Czech Parliament. However, he was returned to the thing with lessons,

According to the Constitution of the CZECH REPUBLIC that such a proposal is decided by the Constitutional Court of the CZECH REPUBLIC.

Head of the Department, although it states that at the time this Court has not yet set up, no

However, it doesn't explain why more steps were taken until the end of the year

1996. By letter of 2 July 2002. 12.1996, turned to the District Office

the Mayor of the city of Kenosha, with a request to investigate the matter.



As is evident from the documentation annexed to the proposal, responded by head of the Department

District Office to this letter by the new Corporation, said that the

on the reasons for the suspension and that the performance of the Decree suspended again on the day

16.12. 1996 and seeks redress until 31 December 2006. 1.1997. In a letter dated

21.3. 1997 Mayor of Kladno, said it sees no reason to

the authorities of the city amounted to some measures.



The appellant alleges that the Ordinance as a whole, in particular, that it violates the Charter of

fundamental rights and freedoms ("the Charter"), when the earmarks of

the population of the group you referred to as a "socially we suffered

the residents ", and this group limits the freedom of movement and residence,

beyond the scope of the civil code, the conditions for the reception of persons in the apartment tenant

and in conflict with the law No. 200/1990 Coll. on offences, creates new

the constituent elements of offences and penalties, not with this law in

line. Furthermore, the proposal provides arguments, broken down by individual

the articles of the contested Decree, and it is clear that relies on the opinion,

February 15. 3. the 1993 has issued a decree, the former Attorney-General

The CZECH REPUBLIC, as well as the opinion of the Ministry of Interior of the CZECH REPUBLIC. 3.1993. If

as for article II., is in addition to the above fundamental opposition claimed that in

contrary to the civil code is determined the reason for the termination of the

the lease of the apartment, and that is the fact that the recourse of the idem illegal

the cast of the House or apartment is sufficiently covered by the existing legal

regulations. The Decree therefore bypasses, in particular, the relevant provisions of the administrative

regulations and the code of civil procedure. To the article. III. it is argued that the city

Kladno illegally interfered in the relationship between property owners and

tenants, when setting a deadline to move the mismatched law and

establishes additional obligations inconsistent with the civil code, respectively.

In addition, the code again and inaccurately describes. In the article. IV. the penalty is imposed,

that is contrary to the provisions of section 50 of the Act on municipalities, as such a fine

cannot be applied to a home owner or renter of apartments. In the article. They are in.

provisions contradictory with the Act No. 337/1992 Coll., on administration of taxes and

fees, as well as with the law No. 71/1967 Coll., when they are introduced

the means of execution, which the law does not recognize. In the article. Vi. then a municipality adopts an

the right to decide on the reduction or abolition of social benefits, which is in the

violation of the law. Also the article. VII.-IX. the contested Decree is vytýkán

conflict with the ustanovenímiobčanského code. When it comes to formal

particulars of the order, notes that while the proposal was accepted and the

published legally, whereas, however, in contradiction with the fact that

force became the first day of posting on the official Board, i.e. 18.2. 1993

and thus became the 15th day effective after the date of posting, that is, 5 June 2003. 3.

1993, stated in its text that will take effect on 4 December 2004. 3. in 1993, the date of

effectiveness, however, is not stated.



On the basis of the above, the rapporteur is of the opinion that

Decree of the city of Kladno in articles II. paragraph. 1, 2, 3, III. paragraph. 1, 2, 3,

IV. paragraph. 4, v., VI. paragraph. 1, 2 and 4(1). VII., VIII. and (IX). is in violation of the

with the laws, and therefore proposes to its cancellation.



The city of Kladno as a party in its observations of 5 December. 6. in 1997 only

repeated the fact that it did not approve the proposal to repeal the contested

the decree and in the annex to the minutes of the meeting of the city joined the

Council of 19 November 2004. 4.1993. The statement further States that

remedy should ensure District Office Administration to the Constitutional Court before the

three years ago, and because the city has failed to take the repeated request to cancel

the Decree, which leaves entirely to the discretion of the assessment of the Constitutional Court.



After examining the content of the decrees in question, the Constitutional Court came to the conclusion that

virtually every article of the decree is in violation of some provisions of the

the Act or even the Constitution of the CZECH REPUBLIC, respectively, of the Charter, and you can, in principle,

agree with the arguments of the applicant, as regards the specific articles

the contested Decree. According to the article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC can Council

within the limits of its competence to issue generally binding decrees. According to section 16 of the

paragraph. 1 of Act No. 367/1990 Coll., on municipalities, can be Decree

issued to perform the tasks of self-government. To issue such a decree, although the municipality

does not need explicit authorization in the Act, but according to § 16 para. 2 must

This decree to be in accordance with the laws and generally binding legal

rules issued by the Central Government to implement them. From

It follows that what is regulated by law or other generally binding

by-law, the municipality may not modify, by way of derogation. He also cannot provide

the new facts of the offences or penalties for their perpetration.

The decree by saying that in the article. II. purpose of the Decree specifies, and thus anticipates the

application only to a specific group of people, which is completely vague as to indicate

as "socially suffered to residents", is by its nature

discriminatory and therefore contradictory to the article. 1 of the Constitution, as well as with the article. 1 and article. 3

paragraph. 1 of the Charter. Furthermore, this article is contrary to the provisions of the Decree

article. 14. 1 and 3, of the Charter and with the law No. 135/1982 Coll. on reporting and

records residence of citizens, as well as with the search. No 146/1982 Coll. Unlawful

the cast of the House or apartment that is interference to the rights, where

adequate protection gives the provisions of § 5. Cust. The provisions of article. III.

then it is in violation of § 711 and 712. Cust. and the provisions of paragraph 1. 3 of this

article in violation of § 5. Cust.



To the article. IV. the contested Decree should be noted that lease and sublease is modified

Law No. 116/1990 Coll., as amended. Testimony then

regulates § 9 para. 2 of this Act. Non-residential premises within the meaning of this

law may be hired out only for the purposes for which they are building

intended, and to change the way they use the owner's consent is not enough

the House. The obligations of the tenant during the use of the common areas and facilities of the House

provides section 689. Cust. The penalty for gross breach of duty in the lease

apartment represents the possibility of termination pursuant to § 711 para. 1 (b). (c)), and (d))

of his/her identity. Cust. The penalties provided for in paragraph 1. 4. article can be saved only

a legal person or entrepreneurs. Penalties may be imposed for the offense

and enforced only in ways that the law No. 71/1967 Coll. (the administrative

order). Article v. of the Decree, however, introduces ways more, and if the

meant by the ust. (a). (e)) as an option to order a publicly beneficial work, then

is in conflict with article. 9 of the Charter. Also the article. Vi. is in violation of the law

No. 200/1990 Coll. on offences, as amended, when

imposes sanctions, that this law does not know and is also in conflict with the law

No. 114/1988 Coll., on the scope of the authorities of the CZECH REPUBLIC in social security, in

as amended. Finally, the code of conduct referred to in

articles VI. to IX. also, the content cannot be generally binding decrees

the village, as the village can generally binding decree to establish the only criteria

to determine the order of requests for housing compensation (§ 3, paragraph 2, of Act No.

102/1992 Coll., to regulate certain issues relating to the release

Act No. 509/1991 Coll.).



For all the above reasons, the Constitutional Court decided, as in the

the operative part.



The President of the Constitutional Court:



JUDr. Kessler v. r.