The Proposal To Repeal Section 62 And 62A Of The Act. 367/1990 Coll., On Municipalities

Original Language Title: návrh na zrušení § 62 a § 62a zák. 367/1990 Sb., o obcích

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=49240&nr=107~2F2000~20Sb.&ft=txt

107/2000 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 5 July 2004. April 2000 in plenary on the draft Council

the city of Ústí nad Labem and Councillor perimeter of Ústí nad Labem-

The annulment of the provisions of § neštěmice 62 and 62a of the Act No. 367/1990 Coll., on

municipalities (municipal establishment), as amended,



as follows:



In Act No. 367/1990 Coll., on municipalities (municipal establishment), as amended by

amended, the date of publication of this finding in the collection of laws

deleted:



1. in paragraph 62, paragraph 1, second sentence



2. in paragraph 62, paragraph 2, second sentence



3. in paragraph 62, paragraph 4, second sentence, before the words "and expressed by a semicolon

refer the matter to the decision of the Czech National Council "and the second part of the sentence for

a semicolon, expressed by the words "and shall refer the matter to the decision of the Czech national

the Council "



4. in section 62a of the second sentence of paragraph 1



5. in section 62a of the second sentence of paragraph 2



In others, the proposal is rejected.



Justification



On 9 April. December 1999 the Constitutional Court of the constitutional complaint

The Municipal Council of the city of Ústí nad Labem and Borough Council

Ústí nad Labem-Neštěmice against the resolution of the Chamber of Deputies

Parliament of the Czech Republic No. 457 of 13. October 1999 with the proposal on the

repeal of section 62 and 62a of the Act No. 367/1990 Coll., on municipalities (municipal establishment),

as amended, (hereinafter referred to as the "law on municipalities").



The complainants claimed that the resolution of the Chamber of Deputies has been infringed

right of self-government guaranteed territorial entities in the article. 8

The Constitution, which is also expressed in and defined in § 13 para. 1 and 2 and § 14

paragraph. 1 and 2 of the Act on municipalities. It was claimed that the decision on the implementation of

construction work in the Master Street is undoubtedly belongs to a separate

the scope of the municipality and any interference with this autonomous scope of application is

possible only if required by the protection of the law and in the manner prescribed by law

(article 101, paragraph 4, of the Constitution). Therefore, the complainants considered that the power of the State-

in this case, too much legislative-moved in contravention of this

the provisions of the Constitution.



Also point out that the Constitution of the Czech Republic (Constitutional Act No.

1/1993 Coll.) lift the existing Constitution and the constitutional law on the Czechoslovak

Federation and changed from the base of the constitutional position of the State and its organs.

In particular, the Czech National Council ceased to be on 31 December 2004. December 1992

"the highest body of State authority" and on 1 May 2004. in January 1993, she became

The Chamber of deputies of the Czech Republic with a new constitutional status

based on the separation of State powers to the legislative (the head of the second), the power of

Executive (head of the third) and judicial power (chapter four).



This request was satisfied on the creation of a legal and democratic State,

because of the derogation of certain provisions of the Act on municipalities, especially in the

area of the State supervision over the legality of the exercise of self-government contained in the

§ 62 and 62a of the Act on municipalities. The guarantor of the constitutionality and legality of this

the performance of the municipal self-government became the Constitutional Court pursuant to § 64 para. 3 and § 72

paragraph. 1 (b). b) Act No. 182/1993 Coll., on the Constitutional Court, (hereinafter referred to as

"the law on the Constitutional Court"). General courts review course

the decision of the authorities, local self-government authorities, issued in administrative proceedings or

the decisions are based, shall amend or repeal privileges of natural or

legal persons.



Of the featured arguments then the complainants was that the repeal of the resolution

The Municipal Borough of Ústí nad Labem-Neštěmice Chamber

the House was the institutional intervention into the activities of local government

the whole.



II. the Senate's Constitutional Court was forced to first clarify the question active

evidence for lodging a constitutional complaint the Municipal Borough

Ústí nad Labem-Neštěmice. Pursuant to § 72 para. 1 (b). (b)) of the

The Constitutional Court is in relation to the article. 87 para. 1 (b). (c)) of the Constitution to submit

the constitutional complaint has been authorised to the Municipal Council of the municipality, if the claims that

unlawful intervention of the State guaranteed the right has been violated zoning

Government unit of self-government. This provision does not specify whether the

must always be the Council of the municipality, or whether it may also act on the

City Council of the borough or district. Taking into account the opinion of the

plenum of the Constitutional Court expressed in the report. April 1996, SP. zn.

PL. ÚS 40/95 (collection of findings and resolutions of the Constitutional Court, volume 5, page.

249 et seq.). You can infer that the statutory cities are authorized to assign

City parts, respectively, of their zastupitelstvům some of its powers,

including the power to issue generally binding decrees within the limits of their

the scope of the. This opinion corresponds to the provisions of § 3 para. 2 of the Act

on municipalities, which amplifies the provisions of § 25 para. 2 (a). and) Act

on municipalities, under which some of the scope of the belonging under the law on

the municipalities of členěnému territorial statutory city to carry out urban

circuits or districts. The scope of the town Ústí nad Labem has been

transferred to the municipal district of Ústí nad Labem-Neštěmice Municipal Board

the city of Ústí nad Labem generally binding Decree No. 41/1996, which was

issued the Statute of the city of Ústí nad Labem. Locus standi of the second

the applicant is therefore given.



II. the Senate's Constitutional Court by order of September 11. January 2000, SP. zn. II. THE TC

559/99 of the proceedings on constitutional complaints interrupted pursuant to § 78 para. 1 of the law on

The Constitutional Court and the proposal to repeal section 62 and 62a of the Act on municipalities ceded

the plenum of the Constitutional Court for a decision under art. 87 para. 1 (b). and)

Of the Constitution. The case was registered under SP. zn. PL. ÚS 1/2000. At the same time the proposal was

in accordance with section 69 of the Act on the Constitutional Court sent to the observations of the

the House and Senate of the Parliament of the Czech Republic and the Ministry of the Interior.



The Chamber of deputies of the Parliament of the United Kingdom in its observations to the

the proposal to repeal section 62 and 62a of the Act on municipalities indicates that the design relates to the

provisions of the law on municipalities, which have been amended by Act No. 302/1992

SB. with effect from 1 January. July 1992. It was even about editing things

related to the so-called. a correction of the wrong actions. The explanatory memorandum to the two

However, the bills do not mention a specific rationale as follows approved

editing. You must, therefore, consider that the current treatment of municipal establishment

is based on the former arrangement that existed before today's Constitution,

that when organizing the State is based on the Division of power and their mutual

Balancing. The Constitution also expressly confers on the Constitutional Court to rule on

constitutional complaints against the unlawful intervention of local and regional authorities

State. In practice, the law met with certain uncertainties

the interpretation that arose after the adoption of the new Constitution (effective from January 1,

1993), which, according to some legal opinions indirectly as

the contested provisions so that entrusted the decision-making on these issues

solely to the Constitutional Court. In addition, support for decision-making in these matters

Chamber of Deputies-hence the legislature-completely neglects her

aim and purpose--that is, deciding whether a breach of the law.



The Chamber of Deputies expressed the opinion that the legislature acted in

the belief that the order is not received in direct conflict with the Constitution and that the

the legislation is in accordance with the then Constitution, constitutional order and

the legal order. Invested in the Constitutional Court, in the context of the examination of the

the proposal to assess the constitutionality of the contested order, the Chamber of Deputies and

the contested provisions of the law on municipalities and has issued the decision.



The law on municipalities and the Act No. 302/1992 Coll., amending and supplementing Act

The Czech National Council No. 367/1990 Coll., on municipalities (municipal establishment), as amended by

the Czech National Council Act No. 455/1991 Coll., Act of the Czech National Council.

485/1991 Coll. and Czech National Council Act No. 553/1991 Coll., were

approved by the required majority of the members of the legislature, signed

respective constitutional actors and duly promulgated in the collection of laws.



Senate of the Parliament of the Czech Republic in its statement said that the law on the

the municipalities was adopted by the then Czech National Council on 4 October. September 1990, and his

the amendment, which was supplemented by the provisions of the Act on municipalities section 62a, on 6. may

1992. In both cases, this has occurred before the establishment of the Senate. Because in the

accordance with article 6(1). paragraph 106. 1 and 2 of the Constitution, the effective date of the Constitution of the United

the National Council became the Chamber of Deputies and the Senate by the time of the establishment of the

performed its function, it is for her observations in the subject matter.



The Interior Ministry did not respond to the proposal.



The Constitutional Court notes that neither the Government nor the relevant Ministry, or

The Chamber of Deputies and the head of the District Office's

enough to realize the practical implications of the changes in our constitutional order,

and thus also in the law on municipalities, which occurred in the adoption of the Constitution. Was primarily

removed one of the foundations of the old constitutional order, in which the system was

national committees according to the Soviet model constructed from the local through the

District and regional national committees to the Czech National Council (as the

"the National Committee of the highest order"), conceived as a State

Administration and the State power and the Czech National Council, even as "the highest authority

State power "under article. 102 the Constitutional Act No. 143/1968 Coll., valid

until 31 December 2006. December 1992. This system was replaced by the rule of law

based on the separation of State powers: legislative, Executive and judicial, in which


The Parliament of the United Kingdom, consisting of the Chamber of Deputies and the Senate has

only the legislative and Executive. the jurisdiction of the

lacks. Only the Executive power to the Chamber of Deputies consists of

prosecute their members to disciplinary punishment options and make decisions to consent to the

their prosecution; Furthermore carries out nezákonodárné function

of options to set up the Inquiry Commission for the investigation of things

the public interest and the ability to call on the Government and its members. Do not therefore

The Chamber of Deputies however to the Executive and to the Government to intervene,

with the exception of the complaint, or recommendations, etc.



Sure the difficulty occurs when the assessment of the legal nature of the contested

the resolution of the Chamber of deputies from 13 June 2005. October 1999 No. 457, part II.

which "annuls the resolution of the Municipal Council of the Borough of Ústí nad Labem-

Neštěmice no Z/69/98 of 15 December 1998. 9. the 1998 ", without any

justification.



This preliminary assessment is necessary in order to open the way for

consideration of the proposal to repeal section 62 and 62a of the Act on municipalities. The complainants is

the Administration called the measures and measures against him as against the rail. It comes

about cancellation Act of authority, which does not have any power to it. For this

his act has no legal basis in the Constitution or in another legal act;

the relevant provisions of section 62 and 62a of the Act on municipalities was derogována day

the effectiveness of the Constitution, i.e.. 1 January 1993, on the basis of the principle lex posterior

derogat priori; There is even derogujícím by the law, the Constitution.



Legal act issued by the jurisdiction authority (authority) is in legal theory

called the absolutely zmatečným a legal act-the paakt that anyone

does not oblige. In the normative world seems nonexistent, and therefore

strictly speaking, you cannot cancel it-it's not the norm.



The resolution of the Chamber of deputies from 13 June 2005. October 1999 is also pointed

prior to arbitrary totally disreputable acts. As to the resolution of the Government

The United States no 505/1999 of 26. May 1999 article. (IV) giving instruction

přednostovi District Office in Usti nad Labem to present this case in

the case of the nezjednání axle Assembly of Ústí nad Labem to the

the decision of the Chamber of Deputies, and also as to the submission of the proposal

the head of the District Office in Usti nad Labem on the repeal of the resolution

The Municipal Borough of Ústí nad Labem-Neštěmice to decision

The Chamber of Deputies, which are in conflict with the Constitution. The resolution of the

The Chamber of Deputies for the annulment of the resolution was posted and then

widely commented and medializováno at home and abroad.



How to respond to this legal situation created by a number of

previous retail practices. Just by saying that it is a

the Himalayas, wishy-washy, kvaziprávní Act, which no one needs to take care and no one

It does not have to follow, and therefore reject the constitutional complaint, because

[edit] actually only against some arbitrary (juristicky)

the absence of an act of the Chamber of Deputies, the Constitutional Court has not fulfilled its

obligation as a guarantor of the constitutionality of the rule of law.



The ability to issue declaratory finding (decision) that this is the case, a nulity

our legal order.



This option, however, knows for example. administrative procedures in Germany, where the administrative regulations of the

1976 gives the possibility pursuant to § 44 para. 5 to issue a declaratory judgment that

the Act is null (see d. Hendrych and co.: administrative law, 1994, p. 66

at the bottom). With us it is possible in some cases to challenge the absolute

confusing legal act in civil proceedings, the Court examines whether the

the decision, which is based in a lawsuit challenged the affair, was released

the competent authority (section 135 (2) of the civil procedure code). Jiří

Hoetzel in administrative law, while saying that it would not be necessary to

not at all disturb such an act because it does not interfere with something that rightfully

There is, at most, it would be possible to conclude that it is a paakt, the practice of

but he's doing differently and cautious by attacking such legal

scrap, since the question of the absolute lack of competence may be dubious.

Otherwise no further answer. Recalls, however, special way

the thing looks § 102 of the Czech municipal establishment (regional law No 7 of

April 16, 1864) and § 78 and 79 of the Act on the Czech regional district

a corporation. This municipal establishment has existentní such acts

College, outside of the scope of the municipality. According to the

§ 102 of the Czech municipal establishment has a political office by way of dohlédacího

the Office of the right and the obligation to prohibit the City Government, where would the municipal in

its resolution of the limits of their jurisdiction, or has done something against

the law, to make such a resolution does not engage; against this prohibition may

However, references to submit to the provincial authority may be appealed. From the context it is

quite obvious, that it's absolutely confusing, but the Act is seen as

existentní even with the possibility of appeal against his ban. Hoetzel's

then it asks whether these standards can be found at kodifikovánu

the principle of our law or just a singular standards. Alone would be for the second

the solution.



This example, however, shows that the Bohemian Landtag and the lawyers

preparing these policies realized often difficult interpretation

similar acts and voted in a certain and reasonably in the interests of efficiency

supervision over the legality of the opportunity to challenge (in the present case, the prohibition)

such legally non-existent standards.



Is not just an Act relating to this case. Its importance to

goes far beyond, as the Chamber of Deputies still considers and

the past and treat – albeit against the Constitution-for legal measures interfere with the

separate the scope of communities on a proposal from the Governors of district offices. In the period

from the 1. January 1997 to the present day so for 4 resolutions and one

measures already referred to and derogovaných the provisions of § 62 and 62a

the law on municipalities. This could help some of the opinions in journalism,

such as. article in "legal advisers" No. 6 of 1996 on the review of

municipal ordinances, the author considers that it is possible both to their path

cancellation, both by a decision of the Constitutional Court, by decision of the

The Chamber of Deputies. In his opinion, the Chamber of Deputies could

in theory, these decrees, rather than interfere with, at most, to advance

To the Constitutional Court. Other measures he could confirm, cancel

or change. might not issue a decision at all.



Option to cancel the absolutely confusing legal act, in special cases,

as is currently under appeal, namely, the Chamber of Deputies has opened up

the path to the cancellation of the relevant parts of section 62 and 62a of the Act on municipalities.



The provision of section 62a of the Act on municipalities, although the facts, which were not

application of occurred of the subject of the constitutional complaint, but its contents

It is completely identical to section 62 of the Act on municipalities and there would be absurdly leave

it as unconstitutional. The competence of the Constitutional Court is to

given the provisions of § 78 para. 2-in fine of the law on the Constitutional Court.



The existing procedure in the management of interference generally binding decrees of municipalities in

a separate scope has changed due to the provisions of § 64 para. 3

the law on the Constitutional Court. This provision complements the inconsistency with the

the text of those sections after the decision of the Constitutional Court likewise.



As a result of derogation provisions of § 62 parts and 62a of the Act on municipalities a new

The Constitution was already from these provisions 1. January 1993 is unusable, but

their abrogation, as an interpretive principle, could not change anything on the

the written law.



The Chamber of Deputies has not done so, and neither the Government nor the

the Ministry did not forward a proposal for the amendment to the law on municipalities and under

all the time from the effectiveness of the new Constitution.



The Constitutional Court was therefore forced to cancel part of the provisions of section 62 and 62a of the Act

on municipalities, such as the provisions which are contrary to the Constitution of the United States directly in the

exceeding the constitutional competence of Parliament of the United

of the Republic.



The President of the Constitutional Court:



JUDr. Kessler v. r.