108/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided to March 2. April 1996 in the plenary in the things

design of the head of the District Office in Uherské Hradiště on the abolition of the article. 1

paragraph. 3, article. 2, article. 3 (3). 2 as regards the obligations laid down in article 4(1). 2 and

article. 4 generally binding decrees the village Old town of Uherské Hradiště

22 December. June 1995, no. 8/95 on the protection of the night of peace



as follows:



The provisions of the article. 2, article. 3 (3). 2-the words "article. 2 "and the article. 4 municipalities

The old town of Uherske Hradiste No 8/95 of 22 June 1995 6.1995 on the protection of

nights are deleted on the day of the announcement of the award in the collection of laws.



Proposal to repeal article. 1 (1). 3 Decree of the village's old town for Hungarian

Hradiště No 8/95 of 22 June 1995 6.1995 on the protection of the night rest is rejected.



Justification



Head of the District Office in Uherské Hradiště filed for annulment

article. 1 (1). 3, article. 2, article. 3 (3). 2 as regards the obligations laid down

article. 2 and article. 4 of Decree of the village's old town in Uherské Hradiště No 8/95 of

22 December. 6.1995. In his opinion, the said part of the generally binding

the decree are not in accordance with the article. 2 (2). 4 of the Constitution of the CZECH REPUBLIC and article. 2 (2). 3 and

article. 4 (4). 1 of the Charter of fundamental rights and freedoms (the "Charter"),

as they extend beyond the purview of the Municipal Council of law and restrict

fundamental rights and freedoms of the constitutional law or international

the contracts referred to in article. 10 of the Constitution of the CZECH REPUBLIC.



The Mayor of the village of old town of Uherske Hradiste on the draft.

The contents of the paper of the village at the old town of Uherske Hradiste from July 22. 6.

in 1995, as well as a copy of the minutes of the 5. the meetings of the Municipal Council,

signed by the Mayor of the village and two write-Verifier, it follows that

the contested Decree was approved at that meeting under point No. 8,

and it's 11 votes in favour, 5 votes against and 1 Councillor abstained

the vote. The Municipal Council has 17 members, all were present at the vote.

Given this fact, it can be concluded that the contested Decree was

taken by qualified manner (article 38, paragraph 5, the CZECH NATIONAL COUNCIL Act No. 367/1990

Coll., as amended). Generally binding Decree was

published by posting on the official notice board of the Office of the city in the old town at

Uherské Hradiště on 23 June. 6.1995 and was removed after 15 days. According to the

his article. 5 acquired in accordance with § 15 paragraph. 4 of Act No. 367/1990 Coll.

effect on the date of its publication, i.e.. 23.6. 1995. Published was in the local

the newspaper. You can therefore have considered that the Decree was adopted constitutionally

in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll., on the constitutional

the Court).



According to the article. paragraph 79. 3 of the Constitution of the CZECH REPUBLIC, the territorial Government authorities may issue

the legislation on the basis and within the limits of the law, if the law

empowered. According to the article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC the Municipal Council may, within the limits

its competence to issue generally binding decrees. In this context, is

distinction should be made between the individual responsibilities of the municipality and the devolved

scope of the village.



In a separate area of competence, i.e.. in the area of self-government, whose

part is also the unilateral establishment of rights and obligations of natural and

legal persons, is limited by the capacity of the municipalities for example. article. 2 (2). 4

The Constitution of the CZECH REPUBLIC. 2 (2). 3 and article. 4 (4). 1 of the Charter. The enumeration areas

separate the scope of the village is included in the provisions of § 14 paragraph. 1

Act No. 367/1990 Coll., on municipalities, as amended.

The universality of the definition of the scope of the separate municipalities contained in § 14 paragraph.

2 this Act shall be applicable only to the a separate scope

the municipality in which the municipality acts as a body for the citizen

obligations and unilateral commands and prohibitions (see find TC CR No.

35/1994 Coll.). In accordance with the provisions of section 16. 1 of Act No. 367/1990 Coll., on

the municipalities, the municipality to carry out their tasks issue for its territorial perimeter

generally binding decrees. According to the ust. section 17 of Act No. 367/1990 Coll.,

as amended, the community generally binding Decree stipulate that

activities that could disrupt public order in the village, you can perform the

only in places and at a time designated by Decree, or,

some publicly accessible locations in the village are such activities

disabled.



In the area of the municipality shall exercise the delegated scope of State administration in the range

provided for by special laws (§ 21 of Act No. 367/1990 Coll., on municipalities).

Under section 24, paragraph. 1 of the same law, in matters pertaining to the transferred

the scope of, the village (on the basis of the law and its limits) issue

generally binding decrees. The cited statutory provisions, however, do not constitute

bland legal limits of fundamental rights and freedoms, even bland legal

obligations. Generally binding legal regulations, the municipality must respect the valid

the rule of law and its content must be in accordance with it (section 16 (2) of the Act

No. 367/1990 Coll.).



Challenged general binding Ordinance is issued in the separate

the scope of the municipality. Security on local issues of public policy is

in the scope of the municipality of [section 14, paragraph 1, letter a) of Act No. 367/1990 Coll., on

municipalities], in which the municipality can issue generally binding decrees (art. 17 of the same

of the Act). Article 1 (1). 1 and 2 of the contested decrees are just implementation

referred to the powers of the municipalities and their content corresponds to the said provisions of the

the law on municipalities. In both paragraphs příkladmo, which calculates

activity is the disturbance of night rest and their provision is therefore only

a reinforcement of the concept of peace of the night. The issue of night rest is

part of the broader concept of "public policy". It is in the context of the

sufficiently regulated by Act No. 200/1990 Coll. on offences, in parts

regarding the public order [section 47, paragraph 1, point (b)) and section 48 of the Act

No. 200/1990 Coll., as amended]. And in terms of this Act can be

in case of general binding Ordinance as a whole. The provisions of the

article. 1 (1). 1 and 2 of the contested Decree shall not constitute any new obligation,

No new right to any entity.



As regards article. 1 (1). 3, attacked the proposal of District Office,

The Constitutional Court considers that this provision is not in conflict with article. 2

paragraph. 3 of the Charter or with the ust. article. 2 (2). 4 of the Constitution of the CZECH REPUBLIC. In the opinion of

The Constitutional Court, this provision does not establish any new scope

the Council of the village beyond the law, as in the proposal, the head of the district argues

the Office, with only instantiates the jurisdiction of the Municipal Council arising from the ust. §

45 letter p) Act No. 367/1990 Coll., on municipalities, as amended. To do this,

It should be noted, that the Municipal Council that grants an exemption from the application of

generally binding decrees the village No 8/95, does not grant an exemption from the application of

generally binding legal regulations of greater legal force, in particular the laws,

concerning the issue of night peace (especially the already mentioned law

No. 200/1990 Coll. on offences). The application of these laws

the provisions of article remains. 1 (1). 3 contested generally binding decrees

unaffected.



The contradiction in the contested decree law, however, can be found in the provisions of the

article. 2. In the first paragraph of this article is obliged to

operator of the timer request for determination of closing

After 22 hours. the hour of the previous consent of the Municipal Council. In the third paragraph,

This article is provided for restrictions on operators of hospitality and

social device that lies in the fact that each action

(parties, weddings, etc.) that its duration exceeds the regular

closing time, if this period exceeds 22. the hour must be at least 4

days in advance notified to the Municipal Council. The Council has the option of

reject exceeding the closing hours.



The provisions of § 14 paragraph. 1 the letter p) Act No. 367/1990 Coll., on municipalities,

It follows that the municipality can issue generally binding Decree on the operation of the

equipment to meet the needs of citizens, only if they are in

the ownership of the village. Generally binding Decree the municipality of old town in Hungarian

Hradiště "on the protection of the night of peace ' in his article. 2, however, applies to all

operators of "timer in contiguous residential buildings"

not just those that are in the ownership of the village. In the article. 2 (2). 3 Decree is

set restrictions for all operators of hospitality and social

the device.



According to the ust. article. 2 (2). 4 of the Constitution of the CZECH REPUBLIC and article. 2 (2). 3 of the Charter, everyone can

do what is not prohibited by law, and nobody may be forced to do what

the law does not impose. According to the ust. article. 4 (4). 2 of the Charter of fundamental rights and limits

freedoms may be under conditions laid down by the Charter modified only

by the law. According to the ust. article. 26 paragraph. 1 of the Charter has every right to do business and

to engage in other economic activities, and according to the article. 26 paragraph. 2

Instrument conditions and limitations for the exercise of certain professions or activities

only the law may lay down. If the restrictions of the Basic Law (in the given

the case of the basic rights contained in the ust. article. 26 paragraph. 1 of the Charter)

identified a legal requirement, it could happen only on the basis of the law

and in its limits. For the limits of fundamental rights and freedoms must be

consider any restrictions on the free will of the authorised body, IE. whether or not

the determination of the conditions restricting the performance of the business (by permission

the contested Decree, the obligation to limit the services provided only to a specific

period of time). No law that would allow to regulate operating hours
business facilities and hospitality facilities, however, was not published.



Article. 2 Decree No. 8/95 on the protection of the night of peace "determines the limits of the

business activities that may be under the above provisions

Instrument established only by law. It is also the task of the municipalities in the area of

a separate scope to regulate business activities and opening hours

hospitality equipment, albeit in the context of the observance of the nights.

The mentioned article is therefore in contradiction with the stated provisions of Act No.

367/1990 Coll., and also with the provisions of this article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC and with the article.

26 paragraph. 2 of the Charter.



Furthermore, they are in conflict with the law, the words "article. 2 "referred to in the article. 3 (3). 2

contested generally binding decrees, which set out the penalties for

violations of those obligations. Sanctions lies in the fact that the legal person

or entrepreneurs can Municipal Council to impose a fine pursuant to section 50 of the Act No.

367/1990 Coll., If, as mentioned above, the obligations laid down in the

article. 1 the contested Decree, in fact, in other words the expression of what

is contained in the relevant provisions of Act No. 200/1990 Coll., on

offences, and article is of similar character. 3, if it establishes that the person

that breach of the obligation imposed in article. 1 (i.e. those that cancels the night

Peace) will be penalized for the infraction. This part of the Ordinance also just

notes the fact resulting from the law. The other is, of course, situations,

as regards article. 2 the contested Decree. Because this article is contested

the Ordinance, as mentioned above, is in conflict with the law, it is not possible for the

violations of the sanctions. Penalties can be stored only for a breach of

legal obligations. The obligations imposed by the provisions of the Ordinance, which

are in conflict with the law, cannot be considered as legal obligations and cannot be

Therefore, even if their failure to penalize. The provisions of the article. 3

paragraph. 2, specifically the words "article. 2 "the contested Decree is therefore in violation of the

with the law.



In this context, it should be noted that, in the event of serious

breaches of obligations arising for entrepreneurs from the legal

regulations, the Trade Licensing Office to cancel the trade licence (section 58

Act No. 455/1991 Coll., on trades, as amended).

In addition to the penalties provided for in law infractions can be in violation

the rights and obligations imposed and penalties under the Trade Licensing Act.



Article. 4 the contested Decree then provides for the time limits for the implementation of the Ordinance,

especially to the submission of the application for consent to the determination after closing hours

22. an hour. At the same time lays down the irrebuttable presumption that if someone

of the consent request within 15 days, consent was not granted to him. Even here

It should be noted that the determination of such period, and the presumption is contrary

the law, for the period and the assumption are determined in relation to the fulfilment of the

obligations, which had been established in violation of the law. Cannot, therefore,

cause the legal consequences and are themselves in violation of the law.



On the basis of the above, the Constitutional Court came to the conclusion that

the provisions of the article. 2, article. 3 (3). 2 as regards the words "article. 2 "and the article. 4

the contested Decree, are in breach of article. 2 (2). 4, article. paragraph 79. 3 and article.

paragraph 104. Article 3 of the Constitution of the Czech Republic. 2 (2). 3 and article. 26 paragraph. 2 of the Charter and with

section 13 (3). 2 and section 14 of Act No. 367/1990 Coll., on municipalities, and therefore

repealed on the date of publication of this finding in the collection of laws (section 70 (1)

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



By contrast, the provisions of the article. 1 the contested decrees are in accordance with the

by law, and therefore the proposal in part that relates to this article, is rejected.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.