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
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.
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
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
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
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
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.