118/1997.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 22 November. April 1997 in plenary on

the design of the head of the District Office in Vyškov to cancel generally binding

Decree No 1 village Otnice/96 of 7 November. November 1996 to the security

local matters of public order in the territory of the municipality of Otnice



as follows:



Generally binding Decree village Otnice No. 1/96 to local security

a matter of public order in the territory of the municipality adopted the municipal Otnice

Government in Otnici on 7 December. November 1996, is repealed on the date of

the publication of this finding in the statute book.



Justification



1. On 27. in December 1996, the Constitutional Court of the Czech Republic received a proposal from the

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

the village of Otnice No. 1/96 to secure local affairs public

order on the territory of the municipality the Municipal Government received in Otnice Otnici

on 7 December. November 1996. The text of the decree is as follows:



Decree No. 1/96



to secure local matters of public order in the territory of the municipality

Otnice



The municipality of Otnice in accordance with section 16 and 17 of Act No. 367/1990 Coll., on

municipalities, as amended, is releasing this in general binding

a decree.



§ 1



Because of the potential disruption of public order in the village provides that

dancing and listening fun (action) with recorded music can be

only at these locations:



-Pp. 274, no. 351



-Hospitality at the Marků square, no. 12



and this in time from 2 pm-0.30 am.



§ 2



(1) violation of the obligations laid down by this Decree is a legal person, and

an entrepreneur will be punished according to the provisions of § 50 of Act No. 367/1990

Coll., on municipalities, as amended, a cash fine up to

above 100 000 €.



(2) violation of the obligations laid down by this Decree is a natural person

will be punished in accordance with the provisions of § 46 para. 3 of Act No.

200/1990 Coll. on offences, as amended by later regulations, financial

a fine of up to £ 5000.



§ 3



(1) these general binding Decree force after the approval of the municipal

the top of the village, in a public meeting on Otnice 7. 11.1996 and

by posting on for 15 days on the notice board of the local authority.



(2) this Ordinance shall become binding in general the effectiveness of the 15th day

following the date of its publication.



In 7 October Otnice 11.1996



Mayor



the Deputy Mayor



Published by posting on the official notice board of the municipal office on 8 June 1998. 11.1996.



Shall take effect on 23 December 2005. 11.1996.



Head of the District Office in Vyškov 27 June. November 1996 decided to

According to § 62 para. 1 of Act No. 367/1990 Coll., on municipalities, as amended by

amended, on the suspension of the exercise of the said Decree (REF.

KP-64/96 rights.).



In the expression of the Mayor of Otnice to the suspension of the Decree No. 1/96

of 9 June. December 1996 addressed to the District Office in Vyškov, with

referring to Act No. 283/1995 Coll., which was amended the law on the

municipalities, argues for the said Ordinance. At the same time tells

on the basis of the decision of the Municipal Council of the decision to suspend

the Decree respecting the performance. At the same time to the District Office in Vyškov

It is recommended that in the framework of autoremedury decision to withdraw the pause.



In its proposal, filed pursuant to § 64 para. 3 of Act No. 182/1993 Coll., which

the Constitutional Court was delivered on 27. December 1996, head of the District

the Office has concluded that the contested Decree was issued in

individual municipalities within the meaning of § 14 para. 1 (b). about) of law No.

367/1990 Coll., as amended, and argues its contradiction

with the article. 2 (2). 4 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), art. 2 (2).

3, art. 4 (4). 2 and article. 26 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"). Referred to the contradiction in the appellant sees that, according to its

conviction challenged the Decree determines the limits of business activities, which

may be based on the provisions of the Constitution and the Charter established

only by law. Considers, Furthermore, that this Decree also limits the "personal

the right of every citizen of the village ", as in the case of the venue of any action with the

recorded music (family celebrations, graduations, weddings, etc.) is the citizens

impossible is to organize, for example, at home and are forced to take

only in places and at the times designated by Decree.



In its written observations submitted under section 69 of Act No. 182/1993 Coll.

the Mayor of the village, the head of the draft Otnice District Office in Vyškov to

cancellation of generally binding decrees the village Otnice No 1/96, to secure

local matters of public order in the territory of the municipality of Otnice, lingers

the opinion according to which the contested Decree is in accordance with the

the provisions of section 17 of Act No. 367/1990 Coll., as amended.

It expresses the belief that the contested decree nor

restrictions on the right to freely conduct business. Therefore, the proposal is considered the head of the

District Office for nedůvodný and suggests his refusal.



In proceedings for annulment of the legislation is the Constitutional Court pursuant to § 68 para. 2

Act No. 182/1993 Coll. must also examine whether he was infected with the legal

a prescription issued by a constitutionally prescribed way. For this reason, the Constitutional

the Court has requested from the Municipal Council in Otnici documents, certifying

the proper adoption of Ordinances (i.e. minutes of Municipal Council

confirming the necessary quorum and the required majority), as well as its proper

publication in the sense of Act No. 367/1990 Coll., on municipalities, as amended by

amended. Those facts were confirmed by the registration of the

the meetings of the Municipal Council of the municipality of Otnice, held on 7 December. November

1996, attesting to the law required a quorum and a majority, as well as

confirmation of posting the decrees in question.



2/and the Constitutional Court in proceedings for the annulment of laws and other legal regulations

(therefore also in proceedings for cancellation of the law community) assesses the content

law or other legislation according to the aspects contained in the

the provisions of § 68 para. 2 Act No. 182/1993 Coll., which for a generally binding

Ordinance of the municipality include competency (statutory authorization), compliance with legal

a higher level of legal force rules and compliance with the legislation

the regulatory process.



The validity of the contested Decree, the Constitutional Court has already referred to above

the findings.



2/b Ústavností generally binding decrees issued by the municipalities, within the framework of their

a separate scope according to § 14 para. 1 (b). about) and section 17 of Act No.

367/1990 Coll., as amended, that in the context of editing

local affairs public policy affect the rights arising from the

article. 26 of the Charter, the Constitutional Court dealt with the matter in the report issued under the sp.

Zn. PL. ÚS 31/95. The findings, contained in the said award, which does not have

The Constitutional Court therefore depart, is fully applicable to the project under

case.



According to the article. paragraph 79. 3 of the Constitution, authorities may not issue

the legislation on the basis of and within the law, if they are to do so by law

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

its scope of the issue generally binding decrees. Different diction

zmocňovacích provisions should be referred to interpret with regard to

their systematic classification: article. paragraph 79. 3Ústavy is included in the head

Third: the Executive power, art. paragraph 104. 3 of the Constitution, the head of the seventh: Territorial

local government. From this it can be inferred that the enabling provisions contained in the article.

paragraph 79. 3 of the Constitution shall apply to the power to issue generally binding

order by (i.e. If a municipality carries out the State

management within the scope of the specific laws) and the enabling provisions

contained in the article. paragraph 104. 3 of the Constitution, the power to issue generally binding

in a separate Decree, the scope of the municipality.



The provisions of § 14 para. 1 (b). about) and section 17 of the Act on municipalities are based

power of municipality to adopt generally binding decrees on local matters

public policy. According to § 46 para. 2 and article 48 of Act No. 200/1990 Coll., on

as amended, these can be generally binding decrees of municipalities

to establish the facts of the offences. The scope of such legal

Regulation of municipalities, however, is limited by the fundamental rights and freedoms arising from the

the constitutional laws and international agreements under article. 10 of the Constitution, as well as on the

them by successive laws.



In accordance with the provisions of article. 26 paragraph 2. 1 of the Charter, everyone has the right to do business and

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

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

only the law may lay down. Article. 12 paragraph 1. 1 of the Charter guarantees

inviolability of the home, and restrictions of the rights pursuant to art. 2 (2). 3

Of the Charter may be formed only by law.



In the Czech legal order is not issued by a law, which would allow the restriction of the

business equipment and catering equipment authorized to

operate a dance and listening fun (action) with recorded music and

that would also regulate their opening hours.



It is therefore not the responsibility of the municipality or the task in the area of its individual

the scope of the edit range commercial activities and opening hours

catering equipment, as well as restrict the inviolability of the home,

even if, in connection with the protection of public policy, in particular respecting


the night of peace. The reverse of the municipality, as is the case under consideration,

the result is the contested Decree, then its conflict with article. 26

paragraph. 2 and article. 12 paragraph 1. 3 of the Charter. This does not prejudice the right of the municipality under section

14. 1 (b). p) of the Act on municipalities edit generally binding Decree

operation of the device, used to meeting the needs of citizens, if

they are owned by the municipality.



To be further noted that the public nuisance (particularly interference

night) in the operation of catering facilities (in organizing

dance and listening pastimes with recorded music) can affect

under the relevant provisions of the Act and the case of infractions by deleting

trade licence (according to § 58 of Act No. 455/1991 Coll., on the

trades, as amended) and by analogy with the

infractions of the law can affect and disturbing peace operation

pastimes with recorded music in dwellings of natural persons or the premises

legal persons. This does not affect the emission of noise protection

of the civil code.



In addition to rejecting conflict with those provisions of the contested Decree

This is in violation of the Charter, also with the provisions of section 17 of the Act on municipalities, the

the basis of which it was issued. Explanatory memorandum to the Act No. 283/1995 Coll.

the law on municipalities was amended, defines the purpose of the newly included

the provisions of section 17 the following: "in some locations,

prostitution has become so much littering the authorities

local governments have tried to counter him by issuing decrees, which, however,

they were in conflict with the law. Prostitution is a social pathology,

that according to historical experience cannot be completely eradicated. However, it can be

regulate such as to disturb public order, does not compromise the educational

children and young people and offend the moral sentiment of the public. The aim of the proposed

the legislation is therefore to allow municipalities to make within their separate

scope of generally binding decrees could form according to local conditions

negative consequences of prostitution effectively countered. "



Therefore, if the provisions of the Act on municipalities allows the village in General

a binding decree to provide for the protection of public order

"places", where certain activities can be operated or where their

the operation is prohibited, it is mostly about the place "publicly accessible" in the

the meaning of public space (i.e., in particular, the streets, squares, etc.). Restrictions,

and the definition of business activities, or the restriction on the places

protected right to inviolability of the home, however, in the framework of

legal authorization does not fall.



Having regard to all of the above reasons, the Constitutional Court generally binding

Ordinance of the municipality Otnice No. 1/96 to secure local affairs

public order in the territory of the municipality of Otnice set aside.



The President of the Constitutional Court of the Czech Republic:



in the z.. Haboob in r.



Vice Chairman