51/2001 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 19. December 2000 in plenary on the proposal of head
District Office in the sand on abolition of the provisions of article. 2 (2). 2 (a). and)
article. 3 (2). 1 (b). (a)) 2 and article. 4 generally binding decrees of
The sand of 10 June. 11.1998 No. 8/1998 concerning certain restrictive measures
to secure local affairs public policy
as follows:
The proposal is rejected.
Justification
(I).
Head of the district authority in the sand (hereinafter referred to as "the appellant") administration of
on 2 February 2005. 2. the proposed abolition of the aforementioned provisions of the 2000 generally binding
the Decree of the town No. 8/1998.
According to the article. 2 (2). 2 (a). and) activities that the decrees in question is
or it may be disrupted public order in the city, are mainly:
"the organisation of public musical productions in the form of live and recorded
(for example, dance, dances, discos), if they are connected with the
options alcohol consumption ".
According to the article. 3 (2). 1 (b). and this Decree restrictive measures) to
Security on local matters of public policy are
"in the definition of the place and time at which you can perform certain activities".
In accordance with paragraph 2 of the same provision:
"For the organisation of public musical productions pursuant to art. 2 (2). 2 (a). and)
of this order are subject to time limitations-can be held in time from 6 am to
10 pm, that is, outside of the night (time limit). ".
Article. 4 the decrees in question provides:
"Exception
(1) the provisions of article. 3 (2). 2 of this order may, at the written request of the
grant an exception to the City Council.
(2) an exemption may only be granted:
and the organisation of specific events),
(b)) for a specified period, if the activity (action) regularly repeated,
but not for a period of more than one year.
(3) the applicant shall substantiate the request for a derogation
and specifying the identification activities) the time and place of the meeting, specifying the
the organiser, an indication of the type of music production and its operator,
(b) the estimated number of people) that take part in the action,
c) identification of the person responsible for ensuring our services.
(4) the City Council may grant exceptions and determining its effectiveness
subject to certain additional conditions aimed at
to ensure public order.
(5) the City Council may grant an exception during its term
withdraw, undermines the activity at the time of night public policy.
(6) the obligation to apply for an exception does not apply to events organized by the city of
or organizations authorized to holding these actions established. ".
The appellant stated that on "the basis of the" violation of the obligations laid down
the decree in question was by the City Council in the sand on 21 February 2006. 2. the 1999
fine is imposed pursuant to section 50 of the Act No. 367/1990 Coll., on municipalities (municipal
the establishment). District Office, this decision on appeal confirmed
However, a regional court in České Budějovice, judgment of 27 November. 10.
1999 No. 10 Ca 213/99-28 decision to award the penalty. In
grounds of the judgment the Court stated that approving the decrees in question, in which
limited opening hours of pubs owned by
It is not the city of Písek, the Town Council has exceeded his authority.
According to the article. 2 (2). 3 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and by
article. 4 (4). 1 of the Charter of fundamental rights and freedoms ("the Charter")
can said to be the obligations imposed only on the basis of the law and in its
limits, and because there is no law to restrict opening hours
catering equipment authorized to engage in dance, cannot
the municipality of this operating time limit.
On 1 May 2004. 12.1999 invited the head of the District Office, the Mayor of the city in the sand
Sand to the validity of the contested Decree discussed in the municipal
a corporation. Town Council in the sand on 16. 12.1999
the Ordinance in question discussed, but it was decided not to cancel. Therefore,
Head of the district authority in the sand the day 4. 1. suspend performance 2000
the contested provisions of the decrees in question and established a lack of term
axle up to 20. 1.2000. However, because the Town Council in the sand
resolution No. 43/00 of 20 May. 1.2000 decided so that the cited
the provisions of the decrees in question did not abolish, the head of the proposed District
authority to the above reasons, the contested provisions set aside by the constitutional
the Court.
II.
In its observations on the draft city (Mayor JUDr. Luboš Prusa)
stated that the Decree was approved at a meeting of the City
the Municipal Council in the sand the day 10. 11.1998, when for its adoption
voted 20 from a total of 27 representatives. After the Decree was
signed by the Mayor and his Deputy and 11 November. 11.1998 was posted up
on the official Board of the municipal office under number 502 and slipped out of her
was on 26. 11.1998. It said to have been fulfilled all formal
the formalities necessary for the effectiveness of the decrees in question.
The content of the Decree stated that the appellant was released in accordance with the
the mandate contained in section 17 of the Act on municipalities, as amended
regulations. The opinion of the applicant, allegedly based on the wrong
the interpretation of the decree referred to the judgment of the regional court in České
Budějovice, because the Decree does not restrict the operating time catering
facilities in the city, but only sets the time range for the organisation of
public musical productions such as activities that may disturb the
public order. Such an approach is, in the opinion of the city in accordance with the
the intention of the legislature. In addition, the city points to the new law on
the municipalities, which in section 10 establishes the right of the municipality to issue a decree to ensure the
public policy, which specifies the conditions for organizing publicly accessible
musical productions.
The contested Decree was not taken arbitrarily to restrict the freedom
business, but as a response to the specific behaviors that interfere with public
policy, and in practice he showed against these negative cases
behavior as effective. The city of Písek finally States that in the present case, the
the right of the municipality to issue decrees in order to ensure public order
fully corresponds to its responsibility for things in a separate scope
municipalities, in particular pursuant to § 14 para. 1 (b). the law on municipalities). View
The Constitutional Court, which in some cases has expressed that the municipality has
the obligation to ensure local public order, however, does not have to this end
be fitted with appropriate means, is said to be unsustainable.
Of all of the above reasons, the city of Písek has proposed that the draft was the head of the
District Office rejected.
III.
Pursuant to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, the constitutional
the court first of all finds that the competent (infected) legislation
adopted and published within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
From the minutes of the resumption of the session of the City Council in the sand of the
day 10. 11. in 1998, the Constitutional Court found that at this meeting it was from
a total of 27 Councillors present 26. Decree No. 8/1998
It was at this meeting approved 20 votes from a total of just
the representatives present. Against the Councilor and was no 1 vote
delayed.
From the minutes of the meeting of the City Council of 16 March 2005 in the sand. 12.
1999 shows that the Town Council, whose meetings participated in 26
representatives, 20 votes for, 2 against and 2 abstentions (vote)
expressed its disagreement with the cancellation of the Decree No. 8/1998 and has agreed with the
by filing a constitutional complaint [Note: this was a constitutional complaint
against the abovementioned judgment of the regional court in České Budějovice. This
a constitutional complaint with the Constitutional Court by a resolution of 8 September 2005. 2.2000, SP. zn. II.
TC 16/2000 rejected as manifestly unfounded suggestion, primarily
the reason that the regional court considered the case, generally binding Decree
City of sand like rozpornou with the law, continue to be followed "as though this
Another provision existed "and of its cancellation did not so
He proceeded in accordance with art. 95 para. 1 of the Constitution and article. 87 para. 1 (b).
(b)) of the Constitution.].
The decision of the head of the district authority in the sand of 4 February. 1.2000 CP No.
j. 4/00 indicates that the District Office suspended performance of the contested provisions
Decree No. 8/1998. With this decision, according to the minutes of the meeting
The City Council in the sand of 20 December. 1.2000, participants volunteered
25 members of the Town Council, Town Council, however, saw the
18 votes for, none against and 6 abstentions (vote), published by
resolution No. 43/00, by which it was decided not to annul the decree in question and
wait for the decision of the Constitutional Court on this matter.
From the observations of the town and from the "copy implementation generally binding decrees
No. 8/1998 ", which the Constitutional Court has sent to the municipal office in the sand-the Department
Internal Affairs of non-28. 8. in 2000, the Constitutional Court found that the
the decree in question was in accordance with § 16 para. 3 and 4 of the law on municipalities
on 11 July. 11.1998 posted up on an official notice board of the municipal office in order
number 502 and removed from her was on 26. 11.1998. The decree came as
is determined from its article. 6 (1). 4, from 1 January 2000. on 1 January 1999.
In these circumstances, the Constitutional Court concluded that the contested in General
binding Decree was accepted and published in a way that is constitutionally
prescribed.
IV.
The Constitutional Court also dealt with the question of whether the contested Decree was released
in a separate or by the municipality. In this respect, the constitutional
the Court found that the generally binding Decree was approved by the
Yet for the effectiveness of the now repealed Act No. 367/1990 Coll., on municipalities
(municipal establishment). According to the provisions of § 21 para. 1 "a municipality carries out
the State administration to the extent provided by special laws ". According to § 14 para.
1 (b). about) of the municipalities, as amended, to the area of
individual municipalities expressly included the "local affairs
public policy and the establishment of municipal (municipal) police, with the exception of
decisions about violations ". This provision was also instantiated
the provisions of section 17 of the same Act, according to which a municipality may to secure
local affairs public policy generally binding Decree
determine which activities that could disrupt public order in the village,
can be exercised only in places and at a time designated by Decree, or
provide that on some publicly accessible areas in the municipality are
such activities are prohibited. It is therefore clear that, under the legislation in force
at the time of the approval of generally binding Decree was a decree in
individual municipalities.
This fact has not changed nor anything new (current) legislation,
Since, according to § 35 para. 1 of law no, on municipalities (municipal establishment),
individual municipalities include the management of matters that are in the
the interests of the municipality and its citizens, if they are not assigned by law to the regions or
If it's not about performance by, and further issues which the
separate the scope of the municipality entrusts the special law. In the course of their separate
the scope of the municipalities shall be entitled to issue generally binding decrees of the village [§
paragraph 84. 2 (a). (I) Act No. 128/2000 Coll.]
The Constitutional Court concluded that the contested Decree was general binding
released in individual municipalities and that therefore nothing to prevent its
discussion and decision about her (article 64, paragraph 3, of Act No. 182/1993 Coll.).
In the.
Constitutional limits to issue generally binding decrees of municipalities in their
a separate scope Specifies the particular article. paragraph 104. 3 of the Constitution, according to the
the Municipal Council may, in which "the limits of its competence to issue generally
binding decrees ". The scope of the municipalities in this direction resulted in particular from section
in article 13(3). 2 former Act No. 367/1990 Coll., on municipalities (municipal
establishment), according to which the municipality in the performance of individual controls only
laws and generally binding legal regulations issued by the central authorities
for their implementation. I generally binding decrees therefore had to be in
accordance with the laws and generally binding legal regulations issued by the
Central Government authorities for their implementation (article 16, paragraph 2,
the former law on municipalities).
The Constitutional Court in some of its earlier findings, held that
the enumeration contained in § 14 para. 1 (previously in force) of the Act on municipalities no.
367/1990 Coll., in terms of its interpretation within the meaning of the statutory
authorisation to issue generally binding decrees of municipalities considered enumeration
exhaustive. His demonstrative diction, as well as the definition of universality
the autonomous scope of the village contained in § 14 para. 2 of the Act on municipalities
related only to the scope of an autonomous community, "in which
the municipality is not acting as an entity, specifying the responsibilities for the citizen
unilateral orders and bans "(find pl. ÚS 5/93, the Constitutional Court of the Czech
States: a collection of findings and resolutions-sv. 1., c. h. Beck, Prague, 1994,
page 35). The Constitutional Court has already ruled several times that, according to article. 4
paragraph. 1 of the Charter can be stored only on the basis of the obligations Act
and within the limits, and that according to the article. 2 (2). 4 of the Constitution and according to the article. 2 (2). 3
Charter shall be no one forced to do what the law does not oblige. According to the existing
the case-law of the provisions of the scope of the municipality shows that in
cases where the municipality acts as a body for the citizen
obligations by unilateral bans and commands, IE. If, in particular, issues
generally binding decrees, whose contents are the legal obligations may
to do so only in the case of explicit legal authorization (cf. for example.
referred to find pl. ÚS 5/93 or find Pl CS 26/93, ibid., p. 35 and
87).
In the present case, however, the Constitutional Court forced to reflect legislative
the development, which came effective law no, even with the knowledge that
the contested Decree was approved yet for the effectiveness of Act No. 367/1990
Coll. pursuant to section 10 (b). c) Act No. 128/2000 Coll. is a municipality should be instructed to
separate the scope of a binding Decree generally impose obligations "for
the organisation, progress, and termination of public accessible sports and
of cultural events, including dances and discos, by determining
binding conditions to the extent necessary to ensure the public order ".
In addition, Act No. 258/2000 Coll., on the protection of public health and amending
certain related laws, which will take effect on 1 May 2004. 1.2001,
section 96 provides that "a village can generally binding decree to order for
the territory of the municipality or its part to protect health from the emergence of, and disseminating
infectious diseases the implementation of special protective disinsection and
rodent control and to protect against noise and vibration from the end of the public production
the music, the operating hours of public establishments, rooms and similar
services if their production or operation experience
disproportionate harassment of citizens. ".
It is clear that according to said laws already cause for cancellation of the contested
the decree is not given. The decree in question is Conformal with a valid
and an effective law on municipalities, which no municipalities to issue such General
binding decrees in a separate scope expressly empowers and is therefore not
in conflict with the cited articles of the Constitution and the Charter.
Therefore, the Constitutional Court, the head of the district authority in the sand on the abolition
article. 2 (2). 2 (a). and), art. 3 (2). 1 (b). (a)) 2 and article. 4 in General,
binding decrees of the town of 10 June 1999. 11.1998 No. 8/1998 concerning certain
restrictive measures to ensure the security of local public affairs
OK completely rejected.
The President of the Constitutional Court:
JUDr. Kessler v. r.