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In The Matter Of An Application For Annulment Of Article 2 And 3 Generally Fair Reflection. Duplicate Search. City Of Sand

Original Language Title: ve věci návrhu na zrušení čl.2 a 3 obecně závaz. vyhl. města Písku

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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.