123/1996 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided on 17. April 1996 the plenary about
the proposal of the Group of members of Parliament of the United Kingdom
generally binding decrees on the abolition of the Borough of Brno-Centre No. 1/93 of the
a special mode of use of public ground freedom square
as follows:
Generally binding Decree of the city of Brno-Centre No. 1/93 of the Special
mode of use of public ground freedom square, taken by
The Municipal Board of the borough on 20 April. 10.1993, shall be repealed on the date of
the publication of this finding in the statute book.
Justification
1. On 15 December. 12.1995 received TC CR proposal, which has signed a total of 32
members of the Chamber of deputies of the Czech Parliament, and in which it is required
abolition of Decree No. 1/93, adopted by the Municipal Council of the Borough of
Brno-Centre on 20 April. October 1993, with reference to the ust. § 36 odst. 1 (b).
f) of Act No. 367/1990 Coll., on municipalities. The decree reads as follows:
Article 1
General provisions
1. This decree modifies the mode of use of public spaces
Freedom Square, the inhabitants of the city and its visitors as a resting zone and
their protection against undesired activities.
2. Public area freedom square means the custom area
the square, including the entrance to the adjacent objects (passages, entrances) and
adjacent streets to a depth of 10 meters.
3. Unwanted activity in this area means a noisy public
Assembly, advertising and commercial actions except in the events organised by the
for humanitarian purposes, accompanied by musical productions, or other action
breaking normal operation in this area.
4. In this area may exceptionally be held cultural and political
actions approved authorities of the city or city of Brno-Center.
Article 2
Obligations of legal entities and natural persons
1. Legal and natural persons wishing to organize a public Assembly in the
the area covered by this Decree, are required to this fact
report on time according to the relevant regulations.
2. in the event that their intention is contrary to this Decree, the AUTHORITY of the Brno-střed
determine a suitable replacement for his site.
3. the replacement of the site are determined by the annex to this Decree.
Article 3 of the
Control activities
Control over observance of this Ordinance is performed by authorities the AUTHORITY of Brno-Centre,
The Czech police and the municipal police.
Article 4 of the
Penalties
Offences against this Ordinance will be penalized according to the applicable laws and
regulations.
2. The appellants complain that the contested Decree, first of all, that, contrary to
article. 19 of the Charter of fundamental rights and freedoms ("the Charter"), as well as in
contrary to the provisions of applicable provisions of the Act No. 84/1990 Coll. on the right to
the Assembly, precludes the holding of meetings on a specific public
open space. Still, they are trying to give the impression that applies, in particular,
on the "noisy public Assembly" and other similar events, are regarded as
the appellants for the common ground that Decree implicitly includes all
Assembly admissible according to the law on the right of Assembly, thus also
street parades and rallies called to use freedom, expression and
other constitutional rights and freedoms. The right of Assembly is guaranteed
each and may be restricted only by law. The Assembly must not be conditional on the
the authorization of the public authority (article 19, paragraph 2, the last sentence of the Charter)
or a public authority (section 1, paragraph 4, of the Act on the right of Assembly). By
rather then it is, in the opinion of the appellants, impossible to svolavateli
has been previously designed a different site if its "intention is contrary to
the Decree ". The law on the right of Assembly requires only the "purpose
the Assembly ". The appellants further argue that under the law can be
the Assembly held in all public places, with the exception of
stometrového circuit from the houses of the legislature and of the Constitutional Court
or from places where these bodies act, and with the exception of places
restrictions on freedom of movement under article. 14. 3 of the Charter
(military újezdy, nature protection etc.). Marginally more
Note that the Decree, in violation of the law, of the entities
authorized to convene the Assembly, a group of people.
In the opinion of the appellants, therefore the Municipal Council of Brno-City Center
the decree establishes a "special regime" the use of public spaces-
freedom square-for public assembly. This, however, cannot be based on article. 19
Of the Charter made by the law, not on the basis of the law. Nothing
do not change or Act No. 283/1995 Coll., which the law on municipalities the ust. §
17, according to which a municipality may generally binding decree issued in
a separate scope to determine which activities that may disturb the
public order in the village, can be exercised only in places and in time
the Decree specified, where appropriate, provide that in certain publicly
accessible places in the village are such activities are prohibited. Regardless of the
the explanatory memorandum to this amendment, in which he argues the prostitution,
You cannot exercise the right to associate peacefully can be considered as an activity which would
It was possible to regulate sometimes by law.
With reference to the above arguments, as well as with regard to the legal
the opinions, which the Constitutional Court of the CZECH REPUBLIC expressed its support in their findings, pl. ÚS 26/93,
PL. ÚS 5/93 and PL. ÚS 17/94, the appellants are of the opinion that the objection
It is necessary to cancel the Decree since its release has been infringed the constitutional
competence, or has not been issued within the limits of the Constitution laid down the competence.
3. In its observations on the proposal for a group of MPs that it was the Constitutional Court
delivered on 5 July 2004. 2.1996, mainly notes that the decree in question
the Government of the borough received the necessary majority of members
which is documented by a certified registration of the meeting of 20 December 2002. 10.1993. In
the meaning of the provisions. article. 72/1, of the Statute of the city of Brno, this Decree was discussed in
The Council of the city of Brno and the effectiveness has taken on 15. 11.1993. Furthermore, in the
observations on 18 November 1997. 5. the 1994 Urban Council discussed the
part of the suspension of this order and to assess the correspondence between
The Ministry of the Interior, the city of Brno and the old city district
Brno-Centre. The resolution is that the City Council of the Borough of supports
the continued existence of this order. From the minutes of the meeting of the
The Municipal Council of the city of Brno in the days of W1. 5.-1. 6. the 1994 then follows that
application for annulment of the Decree of Brno-Centre No. 1/1993, which submitted the
the former Mayor, was unable to get the required number of votes.
To own the content and meaning of the contested Decree is in the comments, in particular,
States that it was issued on the basis of numerous complaints and petitions of citizens, in
order to protect the peace, public safety and order. When issuing this
the decree is legal authority rested on the view that, if the provisions. § 8
Act No. 84/1990 Coll. gives the National Committee the right to with regard to the
local conditions or to public policy suggested the svolavateli another place
or other times of the Assembly, then the subject decree that only
negatively defined unwanted activity, in any case, does not interfere with
the rights of citizens to gather, and it is therefore not in breach of article. 19
Of the Charter. The City Government made the issue the decree that
Public Assembly is the municipal matters of public policy, as has
referring to the provisions. § 14 para. 1 (b). the law on municipalities). This interpretation then
It also supports the last amendment to this Act, in particular section 17 of Act No.
279/1995 Sb.
From the supplementary communication from the City of Brno-Center shows that Decree No.
1/1993 of a special mode of use of public ground square
Freedom was hoisted by the Act in the prescribed manner. The Statute of the city
Brno then follows (article 72), that the city can issue generally binding
the decree with the local scope in a separate and by but
Board of the city of Brno, it is for the permission notice is dated
separate the scope of cancel, is contrary to the Ordinance of the city of Brno.
Contrary to the generally binding regulations, then the city shall proceed in accordance with § 62
paragraph. 4 and 5 of the Act on municipalities.
Copy of the letter from the Deputy Minister of Interior of the CZECH REPUBLIC-ing. Vladimir Zeman, dated
30.6. 1994 no. I/s-MS-528/94 of the Constitutional Court found that the performance of
the decrees in question No 1/93 of the Ministry of the Interior was based on the
the provisions of § 62 para. 4 of the law on municipalities is suspended.
4. Pursuant to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, is
the task of the Constitutional Court to assess the content of the legislation in terms of its
accordance with the constitutional acts, international treaties under article. 10 of the Constitution
and the laws, and to determine whether it was received and issued within the limits of the Constitution
set out competences and constitutionally prescribed way.
According to § 16 para. 2 Act No. 367/1990 Coll., on municipalities, as amended by
amended, must be generally binding decrees in accordance with the
laws and generally binding legal regulations issued by the central authorities
the State administration for their implementation. To these issues, as well as to the question of what
falls or does not fall within the scope of the separate municipalities, has delivered a Constitutional Court has already
a variety of opinions (e.g.. PL. ÚS 17/94, pl. ÚS 18/94, pl. ÚS 19/94, pl. ÚS
24/94).
Whereas, in the present case-law of the Constitutional Court still
the case has not been solved by the infestation of generally binding decrees issued by city
the parts he had to the Constitutional Court in particular deal with the fact that the municipal
parts of the cities, and their zastupitelstvům, the city may be
referred to the power to issue generally binding decrees for their
territory.
According to the provisions of § 3 para. 2 of the Act on municipalities are statutory cities
entitled to organize their internal affairs in matters of administration in General
a binding Decree. More detailed rules for the definition of the following ratios provides
25. law. The provisions of § 27 para. 2 (a). (c)) of this Act, then
It follows that in the statutory cities, broken down territorial fulfils
the function of the College authority, to the extent it
a given. This also corresponds to the provisions of paragraph 1. 1 (b). (c)) of the cited section
25, which allows you to define the competence of councils and other bodies
districts. Still, some of the other provisions of the Act on municipalities
[in particular, § 25 para. 1 (b) (i))] could lead to the conclusion that, to a large
extent also cited the decision of the Ministry of the Interior to suspend
the performance of the contested order, that is, that the city cannot power to
the issue generally binding decrees municipal parts or circuits
to advance, the Constitutional Court came to the conclusion that such a transfer of powers
is possible. In doing so, comes not only from the cited provisions of the law on municipalities,
but above all from the fact that article. paragraph 104. 3 of the Constitution confers the power to
the issue generally binding decrees zastupitelstvům in General, and in the
the limits of their competence. This constitutional definition correspond to the already
the said provisions of the Act on municipalities, as well as the provisions of § 62 para. 4
This Act, which is set out a mechanism for redress
the wrong measure (and therefore generally binding decrees) and that
apparently the normotvorbu districts.
Therefore, if the applicable legislation does not explicitly exclude the possibility of transfer
the power to issue generally binding decrees on the city district or
circuits, can be inferred that the legislature left in that direction
zastupitelstvům statutory cities space to consider the extent to which
admit or do not admit the issue generally binding decrees to parts of the city.
As is apparent from the provisions of article. 71 and 72 of the Statute of the city of Brno, which has been
issued as generally binding Decree No. 1/1993, the Government of the city of Brno
with effect from 1 January. 1, 1993, and which was supplemented by the regulations of the city of Brno No.
2 and no. 6/1994, the urban parts of the city of Brno was the power to issue
generally binding decrees, and the performance of their tasks in its
territorial jurisdiction, whether in a stand-alone or delegated competence. Although you can
have reservations about the precision and clarity of the Division of powers between the city and the
parts of it, and so you can say the doubt about whether the rules
the use of the square, which is the center of Brno and thus undoubtedly serves all
citizens and visitors of the city, it was appropriate to set different than
celoměstskou the Decree, however, the Constitutional Court is of the opinion that the
the contested Decree, if it was issued the appropriate parts of the city, was
authorities released the body authorized to do so.
As regards the formal requirements issued decrees, the Constitutional Court found,
that Decree was adopted by the necessary majority of the members of the Municipal Council and
for the prescribed time was posted up on an official notice board, as provided for in §
Article 16(1). 3 of the Act on municipalities, contrary to the provisions of § 52 para. 3 of this
However, the Act was signed by the Mayor of the Borough (the only missing then
signature of the representative of the mayor or another councilor).
In the case under consideration was the answer to the question whether the contested
the decree is actually not only legislation, but also its name
the contents of the. The concept of law is constitutional, and therefore it is the task of the
The Constitutional Court, which in a given case shall decide on cancellation of another "
the legislation "to be first dealt with the question of whether actually goes about
legal normative act, which contains the abstract standards of conduct, generally
binding and enforceable. This issue is the Constitutional Court dealt with the
in particular, in its finding of Pl. TC 17/94 (Ordinance of the municipality regarding Jivka
funding for primary schools) and noted that it must be a legal
prescription not only by name, but such an act of Government or State
the Administration, in which are contained the binding rules of conduct. Cannot here
only go on some sort of notification, as it will in certain cases the municipality to proceed in
the future.
As regards the contested Decree, you can mark it for ACP governments in General
urban district, which for the most part only informs about the activities
at a designated public area the individual authorized by the rule
they will not (in respect of such activities, which undoubtedly permit
they are subject, such as business and cultural events, etc.), or, if
as to the exercise of the right of Assembly, is given the potential
svolavatelům note that the Assembly can count on with the procedure laid down in
the law on the right of Assembly, i.e. by offering another site to
the organisation of the Assembly (apparently within the meaning of section 8 of Act No. 84/1990 Coll.) and
apparently even with the prohibition of the Assembly, for reasons of protection of the interests of the population (section
10, paragraph 1. 3. Act). Despite these reservations, however, the Constitutional Court
in the end, considers that the contested decree a certain normative content is,
especially the part where the notion of public space is defined by the square
Freedom, this space will be the relaxation zone and delineate the
unwanted activity in this area (article 1 (1) 1 to 3 of the
the Decree). The Constitutional Court therefore considers that the contested Decree under the Act by the
The top-center of the city of Brno-in order to establish generally
binding rules for the use of specifically designated public spaces
in the belief that the City Government is acting within the limits of their autonomous community
the scope of the.
In the examination of the constitutionality and legality of podzákonného law
You cannot depart from it, whether this regulation complies with the essential requirements
the display, which undoubtedly belongs to the consistency of the content of used terms or
institutes with legal provisions, and in the case of new legal concepts, then it must
be sufficiently and clearly expressed in their content. The requirement is also
terminological accuracy, readability and clarity. These requirements
the contested Decree is not responding. While in article 1 sets out the specific
the General rules for the intended calming the city centre, in the paragraph. 4 of the same
Article practically operative provisions repeals the previous value when the
provides that the authorities of the town or city district can individual administrative
the decision also specify otherwise. Likewise, article. 2 entitled ' Obligations
legal entities and natural persons "actually just unnecessarily and, moreover, do not accurately
overrides or rather paraphrasing the provisions of law No. 84/1990 Coll. on
the right of Assembly (in particular, its paragraph 4, § 5, section 8, section 10, paragraph 3, and article 11),
and gives the kind of note in advance, what spare space may be
individual decision making will be offered. Articles 3 and 4, then any normative
they do not have value only when they state generally known fact.
After the analysis of the content of the contested Decree, however, the Constitutional Court does not share
the appellants, that the decree in question in breach of article 19 of the Charter,
as well as inconsistent with the provisions of applicable provisions of the Act No. 84/1990 Coll. on
the right of Assembly, precludes the holding of meetings on a particular
public area, or that the Assembly is actually svolavatelům
proposed another site in advance. In the opinion of the Constitutional Court challenged
Decree in particular does not meet the demands, which is necessary in a legal State
put on the quality of generally binding decrees of municipalities, whether in the area of
separate or delegated competence. The contested Decree,
Indeed, it is clear from the submission of the appellants, it can invoke the content
the doubts and the legal uncertainty of natural and legal persons, as if
as to the performance of the constitutionally guaranteed rights of the Assembly, as well as other rights
and freedoms. In this context, the Constitutional Court considers necessary to emphasize
that the performance of the Assembly Law Act No. 84/1990 Coll. on the right of
the Assembly, which clearly lays down the principle of notification and
rather than authorisation, clearly defines the permission and obligation of the convener,
obligations of the participants of the Assembly and the tasks of public administration. As well as
are adequately defined the powers of the State Government towards
to a specific assembly from disturbing public order, not to disturb the
night peace etc.
Is adjusted and the Government deny permission Assembly in the law
precisely defined cases, as well as the right to judicial protection
convener against such a decision. Therefore, does not fall into a separate
the scope of the municipality or its part in any arbitrary exercise of this right
edited, but is a thing by the municipalities when
the needs of the individual administrative act. The contested Decree is therefore in contradiction with the
article. 1 and article. 104 of the Constitution, as well as with the provisions of § 14 para. 1 of the law on
the municipalities.
Although some of the provisions of the contested Decree would be possible
admit application policy "superfluum non nocet", the Constitutional Court found
After considering all the arguments more good reasons for the annulment of the contested
Act of the Municipal Council of the city of Brno-Center.
The President of the Constitutional Court of the Czech Republic:
in the z.. Haboob in r.
Vice Chairman
