In The Matter Of An Application For Annulment Of The Decree Of Ústí Nad Labem No 40/1995

Original Language Title: ve věci návrhu na zrušení vyhlášky města Ústí nad Labem č. 40/1995

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14/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 19 December. December 1995 in plenary on

the proposal of the Group of members of Parliament of the United Kingdom

the annulment of the Decree of Ústí nad Labem No 40/1995 on the prohibition of the promotion of

Parties and movements spreading national, racial, religious and class

hatred on the territory of the city of Ústí nad Labem



as follows:



The city of Ústí nad Labem, Decree No. 40/1995 on the prohibition of the promotion parties, and

the movement spreading national, racial, religious and class hatred on

the territory of the city of Ústí nad Labem is repealed on the date of publication of this finding in the

The collection of laws.



II. Justification



1. On 2 February 2005. October 1995, the Constitutional Court of the Czech Republic received a proposal from the Group

29 members of Parliament of the United Kingdom for annulment of

the Decree of Ústí nad Labem No 40/1995, on the prohibition of the promotion parties, and

the movement spreading national, racial, religious, political, and class

hatred on the territory of the city of Ústí nad Labem.



The text of the contested Decree is as follows:



Generally binding Decree



No. 40/1995



on the prohibition of the promotion parties and movements spreading national, racial,

religious, political, and class hatred on the territory of the town Ústí nad

Labem.



The Municipal Council of Ústí nad Labem, at its meeting on 15 December. 6.

in 1995, on the basis of § 14 para. 1 (b). I) and § 36 odst. 1 (b). (f)) of the Act

No. 367/1990 Coll., on municipalities, in full, have decided on this in General

binding Decree (Decree):



Article 1



Promotion parties and movements spreading national, racial, religious,

political and class hatred are prohibited on the territory of the city.



Article 2



The promotion parties and movements spreading national, racial, religious,

political hatred means:



and change requests) of the constitutional order,



(b) the use of the symbols of these criminal) movement,



c) questioning the crime schemes which this movement represented,



(d)) of any public talking of totalitarian regimes that suppress

the basic human rights.



Article 3 of the



Violation of this Ordinance shall be subject to prosecution under the criminal code, section 260 and section

261.



Article 4 of the



The Decree shall enter into force on the fifteenth day following the date of its

publication.



In Ústí nad Labem, 15 December 2004. 6. the 1995



In its proposal, filed pursuant to § 64 para. 2 (a). b) Act No. 182/1993

Coll., a group of Deputies argues with the provisions of the said Decree conflict article.

2 (2). 4, art. 5 and article. 104 of the Constitution of the United States, art. 2 (2). 2 and 3,

article. 4 (4). 1 and 2, article. Article 17(1). 4 and article. 38 Charter of fundamental rights and

freedoms and § 13 para. 2 and § 16 para. the Czech National Council Act No.

367/1990 Coll., on municipalities (municipal establishment), as amended.



The contradiction of the contested Decree, with art. 2 (2). 4 of the Constitution of the Czech Republic and with the article.

2 (2). 3, art. 4 (4). 1 and article. Article 17(1). 4 of the Charter of fundamental rights and

freedoms of the appellants, in fact, find that in the present case are

the obligations imposed by law, but not to other legislation.



Infringement of article 81(1). 39 of the Charter of fundamental rights and freedoms see then in the

inadmissibility of generally binding Decree the village of newly or differently

formulated offences whose defining

It is the responsibility exclusively of the criminal law. In its proposal to support claims

the said violation of § 260 diction and compare 261 of the Penal Code with the

the contested Decree. State that pursuant to section 260 of the Criminal Code punishes

support and promotion of "movement, which aims to suppress the rights and freedoms

citizens "or proclaiming" the national, racial, class or religious

malice ", while according to a decree to be criminal promotion parties and movements

spreading one of the listed types of hatred, including "political",

that is not contained in section 260. In reference to section 261 of the criminal code

proponents point to his diction, containing a prohibition of "public

showing sympathy to fascism and other similar movements referred to in §

tr. 260. ", which in their view, the Decree. The third

the appellants ' claim in this context refers to the interpretation of the concept of

"promotion". In their opinion, this interpretation for the purposes of the contested

Decree (contained in its article 2) does not match the valid criminal law:

"the violent change of the constitutional order," according to the plaintiffs, recalls

Subversion, "talking of totalitarian regimes" approval

the offence, and the "use of symbols of criminal movement" in General

the wording of the Decree also applies to their holdings in private.



The contradiction of the contested decrees with article 104 of the Constitution of the United States and with the

the provisions of section 13 and section 16 of Act No. 367/1990 Coll., as amended

regulations, the appellants justify referring to the issue of legal framework

generally binding decrees of municipalities in the area of their separate scope.



In their written observations of 23 June. October 1995 and from 9 June. November

1995, submitted pursuant to section 69 of Act No. 182/1993 Coll., Office Manager

the Mayor of Ústí nad Labem to the application for annulment of generally binding

Decree No. 40/1995 on the prohibition of the promotion parties and movements spreading

ethnic, racial, religious, political, and class hatred on

the territory of the city of Ústí nad Labem confirmed the opinion of the Municipal Council of the city of

Ústí nad Labem, expressed by the adoption of the said Decree.



In proceedings for annulment of the legislation is the Constitutional Court of the Czech Republic

pursuant to § 68 para. 2 of the Act on the Constitutional Court must also examine whether

legislation was issued to the constitutionally prescribed way. From

for this reason the Constitutional Court of the Czech Republic has requested from the Council

the city of Ústí nad Labem documents, certifying the proper adoption of the contested

decrees (i.e. minutes of College, confirming the

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

pursuant to Act No. 367/1990 Coll., on municipalities, as amended.

Those facts were confirmed by the full-time Charter and registration of

the meetings of the Municipal Council of the city of Ústí nad Labem, held on 15 December. June

1995-certified law required a quorum and a majority (of 37 members

the Municipal Council of his meeting took part in all 37, while for

the Ordinance in question voted 25 members), as well as a certificate of posting

the decrees in question.



2. the Constitutional Court of the Czech Republic in the proceedings on the revocation of laws and other

legislation (therefore also in proceedings for cancellation of legal regulation of the municipality)

It assesses the contents of the Act or other legislation according to the aspects

contained in the provisions of § 68 para. 2 Act No. 182/1993 Coll., which in

generally binding decrees of the village include the competency (statutory authorization),

compliance with the laws of a higher level of legal force and to comply with legal

Edit the regulatory process.



The validity of the contested Decree, the Constitutional Court of the Czech Republic has made already

the above findings.



According to the article. paragraph 79. 3 of the Constitution of the United States authorities of the territorial

Government to legislate on the basis and within the limits of the law,

If they are empowered by law to do so. According to the article. paragraph 104. 3 of the Constitution of the United

the Assembly of the Republic may, within the limits of its competence to issue generally

binding decrees. The different zmocňovacích of the provisions listed diction

necessary to interpret the systematic inclusion of standards cited in the Constitution

Of the Czech Republic. If the article. paragraph 79. 3 of the Constitution of the Czech Republic included in the

Title: the Executive power, then article. paragraph 104. 3 of the Constitution of the Czech Republic

the head of the seventh: the territorial Government. From this it can be inferred that the authorizing

the provisions contained in the article. paragraph 79. 3 of the Constitution of the Czech Republic

refers to the power to issue generally binding decrees delegated

scope (that is, if the Government carries out a village in a range

provided for by special laws), and enabling provisions contained in the article.

paragraph 104. 3 of the Constitution of the United States, the power to issue generally binding

in a separate Decree, the scope of the municipality.



When assessing the compliance of the Decree of Ústí nad Labem No 40/1995 with the

The Constitution, constitutional acts, international treaties under article. 10 of the Constitution

and with the laws in the first place, it is necessary to answer the question of whether they can be in it

Edit podzákonným item included legislation to regulate.



From the provisions of article. 3 the contested decree shows that the infringement of the provisions,

contained in the preceding articles, shall be punishable with penalties, contained

in section 260 and 261 of the criminal code. This means that the subject of the article edits. 1

up to 3 of the Decree of Ústí nad Labem No 40/1995 is the embedding of characters

the constituent elements of criminal offences for which the penalties are contained in the

the cited provisions of the criminal code.



According to the article. 39 of the Charter of fundamental rights and freedoms, the law stipulates that only

conduct is a criminal offence and punishment, as well as what other personal injury

rights or property may be for his committing a save. Since the Decree

the city of Ústí nad Labem No 40/1995 provides that the offence is a criminal

offence and punishment is to be prosecuted under section 260 and 261 of the criminal code,

and because of the generally binding Decree of the village is podzákonným by law

(which follows from article 15, paragraph 1, article 104 and article 79, paragraph 3, of the Constitution and

of § 16 para. 2 and § 24 para. 1 and 2 of the Act on municipalities), is given by


her conflict with the article. 39 of the Charter of fundamental rights and freedoms.



Assessed based on its normative decree the existence of two provisions of the

Act No. 367/1990 Coll., as amended. The first is the § 14

paragraph. 1 (b). I), according to which ' belong to a separate scope

the issue generally binding decrees in matters belonging to a separate

the scope of ". The second is to then section 36 para. 1 (b). f) of the Act,

which is a standard defining the jurisdiction of the Municipal Council in the system

the authorities of the municipality and conferring him the approval of generally binding decrees in

separate the scope of matters. Any of the above provisions of the law on

the municipalities is not the provisions of zmocňujícím. The first of them, IE. § 14 para. 1

(a). I) of Act No. 367/1990 Coll., as amended,

establishes the competence of municipalities to issue in the area of individual legal

regulations, the other, IE. § 36 odst. 1 (b). f) of the Act, then

Specifies the authority of the municipality, the executing of this power. In the legal order of the Czech

There is no statutory provision enabling the Republic to issue generally

binding decrees, the provision permitting conduct that is a criminal offence, and

regard to the article. 39 of the Charter of fundamental rights and freedoms by such legal

the mandate was to be regarded as unconstitutional.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.

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