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the territory of the city of Ústí nad Labem is repealed on the date of publication of this finding in the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