203/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided to day 3. July 1996 plenary in

draft groups 31 members of Parliament of the United

States generally binding decrees on the abolition of the city of Chennai

of 25 June 2002. October 1994, No 7/94 of the prohibition of fascist, Communist,

Nazi and racist propaganda on the territory of the town of Hořice



as follows:



Ordinance of the city of Chennai from December 25. October 1994, No 7/94 of the

the prohibition of fascist, Communist, Nazi and racist propaganda on the

the territory of the town of Hořice is repealed on the date of publication of this finding in the collection

laws.



Justification



1. A group of 31 members of the Chamber of deputies of the Czech Parliament in its submission

of 6 May 1999. December 1995 proposed that the Constitutional Court annul the General

a binding Ordinance of the city of Chennai No 7/94 of 25. October 1994.



The text of this generally binding decrees the following:



Town Council in hořice v Podkrkonoší has resolved on 25 April.

October 1994 pursuant to § 16 and § 36 odst. 1 (b). f) of Act No. 367/1990

Coll., on municipalities, and the full text of the number 410/1992 Coll., and published by the General

binding



Decree No. 7/94



on the prohibition of the fascist, Communist, Nazi and racist propaganda

on the territory of our city.



§ 1



Fascist, Communist, Nazi and racist propaganda on the

the territory of our city.



§ 2



The fascist, Communist, Nazi and racist propaganda is

means:



and change requests) of the constitutional order.



(b) the use of the symbols of these criminal) movement in their promotion.



c) questioning the crime schemes which this movement could have imagined.



§ 3



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

publication.



25 June in hořice. 10.1994



Posted on: 27. 10.1994



In its proposal, filed pursuant to the provisions of § 64 para. 2 (a). (b)) of the Act

No. 182/1993 Coll., on the Constitutional Court, a group of 31 members of the

the Chamber of Deputies stated that the provisions of § 16 and § 36 odst. 1 (b). (f)) of the

communities allow you to approve and issue the Board to carry out its

tasks generally binding decrees in individual municipalities. According to the article.

paragraph 104. 3 of the Constitution of the CZECH REPUBLIC, the municipality can issue generally binding decrees, however,

only within the limits of their competence, which may be referred to in article. paragraph 104. 1

The Constitution of the CZECH REPUBLIC established only by law. Such a law is a law in the first place

the municipalities in which the provisions of § 13 para. 2 States that in the exercise of

the village is governed by individual laws and generally binding only

laws and regulations issued by the central authorities to implement them. Circuit

things in a separate scope of příkladmo is given in section 14 and, in General, § 15

the law on municipalities. According to § 16 para. 2 of the same Act shall be such

Decree in accordance with the laws and generally binding legal regulations

issued by the Central Government to implement them.



The new provisions of section 17 of the Act on municipalities according to the plaintiffs, spread

the power of municipalities to restrict or prohibit the decrees of the activities that would

may disturb the public order in some publicly accessible areas,

but it's just a local matter of public order under § 14 paragraph 2. 1

(a). about) of the Act on municipalities, among which activities as defined in the contested

the Decree does not belong. "Activities" within the meaning of the provisions of section 17 is not the exercise of rights

referred to in article 14(2). Article 17(1). 1 and 2 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter"). These fundamental rights can be limited only when the

the conditions of article. Article 17(1). 4 of the Charter. Furthermore, the appellants have pointed out

the provisions of article. 19 of the International Covenant on Civil and political

rights (No. 120/1976 Coll.) and article. 10 of the Convention for the protection of human rights and

fundamental freedoms (No. 209/1992 Coll.), which in a similar way to protect

the freedom of expression.



In this connection, the appellants argue that the permissible restrictions and

protection of freedom of expression was made, in particular, the provisions of § 198, §

198a, section 260 and section 261 of the criminal code, section 16 of Act No. 81/1966 Coll.

section 5 (b). a) of Act No. 468/1991 Coll. and section 2 (2). 1 and 2 of law No.

172/1990 Coll. because propaganda means according to a standard dictionary

Czech language public dissemination, investigation, recommending ideas

opinions, etc. in order to gain followers, is a flexible wording of the Decree also

encroachment on the right to the results of creative intellectual activity, according to the article. 34 para.

1 of the Charter.



Finally, in the opinion of the appellants, this Decree violates the provisions of article.

2 (2). 4 of the Constitution of the CZECH REPUBLIC and article. 2 (2). 3 of the Charter, article. 4 (4). 1

Of the Charter. They pointed out the many findings of the Constitutional Court, according to which

the municipality in the generally binding Decree lay down obligations only on the basis of

explicit legal authorization and in compliance with their competence, which in

the present case did not happen, because the municipality acted outside the separate

the scope of the.



For all the above reasons for violation of the provisions listed

article. 2 (2). 4 and article. 104 of the Constitution of the CZECH REPUBLIC, article. 2 (2). 2 and 3, article. 4 (4). 1 and

2, article. Article 17(1). 1, 2 and 4 and article. 34 para. 1 of the Charter, the provisions of section 13 of the

paragraph. 2 and § 16 para. 2 of the Act on municipalities and the provisions of article. 19

The International Covenant on Civil and political rights (No. 120/1976

SB.) and article. 10 of the Convention for the protection of human rights and fundamental freedoms (No.

209/1992 Sb.) a group of Deputies proposes that the decree in question

City Hořice canceled.



The proposal for comment in Moscow city participant submissions from day 1. and 19.

February 1996. Lists in them, that at the time of approval of the contested Decree should

Town Council of 20 members, of whom 17 were present at the voting

members and 14 members voted for the Decree. The Decree was posted up by 27.

10.1994 to 12. 11. in 1994 and has not yet been canceled. To your own content

the decree is party to the proceedings. Finally, on 6. 6.1996

Jos, a city of Chicago agreed to on the basis of the provisions of §

44 para. 2 of the Act on the Constitutional Court dropped from an oral hearing. Similarly,

consent with the abandonment of the oral proceedings, the representative of the Group

members of his letter of 27 November 2003. 6.1996.



2. On the basis of the facts considered by the Constitutional Court, the following

conclusions. The petition was filed by a group of 31 members of the Chamber of Deputies, i.e.

in accordance with the provisions of § 64 para. 2 of the Act on the Constitutional Court. During

Although the control as a result of the elections, which took place in 1998. 5.-1. 6.

in 1996, there has been a termination of the mandate of some of the members who signed the proposal,

This fact, however, not in the sense of the provisions of § 68 para. 1 of the same

the law on the examination of the application has no effect.



In accordance with the provisions of § 68 para. 2 of the Act on the Constitutional Court was

found that the generally binding Decree of Hořice No 7/94 was adopted

procedure laid down in § 38 paragraph 1(a). 5 of the Act on municipalities, i.e.. for

the presence of the absolute majority of the members of the Municipal Council and with the consent of

by an absolute majority of those present. As well as compliance with the conditions for

its publication and, therefore, becomes effective pursuant to § 16 para. 3 and 4 of the law

on municipalities.



Due to the fact that the contested Decree was adopted and issued a constitutionally

in the prescribed manner, could the Constitutional Court to proceed to the assessment of whether

Another condition was fulfilled and constitutionally drawn to the legal

Regulation, i.e. that was also adopted and published within the limits of the Constitution laid down

competency. The Constitution of the CZECH REPUBLIC in this direction lays down in article. paragraph 79. 3, the authorities of

local authorities may, on the basis and within the limits of the law to issue legal

regulations, if they are authorised to do so by law. This provision, however, turns out to

the area where the municipality by the State management in the

the scope of the specific laws and must be empowered to do so, which

However, in the present case was not. It is therefore necessary to consider whether the challenged

the Decree published in the limits of the competences set out in article. paragraph 104. 1 and 3,

concerning territorial self-government and individual municipalities.



The scope of the individual areas can be

established only by law. Such a law, in particular the CZECH NATIONAL COUNCIL Act No. 367/1990

Coll., on municipalities, as amended. According to the provisions of § 14 para. 1 (b). I)

This Act belong to separate the issue of the scope of the municipality in General

binding decrees in matters belonging to the individual. According to the

the provisions of § 13 para. 1 of the same law, the municipality may independently manage their

Affairs. For that matter, down closer to its section 14

paragraph. 1 příkladmým listing and section 17 and, more generally, it lays down its section 14

paragraph. 2, according to which a municipality in a separate scope also ensures the

your designated for economic, social and cultural development, the protection and

creating a healthy environment, with the exception of those activities which

are entrusted to other institutions of special laws such as the performance of State administration.



The Constitutional Court in its case-law is of the opinion that the determination of the

duties the way generally binding decrees are possible only on the basis of the

explicit legal authorization. With regard to the prohibition to do something within the meaning of

the provisions of article. 2 (2). 4 of the Constitution of the CZECH REPUBLIC and article. 2 (2). 3 of the Charter, it is possible to

only by law. In the case that the ban is to do something at the same time in the form of intervention

the fundamental rights and freedoms, it is possible to determine within the meaning of the provisions of the


article. 4 (4). 2 only by law and under the conditions provided for herein.



The content of the contested Decree is an interference with the freedom of expression pursuant to article. 17

paragraph. 1 and 2 of the Charter. Such action, however, is possible only under the conditions

laid down by the Charter in article 6(2). Article 17(1). 4. the form, you may be,

pursuant to article. 4 (4). 2 of the Charter law, not only podzákonný Act

In addition, even not with statewide jurisdiction. City Hořice

therefore tried to modify the questions, which are entrusted to the exclusive

the competence of the legislator. He has already done so, in particular in the provisions of §

§ 198, 198a, section 260 and section 261 of the criminal code, the text of the contested

the decree only in other words reproduces.



The Constitutional Court therefore concluded that the contested Decree was not issued

within the limits of the Constitution laid down the competence, i.e.. specifically, within the limits of article 3(2). 104

paragraph. 1 and 3 of the Constitution of the CZECH REPUBLIC, further concretized in the above

provisions of the Act on municipalities. Therefore, the Constitutional Court did not deal

other content generally binding decrees of Hořice No 7/94 and left

before him in accordance with the provisions of section 70 para. 1 of the law on the Constitutional Court

decide how to in the operative part of the award.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.