280/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided to March 25. October 1995 in the plenary in the things

design of the head of the District Office in Breclav on repeal of certain

the provisions of generally binding regulations of the municipality of maintenance of order in Underwire

the village and local fees



as follows:



1. In the generally binding Decree on the maintenance of order in the village of Baleen

June 29, 1994 in article is lifted. 4 part expressed by the words "and the Decree on the

local fees ". In the other, the proposal is rejected.



2. In the generally binding Decree the municipality on local charges of Underwire day

October 27, 1994, repeals article. 8 (2). 2.



Justification



The Constitutional Court of the Czech Republic has received 25 June. 5. the 1995 proposal for a head

In the Břeclav District Office for cancellation:



the first paragraph of article 1). 4 generally binding decrees the village of Baleen

maintenance of order in the village of Kostice, approved = Municipal Government

29 April. 6. the 1994, which specifies the public space in the village;



the second paragraph of article 2). 8 generally binding decrees the village of Baleen

local fees, approved by the Municipal Government of the day 27. 10.

1994.



The proposal refers to the generally binding Decree on maintaining

right in the village of Baleen was approved by the Municipal Government of 29 April.

6.1994. From a total of 15 members of the Municipal Council voted

for the adoption of the proposal of 10 members. Its publication took place in 29 days.

6. up to 15. 7.1994 by posting on the official notice board of the municipal office and took

the effectiveness of 15 July. 7.1994.



In the proposal, stating that article. 4 Decree, inter alia, for the purposes of this Ordinance

on local charges, specifies the location in the village, which are public

area.



Under section 15 of the Act. No 565/1990 Coll., on local charges, in the text of the amendments and

Add-ins may provide for the introduction of fees in general community binding Decree

and charges for the use of public space will determine the places that are in the

the village of public space.



From the above it follows that the definition of public space cannot be

the content of other generally binding decrees, i.e.. the Decree on the maintenance of order

in the village of Underwire from 29 June. 6.1994. For this condition is true in the village of Baleen

Double adjustment to determine the public spaces for the purposes of local taxes,

for what can be considered a public space is also addressed in

generally binding Decree on local charges of 27 June. 10.1994.



The Decree on the maintenance of order in the village of Kostice specifies in article. 4, in the ninth

indent as a public space. even the areas that aren't flooded pond,

specifically, plot no. 520/2, 627/1, which the local communication

around the pond. However, this definition does not match the existing proprietary

relationships to the land, because the plot No 520/2 is only partially

bounded by the way, which does not have the character of local communication.



The appellant further concludes by pointing to the attached geometric plan,

a copy of the cadastral maps and the extract from the land register that the boundaries

plot No 520/2 in this space does not give way, but the boundaries of the land

p. no 715/2, which is in private ownership.



The fact that public spaces by ust. article. 4 is defined

along the way, and extends to private ownership, does not respect this Decree

The Constitution of the CZECH REPUBLIC enshrined the protection of ownership rights, as it is limited,

without the legal conditions are met.



The purpose of the public spaces, as is clear from the law on local

fees, General and specific use, general use, then

means the use of the square, and the walkers and local communications vehicles and is

fundamentally free. In contrast, the so-called. a special use of the public

the area is defined in the ust. section 4, paragraph 4. 1 of the law on local

fees and is corrupt. The only way the law defined by specific use

public spaces can be charged local fee.



The exercise of ownership rights to land in private ownership may, however,

be limited only under the conditions laid down by law. In the opinion of

the petitioner, the contested provisions of the first paragraph of article. 4 in General,

binding decrees the village of Kostice maintaining public order, was

violated article. 11 of the Charter of fundamental rights and freedoms and also ust. section 124

of the civil code, which provides that "all owners have the same

the rights and obligations and provides them with equal legal protection ", respectively.

the owner is obliged to acquiesce to ... in the public interest was for the reimbursement of

used his thing, cannot be achieved if the purpose, and that only on the basis of

the law, and for compensation.



Generally binding Decree on local fees be approved by the municipal

Council 27 October. 10.1994. From a total of 15 members of the municipal

Councillor voted for adoption of the proposal of 13 members.



Its publication took place in 27 days. 10 to 11. 11.1994 by posting

on the notice board of the local authority. This condition has been met her

the validity of. The effectiveness of the Ordinance has taken on 11 June 2005. 11.1994. This Decree

the municipality of Baleen on local fees determines the public area in the village

all square, road, street, a local road, sidewalks, public

green areas, parks, passages and other spaces available to anyone without restrictions.

This referred to an enumeration that only took diction demonstrativního enumeration

objects listed in ust. section 4, paragraph 4. 2 of the Act on local charges,

does not meet the requirement for accurate and clear destination places, which can be used for the public

the area considered. The obligation of certainty the definition is contained in the ust.

section 15 of the Act on local charges. With this requirement, however, is in direct

violation of the text of the article. 8 (2). 2 Decree on local charges, as follows

vaguely identified public spaces do not guarantee the legal security of citizens

Neither the authorities of the municipality in the application of this Ordinance.



At the same time the petitioner notes that both the contested Decree, or their

the provisions of the article. 4 (4). 1 and article. 8 (2). 2, are not in accordance with the applicable

the legislation, as it stores the ust. § 16. 2 of the Act on municipalities.



Aware of this fact, suspend the performance of the appellant disputed

the provisions of the contested decrees and urged the Municipal Council of the municipality

Underwire to redress. Since the deficiencies within a specified period not

deleted, suggested the head of the District Office in Břeclav to the constitutional

the Court of the Czech Republic decided that the finding of the article. 4 (4). 1 in General, binding

the Decree on the maintenance of order in the village of Underwire from 29 June. 6. the 1994 and article. 8

paragraph. 2 generally binding decrees the village Underwire of 27 June 10.1994 on

the local charges are cancelled on the day of the announcement of the award in the collection of laws

Of the Czech Republic.



The Constitutional Court posted the day 2. 6. in 1995 the village of Baleen as a participant in the proceedings

accordance with the ust. § 42 paragraph. 3 of the Act. No. 182/1993 Coll., the proposal of head

District Office for an opinion and has requested from him the next documentary

the supporting documents.



The village of Kostice, represented by the Mayor of the municipality, in its representation of the registered as received

The Constitutional Court of the Czech Republic of 20 April. 6. in 1995, said that in General

binding the Decree on the maintenance of order in the village of 29 June. 6.1994 was

assessed and the District Office in Břeclav and its wording was found to be an

the corresponding law. When processing the draft decree was based on the

recommendations to the District Office that aren't flooded part of the area of the pond, plot no.

520/2 (owned by the municipality) intended as a public space. How to further

lists, questions of local fees and fine in the village do not have the nature

delegated responsibility, because it is unquestionably about the performance of the Government.

With regard to the opinion of the District Office, public space

cannot be on areas which are in private ownership, does not have this

view no basis in the applicable legislation. The village of Kostice States that the conclusions of the

arising from the proposal, the head of the District Office to favor private

before another kind of property (in this case the municipal)

as the draftsman of the incorrect interpretation of the law came to the conclusion that the public

the area may be exclusively on the grounds, which are in the ownership of the

the village. Such a view would mean that it would not be able to use those parts of the

the sidewalks and roads in the village are owned by natural persons.

For this reason, you should then not be possible to define the concept of public

the open space. Indeed, such a designation only used law No 565/1990 Coll.

on local charges. It is therefore given to the consideration of the village (in the meaning of § 15

Cust. No 565/1990 Coll., on local charges, in relation to the ust. section 4, paragraph 4.

2 of the cited Act, which places in the municipality designate as a public open space.



In both of the above provisions, the legislator has not limited the designation

such surfaces by defining property rights to such land, as

evidenced by the fact that the law on local fees was

amended several times, without the legislature considered it necessary to insert in the

the relevant provisions of the public area principle of ownership

relations. The village of Kostice is convinced that the two contested in general binding

the decrees are completely in accordance with the laws and legislative principles of the Czech

of the Republic.



The proposal was filed pursuant to § 64 paragraph. 3 of the Act. No. 182/1993 Coll. on the management of

the repeal of the legislation within the meaning of section 68, paragraph. 2 of the Act. No. 182/1993 Coll.

It is necessary to verify whether the contested generally binding decrees have been issued

in the prescribed manner. The Constitutional Court therefore requested the minutes of the meeting of the
The Municipal Council of the municipality of Underwire from 29 June 6 and 27. 10.1994.



From the record, it was found that the two laws were approved by the

the necessary majority and have been duly promulgated within the meaning of the Act. No 367/1990

Coll., on municipalities, as amended.



According to the legal procedure in proceedings for annulment of the law or its

individual provisions within the meaning of § 64 paragraph. 3 of the Act. No. 182/1993 Coll.

the Constitutional Court of the Czech Republic shall examine the content of the contested regulations

from the point of view of their compliance with the constitutional laws, international treaties

According to the article. 10 of the Constitution, respectively. law and is obliged to determine whether both in General

binding decrees have been issued within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



The Constitutional Court according to the ust. article. paragraph 87. 1 (a). (b)) of the Constitution of the Czech Republic

assess the proposal for the head of the District Office. He stated that the

the permission of the local government authority to issue legislation-General

binding decrees, it is possible only on the basis and within the limits of the law.



1) generally binding Decree village Underwire of 29 October 6.1994 about keeping

right in the village of Kostice in the contested article. 4 (4). 1 States:



Management, maintenance and cleanliness of public areas



For the purposes of this Decree, and the Decree on local fees for public

area:



-local communication



-square



-Street



-free space for cultural and sports events



-children's playground



-the place designated for permanent parking (parking lot)



-continuous public greenery



-parks



-the areas that aren't flooded pond, plot no. 520/2/1, 627, which surrounds

local communication around the pond.



2) Article. 8 (2). 2 order of the municipality of local fees shows the Underwire:



Public space according to this order are all square,

Highway, street, road, sidewalks, public green areas, parks,

passes and other spaces available to anyone without restrictions.



With regard to the formal validity of the contested regulations page,

The Constitutional Court has already referred to above, the findings and did not find deficiencies that would

preventing the entry into force of both the generally binding decrees.



The Constitutional Court also dealt with the question of whether the contents of both the generally binding

Ordinances of the municipality is in accordance Underwire due to legislation,

The Constitution and the Charter of fundamental rights and freedoms.



According to the ust. § 16. 1 of the Act. No. 367/1990 Coll., on municipalities, as amended by

amended, can the municipality to carry out its tasks issue for your

the territorial circumference of generally binding decrees.



The Constitutional Court when considering the generally binding decrees concerning the maintenance of order

in the village, whether it is in accordance with the laws and generally binding legal regulations

issued by the central State administration bodies for their implementation,

He said the serious misconduct of the municipality, in that the content of one generally binding

the Decree also oblige the other part generally binding Decree, which in

the time has not yet been issued and whose legal regime is governed by the different

the requirements.



When determining the sites for the purpose of the right in the village is to be in addition to the right of the village

Watch for more contingent upon the criteria. Therefore, it was necessary to cancel only

in order to bind point Ordinance in the words "and the Decree on local fees".



With regard to the generally binding decrees on local charges of the municipality

Underwire from 27 June. 10. in 1994, the Constitutional Court stated that the provisions of section

15 of the Act. No 565/1990 Coll. lays down that, for a fee for the use of public

area must specify the municipality places that are public

area. In connection with this problem, it is necessary to refer to

the finding of the Constitutional Court of the Czech Republic of 11 April. April 1995 SP. zn. PL.

TC 24/94, which deduced that the municipality is bound by the legal definition of the concept of

public spaces, contained in ust. section 4, paragraph 4. 2 of the Act. No 565/1990

Coll. on local charges, which in practice means that the municipality is required to

specify (in the case of the determination of the fee for the specific use of the public

spaces) in a generally binding Decree on local charges at the same time

places that are these public squares for the purposes

charging. As already judikováno, the interpretation of the concept of public

areas must respect the scope of the individual, or transferred

the scope of the municipality, as is stated in the ust. § 13 and 14 of the Act. No 367/1990

Coll., on municipalities, as amended, and accessories.



The Constitutional Court in accordance with the applicant notes that the purpose of the public

the area, as is clear from the law on local fees, General and

specific use. The general use of the means then use square,

local roads pedestrians and vehicles, and is fundamentally free. On the difference

from the so-called. Special use of public spaces is defined in

UST. section 4, paragraph 4. 1 of the law on local fees and is corrupt.



Charging may not cover all of the public spaces, and therefore

specifically designed public spaces for the purposes of the special fee

users must eliminate confusion.



It is therefore necessary to implement the specification public spaces for special

the use of the name of the place (if it is square, the street passes

etc.) or is it closer to characterize the location in the village of enough to

not at the same time undermined legal certainty for citizens.



In the opinion of the Constitutional Court is also needed in the assessment of public

area based on the text of the ust. section 4, paragraph 4. 2 of the Act. No 565/1990 Coll.

part of which States: "... as well as other spaces available to anyone without

the restrictions ". From the wording of this provision implies that the public area

may be all of the areas that are without any options

restrictive interventions on the part of the owners of land accessible to everyone.



After the summary of all the documentary evidence and for the reasons above, decided to

The Constitutional Court, as stated in the scope of this award, because it has found

violation of section 4, paragraph 4. 2 and section 15 of the Act. No 565/1990 Coll., as amended by the supplementary

laws, and thus the contradiction with article. 4 (4). 1 of the Charter of fundamental rights and

freedoms.



The award shall become effective on the date of its publication in the journal of laws.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.