294/1996 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. November 1996 in plenary in

draft groups 29 members of Parliament of the United

States generally binding decrees on the abolition of the town Vysoke nad Jizerou

# 5 of 25 July. July 1994 on the prohibition of the promotion and the promotion of INDEPENDENCE and movement

and parties ranging sympathy for communism



as follows:



Generally binding Decree the town Vysoke nad Jizerou 5 of 25 July.

July 1994 on the prohibition of the promotion and the promotion of INDEPENDENCE and movements and parties

ranging sympathy for communism, is repealed on the date of publication of this

the finding in the journal of laws.



Justification



1. On 8 June 1998. February 1996 has been delivered to the Constitutional Court of the Czech Republic design

a group of 29 members of the Chamber of deputies of the Parliament of the United Kingdom,

the representation was in the proceedings before the Constitutional Court entrusted with the Member

Assoc. Prof. RSDr. Jaroslav Štrait, CSc., for annulment of generally binding decrees

City Vysoke nad Jizerou No 5 on the prohibition of the promotion and the promotion of INDEPENDENCE and

movements and parties ranging sympathy for communism.



The text of the contested Decree is as follows:



In General, severe Decree of the town Vysoke nad Jizerou



# 5



On the prohibition of the promotion and the promotion of INDEPENDENCE and movements and parties ranging

sympathy for communism



Town Council in Vysoké nad Jizerou is under the Act 367/1990

Coll., on municipalities, as amended (Act. 410/92 Coll., section 14,

paragraph. 1, the letter o), decided to go on a public session on 25 April. 7.

1994, no on 19/5/94, this generally binding Decree:



Section I.



Basic provisions



On the territory of city Vysoke nad Jizerou is not allowed by the physical

or legal persons who carry out agitation and the promotion of INDEPENDENCE and other

movements and parties ranging sympathy for communism.



Section II.



Penalties



In the event of a breach of this order will be proceeded according to the law 200/90

Coll., as amended (Act 124/93 Coll. on Offences Act, section 46

other offences against public administration and offences against

okay in territorial self-government). For this, you can impose a fine to a

the amount of $ 5000.



Section III.



Final provision



This Decree shall take effect 15. the day after publication, i.e.. 15. the day after

her posting on the official boards.



Posted 1. 8.1994



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

SB. Group of Deputies first of all notes that are already on 31 March. 8.1994

decided to head of Semily District Office under the REF. BC-121/94, pursuant to §

62 para. 1 the Act. No. 367/1990 Coll., on municipalities, as amended

regulations, to suspend the performance of the mentioned Decree and requested that urban

the city government into a 7. 9.1994, has taken measures to correct the situation. Urban

However, the City Government has done. 29 April 2004. September 1994, therefore, the

Head of District Office, turned to the Constitutional Court with a proposal within the meaning of

§ 64 para. 3 of the Act. No. 182/1993 Coll., the Constitutional Court decided on 8 June 1998. December

1994 outside of the oral hearing on this proposal so that it pursuant to § 43 para. 1

(a). (d)). the Act by order. The contested Decree is so in

as a result of the suspended its exercise ineffective, but not illegal.



The proposal in the next section argues that violation of a number of provisions constitutional and

the legislation in question generally binding Decree. This is

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

Republic (hereinafter referred to as "the Constitution"); the provisions of article. 2 (2). 2 and 3, article. 3

paragraph. 1, art. 4, art. Article 17(1). 1, 2 and 4, article. 19, art. 20, art. 21, art. 4 and

article. 22 of the Charter of fundamental rights and freedoms ("the Charter"). Without prejudice to the

was also in the opinion of the appellant the provisions of § 13 para. 2 and § 16 para.

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



The contradiction of the decrees in question with article. 2 (2). 4 of the Constitution, as well as with the article. 2 (2).

3 of the Charter, the appellants raise in the fact that no one shall be forced to do,

What does not act.



It is also about the conflict with the provisions of article 8(1). 4 (4). 2 of the Charter, according to which

may be limits of fundamental rights and freedoms, under the conditions laid down

The Charter, modified only by law. The Town Council in

Vysoké nad Jizerou, in violation of the Constitution enshrined the competence "in General

a binding Decree "limit on the territory of the town not only individuals, but

also legal persons the freedom of expression, the right to express their views

in a Word, letters, print, picture or other means, and the right to freely

seek, receive and impart information, regardless of the

the boundaries of the State, let alone a city or town, the offending article. Article 17(1). 1 and 2

Of the Charter. Restriction of these rights is the right of all directly affect whether or not

of natural persons in the territory of the town peacefully, as permitted by article.

19 para. 1 of the Charter, the right to associate within the meaning of article. 20 (2). 1

Of the Charter; in the case of citizens of the United States whether or not the right to form political

the parties and political movements and associate therein, as set out in article 3(2). 20

paragraph. 2 of the Charter, to compete under the same conditions of elected and other

public function pursuant to article. 21, art. 4 of the Charter.



The contested Decree is, in the opinion of the appellants also extends to the

the free competition of political forces, as the article has in mind. 22 of the Charter, as well as

even in the free competition of all political parties within the meaning of article 87(1). 5 of the Constitution.



The determination of the penalties in section II. the decree is in breach of article. 3 (2). 3

Of the Charter, according to which no one may be caused by injury to the rights for

the application of its fundamental rights and freedoms, as well as with the article. 2 (2). 3

The Constitution, in conjunction with article. 3 (2). 1 of the Charter, according to which the State power

serves all citizens without any discrimination in the basic rights and

freedoms.



Due to the fact that the contested Decree was not universally binding

in the opinion of the appellants ' released in individual municipalities (article 104

The Constitution, § 13 para. 2, § 16 para. 2 of the Act. No. 367/1990 Coll., on municipalities,

in the wording of later regulations) as well as with regard to other defects, which

exhibits within the meaning of the cited provisions, proposes a group of Deputies, with the

referring to the wording of the finding pl. ÚS 26/93, the cancellation of this order.



In their written comments on the proposal for a group of MPs, submitted on 2 February 2005. 5. in 1996,

in terms of section 69 of Act No. 182/1993 Coll., the authorized Member

the Municipal Council in Vysoké nad Jizerou confirmed the opinion of the

the Municipal Council, which has been expressed already by adopting the contested in General

binding decrees. With the proposal of the Group of members of Parliament of the Czech Republic

Town Council in Vysoké nad Jizerou disapproves of

the following reasons:



Issued the Decree should become an incentive and a challenge for the Government, the President and

Member of Parliament not only to cope with the horrific

the Communist past, but also in the presence of communism endanger the

democracy in the country. The statement further alleges that are constantly

being violated sections 260 and 261 of the criminal code, prohibiting the promotion of

the movement aimed to suppress the proven to the rights and freedoms of citizens. Further

It is claimed that the COMMUNIST PARTY and the CENTRAL BOHEMIA REGION registration had been violated section 4 (b). a) and (c))

the Bill 424/1991 Coll. on Association in political parties and in

political movements. The City Government does not believe a professed democratic

The 20TH, let alone the CENTRAL BOHEMIA REGION, even openly professes to succession

criminal and reprehensible, the COMMUNIST PARTY because these parties would logically could not

called "Communist".



It is further pointed out the unchanging definitions of Communists and communism, which

striving for the establishment of the Communist regime, i.e.. system of Government in which fulfils the

only the Communist Party the leading role without real opposition. Additionally,

in its observations the Council argues that there is a substantial

the difference between fascism and communism, except for the fact that communism has to

conscience, about twice the number of victims. So many of the observations of the urban

the Municipal Council in Vysoké nad Jizerou.



The basic condition for proceedings on the application for annulment of the law is

the determination of whether the contested Decree was adopted universally binding and released

constitutionally prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll.). For

this end, the Constitutional Court has requested from the City Council in

Vysoké nad Jizerou documentary evidence attesting to the due receipt of

the contested Decree: write out of 5. meeting of the Council of 25 June 2002. 7.

1994, resolution of the same negotiations, roster data demonstrating

the proper publication of the contested legislation, as well as the complete text of

the decrees in question.



From the minutes of the meetings of the Municipal Council on 25 April. 7. the 1994 inter alia vyplynu,

that, in its progress (see point 1.) was dismissed March 25 Jan

Hejral. As a result, there was a reduction in the number of members of the municipal

at that meeting the Council 9 members, at the same time reduce also

the total number of Councillors on 15. According to the observations of the Secretary

The municipal office in Vysoké nad Jizerou vacant mandate completion has not been

because of the approaching end of the electoral period.



Meeting of the City Council in Vysoké nad Jizerou on 25 April. 7.

1994, on which it was received by general binding Decree, according to the

the attendance register, attended to the point of resolution 19/5/94, a total of 9 members

Councillor, 8 of which voted for its adoption, one abstained

the vote, respectively, according to the observations of the Secretary-General referred to the municipal office in the


Vysoké nad Jizerou, one vote was against. The decree in question was

adopted in accordance with article 38 para. 5 of Act No. 367/1990 Coll., on municipalities, in

as amended.



This Decree was posted up on 1 May 2004. 8.1994, so effective has become

the 15th day following that date, i.e. the date of 16. 8.1994. The data shown

of section III. generally binding decrees.



Whereas, under the text of the Decree was missing the signature of the Mayor, asked

The Constitutional Court for clarification. According to the observations of the Secretary of the municipal office in the

Vysoké nad Jizerou was the cause of a negative opinion of the Mayor, which

voted against this Decree. The contested Decree is therefore generally binding

signed by a representative of the Mayor and should also be signed by any other alternative

(article 52, paragraph 3, of Act No. 367/1990 Coll.). On the site of the signing of the Councillor is

the signature of a member of the City Council.



The Constitutional Court therefore had to take up the issue in the context of the

the validity of the contested Decree and in terms of the legal requirements for its

signing.



The fact that the contested Decree instead of worry, he signed his

the representative, even though the Mayor has not been absent, as required by the ust. § 52

paragraph. 4. the law does not, in the opinion of the Constitutional Court recognise

such a procedure for legal. Representation of the Mayor in his absence,

as well as its representation in the case where an act refuses to

perform, are essentially the same situation, requiring representation,

How to remember them referred to provisions of the Act on municipalities. If the second of

spolupodepisujících was a councilman, elected within the meaning of § 44 para. 3 emotion.

but Councillor, Councillor status automatically

It does, if it is not in the manner chosen, not the signature of that person

be considered relevant within the meaning of § 52 para. 3. the law.



The legal consequences of missing or irrelevant to the signatures in General

binding decrees a law on municipal establishment expressly does not adjust.

At the same time provides in § 16 para. 3 only one condition of their validity,

posting on the official notice board. From the above, therefore, serves that the deficiencies in the

the signatures of generally binding decrees, was if this otherwise in accordance with the

the law adopted and published, the validity of such a decree, not

they do not affect.



In proceedings for the annulment of the Decree, Ordinance as a legal

Act, the Constitutional Court examines its contents of the aspects set out in § 68

paragraph. 2 Act No. 182/1993 Coll., such as the adoption of the Decree on the

the limits of the Constitution laid down the competence and its compliance with the law

a higher level of legal force.



Within the meaning of article 87(1). paragraph 79. 3 of the Constitution, authorities may not issue

the legislation on the basis of and within the law, if they are to do so by law

be empowered. Namely, the Municipal Council of the municipality may, within the limits of its competence

issue generally binding decrees (article 104, paragraph 3, of the Constitution). From

a systematic classification of the cited provision implies, first, that establishes the

the power to issue generally binding decrees delegated scope, other

establishes the authority to issue these decrees in the individual municipalities.

UST. article. paragraph 79. 3 is the legal basis for a derived local

legal normotvorbu, ust. article. paragraph 104. 3 establishes the original legally

with legislative powers.



Generally binding Decree, challenged a group of MPs, not design

released on the basis of the legal authorization in matters pertaining to the transferred

scope of application (article 21 et seq. of Act No. 367/1990 Coll., as amended by

amended). On the contrary, as has her introductory provisions,

It relies on § 14 para. 1 (b). about). of the law. This would suggest that the

a decree issued in individual municipalities.



As already stated the resolution on the rejection of přednostky District

the Office of Semily on cancellation of this order (SP. zn. PL. ÚS 21/94), in the framework of the

their separate scope of the municipality with the generally binding regulations

solve only the tasks of public administration, which are the laws, on the first place

the law on municipalities as follows as a separate scope identified, and

provided that they do so způsobme, that does not contradict the constitutional laws,

international treaties under article. 10 of the Constitution, laws and legal regulations

issued by the Central Government authorities to implement them [article 87

paragraph. 1 (b). (b)) of the Constitution, § 16 para. 2 of the Act on municipalities]. In no

the case cannot therefore generally binding Decree the municipality to adjust something, what is the

reserved edit by law. In this decision, the Constitutional Court came to

the conclusion that the generally binding Decree the town Vysoke nad Jizerou

edits they social relations that are reserved to the legal

edit only by law, i.e., in the form of legislation that may

take only the Parliament of the Czech Republic (article 15, paragraph 1, of the Constitution). Further

There is stated that according to the article. paragraph 104. 1 of the Constitution may be the scope of the

the Municipal Council was established only by law, which means that the Council's

It is impossible for this scope to expand route generally binding decrees.

Generally binding Decree is one means of realization of goods in

separate the scope of the community, rather than a means of embedding of separate

This village [section 14, paragraph 1 (b), and the municipalities Act)].



The contested Decree is generally binding on the provisions of § 14 para. 1

(a). about) of the Act on municipalities, of which, without further indicate that was

respected beyond the individual municipalities. This is given in the context of

of the cited provisions of public policy matters of a local nature, the

that may limit the scope of the village. The ban on promotion and promotion of INDEPENDENCE and

movements and parties ranging sympathy for communism, by its very nature

exceeds the limits of the local nature of the public policy and its protection. In

as a result, nor the recourse to that provision of the law on municipal

the establishment does not constitute a separate scope of undoubted, whereby

generally binding Decree is challenged.



It can therefore be concluded that the Decree was not issued, nor within the

the scope of the delegated, or separate.



The question of compliance with generally binding decrees, the contested legislation

a higher level of legal force is closely linked to consideration of a separate

the scope of the General rozebraným from the top.



If the challenged general binding Decree the town Vysoke nad Jizerou

issued under any of the above species covered by the municipality, it means

the object of their regulation has made the relations that are regulated

only by law. It was, moreover, already quoted resolution on

the rejection of přednostky District Office of Semily (PL. ÚS 21/94).



Content of the nearest legal provisions in this regard, section 260, §

261. the Act. about the support and promotion of movements aimed at suppressing the rights and

freedoms of the citizens. The decree in question is only a pastiche of these factual

gist. Therefore, as has already been stated, moreover, in similar cases

(find Pl. TC 26/93, pl. ÚS 42/95 and PL. TC 44/95),

City Vysoke nad Jizerou such decree issued,

has exceeded the limits of the competences set by the Constitution and by law No.

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



The Constitutional Court considers the local government for the irreplaceable folder

the development of democracy. The local government is an expression of the rights and abilities of

local authorities, within the limits imposed by law, within the framework of their responsibilities and in

the interest of the local population to regulate and control the part of the public

matters.



The Municipal Council is undoubtedly the authority, which may not be

No matter if the political parties, their branches or

their members on the territory of the municipality in a manner that is contrary to law, or perhaps

even fills one of the factual matters referred to in the criminal

the Act, as stated in the proposal. Therefore, the law on Association in political

the sides and political movements (No. 424/1991 Coll.) in its section 4 provides

that political parties cannot develop political activity. UST. § 15

the same law provides for a mechanism which can be used to reach

the suspension of the activity, or the dissolution of a political party. The Constitutional Court is to

aware of the fact that such a procedure is very complex and would require from

the village of considerable effort, often that generate an immediate solution. However,

ceded to the Government and the President of the municipalities of incentives, within the meaning of the law on

political parties would be the real picture of the character were gradually and

the nature of the political parties about how they actually behave. It

means, as in the meaning of article. 5 of the Constitution represents the free competition

political parties which respect the fundamental democratic principles in

a pluralist society. The Municipal Council, as an elected self-governing

authorities, can significantly contribute to the awareness of

responsible for locations and the public about how political parties actually

behave, often at odds with what they said their statutes.



From what has been said, it follows that if a municipality wants to show

the political will to carry out their tasks in the interest of the local government

of the population, it must do so with adequate resources. By opting in

the present case as a means of a decree, i.e.. the normative act,

proceeded unfairly.



For the reasons above, the Constitutional Court came to the conclusion that the contested

the decree is in violation with article 104 para. 3 of the Constitution, the provisions of section 13 of the


paragraph. 2, § 14 para. 1 and § 16 para. 2 of the Act. No. 367/1990 Coll., on municipalities

(municipal establishment), as amended, and therefore, without

considered it necessary to address the other members referred to in the proposal,

reasons, ruled that the town Vysoke nad Jizerou Decree No 5 of

27.7. 1994 on the prohibition of the promotion and the promotion of INDEPENDENCE and movements and parties

ranging sympathy for communism, is repealed on the date of publication of this

the finding in the journal of laws (section 70 (1) of Act No. 182/1993 Coll., on the constitutional

of the Court).



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.