202/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 11 July. June 1996 in plenary in

draft groups 31 members of Parliament of the United

States generally binding decrees on the abolition of the city of Pardubice No 26/94 of

on 21 February 2006. September 1994 to ban communist, Nazi, fascist, and

racist propaganda on the territory of the city of Pardubice



as follows:



The Ordinance of the city of Pardubice No 26/94 of 21 March. September 1994 on the prohibition

the Communist, Nazi, fascist and racist propaganda on the territory

the city of Pardubice is hereby repealed.



Justification



A group of 31 deputies of Parliament of the United Kingdom

sent to the Constitutional Court for annulment of the Decree of the city of Pardubice, no.

26/94 of 21 March. September 1994 to ban communist, Nazi,

fascist and racist propaganda on the territory of the city of Pardubice.



The text of the decree is as follows:



§ 1



The Communist, Nazi, fascist and racist propaganda on the

the city denies.



§ 2



The Communist, Nazi, fascist 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.



A proposal from a group of MPs filed pursuant to the provisions of § 64 para. 2 (a). (b))

Act No. 182/1993 Coll., on the Constitutional Court, is based on a legal opinion that the

a municipality is authorized to issue generally binding decrees, whose content is

legal obligation, only in the case of explicit legal authorization, as it

expressed by the Constitutional Court in its findings, for example. PL. ÚS 5/93, pl. ÚS

28/93, pl. ÚS 28/93 and others. Contradiction with article 2 of the contested Decree

paragraph. 4 of the Constitution of the Czech Republic and article 2 (2). 3 of the Charter of fundamental

rights and freedoms ("the Charter"), the appellants in the FRO

the fact that in the present case are the obligations imposed rather than

the law, but other legislation. It is also about the conflict with the provisions of the

Article 4, paragraph 2. 1 of the Charter, according to which the obligation can be saved

only on the basis and within the limits of the law and only in the preservation of the fundamental

rights and freedoms.



The appellants further dealing with the provisions of § 14 para. 1 (b). I) and section 36

paragraph. 1 (b). (f)) of the Act on municipalities the CZECH NATIONAL COUNCIL No. 367/1990 Coll., these provisions

permit further references and yelping generally

binding decrees in matters of individual municipalities. This permission

the village is enshrined in article 104 para. 3 of the Constitution of the Czech Republic. When

the issue generally binding decrees, however, the Municipal Council of the municipality in this

the scope of the limited only by law. The new provisions of § 17 of the Act No. 283/1995

Coll. extends the power of municipalities generally binding decree to restrict or

prohibit activities that could disrupt public order on some

publicly accessible areas in the village. This expanded authority, however,

applies only to local affairs public policy [under section 14(2).

1 (b). o)], among which activities referred to in the contested Decree does not belong.

"Activities" within the meaning of the provisions of section 17 of the Act is not the right

express their opinions by Word, print, printing, image or other

in a way, as well as the freedom to seek, receive and impart

information, regardless of frontiers (article 17, paragraphs 1 and 2 of the Charter).

Pursuant to article 17 paragraph 1. 4 of the Charter may be freedom of expression and the right to

search for and disseminate information limited by law in the case of measures in

democratic society for the protection of the rights and freedoms of others,

national security, public safety, public health and

morality.



The proposal also refers to the findings of the Constitutional Court, SP. zn. Pl. ÚS

5/93, pl. ÚS 26/93, pl. ÚS 24/93, pl. ÚS 38/93, pl. ÚS 38/93 and PL. ÚS

17/94, which States that "a decree, which was from the position of the village

taken the prescribed procedural manner and by name in a separate

scope, but its content has violated the relevant enabling provisions

The Constitution of the Czech Republic and the Act on municipalities, don't go out be considered legal

prescription issued by municipalities in its individual scope. "



To comment on the proposal delivered by the Mayor of the city of Pardubice, which stated that the

the design is mainly challenged the right of the municipalities of the area in question relations in

the decree referred to edit. In this case, however, points to the provisions

section 14 of the Act on municipalities, according to which the individual municipalities

fall and "local matters of public order", which is confirmed by the new

the texts of the provisions of § 17 of this Act. Considers, therefore, that the Ordinance was

adopted in accordance with the applicable laws and regulations, and proposed that the draft

members of the Chamber of deputies of the Parliament of the United Kingdom was rejected.



In proceedings for annulment of the Act or any other law is the Constitutional Court

obliged to under the provisions of § 68 para. 2 of the Act on the Constitutional Court, in the first

the series examined whether legislation was issued within the limits of the Constitution

set out competences and constitutionally prescribed way. Therefore, the constitutional

the Court requested by the Municipal Council of the city of Pardubice, the sending of documents,

certifying the proper adoption of the contested Decree, as well as its proper

announcement of the CZECH NATIONAL COUNCIL Act No. 367/1990 Coll., on municipalities, as amended by

amended. From the message of the Organization Department of the municipality of

Pardubice of 12 December 3. in 1996, it was found that at the meeting of the Town Council

the city of Pardubice on 21 February 2006. 9. the 1994 (when it was included in the programme

discussion of the draft decree on the prohibition of Communist, Nazi,

fascist and racist propaganda on the territory of the city of Pardubice)

present 48 Councillors (from a total of 55 members). For

the adoption of Ordinances voted 33 members voted 7 members, voting

refrain from 4 members of the Council. These data (as found from

a copy of the resolution of the first part (IV). meetings of the Municipal Council of the city of Pardubice

of 21 June 1999. 9.1994) record of meeting of the City Council. (The minutes of the

This period contain only a finding of whether the proposal has been adopted or

not.) The numbers of votes were verified from magnetic recording of the hearing.

In that resolution, under point 6 is the designation "resolution No. 62/IV-9/93"

and the text "City Government of approving the Decree on the prohibition of the Pardubice

the Communist, Nazi, fascist and racist propaganda on the territory

the city of Pardubice. From these facts, it is clear that the contested Decree

She was accepted in a qualified manner (article 38, paragraph 5, of the Act on municipalities).

The Decree was announced by posting on the official notice board on 23 June. 9.1994,

where it was posted up to 10. 10.1994, so that became effective on 8. 10.

1994 (article 16, paragraph 3, of the Act on municipalities, 4). The Constitutional Court therefore takes the view that the

the contested regulation was adopted and issued by the constitutionally prescribed way.



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll. of the Czech Constitutional Court

the Republic may, with the agreement of the participants to refrain from oral proceedings,

If you cannot expect from this meeting the further clarification of the matter. Due to the

the fact that the cited provisions can be extended to the assessment of the case,

The Constitutional Court has requested from the parties ' observations, whether they agree with the

abandonment of the oral proceedings. The filing of 13 June 2005. 3. the 1996 expressed

the Mayor of the city of Pardubice, consent to the proposed procedure. Consent to the

abandonment of an oral hearing, expressed by letter of 3 June 2004. 4.1996 and JUDr.

Jiří Hájek for members of the group it represents. Therefore, the Constitutional Court of the

the oral proceedings dropped.



Before examining the merits of the case, the Constitutional Court found that when the

the preparation of the proposal has encountered considerable confusion regarding the release date

the contested Decree, which was probably due to the poor legibility of its

a copy of the. On this copy of the date 20. 9.1994. Referred to a mistake is

impacted the written messages sent to city of Pardubice Constitutional Court,

as Mayor of the city of Pardubice in the letter of 13 December 2005. 3. the 1996 States

as the date of the adoption of the Decree of 20. 9.1994, while in the comments

The municipality of Pardubice, date 21. 9.1994. Also read

the text of the Decree No. 26/94 concerning the prohibition of Communist, Nazi, fascist, and

racist propaganda on the territory of the city of Pardubice carries the date 21. 9.1994,

confirmed by the head of secretariat of the Mayor of the city of Pardubice. Referred to

date of adoption of the decree is provable from a resolution of the Municipal Council

the city of Pardubice (1. part IV of the Act of 21 March. 9.1994). It is therefore a

an obvious inaccuracy, no longer the Constitutional Court directly in the text of the award (including its

of the operative part) removed, so that the find matches accurately labelling Decree

the city of Pardubice No 26/94 (section 63 of Act No. 182/1993 Coll., section 164, CCP

that was used appropriately). In this condition the procedural status, when

referred to the apparent inaccuracy has been detected before setting out and

by sending the award, the Constitutional Court has considered that there is no need to draw up

find text and with obviously incorrect then issue a repair order.



Furthermore, the Constitutional Court dealt with a proposal to initiate the procedure after the

benefits in kind.



After examining the proposal submitted by the Constitutional Court came to the conclusion that the municipality

may, within the scope of the regulations only address the separate those tasks

public administrations, which are the laws (in particular the law on municipalities) as tasks


the village under a separate scope identified, if they do so in a way,

that does not contradict the constitutional laws, international treaties under article

10 of the Constitution of the Czech Republic, laws and legal regulations issued by the

Central Government authorities for their implementation [article 87, paragraph 1,

(a). (b)) of the Constitution of the Czech Republic, § 16 para. 2 of the Act on municipalities]. The municipality

generally binding Decree, however, cannot edit such questions that are

reserved for the legislation of the law. If some law such a procedure

let alone would be contrary to the constitutional provisions.



Consequently, in the comments to the proposal relies on the city of Pardubice

the provisions of section 14 of the Act on municipalities, in which the circuit is listed the things conferred on the

to separate the scope of communities, then you need this provision

interpreted strictly, since it applies only to the case in which a municipality

to act as a body authorized to determine responsibilities for the citizen

unilateral orders and bans. Even if the new provisions of section 17 of the law on

municipalities, as amended by Act No. 283/1995 Coll., which is also the city

Pardubice, extends the jurisdiction of the municipalities relied on generally binding Decree

restrict or prohibit activities that could disrupt the public

order, this expanded jurisdiction applies only to local affairs

public policy [under section 14 (1) (b), of the Act on municipalities)], between

which activity defined in the contested Decree does not belong.



Challenged general binding decree governs the city of Pardubice

social relationships that are dedicated only to the legislation of a law.

In the form of legislation it can therefore edit exclusively Czech Parliament

the Republic as the authority of legislative power under article 15, paragraph 2. 1 of the Constitution

Of the Czech Republic. It is apparent from the provisions of article 4, paragraph 2. 2 of the Charter,

that may be the limits of fundamental rights and freedoms under the conditions

laid down by the Charter modified only by law. Also, article 4, paragraph 2. 3

Of the Charter enshrines only the "legal limit" fundamental rights and freedoms,

that must apply equally to all cases that meet the specified

terms and conditions. In the Decree, however, the Municipal Council of the city of Pardubice

provides just the limits of such essential Charter enshrined the rights and

freedoms, such as, in particular, freedom of expression and right to information (article

Article 17(1). 1), the right to gather peacefully (article 19 (1)), the right to

freedom of Association (article 20, paragraph 1), and in the case of citizens United

States whether or not the right to form political parties and political movements and

Associate in them (article 20 (2)).



In this condition is growing up, the Constitutional Court considered that the contested Decree,

has not been accepted and published within the limits of the Constitution laid down the competence. The Constitution of the

down in this respect in article 79 paragraph 2. 3, the authorities of the local and regional authorities,

as well as the ministries and other administrative authorities, on the basis of and in

the limits of the law, legislate if they are empowered to do so.

Due to the inclusion of this article into the head of a third, governing power

the powerful, it may be considered that the municipality carries on State administration in the range

provided for by special laws. By contrast, article 104 of the Constitution, which

paragraph 3 provides that the Council may, within the limits of its competence

issue generally binding decrees, is included in the title of the seventh on territorial

self-government. In Act No. 367/1990 Coll., on municipalities (municipal establishment), in

as amended, it is referred to the competence of organs of local self-government authorities

to issue normative legal acts indicated in the title of the second named

"The scope of the municipality", and this, as to the scope of the individual (section 13 and

subs. the scope of the Act) or transferred (paragraph 21 et seq. of the Act).

Issue generally binding decrees on matters pertaining to the transferred

scope of application, the municipality only under the authority of the law and in its

the limits (article 24, paragraph 1, of the Act). The case of issue generally binding

under the decree by the raised things clearly

It's not.



In the opinion of the Constitutional Court, however, cannot be considered a contested Decree

even for the generally binding Decree in matters belonging to the separate

the scope of the village [section 14, paragraph 1, point (a). i) of the Act]. A separate scope

the village is governed by the provisions of section 14 of the Act, in paragraph

1 this provision are activities belonging to a separate

the scope of the municipalities listed non-exhaustively, while paragraph 2 is

separate the scope of the village extensively modified so that the municipality in

separate the scope of further provides in its territorial jurisdiction

economic, social and cultural development, the protection and the creation of a healthy

the environment, with the exception of those activities which are special

the laws entrusted to other bodies such as the performance of State administration. In a separate

the scope of the municipality, however, can hardly include the prohibition of practices, which is in the

Basically, only a pastiche of the constituent elements of criminal acts, referred to

in section 260 and section 261 of the criminal code. By a decree of such content

published by the city of Pardubice, has exceeded the limits of competence, therefore, set out

The Constitution of the Czech Republic and Act No. 367/1990 Coll., on municipalities (municipal

establishment), as amended.



To do this, the Constitutional Court adds that if a municipality wants to in the subject matter explicitly

to manifest their political will, can, where appropriate, to take any other appropriate

the resources of the limits of its remit did not step over.



Whereas the Constitutional Court came to the conclusion that the contested Decree is in

contrary to article 104 para. 3 of the Constitution of the Czech Republic and with the provisions of §

13, section 14 and section 16(1). 2 of the Act No. 367/1990 Coll., on municipalities (municipal

establishment), as amended.



In this condition, it was unnecessary to address the question whether the contested

the Decree violates constitutional provisions and other laws and international

the contracts referred to in article 10 of the Constitution of the Czech Republic.



Therefore, the Constitutional Court Ordinance the city Pardubice No 26/94 repealed on the date of

the publication of this finding in the journal of laws (section 70 (1) of law No.

182/1993 Coll., on the Constitutional Court).



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.