In The Matter Of An Application For Annulment Of The Decree Of The City Of Jičín

Original Language Title: ve věci návrhu na zrušení vyhlášky města Jičína

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192/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 12 June 2006. June 1996 in plenary in

draft groups 31 members of Parliament of the United

Republic for annulment of generally binding decrees of 24 September Jicin town.

January 1995 to ban communist, Nazi and fascist propaganda on the

the town of Jičín



as follows:



The town of Jičín Decree of 24 April. January 1995 to ban communist,

Nazi and fascist propaganda on the territory of the town of Jičín is deleted

date of publication of this finding in the statute book.



Justification



A group of 31 deputies of Parliament of the United Kingdom

It proposed that the Constitutional Court of the Czech Republic has started proceedings for cancellation

Decree of 24 September Jicin town. 1. the 1995 to ban communist,

Nazi and fascist propaganda on the territory of the town of Jičín.



The text of the contested Decree is as follows:



The Town Of Jičín



issues



a decree



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

the town of Jičín



(I).



The Communist, Nazi and fascist propaganda on the territory of the city

prohibited.



II.



The Communist, Nazi and fascist propaganda 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.



III.



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

publication.



In Jicin on 24. January 1995



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

Coll., on the Constitutional Court, members of the Group States that the permission of the village

issue generally binding decrees in matters of individual municipalities

Although enshrined in article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC, at the same time, however, is limited

which can be established only by law (article 104, paragraph 1,

Of the Constitution). This Act is primarily the Act No. 367/1990 Coll., on

municipalities (municipal establishment), as amended by later regulations (hereinafter referred to as "the Act.

No. 367/1990 Coll. "), in which the provisions of § 13 para. 2 it is stated that when

individual performance is a municipality governed by just laws and generally binding

the law, issued by the central authorities to implement them. According to the

§ 16 para. 2 this Act shall be of such a decree in accordance with the laws of

and that legislation. The new provisions of section 17 of the Act on municipalities, in

the text of the Act. No 279/1995 Coll., extends the jurisdiction of municipalities generally binding

the decree to restrict or prohibit activities that may disturb the

public order in some publicly accessible areas in the village. This

extended jurisdiction, however, only apply to the local public

Okay, as is apparent from the provisions of § 14 para. 1 (b). o) of the Act on

municipalities, and it is therefore common ground that "activities" within the meaning of section 17 of the new wording of

do not exercise the right to "express their opinions by Word, print, printing, image

or in any other way, as well as the freedom to seek, receive and impart

ideas and information regardless of frontiers of the State "according to the article. Article 17(1). 1, 2

The Charter of fundamental rights and freedoms ("the Charter"). According to the article. 17

paragraph. 4 of the Charter may be freedom of speech and the right to seek and disseminate

information limited by law in the case of measures in the Democratic

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

State, public safety, public health and morality. This

the law is the law of the corresponding with the article. 19 of the International Covenant on

Civil and political rights (hereinafter referred to as "the Covenant"), which may be

limited by law in the special cases referred to in paragraph 1. 3 (b). a) and

(b)) article. 19 of the Covenant. Such a right to freedom of expression guarantees also article. 10

Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention")

with the fact that the exercise of this right may be restricted only by law and only for the

the conditions laid down in paragraph 1. 2 article. 10. In addition, the proposal states that

the contested Decree extends also to the rights to the results of creative intellectual

activities, which are protected by the provisions of article without any restrictions. 34

paragraph. 1 of the Charter. Subsequently, it states that the contested Decree is in violation of and

with the provisions of article 8(1). 2 (2). 4 of the Constitution of the CZECH REPUBLIC and article. 2 (2). 3 of the Charter, in accordance with

each may do whatever is not prohibited by law, IE. not the norm

lower legal force, as the Decree, and vice versa, must not be forced to do

something that does not impose the law. Finally, the proposal states that the challenged

the decree is contrary to the provisions of article 8(1). 4 (4). 1 of the Charter, according to which

obligations can be imposed only under the law and within the limits

and just when the preservation of fundamental rights and freedoms. The contested Decree of

Jičín was violated, in particular the provisions of article. 2 (2). 4 and article. 104

The Constitution of the CZECH REPUBLIC, the provisions of article. 2 (2). 2 and 3, article. 4 (4). 1 and 2, article. 17

paragraph. 1, 2 and 4 and article. 34 of the Charter, the provisions of § 13 para. 2 and § 16 para. 2

Cust. No. 367/1990 Coll., the provisions of article. 19 of the Covenant, as well as the provisions of article.

10 of the Convention. For these reasons the Group of Deputies has proposed cancellation of the contested

the Decree.



The town of Jičín in its observations, that this is a serious

issues, and, therefore, would be an appropriate thing to discuss according to § 44 Cust. No.

182/1993 Coll., on the Constitutional Court, at a hearing. At the oral proceedings

first of all, they argued, then failure to comply with procedural conditions on the part of management

the appellants ' (a group of at least 25 members) and later on the merits

pointed to section 17 of the Act. No. 367/1990 Coll., as amended by the Act. No 279/1995 Coll.

that is, in their opinion also applies to the activities defined in the contested

the Decree, with the understanding that the purpose of this Ordinance is to protect public order,

on the basis of reasonable grounds for concern before the violation. In addition, if you are

in the Decree příkladmo made the penalties as in § 198, section 198a, section 260 and section 261

the criminal code, cannot be challenged the Ordinance in violation of the law.

Completely at the end of the city has proposed to refuse the draft, a group of MPs.



As regards the objection of Jicin, concerning the lack of procedural

the eligibility of the applicant, it must be noted at the outset that the Constitutional Court with this

objection ... and refers to the findings of the Constitutional Court of CZECHOSLOVAKIA in the

matters kept under SP. zn. PL. ÚS 1/92, pl. TC 95/92 and PL. TC 22/92,

that deal with it, with the fact that the Constitutional Court takes over in them referred to

the conclusion that critical to the submission of the proposal is the time of the request to which the

with the legal conditions of time-clamped, which arises from the interpretation of the Act. No.

182/1993 Coll., on the Constitutional Court, and in particular from the fact that the law does not specify the

reducing the number of members who submitted the proposal, as the reason for stopping the

Once the proceedings and also from the fact that the requirement of the protection of constitutionality

corresponds to the Constitutional Court because of general interest in the already started things

acted upon.



According to the provisions of § 68 para. 2 of the Act. No. 182/1993 Coll., on the Constitutional Court,

assessing the Constitutional Court when deciding the content of the law or other legal

prescription for their compliance with the constitutional laws, international

the contracts referred to in article. 10 of the Constitution, or. laws, if it is a different legal

prescription, and figuring out whether they have been accepted and issued within the limits of the Constitution

set out competences and constitutionally prescribed way. In this direction of

the minutes of the second meeting of the City Council, to be held December 24. 1.

in 1995, the Constitutional Court found that the contested Decree was

approved at that meeting 12 votes from a total of 20 user online

Members, 4 were against, and 2 abstained, and 2 votes

They ignored. Whereas, the Town Council has a total of 21

Members, it can be concluded that the contested Decree was adopted

in a qualified manner (article 38, paragraph 5, of Act No. 367/1990 Coll.). Because

the Decree was properly posted up on an official notice board in the day 25.

1.1995 and removed 10 June. 2.1995, entered into force on 9 April. 2.1995 (§

Article 16(1). 3 and 4 of the Act. No. 367/1990 Coll.). The Constitutional Court therefore considers that the

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



On the other hand, however, has not been challenged, in the opinion of the Constitutional Decree

the Court adopted 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 by law 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. is referred to the competence of territorial authorities

Government to issue normative legal acts indicated in the title of the second with

called "Scope", so that the scope of the individual (section 13

and subs. Cust. No. 367/1990 Coll.) or about the scope of the devolved (paragraph 21 et seq..

Cust. No. 367/1990 Coll.). Issue generally binding decrees on matters

belonging to the by, the municipality only on the basis of

authorization in the Act and within the limits (section 24 (1) of Act No. 367/1990 Coll.).

The case of issue generally binding decrees within the delegated


the scope of the present case is clearly not due to lack of

legal authorization. The Constitutional Court therefore also dealt with the question of whether the

the contested decree can be considered as generally binding Decree in cases

belonging to separate the scope of [section 14, paragraph 1, point b i) Cust.

No. 367/1990 Coll.]. Separate the scope of municipalities is regulated in the provisions of §

14 Cust. No. 367/1990 Coll., in paragraph 1 of this provision are

individual activities belonging to the individual listed

demonstratively, while in paragraph 1. 2 is a separate scope of the village

extensively modified so that the municipality in a separate scope of further

ensures in its territorial jurisdiction, the economic, social and cultural

development, the protection and the creation of a healthy environment, with the exception of those

the activities that are assigned to other departments of special laws such as the performance of the

the State administration. In the opinion of the Constitutional Court can hardly be considered that under the

autonomy is essential to understand the prohibition of activities that in the

essence is nothing more than a restatement of the constituent elements of criminal

the acts listed in section 260 and section 261 of the tr. By a decree of such

the content published by the town of Jičín has exceeded the limits of the Constitution and by Act No.

367/1990 Coll. established competencies. To do this, the Constitutional Court States that the

to a village in this way explicitly manifest their political will, can

to do so in other adequate means.



Because of the above, the Constitutional Court came to the conclusion that the contested

the decree is in breach of article. paragraph 104. 3 of the Constitution of the CZECH REPUBLIC, the provisions of § 13,

14 and § 16 para. 2 of the Act. No. 367/1990 Coll., and therefore, without the need to

many of the reasons given in the proposal, decided by Decree

the town of Jičín, of 24 September. 1. the 1995 to ban communist, Nazi, and

fascist propaganda on the territory of the town of Jičín is repealed on the date of its publication in the

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

The Constitutional Court).



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.

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