109/1996 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided on 26 April. in March 1996 the plenary in
draft groups 31 members of Parliament of the United
States generally binding decrees on the abolition of the town of Nová PaKa of 25 June.
October 1994 prohibiting the Communist, Nazi and fascist propaganda on the
the territory of the town of Nová PaKa
as follows:
The Ordinance of the town of Nová PaKa of 25 June. 10.1994 prohibiting the Communist,
Nazi and fascist propaganda on the territory of the town of Nová PaKa 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
the Ordinance of the town of Nová PaKa of 25 June. 10.1994 prohibiting the Communist,
Nazi and fascist propaganda, the territory of the town of Nová PaKa. The text of the
the contested Decree is as follows:
The city issued a decree of Nová Paka Communist, Nazi, and
fascist propaganda on the territory of the town of Nová PaKa.
(I).
The Communist, Nazi and fascist propaganda on the territory of the city
prohibited.
II.
The Communist, Nazi and fascist propaganda means:
and change request) 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, i.e.. on 9 April. November 1994.
In the new Pace of 25 May. 10.1994
In its proposal, filed pursuant to § 64 para. 2 (a). b) Act 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 104 para. 3 of the Constitution of the United States, at the same time
However, the limited scope that can be established only by law (article
paragraph 104. 1 of the Constitution). This Act is primarily the Act of the Czech national
Council No. 367/1990 Coll., on municipalities (municipal establishment), as amended
the regulations, 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
the law, issued by the central authorities to implement them. According to the
§ 16 para. 2 of this Act must be generally binding decrees in accordance
laws and legislation. A new provision to section 17 of the Act on the
municipalities, as amended by Act No. 283/1995 Coll., extends the jurisdiction of municipalities generally
a binding decree to restrict or prohibit activities that could
disrupt the public order in some publicly accessible areas in
the village. This expanded authority, however, applies only to the local
matter of public policy [under section 14 (1) (a) o)], and it is therefore
common ground that "activities" within the meaning of the new wording of section 17 is not the exercise of the rights
"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 of the State "[article 17, paragraph 1, of the Charter 2
fundamental rights and freedoms ("the Charter")]. Pursuant to article 17 paragraph 1. 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 a democratic society
necessary for the protection of the rights and freedoms of others, national security, public
safety, public health and morality. As to the law,
corresponding to article 19 of the International Covenant on Civil and
political rights, which may be restricted only by law in special
cases [referred to in paragraph 3 (a)), and (b)) of the cited article]. Such a right
on freedom of expression guarantees also the provisions of article 10 of the Convention for the protection of
human rights and fundamental freedoms, with the exercise of this right may be
limited only by law and only under the conditions laid down in paragraph 1(b). 2 of this
article. Its flexible diction extends also to the contested decree law to
results of creative intellectual activity, a protected without any limitation
the provisions of article 34 paragraph 2. 1 of the Charter. The contested Decree is further in the
contrary to the provisions of article 2 (2). 4 of the Constitution and article 2 (2). 3
Of the Charter, according to which each may do what is not prohibited by law,
(not the podzákonným legislation), and must not be forced to do something,
What does not act. It is also about the conflict with the provisions of article 4, paragraph 2. 1
Of the Charter, according to which the obligation can be imposed only on the basis of
and within the limits of the law and only in the preservation of fundamental rights and freedoms.
The contested Decree of the town of Nová PaKa was thus violated, in particular
the provisions of article 2 (2). 4 and article 104 of the Constitution of the CZECH REPUBLIC, the provisions of article 2
paragraph. 2 and 3, article 4, paragraph 2. 1 and 2, article 17, paragraph 2. 1, 2 and 4 and article 34
Of the Charter, the provisions of § 13 para. 2 and § 16 para. 2 of the Act No. 367/1990
Coll., as amended, the provisions of article 19 of the international
Covenant on Civil and political rights, as well as the provisions of article 10
Convention for the protection of human rights and fundamental freedoms. For these reasons the
a group of Deputies proposes to repeal the contested Decree.
The town of Nová Paka in the comments of the Mayor of 11. 1.1996 stated that the initiative to
the release of the above Decree was initiated by local organizations
Confederation of political prisoners. The draft decree was submitted to the city
Council for discussion on 15 December. 9.1994, and recommended for discussion at a public
the meeting of the City Council, which on 25 April. 10.1994, the text of the
the Decree was approved by the.
According to the provisions of § 68 para. 2 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 19 of the Constitution, or. laws, and other.
legislation and discovers that they have been received and issued within the limits of the Constitution
set out competences and constitutionally prescribed way. In this direction of
the minutes of the 5. the City Council meetings, held on 25 April. 10.1994
in Nová PaKa, the Constitutional Court found that the contested Decree was approved by the
at that hearing the voices of the 18 members from a total of 19 present
Members, 1 member, abstained. Whereas that the municipal
the City Government has a total of 23 members, it can be concluded that the contested
the Decree was adopted in a qualified manner (article 38, paragraph 5, of the law the CZECH NATIONAL COUNCIL
No. 367/1990 Coll., as amended). The Decree was the proper
posted up on an official notice board in the manner of the municipal office in the new Pace on 26 April.
10.1994 and removed 10 June. 11.1994, so that became effective on 9 April. 11.
1994 (section 16 (3), (4) of the Act). The Constitutional Court therefore considers that,
that the contested regulation was adopted and issued by the constitutionally prescribed way.
In the opinion of the Constitutional Court was not, however, the contested decree adopted and
within the limits of the Constitution provided for released competency. The Constitution provides for this
the direction in article 79 paragraph 2. 3, the authorities of the local and regional authorities, as well as
ministries and other administrative authorities, on the basis of and within the limits of the law
legislate if they are empowered by law to do so. Due to the
the inclusion of this article into the head of a third, governing the power of the Executive, may be
considers that the community carries the State administration to the extent
by special laws. By contrast, article 104 of the Constitution, in which paragraph 3
provides that the Council may, within the limits of its competence to 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), as amended by
amended, is referred to the competence of local 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
decrees within delegated scope in the present case clearly
It's not. The Constitutional Court therefore dealt with the further question of whether the contested
the Ordinance can be considered as generally binding Decree in cases
belonging to separate the scope of [section 14, paragraph 1, point (a) (i).)
the law]. Separate the scope of municipalities is regulated in the provisions of § 14
of the Act, so that in the paragraph. 1 this provision are
each activity, belonging to individual municipalities, 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 may be under a separate
scope of the village according to the prohibition of activities hardly, which basically is not
nothing more than a restatement 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, therefore, has exceeded the limits of Nová Paka, the Constitution of the CZECH REPUBLIC and the CZECH NATIONAL COUNCIL Act
No. 367/1990 Coll., on municipalities (municipal establishment), as amended
the rules, set out competences. To do this, the Constitutional Court adds that
to a village in this way explicitly manifest their political will, can
so do other adequate resources as appropriate, but not legal
the normative act.
On the basis of the above, therefore, the Constitutional Court came to the conclusion that
the contested Decree is contrary to article 104 para. 3 of the Constitution of the CZECH REPUBLIC,
the provisions of § 13, § 14 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 reasons given in the proposal,
ruled that the Ordinance of the town of Nová PaKa of 25 June. 10.1994 prohibiting
the Communist, Nazi and fascist propaganda on the territory of the city of New
PaKa is repealed on the date of publication of this finding in the journal of laws (section 70
paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court).
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.