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In The Matter Of The Application For Revocation Of Options. Ust. Duplicate Search. The Town Of Nová Paka

Original Language Title: ve věci návrhu na zrušení někt. ust. vyhl. města Nové Paky

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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.