The Constitutional Court found no 107 / 2000 Coll.
The Constitutional Court found of 5 April 2000 on the application for annulment of the provisions of Sections 62 and 62a of Act No. 367 / 1990 Coll., on Municipality (Municipal Establishment), as amended
Valid
The Constitutional Tribunal found
Text versions:
28.04.2000
107
FIND
The Constitutional Court
On behalf of the Czech Republic
On 5 April 2000, the Constitutional Court decided in plenary on the proposal of the City of Ústí nad Labem and of the City of Ústí nad Labem to abolish the provisions of Sections 62 and 62a of Act No. 367 / 1990 Coll., on municipalities (municipal establishment), as amended,
as follows:
In Act No. 367 / 1990 Coll., on Municipality (municipal establishment), as amended, the date of the publication of this finding in the Collection of Laws is deleted:
1. in Paragraph 62 (1), second sentence
2. in Paragraph 62 (2), second sentence
3. In Paragraph 62 (4), part of the sentence of the second sentence in front of the semicolon, expressed in the words "and shall present the case to the Czech National Council" and part of the sentence of the second sentence after the semicolon in the words "and shall submit the case to the Czech National Council for a decision"
4. in Paragraph 62a (1), second sentence
5. in Paragraph 62a (2), the second sentence
The rest is rejected.
Reasons
On 9 December 1999, the Constitutional Court received a constitutional complaint from the Municipality of Ústí nad Labem and the Municipality of Ústí nad Labem - Nestlamice against the order of the Chamber of Deputies of the Czech Republic No 457 of 13 October 1999 with a proposal to repeal Sections 62 and 62a of Act No. 367 / 1990 Coll., on Municipality (municipal establishment), as amended ("the Act on Municipality ').
The complainants stated that the Resolution of the Chamber of Deputies infringed the right to self-administration of the guaranteed local authorities in Article 8 of the Constitution, which is also expressed and defined in Sections 13 (1) and (2) and 14 (1) and (2) of the Municipality Act. They import that the decision on the implementation of the construction arrangements in Matiční Street is undoubtedly within the separate competence of the municipality and any interference with this self-governing competence is possible only if it requires the protection of the law and in the manner laid down by the law (Article 101 (4) of the Constitution). Therefore, the complainants consider that state power - in the present case, legislative power - has acted contrary to this provision of the Constitution.
They also point out that the Constitution of the Czech Republic (Constitutional Act No. 1 / 1993 Coll.) repealed the existing Constitution and Constitutional Act on the Czechoslovak Federation and changed the constitutional status of the state and its institutions from the ground up. In particular, on 31 December 1992 the Czech National Council ceased to be the "supreme body of state power" and on 1 January 1993 it became the Chamber of Deputies of the Czech Republic with a new constitutional position based on the division of state powers into legislative powers (Title Two), executive power (Title Three) and judicial power (Title Four).
This met the requirement to create a legal and democratic state, as some of the provisions of the Municipality Act were derogated, in particular in the area of state supervision of the legality of the exercise of self-government, contained in Sections 62 and 62a of the Municipality Act. The Constitutional Court has become a guarantor of the constitutionality and legality of this exercise of the municipal authority pursuant to § 64 (3) and § 72 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court ("the Law on the Constitutional Court '). However, the General Courts shall examine only decisions of territorial authorities given in administrative proceedings or decisions establishing, amending or revoking the rights of natural or legal persons.
On the basis of the arguments put forward, the complainants claim that the abolition of the resolution of the municipal district of Ústí nad Labem - Nestlamice Chamber of Deputies was an unconstitutional interference with the activities of the local self-government.
The Second Chamber of the Constitutional Court was forced first to clarify the question of active legitimacy for the submission of a constitutional complaint by the Municipality of Ústí nad Labem. According to Article 72 (1) (b) of the Constitutional Court Act, the municipality's representative is entitled, in relation to Article 87 (1) (c) of the Constitution, to lodge a constitutional complaint where he claims that the unlawful state interference has infringed the guaranteed right of the local authority to self-administration. This provision does not specify whether it must always be a municipality or whether it can also be a municipal district or district. Taking into account the opinion of the plenary of the Constitutional Court expressed in the decision of 17 April 1996 sp. zn. This opinion is also in line with the provision of Section 3 (2) of the Municipality Act, which specifies the provisions of Section 25 (2) (a) of the Municipality Act, according to which some of the powers of the Municipality Act, broken down by the Statutory City, will be exercised by urban districts or urban areas. The territory of the city of Ústí nad Labem was transferred to the city district of Ústí nad Labem - Nestradimice Záplátelství ústí nad Labem by the generally binding Decree No. 41 / 1996, which was issued by the City of Ústí nad Labem. The second applicant's active legitimacy is therefore given.
II. The Chamber of the Constitutional Court, by order of 11 January 2000, sp. zn. II. ÚS 559 / 99 suspended the proceedings for a constitutional complaint pursuant to Paragraph 78 (1) of the Law on the Constitutional Court and the application for annulment of Sections 62 and 62a of the Law on Municipality referred the plenary of the Constitutional Court to a decision pursuant to Article 87 (1) (a) of the Constitution. The case was registered under point Pl ÚS 1 / 2000. At the same time, the proposal was sent to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and the Ministry of Interior in accordance with Section 69 of the Law on the Constitutional Court.
The Chamber of Deputies of the Parliament of the Czech Republic, in its observations on the proposal to repeal Sections 62 and 62a of the Act on Municipality, states that the proposal concerns the provisions of the Act on Municipality, which was amended by Act No. 302 / 1992 Coll. with effect from 1 July 1992. This was also an adjustment to the so-called correction of incorrect measures. However, the explanatory notes to the two bills do not mention the specific justification for the regulation thus approved. It should therefore be taken into account that the current arrangements for the municipal establishment are based on the arrangements that existed before today's Constitution, which, when organising the state, is based on the division of powers and their balancing. The Constitution also expressly authorises the Constitutional Court to decide on constitutional complaints by the authorities of the local authorities against unlawful State interference. In practice, the legal regulation was faced with certain uncertainties of interpretation that arose after the adoption of the new Constitution (effective as of 1 January 1993), which, according to some legal opinions, indirectly amended the contested provisions by conferring decisions on these matters solely to the Constitutional Court. Moreover, the House of Deputies - that is, the legislature - completely ignores its aim and purpose - that is, the decision on whether the law has been infringed.
The Chamber of Deputies took the view that the legislature acted in the belief that the resolution adopted was not in direct conflict with the Constitution and that the legislation was in line with the Constitution, the constitutional order and the rule of law at the time. It left it to the Constitutional Court to examine the constitutionality of the contested order of the Chamber of Deputies and the contested provisions of the Act on Municipality and to give the relevant decision.
The Act on Municipality and Act No. 302 / 1992 Coll., amending and supplementing the Act of the Czech National Council No. 367 / 1990 Coll., on Municipality (municipal establishment), as amended by the Act of the Czech National Council No. 439 / 1991 Coll., the Act of the Czech National Council No. 485 / 1991 Coll. and the Act of the Czech National Council No. 553 / 1991 Coll., were approved by the necessary majority of the members of the legislature, signed by the relevant constitutional officials and duly declared in the Collection of Acts.
The Senate of the Parliament of the Czech Republic stated in its observations that the Act on Municipality was adopted by the then Czech National Council on 4 September 1990 and its amendment, to which the Act on Municipality was supplemented by Paragraph 62a, on 6 May 1992. In both cases, this happened before the Senate was established. Because in accordance with Article 106 (1) and (2) The Constitution became the Chamber of Deputies on the effective date of the Constitution, and until the Senate was established, it was also responsible for its observations on the matter.
The Ministry of the Interior did not comment on the proposal.
The Constitutional Court notes that neither the Government nor the Ministry responsible, nor the Chamber of Deputies nor the competent head of the District Office have sufficiently realised the practical consequences of the change in our constitutional order, and hence the Act on Municipality, which was adopted by the Constitution. In particular, one of the foundations of the old constitutional order was removed, by which the system of national committees was built according to the Soviet model from local to regional and regional national committees to the Czech National Council (as the "National Committee of the Highest Degree"), designed as government and state authorities and the Czech National Council even as the "Supreme Authority of State authority" under Article 102 of Constitutional Law No. 143 / 1968 Coll., valid until 31 December 1992. This system was replaced by a rule of law based on the division of state powers: legislative, executive and judicial, in which the Parliament of the Czech Republic, composed of the Chamber of Deputies and the Senate, has only the power of legislative and any executive power or lack of jurisdiction. The only executive power of the Chamber of Deputies is the ability to disciplinary action against its members and to decide on their consent to criminal prosecution; It also carries out illegal functions consisting of the possibility of setting up an investigation committee on matters of public interest and the possibility of interfering with the Government and its members. Therefore, the Chamber of Deputies must not intervene in any way in the power of executive and self-government, except in the case of initiatives or recommendations, etc.
A certain difficulty arises in the assessment of the legal nature of the order under appeal by the Chamber of Deputies of 13 October 1999 No 457, Part II. ', without any justification.
This preliminary assessment is necessary in order to open the way for the application for annulment of Sections 62 and 62a of the Municipality Act. They are called by the complainants as measures and as anti-measures against them. It is an act of annulment of an authority which has no jurisdiction over it. It has no legal basis for this act in the Constitution or any other legislation; the relevant provisions of Sections 62 and 62a of the Act on Municipality have been derogated from the date of application of the Constitution, i.e. 1 January 1993, on the basis of the lex posterior derogat priori principle; here is even a derogatory law of the Constitution.
A legal act issued by a non-competent authority (authority) is called an absolutely confusing legal act in the legal theory - a pact that does not bind anyone. In a normative world, it appears to be non-existent and therefore strictly cannot be disturbed - it is a non-norm.
The resolution of the Chamber of Deputies of 13 October 1999 is also the result of previous normative acts. It is a resolution of the Government of the Czech Republic No 505 / 1999 of 26 May 1999, Article IV, which instructs the President of the District Office in Ústí nad Labem to present this case in the event of failure to rectify the City of Ústí nad Labem for a decision to the Chamber of Deputies and, furthermore, to submit a proposal to the District Office in Ústí nad Labem for the annulment of the resolution of the City of Ústí nad Labem for a decision of the Chamber of Deputies contrary to the Constitution. The resolution of the Chamber of Deputies on the repeal of this resolution has been published and then widely commented and meditated at home and abroad.
But how to respond to this legal situation created by a number of unprofessional previous procedures. By simply stating that it is a zero, trivial, quasi-legal act that no one has to take care of and no one has to abide by, and for that reason reject a constitutional complaint, because it was actually merely against a non-existent act of the Chamber of Deputies, the Constitutional Court would not fulfil its obligation as a guarantor of the constitutionality of the rule of law.
The possibility of issuing a declaratory finding (decision) that this is a zero case is unknown to our legal order.
However, this possibility is known, for example, by an administrative procedure in Germany, where the 1976 Administrative Regulation gives the possibility, pursuant to Paragraph 44 (5), to issue a declaratory finding that the act is null (see D. Hendrych et al.: Administrative law, 1994, p. 66 below). In some cases, we can challenge an absolutely confusing legal act in civil proceedings, where the court examines whether the decisions on which the contested case is based have been given by the competent authority (§ 135 (2) of the Civil Code). While Jiří Hoetzel in the Czechoslovak Administrative Law says that it would not be necessary to cancel such an act at all because it is not possible to cancel something that does not exist by right, it would be best to say that it is a pact, but he thinks that the practice is different and that the cautious parties are also attacking such legal bastards because the issue of absolute incompetence may be questionable. Otherwise, there's no other answer. It reminds, however, of the special way in which Article 102 of the Czech municipal establishment (Regional Act No 7 of 16 April 1864) and Sections 78 and 79 of the Regional Act on the Regional Council of the Czech Republic looks at the matter. This municipal establishment is also considered to be an existent act of the municipal council, which deviates from the jurisdiction of the municipality at all. According to § 102 of the Czech municipal constitution, the political office has the right and the obligation to prohibit, by virtue of the supervisory authority, where the municipal council would step out of its jurisdiction or do something against the laws to avoid such a resolution; However, the municipal council may refer a recursion to the Regional Office against this prohibition. It is quite clear from the context that this is an absolutely confusing act, but it is seen as existent even with the possibility to appeal against its ban. Hoetzel then wonders whether the codifiquan principle of our law or just singular standards can be seen in these standards. It would be for a second solution.
The example shows, however, that the Czech Parliament and lawyers preparing these principles have realised the often difficult interpretation of similar acts and voted, to a certain and reasonable extent, in order to ensure the effectiveness of the rule of law, to challenge (in the present case, ban) and such non-existent standards.
This is not just an act concerning this case. It goes far beyond it, as the Chamber of Deputies still considers it, and in the past, it has considered it legal - even against the Constitution - to abolish measures within the separate competence of municipalities on the proposal of the county authorities' heads. In the period from 1 January 1997 to today, it decided on 4 resolutions and one measure under the already mentioned and deregulated provisions of Sections 62 and 62a of the Municipality Act. Some opinions in publicity, such as the article in the "Legal Advisor 'No 6 of 1996 on the review of municipal decrees, the author of which considers that both the route to their abolition is possible, both by the decision of the Constitutional Court and by the decision of the Chamber of Deputies. In his view, the Chamber of Deputies could, in theory, only confirm these decrees, not disturb them, at most advance them to the Constitutional Court. Other measures could, according to him, confirm, disturb or alter, or it might not have to make a decision at all.
Thus, the possibility of abolishing an absolutely confusing legal act in specific cases, such as the resolution under appeal by the Chamber of Deputies, opened the way to abolishing the parts of the contested sections of Sections 62 and 62a of the Municipality Act.
Although Paragraph 62a of the Municipality Act was not a fact in which the subject of a constitutional complaint was implemented, its content is identical to Article 62 of the Municipality Act and would appear to be absurd to keep it unconstitutional. Article 78 (2) - in fine of the Law on the Constitutional Court provides for the power of the Constitutional Court to do so.
The procedure for the annulment of generally binding municipal orders under separate jurisdiction has also changed as a result of § 64 (3) of the Constitutional Court Act. These provisions complement the inconsistency of the text of those paragraphs after the annulment of the Constitutional Court's decision.
As a result of the deregulation of the parts of the provisions of Sections 62 and 62a of the Act on Municipality, the new Constitution has already been inapplicable since 1 January 1993, but their deregulation, as an interpretative principle, could not change anything in the law.
This was not done by the Chamber of Deputies, and neither the Government nor the Ministry responsible submitted a proposal to amend the Act on Municipality throughout the entire period from the effectiveness of the new Constitution.
The Constitutional Court was therefore obliged to abolish parts of the provisions of Sections 62 and 62a of the Act on Municipality as a provision directly contrary to the Constitution of the Czech Republic in exceeding the constitutional competence of the Chamber of Deputies of the Parliament of the Czech Republic.
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found no 107 / 2000 Coll., on the application for annulment of the provisions of Sections 62 and 62a of Act No. 367 / 1990 Coll., on Municipality (municipal establishment), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.04.2000 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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