The Constitutional Court found No 51 / 2001 Coll.
The Constitutional Court found of 19 December 2000 on the application for annulment of Article 2 (2) (a), Article 3 (1) (a) and (2) and Article 4 of the generally binding Decree of 10 November 1998 of the City of Písek concerning certain restrictive measures to safeguard local public policy matters
Valid
The Constitutional Tribunal found
Text versions:
07.02.2001
51
FIND
The Constitutional Court
On behalf of the Czech Republic
On 19 December 2000, the Constitutional Court decided, in plenary, on a proposal by the Písek Regional Office to repeal the provisions of Article 2 (2) (a), Article 3 (1) (a) and (2) and Article 4 of the generally binding Decree of the City of Písek of 10 November 1998 No 8 / 1998 concerning certain restrictive measures to safeguard local public order matters as follows:
Motion denied.
Reasons
By letter dated 2 February 2000, the President of the Regional Office in Písek (hereinafter referred to as "the appellant ') proposed the repeal of those provisions of the generally binding Decree of the City of Písek No 8 / 1998.
In accordance with Article 2 (2) (a) of the Decree in question which distorts or threatens to distort public policy in the city, the following are in particular:
"organising public music productions in the form of both live and reproduced (for example dance entertainment, balls, discos), if they are associated with alcohol consumption."
According to Article 3 (1) (a) of this Decree, restrictive measures to safeguard local public policy matters consist of:
"in the definition of the place and time at which certain activities may be carried out '.
In accordance with paragraph 2 of the same provision:
"For the organisation of public music productions pursuant to Article 2 (2) (a) of this Decree, the time limit applies - it can be organised between 6.00 and 22.00 hours, i.e. outside the time of night rest (time limitation). '
Article 4 of the Decree in question provides:
"Exceptions
(1) An exemption from Article 3 (2) of this Decree may be granted by the City Council on written request.
(2) Only:
(a) to organise a specific event;
(b) for a certain period of time where the activity (s) is repeated regularly but not for a period exceeding one year.
(3) The applicant for an exemption shall support the application
(a) a precise indication of the activity, the time and place of the event, the designation of the organiser, the type of music production and its operator;
(b) the estimated number of persons participating;
(c) identification of the person responsible for providing the organizational service.
(4) The City Council may make the granting of an exemption and the determination of its effectiveness subject to compliance with certain additional conditions aimed at ensuring public order.
(5) The City Council may withdraw the exemption granted during its duration if it distorts the activity of the public order during the rest of the night.
(6) The obligation to apply for an exemption shall not apply to actions organised by the city or by organisations to organise such actions set up by it. ';
The appellant stated that, on the basis of the "infringement 'of the obligations laid down by the decree in question, a fine was imposed by the City Council in Písek on 21 February 1999 pursuant to § 50 of Act No. 367 / 1990 Coll., on municipalities (municipal establishment). The District Office confirmed this decision in the appeal proceedings, but the Regional Court in České Budějovice annulled the decision to grant the fine by judgment of 27 October 1999 No 10 Ca 213 / 99-28. In the preamble to the judgment, the court stated that the City Council exceeded its jurisdiction by approving the decree in question, which limits the operating hours of the hospitality facilities not owned by the City of Písek. According to Article 2 (3) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and Article 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), obligations may be imposed only on the basis of and within the limits of the law and, since there is no law to limit the operating hours of hospitality facilities authorised to perform dance entertainment, the municipality cannot limit that operating time.
On 1 December 1999, the head of the District Office in Písek called on the Mayor of the City of Písek to discuss the validity of the contested decree in the City Council. The City Council of the Písek on 16 December 1999 discussed the order in question but decided not to cancel it. Therefore, on 4 January 2000, the President of the Regional Office in Písek suspended the application of the contested provisions of the Decree in question and set the deadline for the correction until 20 January 2000. However, since the City Council in Písek decided by order No 43 / 00 of 20 January 2000 that the provisions of the Decree in question had not been repealed, the presiding representative of the District Office proposed that the contested provisions be annulled by the Constitutional Court for the above reasons.
In its comments on the proposal by the City of Písek (Mayor of JUDr. Luboš Průša), the City of Písek stated that the decree was approved at the meeting of the City Council in Písek on 10 November 1998, when 20 out of 27 representatives voted in favour of its adoption. Then the decree was signed by the mayor and his representative and on 11 November 1998 it was posted on the official plate of the city office under order number 502 and removed from it on 26 November 1998. It is said that all the formalities necessary for the effectiveness of the order in question have been fulfilled.
On the content of the order, the party to the proceedings stated that it had been issued in accordance with the authorisation contained in Section 17 of the Municipality Act, as amended. The appellant's position is allegedly based on the incorrect interpretation of the Decree by the Regional Court judgment in České Budějovice, because the Order does not limit the operating hours of the hotel facilities in the city, but only sets out the time range for the organisation of public music production as activities which could undermine public policy. In the city's view, such an approach is in line with the intention of the legislator. In addition, the city of Písek points to a new law on municipalities, which enshrined in Section 10 the right of the municipality to issue a decree to ensure public order, which will determine the conditions for the organisation of publicly accessible music productions.
The contested decree was not arbitrarily adopted in order to restrict the freedom of enterprise, but rather as a response to specific public order-distorting behaviour, and in practice it proved effective against these negative behaviours. The City of Písek finally states that, in the present case, the right of the municipality to issue a decree in order to ensure public order corresponds fully to its liability for cases within the separate jurisdiction of the municipality, in particular under Paragraph 14 (1) (o) of the Municipality Act. The view of the Constitutional Court, which, in some cases, has expressed that the municipality, although it has a duty to ensure local public order, does not, however, have the necessary resources to do so, is unsustainable.
For all the above reasons, the city of Písek has proposed that the proposal by the district office's preference be rejected.
According to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court first ascertains whether the relevant legislation (the contested) has been adopted and issued within the limits of the Constitution established competence and by the constitutional procedure.
Minutes of the continuation of the meeting of the City Council in Písek of 10 November 1998 The Constitutional Court found that a total of 27 members of the council were present at that meeting. Decree No 8 / 1998 was approved by 20 votes of the total number of representatives present. There was no representative and 1 abstained.
It follows from the minutes of the meeting of the City Council in Písek of 16 December 1999 that the City Council, whose meeting was attended by 26 representatives, had a 20 to, 2 to and 2 abstention ratio (vote), opposed the annulment of Decree No 8 / 1998 and agreed to file a constitutional complaint [Note: a constitutional complaint against the judgment of the Regional Court in České Budějovice. This constitutional complaint was rejected by the Constitutional Court by a resolution of 8.2.2000 sp. zn. II. ÚS 16 / 2000 as a manifestly unfounded proposal, in particular because the Regional Court assessed the contested general binding decree of the city of Písek as a contradiction with the law, continued to "proceed as if this other provision did not exist 'and therefore did not rule on its annulment, in accordance with Article 95 (1) of the Constitution and Article 87 (1) (b) of the Constitution.]
It follows from the decision of the Písek Regional Office of 4.1.2000 KP No. 4 / 00 that the district office suspended the application of the contested provisions of Decree No 8 / 1998. According to the minutes of the City Council meeting in Písek of 20 January 2000, which was attended by 25 members of the council, the municipal council became aware of this decision, but the ratio of 18 votes to no objections and 6 abstained (vote), issued Resolution No 43 / 00, which decided not to cancel the order in question and to await the decision of the Constitutional Court in this matter.
From the observations of the city of Písek and the "copy of the implementation of the generally binding Decree No 8 / 1998 'sent to the Constitutional Court by the Municipal Office in Písek - the Internal Affairs Department by letter dated 28.8.2000, the Constitutional Court found that the decree in question was in accordance with § 16 (3) and (4) of the Municipality Act on 11.11.1998 on the official record of the City Office under order number 502 and was removed from it on 26.11.1998. The decree became effective on 1 January 1999, as determined by Article 6 (4) thereof.
In these circumstances, the Constitutional Court concluded that the contested general binding decree was adopted and issued in a way that is constitutional.
The Constitutional Court also addressed the question whether the contested decree was issued in a separate or delegated capacity of the municipality. In this respect, the Constitutional Court stated that the general binding decree in question was still approved for the effectiveness of Act No. 367 / 1990 Coll., on Municipality (municipal establishment). According to its provision § 21 (1) "The municipality exercises state administration to the extent provided for by special laws." According to Section 14 (1) (o) of the Municipality Act, as amended, "local public order matters and the establishment of municipal (urban) police, with the exception of decisions on infringements' were explicitly included in the area of the municipality's separate competence. This provision was further laid down in Paragraph 17 of the same law, according to which the municipality may, in order to safeguard local public order matters, by a generally binding decree, determine which activities which could distort public policy in the municipality may be carried out only at the places and at the time of the decree designated by that order, or provide that certain publicly available places in the municipality are prohibited from such activities. It is therefore clear that, according to the legislation in force at the time of the adoption of this general decree, it was a decree under the separate jurisdiction of the municipality.
The new (current) legislation has not changed anything in this respect either, since according to § 35 (1) of Act No. 128 / 2000 Coll., on municipalities (municipal establishment), the management of matters which are in the interest of the municipality and its citizens, if they are not entrusted with the law of the regions or if they are not subject to the exercise of the delegation, as well as those which are entrusted to the separate jurisdiction of the municipality by the special law. Within their own competence, municipalities are entitled to issue generally binding municipal decree [§ 84 (2) (i) of Act No. 128 / 2000 Coll.].
The Constitutional Court concluded that the contested general binding decree was issued under the separate jurisdiction of the municipality and that, therefore, there was nothing to prevent it from being discussed and decided on (§ 64 (3) of Act No 182 / 1993 Coll.).
The constitutional limits for the issuing of generally binding municipal decrees in their separate jurisdiction are laid down in particular by Article 104 (3) of the Constitution, according to which "The representative bodies may, within the limits of their competence, issue generally binding decrees'. The scope of the municipalities in this respect was mainly due to Article 13 (2) of the already repealed Act No. 367 / 1990 Coll., on Municipality (municipal establishment), according to which, in the exercise of its separate competence, the municipality is governed by the laws and generally binding legislation issued by the central authorities for their implementation. The generally binding regulations therefore had to comply with the laws and with the generally binding legislation issued by the central government authorities to implement them (§ 16 (2) of the former municipal law).
In some of its earlier findings, the Constitutional Court held that the list contained in Section 14 (1) (formerly applicable) of the Act on Municipality No 367 / 1990 Coll., must be regarded as exhaustive from the point of view of its interpretation in the sense of the legal authorisation to issue generally binding municipal decrees. His demonstrative dictation, as well as the universality of the definition of the municipality's self-governing competence contained in Section 14 (2) of the Municipality Act, must only be applied to the municipality's self-governing competence, "in which the municipality does not act as a body determining for the citizen the obligations of unilateral orders and bans" (Opinion No. 5 / 93, Constitutional Court of the Czech Republic: Collection of finds and resolutions - Sv. 1, C. H. Beck, Prague, 1994, p. 35). The Constitutional Court has also held several times that under Article 4 (1): The Charter may be imposed only by law and within its limits, and that pursuant to Article 2 (4) of the Constitution and Article 2 (3): No one must be forced to do what the law does not impose. According to the present case-law, it follows from these provisions for the jurisdiction of the municipality that, in cases where the municipality acts as a body determining the obligations of the citizen by unilateral prohibitions and orders, that is to say that, in particular, where it issues generally binding decrees which contain legal obligations, it can do so only in the case of express legal authorisation (see, for example, the latter, ÚS 5 / 93 or the latter, paragraphs 35 and 87).
In the present case, however, the Constitutional Court is obliged to reflect the legislative developments which took place with the effect of Act No. 128 / 2000 Coll., even in the knowledge that the contested decree was approved even after the Act No. 367 / 1990 Coll. According to Section 10 (c) of Act No. 128 / 2000 Coll., the municipality is empowered to impose obligations "for the organisation, conduct and termination of publicly accessible sports and cultural enterprises, including dance entertainments and discotheques, by laying down mandatory conditions to the extent necessary to ensure public order '. In addition, the Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, which will take effect on 1 January 2001, states in § 96 that" The municipality may, by a generally binding decree, order for the territory of the municipality or part of it to protect health against the formation and spread of infectious diseases by performing a special protective disinsectisation and deratization and to protect against noise and vibrations the end of public production of music, operating times of inns, gambling and similar facilities of services, where their production or operation causes disproportionate harassment to citizens. "
It is clear that under those laws the reason for the annulment of the contested decree is no longer given. The order in question is in conformity with the Act on Municipality No. 128 / 2000 Coll., which expressly empowers the municipality to issue such a general binding decree under its separate jurisdiction and is therefore not in conflict with the articles cited in the Constitution and the Charter.
Therefore, the Constitutional Court rejected the proposal of the Písek Regional Office to abolish Article 2 (2) (a), Article 3 (1) (a) and (2) and Article 4 of the generally binding Decree of 10 November 1998 of the City of Písek concerning certain restrictive measures to safeguard local public order matters.
President of the Constitutional Court:
JUDr. Kessler v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 51 / 2001 Coll., on the application for annulment of the provisions of Article 2 (2) (a), Article 3 (1) (a) and (2) and Article 4 of the generally binding Decree of the City of Písek of 10 November 1998 No 8 / 1998 concerning certain restrictive measures to safeguard local public affairs |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.02.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0