1999/01/19 - Pl. ÚS 17/98: Generally Binding Municipal Ordinance

19 January 1999

HEADNOTE

The

Constitutional Court considers local government an irreplaceable

component of democracy: it is an expression of the ability of local

bodies to regulate and manage areas of public affairs. In performing

local government tasks, a municipality must choose adequate means.

Otherwise it acts in conflict with the Constitution.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 


The Constitutional Court of the Czech Republic decided in the matter of

a petition by a group of deputies in the Chamber of Deputies of the

Parliament of the Czech Republic to annul a generally binding ordinance

of the town of Jeseník, no. 8/94 of 9 November 1994, banning fascist,

communist, Nazi and racial propaganda in the town of Jeseník, under § 87

par. 1 letter b) of the Constitution of the Czech Republic and § 70 of

Act no. 182/1993 Coll. on the Constitutional Court, as amended by later

regulations, as follows:

Jeseník town ordinance, no. 8/94 of 9

November 1994, banning fascist, communist, Nazi and racial propaganda in

the town of Jeseník, is annulled as of the day of promulgation of this

judgment in the Collection of Laws.
 

 


REASONING

I.
 

On

22 May 1998 the Constitutional Court received a petition from a group

of 27 deputies in the Chamber of Deputies of the Parliament of the Czech

Republic to annul a generally binding ordinance of the town of Jeseník,

no. 8/94, banning fascist, communist, Nazi and racial propaganda in the

town of Jeseník.

The contested ordinance states that it was

issued under § 16 and § 36 par. 1 letter 1 of Act no. 367/1990 Coll., on

Municipalities (Municipal Establishment), as amended by later

regulations (the “Act on Municipalities”). The ordinance text states in

Art. 1 that fascist, communist, Nazi and racial propaganda is banned in

the town of Jeseník. Article 2 states that such propaganda is understood

to mean a) demands to change the constitutional order by force, b) use

of the symbols of these criminal movements in promoting them and c)

casting doubt on the criminality of regimes which represented these

movements. Article 3 states that the ordinance goes into effect on the

15th day after its promulgation.

In its petition the group of

deputies points to the powers of municipal (or city) representative

bodies to approve and issue generally binding ordinances in matters

under the municipality's independent jurisdiction. However, in issuing

them, the representative body is limited by its jurisdiction, which can

be determined only by statute (Art. 104 par. 1 of the Constitution).

Such a law is, first, the Act on Municipalities, under § 13 par. 2 of

which a municipality, in exercising its independent jurisdiction, is

governed only by laws and other generally binding legal regulations

issued by central bodies to implement them. Under § 16 par. 2 such

ordinances must be in accordance with the laws and other specified legal

regulations. The petitioners state that the sphere of matters entrusted

to the independent jurisdiction of municipalities is provided as an

example in § 14 and generally in § 15 of the Act on Municipalities, and

that one can conclude from the purpose of statutory authorization of

municipal representative bodies to issue ordinances that this

authorization must be interpreted restrictively, as it applies only to

matters in which the municipality is not a subject authorized to

determine a citizen’s duties by unilateral orders and prohibitions.

The petitioners rely on a legal opinion stated in Constitutional Court

judgment Pl. ÚS 26/93, under which violation of constitutional

jurisdiction in issuing a sub-statutory legal regulation is grounds for

its annulment. They also state that the Constitutional Court’s published

judgments on jurisdiction under Art. 87 par. 1 letter b) of the

Constitution state that an ordinance which was, from the municipality’s

position, passed in the prescribed procedural manner and, per its name,

within its independent jurisdiction, even though its content violated

the relevant authorizing provisions of the Constitution and the Act on

Municipalities, cannot be considered a legal regulation issued by a

municipality within its independent jurisdiction. Therefore, under Art.

87 par. 1 letter b) of the Constitution and § 70 par. 1 of Act no.

182/1993, such a regulation must be annulled, because constitutional

jurisdiction was violated when it was issued, i.e., it was not passed

and issued within the bounds of constitutionally defined jurisdiction.

In view of the fact that – in the opinion of the petitioners – the

contested generally binding ordinance violated Art. 2 par. 4 and Art.

104 of the Constitution, Art. 2 par. 2 and 3, Art. 4 par. 1 and 2, Art.

17 par. 1, 2 and 4, and Art. 34 par. 1 of the Charter, § 13, § 14 and §

16 of Act no. 367/1990 Coll. on Municipalities, Art. 19 of the

International Covenant on Civil and Political Rights, Art. 10 of the

European Convention for the Protection of Human Rights and Fundamental

Freedoms, the group of deputies proposes annulling this ordinance.
 


II.
 

The complaint was reviewed in formal terms and no grounds for rejecting it were found.
 


III.
 

The

Constitutional Court stated that in proceedings on the annulment of the

generally binding ordinance, as well as another legal regulation, the

Constitutional Court reviews its content according to the criteria

provided in § 68 par. 2 of Act no. 182/1993 Coll. 6) on the

Constitutional Court, which include passing the ordinance within the

bounds of constitutionally defined jurisdiction and its accordance with

legal regulations of a higher degree of legal force.

Under Art.

79 par. 3 of the Constitution of the Czech Republic, local government

bodies may issue legal regulations on the basis of and within the bounds

of a statute, if they are authorized to do so by the statute. Namely,

municipal representative bodies may, within the limits of their

jurisdiction, issue generally binding ordinances (Art. 104 par. 3 of the

Constitution). The systematic ordering of the cited provisions

indicates that the first enshrines the power to issue generally binding

ordinances in transferred jurisdiction, and the second enshrines the

power to issue these ordinances in the municipality's independent

jurisdiction. Art. 79 par. 3 of the Constitution is the legal basis for

derived local creation of legal norms, and 104 par. 3 enshrines the

original power to create legal norms.

The generally binding

ordinance contested by the petition from the group of deputies was not

issued on the basis of statutory authorization in matters falling under

transferred jurisdiction (§ 21 et seq. of the Act on Municipalities). On

the contrary, as its introductory provision states, it relies on § 16

and § 36 par. 1 of the cited Act. That would indicate that this an

ordinance issued under the municipality's independent jurisdiction. The

Constitutional Court confirms the constructions expressed in a number of

its earlier decisions (e.g. Pl. ÚS 44/95, Pl. ÚS 4/96 etc.) under which

a municipality may, within its independent jurisdiction, handle by

generally binding ordinances only those tasks of public administration

that the law, in the first place the Act on Municipalities, identifies

as its independent jurisdiction, with the additional condition that it

do so in a manner which does not conflict with constitutional acts,

international treaties under Art. 10 of the Constitution, or laws and

legal regulations issued by central government bodies for their

implementation (Art. 87 par. 1 letter b) of the Constitution, § 16 par. 2

of the Act on Municipalities). A municipality may not, under any

circumstances, by a generally binding ordinance regulate something that

is reserved for regulation by statute. The Constitutional Court

concludes that the present generally binding ordinance of the town of

Jeseník regulates those social relationships that are reserved for legal

regulation only by statute, i.e. a form of legal regulation which can

be passed only by the Parliament of the Czech Republic (Art. 15 par. 1

of the Constitution). Under Art. 104 of the Constitution the

jurisdiction of a representative body can be provided only by statute,

which means that a representative body may not itself expand this

jurisdiction using generally binding ordinances. For these reasons a

generally binding ordinance cannot ban a certain kind of propaganda. In

terms of content, the closest statutory provisions in this connection

are § 260 and § 261 of the Criminal Code, on the support and propagation

of movements aimed at suppressing citizens’ rights and freedoms. As

that provision of the Criminal Code observes the requirement of Art. 39

of the Charter, under which only a statute may designate what conduct is

a crime and what punishment, as well as what other detriment, in rights

or property, can be imposed for committing it, by that alone the

contested ordinance comes into conflict with Art. 39 of the Charter,

because, as a sub-statutory legal regulation, it cannot regulate

something that is exclusively subject to statutory regulation.

The Constitutional Court adds that in accordance with its previous

opinions (e.g. Pl. ÚS 1/96) it considers local government an

irreplaceable component of the development of democracy. Local

government is an expression of the rights and abilities of local bodies,

within the bounds set by law, within their responsibility and in the

interest of local residents, to regulate and manage areas of public

affairs. A municipal representative body is indisputably a body which

cannot be indifferent to whether political parties, their branches or

their members in the municipality behave in a manner which conflicts

with the law or even meets some of the material elements of crimes

provided in the Criminal Code. Municipal bodies, whether elected or

appointed, can substantially contribute to the level of information of

responsible authorities and the public – under the Criminal Code or the

Act on Association in Political Parties and Political Movements – about

whether political parties or their followers act in conflict with what

their articles of association proclaim. However, if a municipality

wishes to manifest its political will in performing its local government

acts in the interest of local residents, it must do so using adequate

means. In the adjudicated matter, the town of Jeseník, by choosing the

means of a generally binding ordinance, i.e., a normative act, acted in

an inadequate manner.

For the foregoing reasons, the

Constitutional Court reached the conclusion that the contested ordinance

is in conflict with Art. 104 par. 3 of the Constitution of the CR, and §

13 par. 2, § 14 par. 1, § 16 par. 2 of the Act on Municipalities, as

amended by later regulations, and therefore, without considering it

necessary to review the other reasons stated in the petition, decided

that Jeseník town ordinance no. 8/94, banning fascist, communist, Nazi

and racial propaganda in the town of Jeseník is annulled as of the day

of promulgation of this judgment in the Collection of Laws.
 

 



Pl. ÚS 17/98
Overview of the most important legal regulations

1.  

 Art. 15 par. 1 of Act no. 1/1993 Coll., the Constitution of the CR,

provides that the legislative power of the Czech Republic is vested in

the Parliament.

2.    Art. 104 par. 1 of Act no. 1/1993 Coll.,

the Constitution of the CR, provides that the powers of representative

bodies shall be provided for only by statute. Under par. 2

representative bodies of municipalities shall have jurisdiction in

matters of self-government, to the extent such matters are not entrusted

by statute to the representative bodies of higher self-governing

regions.

3.    A.rt. 79 par. 3 of Act no. 1/1993 Coll., the

Constitution of the CR, provides that ministries, other administrative

offices, and bodies of territorial self-governing units may issue

regulations on the basis of and within the bounds of that statute.

4.  

 Art. 87 par. 1 letter b of Act no. 1/1993 Coll. of the Constitution of

the CR, provides that the Constitutional Court has jurisdiction to

annul other legal enactments or individual provisions thereof if they

are inconsistent with a constitutional act, a statute, or an

international treaty under Art. 10.

5.    Art. 39 of Act no.

2/1993 Coll., on the declaration of the Charter of Fundamental Rights

and Freedoms, provides that only a law may designate the acts which

constitute a crime and the penalties or other detriments to rights or

property that may be imposed for committing them.

6.    § 68

par.2 of Act no. 182/1993 Coll., on the Constitutional Court, provides

that in its decision making the Constitutional Court shall assess the

contents of a statute or some other enactment from the perspective of

its conformity with a constitutional act or an Article 10 Treaty, or

with a statute if some other type of enactment is concerned, and

ascertain whether it was adopted and issued within the confines of the

powers set down in the Constitution and in the constitutionally

prescribed manner.

7.    § 13 par. 1 of Act no. 367/1990 Coll.,

on Municipalities (Municipal Establishment), provides that a

municipality manages its affairs independently and par. 2 provides that

in exercising its independent jurisdiction a municipality is guided only

by statutes and generally binding regulations issued by central bodies

for their implementation.

8.    § 16 par. 1 of Act no. 367/1990

Coll., on Municipalities (Municipal Establishment), provides that to

perform its tasks, a municipality may issue generally binding ordinances

for its territory. Par. 2 provides that generally binding ordinances

must be in accordance with the laws and generally binding legal

regulations issued by central state government bodies for their

implementation.