2001/07/11 - Pl. ÚS 1/01: Local Authority Competence

11 July 2001

HEADNOTES

The

Constitutional Court respects local government as an expression of the

right and competence of local bodies to govern public matters within the

bounds set by law, as part of their responsibility and in the interest

of the local population, but nevertheless believes that the contested

ordinance, in Art. 2 para. 1 let. a), subjected to its regulation

relationships which cannot be governed in such a manner. The very

expression “Celebrations of the Feast of St. Wenceslas” evokes close

ties to the church anniversary relating to St. Wenceslas, not only to

the religious celebrations and rites connected with this Christian

holiday, but also customs and conventions which the civil society has

historically created in relation to this holiday outside the framework

of church structures. Undoubtedly it is also the right of other

communities in the civic society to decide whether, or when and to what

extent, they will gather for the celebrations held in this regard. The

local government undoubtedly has a right to issue restrictive measures

to protect public order, but by appropriating the right to decide the

date of these celebrations it is entering into relationships which exist

between the citizens and religious or other social entities. By doing

so, it steps out of its independent jurisdiction, whose identifying

characteristic is precisely the fact that a municipality independently

governs “its affairs”. Decision making about the holding of celebrations

of the Feast of St. Wenceslas is thus an inappropriate means for

protecting the public order, as it exceeds the limits of its local

nature.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court decided on 11 July 2001, in the

matter of a petition from the chairman of the District Office in Kladno,

to annul a generally binding ordinance of the town of Stochov of 19

June 2000 on ensuring public order in the town, as follows:

The

generally binding ordinance of the town of Stochov of 19 June 2000 on

ensuring public order in the town is annulled as of the day this

judgment is published in the Collection of Laws.

 


REASONING
 

In

his filing of 4 January 2001, the chairman of the District Office in

Kladno proposed the annulment of the generally binding ordinance of the

town of Stochov on ensuring public order, of 19 June 2000, which reads

as follows:

“Generally binding ordinance
of the Town of Stochov
of 19 June 2000
on ensuring public order in the town

The

City Council in Stochov, under § 45 let. l) of Czech National Council

Act No. 367/1990 Coll., on municipalities, as amended by later

regulations, resolved on 19 June 2000 to issue, under § 16 of that Act,

and in accordance with § 17, this generally binding ordinance:

Article 1
INTRODUCTORY PROVISION
This

ordinance governs the management of local matters of public order in

the territory of the town of Stochov, consisting of the real estate

registration areas Čelechovice, Honice and Stochov.

Article 2
CELEBRATIONS OF THE FEAST OF ST. WENCESLAS
(1)

With regard to the need to ensure public order in the municipality

during the public celebrations of the Feast of St. Wenceslas (the

“celebrations”), the City Council
a) will determine the date for the celebrations,
b)

will determine the place in which, during these celebrations, market

stalls, amusement park facilities and other similar attractions will be

located.

(2) The City Council will determine the date under

paragraph 1 let. a) no later than 31 January each year, and the place

under paragraph 1 let b) no later than 30 April each year.

Article 3
JOINT, TRANSITIONAL AND CLOSING PROVISIONS
(1)

Violation of obligations set by this ordinance or on its basis can be

prosecuted as a misdemeanor1), except for an act subject to stricter

punishment, or other sanctions can be imposed for it in accordance with

law2).
(2) The City Council will determine dates under Art. 2 para. 1 for the year 2000 by 31 July 2000.
(3)

This ordinance goes into effect on 15 July 2000, with the exception of

Art. 2 para. 2, which goes into effect on 1 January 2001.

Ing. Jindřich Sybera in his own hand
Town Mayor
Stanislava Fišerová in her own hand
Deputy Town Mayor
-------------------------------------------
1 § 48 of Act No. 200/1990 Coll., on Misdemeanors
2  e.g. § 50 of Act No. 367/1990 Coll., on Municipalities (municipal establishment)”


In

his petition the petitioner stated that he reached the conclusion that

Art. 2 para. 1 let. a) of the generally binding ordinance is in conflict

with Art. 2 para. 4 of the Constitution of the CR and, together with

Art. 2 para. 1 let. b) is also contrary to Art. 11 para. 4 and Art. 26

para. 1 and 2 of the Charter of Fundamental Rights and Freedoms (the

“Charter”), and therefore, by his decision of 20 October 2000, file no.

Sekr. 20967/2000, stopped enforcement of the generally binding

ordinance. At their 15th session, held on 23 November 2000, the

representatives of the town of Stochov decided not to annul the

ordinance in question, and therefore the petitioner had no alternative

but to submit the petition for annulment to the Constitutional Court,

together with the following arguments:
 

In

the petitioner’s opinion, by determining the date for holding the

public St. Wenceslas celebrations the town of Stochov appropriated the

right of the citizens to decide when they will gather for the feast

celebration. The purpose of such a gathering is not, in this case,

subject to Art. 19 of the Charter, implemented by Act No. 84/1990 Coll.,

on the Right of Assembly, and therefore the legal framework for its

exercise must be sought in Art. 2 para. 4 of the Constitution of the CR,

under which everyone may do that which is not forbidden by law and

nobody may be compelled to do that which is not imposed by law.

According to the petitioner, Art. 2 para. 1 let. a) of the ordinance is

in conflict with this constitutional principle.

Under Art. 11

para. 4 of the Charter, property rights can be restricted only in the

public interest, on the basis of law, and for compensation. Examples of

implementation of the cited article are § 128 of the Civil Code, or §

108 et seq. of Act No. 50/1976 Coll., on Zoning and the Building Code,

from which it is clearly evident that regulation of interference in

property rights of the affected entities is subject to state government,

and not local government. According to the petitioner, by enshrining

the obligation to operate amusement park facilities and other similar

attractions at a time and on parcels of land owned by persons other than

the municipality itself, the municipality interferes in the exercise of

property rights of the persons in question.
 

The

right to do business and conduct other commercial activity is

guaranteed by Art. 26 para. 1 of the Charter, and conditions for and

limitations on this right can only be set by law. Act No. 455/1991

Coll., on Licensed Trades, indicates that operating folk technical

entertainment, or facilities used for purposes of entertainment, is an

unrestricted trade. Except for observing the general obligations arising

for every trade license holder and the general obligations imposed by

the legal order for every person, the legal order does not impose any

special obligation for the operation of amusement parks and other

similar attractions. The trade licensing agenda falls under state

government, and a municipality has no authority to regulate this area

through ordinances issued under its independent jurisdiction. The town

of Stochov is only authorized to issue an ordinance determining the

locations for market stalls and fair attractions on its property, or, on

the basis of § 18 of the Trades Licensing Act it may regulate sales and

provision of services outside a place of business through an order

(before Act No. 128/2000 Coll. went into effect this was by generally

binding ordinance under delegated jurisdiction). According to the

petitioner, article 2 para. 1 let. a) and b) of the ordinance implicitly

contain limitations on the right to do business, as it permits the

exercise of business activity only at a restricted location and space,

and in that regard these provisions are in conflict with Art. 26 para. 1

and 2 of the Charter.
 


II.
 

The town of Stochov responded to the petition on 12 March 2001.
…..
 


III.
 

Under

Art. 87 para. 1 let. b) of the Constitution of the CR, the

Constitutional Court has jurisdiction to annul other legal enactments,

including generally binding municipal ordinances, issued under

municipalities’ independent jurisdiction, if they are inconsistent with a

constitutional act, a statute, or an international treaty under Art. 10

of the Constitution. In these proceedings, in view of § 68 para. 2 of

Act No. 182/1993 Coll., on the Constitutional Court, the Constitutional

Court is also required to review whether the contested legal regulation

was issued in a constitutional manner. The Constitutional Court stated

that the contested generally binding ordinance was passed and issued in a

constitutionally prescribed manner.
 


IV.
 

In

evaluating whether the contested ordinance was issued under the

municipality’s independent or delegated jurisdiction, it was necessary

to take into account that the generally binding ordinance was approved

while the now annulled Czech National Council Act No. 367/1990 Coll., on

Municipalities (Municipal Establishment), was still in effect, under

whose provisions a municipality could issued generally binding

ordinances in matters falling under delegated jurisdiction only on the

basis of authorization by statute and within its bounds (§ 24 para. 1),

and in matters falling under independent jurisdiction (§ 14 para. 1 and

2) it could, by generally binding ordinance, set restrictive measures in

order to manage local matters of public order (§ 17).

The date

of 28 September, on which the St. Wenceslas religious rites take place,

was declared a national holiday and the day of Czech statehood by Act

No. 245/2000 Coll., in effect as of 9 August 2000. Under § 3, this is a

non-working day, but no authorization arises from its text. Because the

Czech legal order did not contain, at the time the ordinance was issued,

nor does it now contain, any other law authorizing a municipality to

issue generally binding ordinances permitting any regulation or

organization of folk celebrations in connection with religious holidays

or anniversaries, we can conclude that the contested ordinance does not

fall in the area of delegated jurisdiction.

The ordinance

relies on § 14 para. 1 let. o) of the previous Act on Municipalities,

under which a municipality’s independent jurisdiction included “local

matters of public order and the establishment of municipal (town)

police, with the exception of adjudicating misdemeanors”. In view of §

17, a municipality could “In order to manage local matters of public

order [§ 14 para. 1 let. o)] … by generally binding ordinance issued

under its independent jurisdiction, determine which activities, which

could interfere with public order in the municipality, may be conducted

only in places and at times determined by the ordinance, or provide that

such activities are forbidden in certain publicly accessible places in

the municipality”. This was not changed in any way by the new, current

regulation of municipal establishment implemented by Act No. 128/2000,

on Municipalities (Municipal Establishment), in effect as of 12 November

2000, under which independent municipal jurisdiction includes the

regulation of matters which are in the interest of the municipality and

its citizens, unless they are entrusted by statute to the regions, or

except for the exercise of delegated jurisdiction, as well as matters

which are entrusted to independent municipal jurisdiction by a separate

statute (§ 35 para. 1). As part of their independent jurisdiction,

municipalities are authorized to issue generally binding municipal

decrees [§ 84 para. 2 let. i)]. Based on the foregoing, one can assume

that the contested ordinance, by delimitation of the regulated issues,

falls under and was issued under independent municipal jurisdiction.

The constitutional limits for issuing generally binding municipal

ordinances under independent municipal jurisdiction are set in Art. 104

para. 3 of the Constitution of the CR, under which municipal

representative bodies can, within the scope of their jurisdiction, issue

generally binding ordinances. This municipal jurisdiction arose from §

13 para. 2 of the now annulled Czech National Council Act No. 367/1990

Coll., on Municipalities, under which a municipality, in exercising its

independent jurisdiction, was governed only by statutes and generally

binding legal regulations issued by central bodies for their

implementation. Under § 16 para. 2 of this Act, generally binding

ordinances had to be in accordance with statutes and their generally

binding implementing regulations.

In its earlier findings, the

Constitutional Court ruled that the list contained in § 14 para. 1 of

the previous Act on municipalities “in terms of its interpretation as a

statutory authorization to issue generally binding municipal ordinances,

must be considered enumerative. Its demonstrative text, as well as the

general nature of the delineation of independent municipal jurisdiction,

contained in § 14 para. 2 of the Act on Municipalities, must be applied

only to that independent municipal jurisdiction where the municipality

does not act as an entity which determines obligations for citizens by

one-sided orders and bans” (US, vol. 1, no. 4). The Constitutional Court

has also ruled several times that Art. 4 para. 1, Art. 2 para. 3 of the

Charter and Art. 2 para. 4 of the Constitution of the CR, indicate, as

far as municipal jurisdiction is concerned, that in cases where the

municipality does act as an entity which determines obligations for

citizens by one-sided bans and orders, i.e. if it issues generally

binding ordinances which regulate legal obligations, it can do so only

in the event of express statutory authorization (US, vol.1 no. 4 and

12).

In the matter in question, the Constitutional Court took

into consideration the legislative developments which occurred due to

the new Act No. 128/2000 Coll., while being aware that the contested

ordinance was approved when Czech National Council Act N
o. 367/1990

Coll. was still in effect. Under § 10 let. b) of Act No. 128/2000 Coll.,

a municipality is authorized, under its independent jurisdiction, to

impose, by generally binding ordinance, obligations “to manage local

matters of public order; in particular, it may determine which

activities, which could interfere with public order in the municipality

or be in conflict with good morals, protection of safety, health and

property, can be performed only in places and at times set by the

generally binding ordinance, or provide that such activities are banned

in some publicly accessible places in the municipality”, and under § 10

let. c) of the Act, obligations “for the organization, conduct and

termination of publicly accessible sporting and cultural events,

including dances and discotheques, by setting binding conditions in the

scope necessary to ensure public order”.

The Constitutional

Court respects local government as an expression of the right and

competence of local bodies to govern public matters within the bounds

set by law, as part of their responsibility and in the interest of the

local population, but nevertheless believes that the contested

ordinance, in Art. 2 para. 1 let. a), subjected to its regulation

relationships which cannot be governed in such a manner. The very

expression “Celebrations of the Feast of St. Wenceslas” evokes close

ties to the church anniversary relating to St. Wenceslas, not only to

the religious celebrations and rites connected with this Christian

holiday, but also customs and conventions which the civil society has

historically created in relation to this holiday outside the framework

of church structures. Undoubtedly it is also the right of other

communities in the civic society to decide whether, or when and to what

extent, they will gather for the celebrations held in this regard. The

local government undoubtedly has a right to issue restrictive measures

to protect public order, but by appropriating the right to decide the

date of these celebrations it is entering into relationships which exist

between the citizens and religious or other social entities. By doing

so, it steps out of its independent jurisdiction, whose identifying

characteristic is precisely the fact that a municipality independently

governs “its affairs”. Decision making about the holding of celebrations

of the Feast of St. Wenceslas is thus an inappropriate means for

protecting the public order, as it exceeds the limits of its local

nature.

Therefore, the Constitutional Court shares the

petitioner’s opinion that Art. 2 para. 1 let. a) of the generally

binding ordinance of the town of Stochov is in conflict with Art. 4

para. 1 of the Charter, under which obligations may be imposed only on

the basis of and within the bounds of law, and with Art. 2 para. 4 of

the Constitution of the CR and Art. 2 para.. 3 of the Charter, under

which nobody may be compelled to do that which is not imposed on him by

law.

Likewise, in the Constitutional Court’s opinion, Art. 2

para. 1 let. b) of the ordinance, under which the City Council will

determine the place at which, during the celebrations, market stalls and

amusement park facilities and other similar attractions will be

located, can not stand. Under § 17 of the now annulled Czech National

Council Act No. 367/1990 Coll., as well as under the current regulation

in § 10 let. b) of Act No. 128/2000 Coll., a municipality may determine

by generally binding ordinance which activities, which could interfere

with public order in the municipality, may be conducted only in places

and at times determined by the ordinance, or provide that such

activities are forbidden in certain publicly accessible places in the

municipality. The contested ordinance does not determine such places,

and the fact that it authorizes the city council to determine them ad

hoc, is not in accordance with legal regulations. The Constitutional

Court believes that this provision of the ordinance is also in conflict

with Art. 2 para. 4 of the Constitution of the CR and Art. 2 para. 3 and

Art.  4 para. 1 of the Charter.
 

For

the reasons given above, the Constitutional Court granted the petition

of the chairman of the District Office in Kladno, and annulled the

contested ordinance of the town of Stochov under § 70 para. 1 of Act No.

182/1993 Coll., on the Constitutional Court, as of the day this

judgment is published in the Collection of Laws.

Decisions of the Constitutional Court can not be appealed.

Brno, 11 July 2001