2004/01/13 - Pl. ÚS 38/03: Municipal Ordinance Ban

13 January 2004

HEADNOTES

A

municipality may issue a generally binding ordinance exclusively under

its independent jurisdiction if there is interference in the rights and

freedoms of citizens; limitation of this interference through a

municipal ordinance is possible, while in transferred jurisdiction it

issues directives on the basis of authorization in statutes and within

the bounds provided by statute (§ 11 of Act no. 128/2000 Coll., on

Municipalities, as amended by later regulations).

Under

Art. 4 par. 2 of the Charter of Fundamental Rights and Freedoms the

limits of fundamental rights and freedoms may be regulated only by

statute and not by a municipal ordinance.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of JUDr. František Duchoň,

JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří Malenovský

JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel

Rychetský, JUDr. Pavel Varvařovský and JUDr. Eliška Wagnerová, ruled in

the matter of a petition from Mgr. Stanislav Gross, Minister of the

Interior, to annul the generally binding ordinance of the town of

Litoměřice no. 4/95, on Banning Communist, Fascist and Nazi Propaganda

in the Town of Litoměřice, approved by the Litoměřice representative

body on 6 April 1995 and in effect as of 3 May 1995, as follows:

 

Litoměřice

town ordinance no. 4/95, on Banning Communist, Fascist and Nazi

Propaganda in the Town of Litoměřice, of 6 April 1995, is annulled.



REASONING
 

On

28 July 2003 the Constitutional Court received a petition from the

minister of the interior, Mgr. Stanislav Gross, to annul the generally

binding ordinance of the town of Litoměřice no. 4/95, on Banning

Communist, Fascist and Nazi Propaganda in the Town of Litoměřice,

approved by the Litoměřice representative body on 6 April 1995 and in

effect as of 3 May 1995.

The contested ordinance reads:
“ORDINANCE
no. 4/95
on Banning Communist, Fascist and Nazi Propaganda in the Town of Litoměřice

The Litoměřice representative body, by resolution from its meeting on 6 April 1995, issues this generally binding ordinance.

§ 1
Communist, Nazi and Fascist propaganda is banned in the town.

                                                                            § 2
Communist, Nazi and Fascist propaganda means:
a)    Calls for a violent change of the constitutional order.
b)    Using the symbols of these criminal movements when promoting them.
c)    Questioning the criminal nature of the regimes which these movements represented.

§ 3
The approved ordinance goes into effect on the fifteenth day after it is promulgated, i.e. 3 May 1995.

Deputy Mayor                                Mayor
Ing. Milan Šlegr                            Ing. Milan Tejkl”
Jiří Landa    round stamp


The

Ministry of the Interior received the generally binding ordinance after

district offices were terminated and it took over their agenda as part

of the transfer of jurisdiction in supervising the lawfulness of

municipal legal regulations. The Ministry of the Interior concluded that

the generally binding ordinance in question is inconsistent with the

law. The Regional Office of the Ústí nad Labem Region took the same

position in its statement of 15 April 2003. In view of this, the

Ministry of the Interior, by a measure of 5 June 2003, began

administrative proceedings to suspend the ordinance. During the

administrative proceedings the town of Litoměřice did not arrange a

remedy in the matter, and therefore the Ministry of the Interior, by

decision of 27 June 2003 file no. MS/1077/2-2003, suspended the

generally binding ordinance. This decision was delivered to the

Litoměřice Town Office on 30 June 2003, and on that day it entered into

force under § 124 par. 2 of Act no. 128/2000 Coll., on Municipalities

(Municipal Establishment), as amended by later regulations.
 

In

its petition, submitted under § 64 par. 2 let. g) of the Act on the

Constitutional Court and under § 124 par. 3 of Act no. 128/2000 Coll.,

on Municipalities (Municipal Establishment), as amended by later

regulations, the minister of the interior states that the authorization

for a municipality to issue generally binding ordinances on matters

within the municipality’s independent jurisdiction is enshrined in Art.

104 par. 3 of the Constitution of the Czech Republic (the

“Constitution”), but at the same time it is constitutionally restricted

to the effect that the independent municipal jurisdiction, within which a

generally binding ordinance can be issued, may only be provided by

statute (Art. 104 par. 1 of the Constitution). According to the

petitioner, at the time the ordinance was issued, that statute was the

then-valid Czech National Council Act no. 367/1990 Coll., on

Municipalities, as amended by later regulations, which states in § 13

par. 2 that in exercising its independent jurisdiction a municipalities

is guided only by statutes and other legally binding regulations issued

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

must be consistent with statutes and these legal regulations. The sphere

of matters entrusted to the independent jurisdiction of municipalities

(towns) was provided by way of example in § 14 of the Act. At the time

the generally binding ordinance was issued, it was inconsistent with §

14, § 16 par. 1 and § 36 par. 1 let. f) of the Act. After the Act was

annulled, the generally binding ordinance became inconsistent with § 10,

§ 35 and § 84 par. 2 let. i) of Act no. 128/2000 Coll., on

Municipalities. Issuing the ordinance in question also does not fall

within the transferred jurisdiction of municipalities, as in that case

at the time it was issued it would have been inconsistent with § 24 par.

1 of the then-valid Czech National Council Act no. 367/1990 Coll., on

Municipalities, as amended by later regulations, a at present with § 11

par.1 of Act no. 128/2000 Coll., on Municipalities. In view of the fact

that territorial self-government bodies can issue legal regulations only

on the basis of statute and within its bounds and that the ordinance in

question was issued without express statutory authorization and bans an

activity which falls under neither the independent nor the transferred

jurisdiction of municipalities, it is, according to the minister of the

interior, also inconsistent with Art. 2 par. 4, Art. 79 par. 3 and Art.

104 par. 1 and 3 of the Constitution and Art. 4 of the Charter of

Fundamental Rights and Freedoms (the “Charter”).
 

The

town of Litoměřice, in the mayor’s statement of 18 September 2003,

stated that it takes cognizance of the petition to annul the ordinance

on Banning Communist, Fascist and Nazi Propaganda in the Town of

Litoměřice, without responding to it.
 

The

Ombudsman, who was sent a copy of the petition to annul the ordinance

in accordance with § 69 par. 2 of the Act on the Constitutional Court,

informed the Constitutional Court by official letter of 10 October 2003

that he would not join the proceedings.
 

Under

§ 68 par. 2 of the Act on the Constitutional Court, in its decision

making the Constitutional Court reviews the content of a statute or

other legal regulations in terms of consistency with constitutional

statues, and in the case of other legal regulations, also in terms of

consistency with statutes; it determines whether they were passed and

issued within the bounds of constitutionally provided jurisdiction and

in a constitutionally prescribed manner. In this regard, the

Constitutional Court determined from the record of the meeting of the

town representative body held on 6 April 1995 v Litoměřice that the

contested ordinance was approved at the meeting by 14 votes in favor, 5

votes against, and 6 abstaining. Because the municipal representative

body then had 27 members, 2 of whom were not present at the meeting, we

can state that the contested ordinance was passed in a correct manner (§

38 par. 5 of CNC Act no. 367/1990 Coll. as amended by later

regulations). The Constitutional Court also determined that the

contested ordinance was duly posted on the official notice board of the

Town Office in Litoměřice on 17 April 1995 and taken down on 4 May 1995,

so it entered into effect on 3 May 1995 (§ 16 par. 3, 4 of the cited

Act). Therefore, the Constitutional Court believes that the contested

regulation was passed and issued in a constitutionally prescribed

manner.
 

The Constitutional

Court then considered the issue of active standing to submit a petition.

After district offices were terminated, the authority to supervise the

exercise of municipalities’ independent jurisdiction was transferred to

regional offices and the Ministry of the Interior (§ 123 et seq. of Act

no. 128/2000 Coll., on Municipalities, as amended by later regulations),

as was the authority to supervise the exercise of municipalities’

transferred jurisdiction (§ 126 et seq. of the cited Act). Thus, the

petition to annul the generally binding ordinance in question was

submitted by an authorized person under § 124 par. 3 of Act no. 128/2000

Coll., on Municipalities and § 64 par. 2 letter b) of the Act on the

Constitutional Court.
 

However,

in the Constitutional Court’s opinion, the contested ordinance was not

passed and issued within the bounds of constitutionally provided

jurisdiction, and it was inconsistent with the statutory framework of

municipal establishment both at the time it was issued and after that

framework was amended by Act no. 128/2000 Coll. as amended by later

regulations. The Constitution, in Art. 104 par. 3, defines the power to

issue generally binding ordinances so that municipal representative

bodies can issue them only within the bounds of their jurisdiction. The

ordinance in question was issued when CNC Act no. 367/1990 Coll., on

Municipalities (Municipal Establishment), as amended by later

regulations, was valid, which permitted municipalities to issue

generally binding ordinances both in their independent and transferred

jurisdiction. Independent municipal jurisdiction was regulated in § 14

of the cited Act as follows: paragraph 1 provided individual activities

falling under independent municipal jurisdiction as examples, while

paragraph 2 regulated independent municipal jurisdiction to the effect

that a municipality also ensures, in its territory, economic, social and

cultural development, and the protection and creation of a healthy

environment, and is not authorized to perform activities which special

statutes entrust to other bodies as part of the exercise of state

administration. A municipality could issue generally binding ordinances

on matters falling under transferred jurisdiction only on the basis of

authorization in a statute and within its bounds (§ 24 par. 1 of the

cited Act). In view of the non-existence of such a special statue,

establishing transferred municipal jurisdiction in this area, when it

was issued the ordinance in question could not have been a generally

binding ordinance issued under § 24 par. 1 of the cited Act. The

ordinance in question is a norm which contains a ban on performing an

activity which it calls “propaganda,” i.e. a norm establishing an

obligation of natural persons or legal entities, limited only to the

territory of the municipality of Litoměřice. The term “propaganda” must

be interpreted as the public dissemination, defense and recommendation

of certain thoughts, opinions or positions. Thus, the ban contained in

the ordinance is directed into the area of freedom of speech defined in

Art. 17 of the Charter as the right to express one’s views in speech, in

writing, in the press, in pictures, or in any other form, as well as

freely to seek, receive, and disseminate ideas and information

irrespective of the frontiers of the state. Freedom of speech is also

similarly enshrined in international treaties by which the Czech

Republic is bound (Art. 19 of the International Covenant on Civil and

Political Rights, promulgated under no. 120/1976 Coll. and Art. 10 of

the Convention for the Protection of Human Rights and Fundamental

Freedoms promulgated under no. 209/1992 Coll.). Under Art. 17 par. 4 of

the Charter freedom of speech and the right to seek and disseminate

information may be limited only by law in the case of measures that are

necessary to protect the rights and freedoms of others, the security of

the state, public security, public health, or morals. The Czech Republic

has already implemented such permissible limitation on freedom of

speech and freedom to disseminate information through a statute [e.g. §

198a, § 260 and § 261 of the Criminal Code, § 15 par.1 of Press Act no.

46/2000 Coll. as amended by later regulations, § 31, § 32 par.1 let. b),

c), e), and f) of Act no. 231/2001 Coll., on Radio and Television

Broadcasting ].
 

In its

judgments, the Constitutional Court has repeatedly stated that

independent municipal jurisdiction can not include the power to issue a

generally binding ordinance which contains a ban on an activity which is

essentially nothing more than a paraphrase of the elements of crimes

set forth in, e.g. §§ 260 and 261 of the Criminal Code (cf. e.g., the

judgment in file no. Pl. ÚS 42/95 in the Collection of Decisions of the

Constitutional Court of the Czech Republic – volume 5., 1st edition,

Judgment no. 47, Praha 1996 - part I., the judgment in file no. Pl. ÚS

43/95Collection of Decisions of the Constitutional Court of the Czech

Republic – volume 5., 1st edition., Judgment no. 60, Praha 1996 – part

I, the judgment in file no. Pl. ÚS 45/95 in Collection of Decisions of

the Constitutional Court of the Czech Republic – volume 5., 1st

edition., Judgment no. 46, Praha 1996 – part I). Thus, by issuing an

ordinance with this content, the town of Litoměřice exceeded the bounds

of jurisdiction provided by the Constitution and CNC Act no. 367/1990

Coll., on Municipalities (Municipal Establishment), as amended by later

regulations. The Constitutional Court adds that if a municipality wants

to expressly manifest its political will in this regard, it can perhaps

do so by other adequate means, but not by a normative act.
 

The

basic starting point for the Constitutional Court’s deliberations when

reviewing the petition from the minister of the interior to annul the

generally binding ordinance of the town of Litoměřice of 6 April 1995

was, in this case, the consideration of whether the ordinance in

question was issued within the municipality’s jurisdiction and whether

it is consistent with the law and with the constitutional order. As in a

number of similar cases, the Constitutional Court concluded that the

ordinance in question was issued by the town of Litoměřice outside of

its jurisdiction, established at the time in question by CNC Act no.

367/1990 Coll., as amended by later regulations, and then considered the

issue of whether the municipality’s lack of jurisdiction continued

after amendment of the legal framework of municipal establishment by Act

no. 128/2000 Coll., as amended by later regulations. It took as its

starting point the principle that the wording of the legal framework

valid at the time of the Constitutional Court’s decision make is

decisive for the court’s deliberation concerning whether the generally

binding ordinance is consistent with the law and with the constitutional

order. That framework is now Act no. 128/2000 Coll., on Municipalities

(Municipal Establishment), as amended by later regulations, which

governs both independent municipal jurisdiction (§ 35 et seq. of the

Act), and transferred municipal jurisdiction (§ 61 et seq. of the Act).

Under the cited Act, a municipality can issue generally binding

ordinances only in the sphere of its independent jurisdiction, while in

the sphere of transferred jurisdiction it issues directives on the basis

of statutory authorization and within statutorily specified bounds (§

11). Under § 10 of the cited Act, a municipality can impose obligations

through a generally binding ordinance only in enumerated spheres, or if a

special statute so provides. The scope of independent municipal

jurisdiction is defined in § 35 of the cited Act and § 84 of the cited

Act, and neither of these provisions establishes municipal jurisdiction

to limit the fundamental rights and freedoms, entrusted in Art. 17 par. 4

of the Charter exclusively to statutes.
 

Therefore,

on the basis of the foregoing, the Constitutional Court concluded that

the contested ordinance is inconsistent with Art. 104 par. 3 of the

Constitution, and § 13, § 14 and § 16 par. 2 of CNC Act no. 367/1990

Coll., on Municipalities (Municipal Establishment), as amended by later

regulations. After that Act was annulled, the generally binding

ordinance became inconsistent with § 10, § 35 a § 84 par. 2 let. i) of

Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as

amended by later regulations. Without it being necessary to consider

other grounds stated in the petition, the Constitutional Court ruled

that the town of Litoměřice ordinance of 6 April 1995, on Banning

Communist, Fascist and Nazi Propaganda in the Town of Litoměřice, is

annulled as of the day this judgment is promulgated in the Collection of

Laws (§ 70 par. 1 of the Act on the Constitutional Court).

Notice:  Decisions of the Constitutional Court can not be appealed (§ 54 par. 2 of the Act on the Constitutional Court).

Brno, 13 January 2004