2010/04/19 - IV. ÚS 1403/09: Local Referendum on Separation of Part of a City

19 April 2010

HEADNOTES

1. The

Constitutional Court thus concludes that the condition that a newly

formed municipality must have at least 1,000 inhabitants is completely

legitimate, supported by rational arguments and, in addition,

comparatively relatively common.

2. The course of action taken by

the Regional Court which has not addressed the issue of whether “a

citizen” for the purposes of § 21 paragraph 1 of the Municipal

Constitution means a person registered as permanent resident in the part

of the municipality being separated only if such a person is a citizen

of the Czech Republic, or whether such a person may be a citizen of the

European Union, must be considered unconstitutional. The contested

decision accepted, without sufficient argumentation, the former

interpretation; in the Constitutional Court’s opinion, however, the

interpretation ignored by the Regional Court is more suitable. The

above-quoted provisions must be interpreted in such a way that the term

“citizen” includes also citizens of the European Union registered as

permanent residents in the part of the municipality being separated. The

point is that the Treaty on the Functioning of the European Union as

well as the Municipal Constitution alone grant to such persons the right

to participate in the self-government of municipalities (for example,

to elect and to be elected to municipal councils or even cast votes in

the actual local referendum on separation of the municipality); it would

thus be completely irrational not to take the same into account for the

purpose of ascertainment of the number of “citizens” necessary for

compliance with statutory conditions for separation. Such an

interpretation undoubtedly satisfies the purpose of the above-quoted

provisions, such a purpose being securing the formation of

municipalities capable (in terms of human resources) of properly

executing self-government; at the same time, this interpretation is

EU-conforming, providing citizens of the European Union with a share in

the self-government of municipalities.
 



CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


On

19 April 2010, a Panel of the Constitutional Court, consisting of

Chairman Miloslav Výborný and Justices Vlasta Formánková and Michaela

Židlická, adjudicated on a constitutional complaint by Přípravný výbor

pro konání referenda o oddělení Březhradu od statutárního města Hradce

Králové (The Preparatory Committee for Holding a Referendum on the

Separation of Březhrad from the Statutory City of Hradec Králové),

address for service at Mgr. A. B., Ph.D., represented by JUDr. Stanislav

Kadečka, Ph. D., attorney at law, a law firm with a registered office

at Gočárova tř. 1000, 500 02 Hradec Králové, against a resolution of the

Regional Court in Hradec Králové, dated 30 March 2009, ref. No. 30 Ca

23/2009-41, associated with a petition for annulment of § 21 paragraph 1

of Act No. 128/2000 Coll. on Municipalities, as amended by later

regulations, with participation by the Regional Court in Hradec Králové

as a party to the proceedings, and the statutory city of Hradec Králové,

with a registered office of the Municipal Authority at Tř.

Československé armády 408, 502 00 Hradec Králové as a secondary party to

the proceedings, as follows:
I. The Resolution of the Regional Court

in Hradec Králové, dated 30 March 2009, ref. No. 30 Ca 23/2009-41 shall

be annulled, since such a resolution and the procedure preceding the

issue of the same have violated the fundamental rights of the

complainant guaranteed by the provisions of Article 36 paragraph 1 of

the Charter of Fundamental Rights and Basic Freedoms, and Article 6

paragraph 1 of the Convention on the Protection of Human Rights and

Fundamental Freedoms.

II. The petition for annulment of § 21

paragraph 1 of Act No. 128/2000 Coll. on Municipalities, as amended by

later regulations, shall be rejected.
 


REASONING

I.


1.

By a timely constitutional complaint, the complainant demanded

annulment of the above-specified judicial decision, claiming that the

fundamental rights established by Article 1, Article 2 paragraph 3,

Article 6, Article 8 and Article 100 paragraph 1 of the Constitution,

and by Article 1, Article 2 paragraph 2, Article 3 paragraph 1, Article 4

paragraphs 2 and 4, Article 21 paragraphs 1 and 4, Article 22 and

Article 36 paragraphs 1 and 2 of the Charter of Fundamental Rights and

Basic Freedoms (hereinafter referred to only as the “Charter”) were

violated.

2. By the contested decision, the Regional Court in

Hradec Králové (hereinafter referred to also as the “Regional Court”)

dismissed the petition for announcing a local referendum on the

following issue: “Do you approve of the separation of a part of the

statutory city of Hradec Králové, demarcated by the cadastral area of

Březhrad, from the statutory city of Hradec Králové, and of

establishment of a new municipality within the given area?”

3. In

the complainant’s opinion, the provisions of § 21 paragraph 1 of Act

No. 128/2000 Coll. on Municipalities (hereinafter referred to only as

the “Municipal Constitution”), which form the main support for the

contested decision, are unconstitutional in such a part where a

condition is set that the municipality following the separation must

have at least 1,000 citizens.

4. This condition, in the

complainant’s opinion, constitutes an improper restriction of the right

to self-government, or its constitutional foundations, and thus creates

unjustified inequality between large and small communities of citizens.

This restriction is in no way derivable from the constitutional order as

such and has no support in the actual arrangement of local

self-government in the Czech Republic. In this context the complainant

points out that, according to Malý lexikon obcí ČR 2008 (The Compact

Encyclopaedia of Municipalities in the Czech Republic 2008), there are

(or, according to the number at the time the Encyclopaedia was

published, there were) 1,566 municipalities with fewer than 200

inhabitants and approximately 80% of all municipalities even have fewer

than 1,000 citizens.

5. In the opinion of the complainant, the

constitutionally guaranteed right to self-government cannot be

associated only with self-governing entities which already exist; such

an interpretation would lead to absurd conclusions, for example, in the

case of an illegitimate dissolution of a municipality, the

municipality’s objections could then be rejected on the basis of the

argument that such a municipality, as a non-existent entity, cannot

benefit from the right to self-government.

6. In the opinion of

the complainant, the contested provisions of the act are in conflict

also with Article 19 paragraph 1 of the Treaty Establishing the European

Community (note: now Article 22 paragraph 1 of the Treaty on the

Functioning of the European Union in a consolidated version), since the

same do not take into account (thus discriminate against) the citizens

of the European Union, to whom the above-quoted provisions of primary

law grant the right to participate in self-government.

7. The

complainant emphasised that they had claimed unconstitutionality of the

provisions of § 21 paragraph 1 of the Municipal Constitution in the

section “after separation, the same must have at least 1,000 citizens”

previously in proceedings before the Regional Court in Hradec Králové.

However, the Court did not grant the complainant’s petition for

submitting the statutory provisions to the Constitutional Court pursuant

to Article 95 paragraph 2 of the Constitution, and did so without

properly explaining and justifying its steps.

8. In the instance

that the Constitutional Court would not share their conviction on the

unconstitutionality of the contested provisions, the complainant

objected that the provisions of § 21 paragraph 1 of the Municipal

Constitution had been interpreted and applied in an unconstitutional

manner. The unconstitutionality of their interpretation and application

was seen by the complainant in two aspects. Firstly, the complainant did

not agree with the opinion of the Regional Court, according to which

compliance with the condition of one thousand citizens is assessed as at

the date of session of the municipal council making the decision on

announcing or otherwise a local referendum. Furthermore, they levelled

the criticism that the Regional Court basically had not commented on the

objection included in the action, according to which it is necessary,

when interpreting the provisions of § 21 paragraph 1 of the Municipal

Constitution, to take into consideration the number of all inhabitants,

i.e. not only citizens of the Czech Republic, but also foreign nationals

registered as residents in the given municipality. The complainant

supported this objection of theirs also by referring to the commentary

on the Municipal Constitution.
 


II.


9.

In its statement dated 10 June 2009, the Regional Court in Hradec

Králové specified that the complainant had repeated the objections

included in the action; therefore, the Regional Court merely referred to

the reasoning for the contested decision. The Regional Court also

expressed approval of dispensing with an oral hearing.

10. The

secondary party has not provided a statement on the constitutional

complaint within the determined term; consequently, the complainant has

not made use of their right to reply to the statement of the Regional

Court in Hradec Králové.

11. The complainant has not provided a

statement on their disapproval of dispensing with an oral hearing within

the term specified by the Constitutional Court.


III.


12.

The Constitutional Court did not expect further clarification of the

matter from an oral hearing and, therefore, the Court, upon approval by

the parties, dispensed with the same pursuant to the provisions of § 44

paragraph 2 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations (hereinafter referred to only as the “Act

on the Constitutional Court”).
 


IV.


13.

The Constitutional Court requested the file from the Regional Court in

Hradec Králové, file No. 30 Ca 23/2009, from which the Court ascertained

the following.

14. By a resolution of the Council of the

Statutory City of Hradec Králové, No. Z1VV2009/1299, dated 24 February

2009, a decision was taken that the Council of the Statutory City of

Hradec Králové would not announce in the territory of the city of Hradec

Králové demarcated by the cadastral area of Březhrad a local referendum

on the following issue: “Do you approve of the separation of a part of

the statutory city of Hradec Králové, demarcated by the cadastral area

of Březhrad, from the statutory city of Hradec Králové, and of

establishment of a new municipality within the given area?” The reason

for this decision consisted of the opinion of the Council, according to

which the result of the local referendum might be in conflict with legal

regulations.

15. Consequently, the complainant applied to the

Regional Court in Hradec Králové with a petition pursuant to the

provisions of § 91a of Act No. 150/2002 Coll., the Code of

Administrative Justice, as amended by later regulations, for announcing a

local referendum. Also this Court, by a judgment dated 30 March 2009,

ref. No. 30 Ca 23/2009-41, dismissed the petition. The Regional Court

justified its decision as follows: pursuant to the provisions of § 13

paragraph 1, clause b), and § 7 clause d) of the Act on Local Referenda,

a local referendum on the proposed issue cannot be held if the result

of the referendum might be in conflict with legal regulations. The

Regional Court then saw a possible contradiction in the fact that, at

the time of decision-making by the Council of the Statutory City of

Hradec Králové, the part of the municipality demarcated by the cadastral

area of Březhrad had fewer than 1,000 citizens, which is the number

required by the imperative provisions of § 21 paragraph 1 of the

Municipal Constitution. The term “citizen” was interpreted by the

Regional Court pursuant to the provisions of § 16 paragraph 1 of the

Municipal Constitution, according to which a citizen of a municipality

is a natural person who is a citizen of the Czech Republic and is

registered in the municipality as a permanent resident. The Court has

not dealt with other possibilities of interpretation, in spite of the

fact that the complainant in their action, or appendices thereto,

pointed out that the part of the municipality demarcated by cadastral

area of Březhrad would satisfy the condition of 1,000 citizens if

foreign nationals registered in the territory of the part of the

municipality as permanent residents were taken into account.

16.

The Regional Court did not identify itself – though for very vague

reasons – with the complainant’s conviction on the unconstitutionality

of the provisions of § 21 paragraph 1 of the Municipal Constitution

(with which the result of the referendum allegedly could be in

conflict); therefore, the Regional Court refused to submit to the

Constitutional Court the petition for a decision on the

constitutionality of the above-quoted provisions pursuant to Article 95

paragraph 2 of the Constitution.
 


V.


17.

The constitutional complaint – a formally faultless one – was filed

timely by a person competent and properly represented. The

Constitutional Court has repeatedly dealt with the issue of whether a

preparatory committee for holding a local referendum is or is not

entitled to file a constitutional complaint. The Constitutional Court

stated that, in accordance with the provisions of § 72 paragraph 1,

clause a) of the Act on the Constitutional Court, a constitutional

complaint may be filed only by a natural person or a legal entity, and

it is clear that a preparatory committee is not a legal entity. However,

the Constitutional Court concluded that the preparatory committee, for

which the representative acts, is authorised to all procedural acts

related to the local referendum, i.e. not only those acts which are

directly established by the Act on Local Referenda, but also to the

possible filing of a constitutional complaint, if the representative

believes that constitutionally guaranteed fundamental rights or freedoms

have been violated in the course of the judicial review of the decision

by the municipal council not to announce a local referendum (Judgment

of the Constitutional Court file No. IV. ÚS 223/04, Collection of

Judgments and Rulings, Volume 36, page 319).

18. The

Constitutional Court is competent to hear the constitutional complaint

and the petition is admissible. The Constitutional Court reviewed the

contested verdict of the decision from the viewpoint of the alleged

violation of constitutionally guaranteed rights of the complainant and

concluded that the constitutional complaint is justified.

19.

Despite the Constitutional Court’s conclusion on the fact that the

constitutional complaint is justified, the Constitutional Court did not

concur with all the objections raised by the complainant. The

Constitutional Court’s conclusion on the unconstitutionality of the

contested resolution was thus supported predominantly by the fact that

the Regional Court in Hradec Králové has not sufficiently addressed the

issue concerning whether it is necessary to subsume under the term

“1,000 citizens”, used in the contested provisions, also foreign

nationals registered in the municipality as permanent residents.

20.

The key argument resulting in dismissing the petition for announcement

of a local referendum consisted of the conclusion of the Regional Court,

according to which the decision on the issue “Do you approve of the

separation of a part of the statutory city of Hradec Králové, demarcated

by the cadastral area of Březhrad, from the statutory city of Hradec

Králové, and of establishment of a new municipality within the given

area?” might fall into conflict with legal regulations. In the opinion

of the Regional Court, the separated part of the municipality had, at

the decisive time (the date of decision making of the Council of the

Statutory City of Hradec Králové), fewer than 1,000 citizens, as is

required by the provisions of § 21 paragraph 1 of the Municipal

Constitution.

21. The first of the complainant’s objections

questions the very constitutionality of the first sentence after the

semicolon in the above-quoted provisions, which reads as follows: “The

part of the municipality which wishes to separate must have a separate

cadastral area neighbouring at least two municipalities or one

municipality and a foreign country and forming an unbroken territorial

whole; and, after separation, the same must have at least 1,000

citizens. The same conditions must also be met by the municipality

following the separation of the part of the same. Separation of a part

of a municipality must be approved through a local referendum of

citizens living in the territory of that part of the municipality which

wishes to separate.”

22. However, the Fourth Panel of the

Constitutional Court [which is, with respect to the wording of Article 1

paragraph 2, clause c) of the decision of the Constitutional Court

Plenum on the jurisdiction of the panels being taken over by the plenum,

published on www.usoud.cz/clanek/2020, competent to evaluate

this issue] assessed the complainant’s petition for annulment of such

provisions as manifestly unfounded.

23. Even though the

constitutional arrangement of the right to self-government is relatively

laconic, self-government of municipalities (as well as higher

self-governing regions) is indubitably one of the pillars of Czech

constitutionality. However, this does not mean that the legislature is

denied the power to regulate the exercise of this right by enactments;

on the contrary, establishment of rational conditions, pursuing a

legitimate objective, for the exercise of the right to self-government

seeks to ensure that self-government is able to actually and effectively

discharge the tasks entrusted to the same.

24. It is surely

possible to agree with the complainant that the right to self-government

cannot be strictly associated only with currently existing

self-governing entities; such an interpretation could lead to the absurd

consequences mentioned by the complainant (for example, to the

impossibility on the part of an illegally abolished municipality to

defend itself against its dissolution). In the opinion of the

Constitutional Court, though, the determination of rational and

non-discriminatory conditions for the origination of new municipalities

is a sovereign right vested in the legislature; the contested provisions

of the Municipal Constitution in no way deviate – for reasons detailed

below – from the constitutional framework.

25. According to the

statistics to which the complainant (accurately) refers, the majority of

municipalities in the Czech Republic have fewer than 1,000 inhabitants.

From this fact the complainant infers that the legislature, without a

legitimate reason and in contradiction with the real arrangement of

self-government, and thus unconstitutionally, restricts the formation of

new municipalities.

26. In the Constitutional Court’s opinion,

however, differentiation between already existing municipalities and

newly formed municipalities has a rational basis; the existence of small

municipalities is historically preconditioned. It must be mentioned

that in the new arrangement of the position of municipalities after

1989, the legislature took into account the historical existence of

municipalities (c.f. § 1 of Act No. 367/1990 Coll.), but at the same

time they made it possible for the municipalities alone to make

decisions, to a certain degree, on their existence and the form of the

same (c.f. § 10 to § 12 of Act No. 367/1990).

27. The

Constitutional Court does not consider the subsequent decision by the

legislature, whereby the existing state of the municipalities has been

partially conserved (by determining more strict conditions for the

origination of new municipalities), to be an arbitrary restriction of

the right to self-government. Legitimacy and rationality of such a

measure may be supported by several arguments. The period of

effectiveness of Act No. 367/1990 Coll., wherein more moderate

conditions for the formation of municipalities were established, may be,

from the viewpoint of the position of municipalities and the exercise

of the right to self-government, considered to be a period of

transition, in which the form of local self-government was only

settling. It is not possible to a priori protest against the fact that

the legislature at a certain point in time decided to make possible only

the formation of such municipalities in the future in which proper

exercise of the right to self-government will be, with great

probability, ensured. The decision by the legislature to restrict the

formation of new municipalities by the number of inhabitants was without

any doubt guided by certain experience regarding the functioning of

smaller municipalities, and by the interest of the state that

self-government as well as the exercise of delegated jurisdiction by

municipalities meet certain standards (this is in no way changed by the

fact that the condition of 1,000 citizens – instead of the original 500

from the Print of the Chamber of Deputies No. 422/1 – was entered into

the text of the enactment as late as on the basis of a proposed

amendment by a member of the Chamber, Radim Chytka). The Constitutional

Court considers a certain degree of “centralisation” of self-government,

reflected in the establishment of conditions for the origination of

municipalities, to be the principally acceptable regulation of the right

to self-government. If the Municipal Constitution from the year 2000

wished to attain this objective through dissolving existing small

municipalities, it would surely represent a serious and excessive

infringement of rights already acquired; however, prescriptive (pro

futuro) restriction of the origination of municipalities cannot be

considered an unconstitutional infringement of the right to

self-government.

28. The opinion that existing conditions for the

origination of municipalities are rational and legitimate, and that

there is no need to dispute their constitutionality, is affirmed also by

the arrangement of the origination of municipalities in comparable

countries.

29. In the Slovak Republic, a condition of as many as

3,000 inhabitants is established for the separation of municipalities

(§ 2a paragraph 5 of Act No. 369/1990 Coll. as amended by later

regulations).

30. As for the situation in the Federal Republic

of Germany, the issue of municipal constitution falls under the powers

of the federal states. The constitutional guaranties of self-government

of municipalities are rather detailed and completely comparable with

guaranties contained in the Constitution of the Czech Republic (the

existence of self-governing municipalities, the minimum scope of their

powers, for example, in the financial sector and the like, are thus

secured at a constitutional level – c.f. Article 28 paragraph 2 of Basic

Law). Then, for example, the Bavarian municipal constitution, bound by

this constitutional arrangement, determines on principle, in the case of

origination of a new municipality, a condition of 2,000 inhabitants (§

11 paragraph 3, clause 2, Gemeindeordnung für den Freistaat Bayern); an

exception is established only for municipalities which are members of

“Verwaltungsgemeinschaft” – an administrative community). Municipal

constitutions of a whole number of other federal states (Brandenburg,

Mecklenburg-Vorpommern and others) actually do not mention the

separation of municipalities at all.

31. A similar situation can

be found in Austria. The constitutional arrangement (also rather

extensive) is contained in the provisions of Articles 115 to 120 of the

Austrian Constitution, and the adoption of municipal constitutions falls

under the powers of federal states. Not even comparison with Austrian

municipal constitutions shows that the contested arrangement in the

Czech Municipal Constitution would impermissibly restrict the right to

self-government. For example, according to the Tyrolean municipal

constitution, separation of a part of a municipality requires the

adoption of a provincial act (§ 5 of Act dated 21 March 2001, Über die

Regelung des Gemeindewesens in Tirol); a similar situation is seen also

in other federal states (c.f. § 8 paragraph 1 of the Salzburger

Gemeindeordnung). The municipal constitution in Lower Austria

(Niederösterreich Gemeindeordnung 1973) then entrusts the power to make

decisions on the division of municipalities to the provincial government

by an order; in this it is established that for any alterations to the

territory (separation or the merging of municipalities and suchlike) it

must be taken into account whether the municipalities so formed will be

able to execute self-government properly (§ 6 paragraph 2 of the lastly

quoted act).

32. Self-government in Poland, even though the

Polish Constitution from 1997, in the provisions of Articles 15 and 16,

guarantees the right to self-government, is entrusted to large

municipalities (gmina; their number is more than two times smaller than

the number of Czech municipalities), while small villages fall under

their self-governing district and actual self-government does not

pertain to the same (c.f. Act dated 8 March 1990, O samorządzie

gminnym). According to § 4 paragraph 1 of this act, the origination of

new municipalities is decided on by the government by an order which may

be adopted upon request by the municipality; in this, objective

(planning, technical, social, cultural, etc.) aspects must be taken into

consideration.

33. The Constitutional Court thus concludes that

the condition that a newly formed municipality must have at least 1,000

inhabitants is completely legitimate, supported by rational arguments

and, in addition, comparatively relatively common; additionally, in

comparison with the above-quoted legal arrangements, it is perhaps one

of the most generous with regard to the origination of self-governing

entities.

34. Although the Constitutional Court, for the reasons

explained above, does not consider the contested condition to form an

unconstitutional infringement of the right to self-government, the Court

cannot accept the approach taken by the Regional Court in Hradec

Králové with respect to the interpretation of the term “1,000 citizens”

contained in the provisions of § 21 paragraph 1 of the Municipal

Constitution. The Regional Court, without further consideration and

apodictically, concluded that this condition must be interpreted in such

a way that the same requires that the municipality following separation

has 1,000 citizens of the Czech Republic registered in the territory of

the municipality as permanent residents (c.f. page 5 of the contested

decision).

35. In the Constitutional Court’s opinion, however,

the Regional Court had two options for interpreting the term “1,000

citizens” available. In the first, strict interpretation, a “citizen”

for the purposes of § 21 paragraph 1 of the Municipal Constitution is

considered to include merely a person who is a citizen of the Czech

Republic and is at the same time registered in the municipality as a

permanent resident. This conclusion is supported by the grammatical

interpretation of the provisions of § 16 of the Municipal Constitution.

However, this is not the only possible interpretation. According to the

settled case law of the Constitutional Court (for example, Judgment file

No. III. ÚS 384/08, available at nalus.usoud.cz), “linguistic

interpretation represents merely a primary approximation to the

application of a legal norm. It is merely a basis for clarifying and

explaining its meaning and purpose (which is also served by a number of

other procedures, such as logical and systematic interpretation,

interpretation e ratione legis, etc.)”. Even in the case under

examination it is not clear, without further consideration, that the

interpretation of the term “citizen” used in the provisions of Article

21 paragraph 1 of the Municipal Constitution must be, without further

consideration, restrictively adapted to the legal definition contained

in the provisions of Article 16 paragraph 1 of the Municipal

Constitution.

36. Room remains open also for the second option,

the broad interpretation of the term “citizen” pursuant to § 21

paragraph 1 of the Municipal Constitution, of which the Regional Court

was reminded by the complainant (c.f. page 3 of the contested judgment,

in which the complainant stated that the separated municipality,

including foreigners registered therein as permanent residents, would

meet the condition of 1,000 citizens), and which is also supported by

the Constitutional Court. According to this interpretation, the term

“citizen” being interpreted must include also persons mentioned in § 17

of the Municipal Constitution, according to which “rights specified in §

16 belong also to a natural person who has reached the age of 18, is a

foreign citizen and is registered in the municipality as a permanent

resident, should the same be determined by an international treaty by

which the Czech Republic is bound and which has been promulgated.” Such

an international treaty consists of the Treaty on the Functioning of the

European Union (in consolidated wording), specifically the provisions

of its Article 22 paragraph 1 (guaranteeing the right to elect and be

elected in local elections; published in the Official Journal of the

European Union, dated 9 May 2008, C 115/57); further c.f. also Article

40 of the Charter of Fundamental Rights of the European Union. This

option of interpretation is thus supported by the fact that the

Municipal Constitution in connection with the international treaties

grants the right to participate in self-government also to some foreign

nationals. Commentaries interpret the rights of foreigners according to §

17 of the Municipal Constitution rather extensively, since it would be

“imbalanced if citizens, foreign nationals, had the opportunity to run,

for example, for municipal council, but would not have, for example, the

right to file suggestions to the municipal bodies.” [Vedral, J., Váňa,

L., Břeň, J., Pšenička, S. Act on Municipalities (Municipal

Constitution), 1st edition, Prague 2008, p. 138].

37. This

interpretation may be supported also by the purpose of the provisions of

§ 21 paragraph 1 of the Municipal Constitution. If these provisions are

to secure that in the future only such municipalities originate as are

capable of fulfilling the tasks prescribed by law (c.f. the text above),

then there is no reason for ignoring, for the purpose of meeting the

condition of 1,000 citizens, persons who may themselves actively

participate in the exercise of self-government. The unsustainable nature

of the interpretation adopted by the Regional Court is best illustrated

by the fact that despite, according to such interpretation, the persons

specified under § 17 of the Municipal Constitution would be entitled to

cast votes in the local referendum on separation of the given

municipality (§ 2 of the Act on Local Referenda), the same persons would

be legally irrelevant for the purpose of ascertaining conditions for

announcing a referendum.

38. The Constitutional Court further

emphasises that, pursuant to the settled case law of the Constitutional

Court, also the constitutional order, and sub-constitutional law even

more so, must be interpreted in an EU-conforming manner (c.f. Judgment

file No. Pl. ÚS 50/04, No. 154/2006 Coll.). In the given case, the

EU-conforming interpretation is formed by the legal opinion held by the

Constitutional Court, which is more open to the possibility on the part

of citizens of the European Union (that is citizens of member countries

of the European Union – c.f. Article 20 paragraph 1 of the Treaty on the

Functioning of the European Union in the consolidated wording) of

taking part in self-government pursuant to the above-quoted provisions

of the Treaty on the Functioning of the European Union, the associated

regulations of secondary law, and related domestic regulations. Besides,

also the doctrine tends towards the broad interpretation of the term

“citizen”, including also some foreign nationals – c.f. Vedral, J.,

Váňa, L., Břeň, J., Pšenička, S. Act on Municipalities (Municipal

Constitution), 1st edition, Prague 2008, p. 154.

39. The

Constitutional Court has thus concluded that the term “citizen” must be,

for the purposes of the provisions of § 21 paragraph 1 of the Municipal

Constitution, interpreted in a broad manner. The Regional Court in

Hradec Králové has not properly dealt with this issue, which was in fact

absolutely vital for its decision in the case, this in spite of the

complainant’s objection, and thus burdened its decision with a defect;

at a constitutional-law level, the course of action taken by the

Regional Court may be designated as a violation of the complainant’s

right to a fair trial pursuant to Article 36 paragraph 1 of the Charter

and Article 6 paragraph 1 of the Convention on the Protection of Human

Rights and Fundamental Freedoms. According to these provisions and

pursuant to the settled case law of the Constitutional Court, the court

is obliged to address all legally relevant objections raised by a party

(c.f., for example, Judgment I. ÚS 1561/08, nalus.usoud.cz).

40.

The Constitutional Court, however, cannot concur with the objection of

the complainant, according to which the Regional Court erred when

identifying the point in time as at which the condition of the number of

the citizens of the separated part of the municipality is to be

fulfilled. The reasoning for the decision of the Regional Court,

according to which compliance with all conditions for announcing a

referendum must be assessed at the time when the relevant body takes a

decision on the same (that is as at the date of session of the municipal

council or the Regional Court, if a petition pursuant to § 91a of the

Code of Administrative Justice is filed to such a court), is considered

by the Constitutional Court to be convincing, constitutionally

conforming and additionally, when consistently taken, the only feasible

one. For the purposes of holding a local referendum on separation of a

part of the municipality it is indubitably necessary to set a date as to

which the conditions for holding the same will be examined. Should such

a date be the very holding of the referendum, as is proposed by the

complainant, verification of conditions and decision making on

announcing such a referendum would not have any practical sense, as each

referendum on separation of a municipality (even if, for example, the

newly formed municipality should have, at the time of decision making of

the municipal council or a court, only a fraction of the required

number of inhabitants) would have to be announced, and only after it is

held it would be made clear whether the statutory conditions following

the separation were actually met. Even for this reason, the

interpretation proposed by the complainant is unsustainable. The

Constitutional Court refers to other possible practical problems

(mentioned by the Regional Court) that such an interpretation would be

capable of bringing about – that is holding “mock” or not seriously

meant referenda without any chance of success, or the recruitment of

citizens that would take place between the decision on announcing a

referendum and holding the same.

41. Therefore, the

Constitutional Court summarises that even though the Constitutional

Court does not consider the contested provisions of the Municipal

Constitution unconstitutional, and the Constitutional Court does not

even have constitutional-law objections against the opinion according to

which compliance with conditions for announcing a local referendum is

ascertained as at the date of decision making of the relevant body, the

Constitutional Court found some objections raised by the complainant to

be justified. The course of action taken by the Regional Court which has

not addressed the issue of whether “a citizen” for the purposes of § 21

paragraph 1 of the Municipal Constitution means a person registered as

permanent resident in the part of the municipality being separated only

if such a person is a citizen of the Czech Republic, or whether such a

person may be a citizen of the European Union, must be considered

unconstitutional. The contested decision accepted, without sufficient

argumentation, the former interpretation; in the Constitutional Court’s

opinion, however, the interpretation ignored by the Regional Court is

more suitable. The above-quoted provisions must be interpreted in such a

way that the term “citizen” includes also citizens of the European

Union registered as permanent residents in the part of the municipality

being separated. The point is that the Treaty on the Functioning of the

European Union as well as the Municipal Constitution alone grant to such

persons the right to participate in the self-government of

municipalities (for example, to elect and to be elected to municipal

councils or even cast votes in the actual local referendum on separation

of the municipality); it would thus be completely irrational not to

take the same into account for the purpose of ascertainment of the

number of “citizens” necessary for compliance with statutory conditions

for separation. Such an interpretation undoubtedly satisfies the purpose

of the above-quoted provisions, such a purpose being securing the

formation of municipalities capable (in terms of human resources) of

properly executing self-government; at the same time, this

interpretation is EU-conforming, providing citizens of the European

Union with a share in the self-government of municipalities.

42.

For the reasons above, the Constitutional Court granted the

constitutional complaint and annulled the contested decision pursuant to

§ 82 paragraph 3, clause a) of the Act on the Constitutional Court. The

petition for annulment of a part of the provisions of § 21 paragraph 1

of the Municipal Constitution was then rejected by the Constitutional

Court as manifestly unfounded pursuant to the provisions of § 43

paragraph 2, clause b) in connection with § 43 paragraph 2, clause a) of

the Act on the Constitutional Court.

43. In new proceedings

following the cassation of the contested decision, the Regional Court

will be obliged, in relation to proper ascertainment of conditions for

announcing and holding the referendum, to verify whether the foreign

nationals mentioned by the complainant truly are permanent residents in

the territory of the part of the municipality which is to be separated,

whether these persons are citizens of the European Union, and whether

their number together with the citizens of the municipality pursuant to §

16 of the Municipal Constitution exceeds 1,000. Only on the basis of

such findings will the Court be able to reach a conclusion on compliance

or non-compliance with the condition of the number of “citizens” of the

part of the municipality striving for separation and thus for

announcing a referendum.

Note: Decisions of the Constitutional Court cannot be appealed.