2007/03/08 - Pl. ÚS 69/04: Ordinance on Prostitution

08 March 2007

HEADNOTES

1. The text of §

10 of the Act on Municipalities does not contain an express rule under

which a municipality could not prohibit activities in all public areas

activities that could disturb the public order in the municipality or be

inconsistent with good morals, protection of safety, health and

property. This conclusion can be drawn from the cited provision only

using an argument a contrario. However, this argument can not be used

without reservations. In the cited provision, the legislature tried to

address the conflict between an individual’s constitutionally guaranteed

freedom, the right to conduct business, on one side, and protection of

the public interests and the municipality’s right to self-government on

the other side. It resolved this conflict basically so that a

municipality may limit the conduct of certain activities, subject it to

its conditions, but not completely prohibit it. However, this can not

apply absolutely. It is quite evident with the protection of

constitutionally protected legal values such as health and life. There

is no rational reason why a municipality should have an obligation to

tolerate on some of its public areas activities that endanger these

fundamental protected values. It would be inconsistent with the

constitutionally guaranteed inviolability of the person (Art. 7 of the

Charter), which includes protection against interference in the personal

integrity of every individual, for a municipality to be required to

identify public areas in its territory where it does not prohibit

activities that could be inconsistent with protection of health. The

same applies to activities inconsistent with protection of property (cf.

Art. 11 of the Charter). The provision of § 10 let. a) of the Act on

Municipalities must therefore be interpreted so that, if activities

interfering with protection of health, property, or safety interfere in

these constitutionally protected legal values only in some public areas,

the municipality is forbidden to prohibit them in its entire territory.

Therefore, the cited provision must be understood as a specific

expression of the general principle of proportionality.

2.

Just as the public authorities are required to protect an individual’s

freedom, health and property, so are they required to protect public

order and good morals. This conduct is inconsistent with good morals,

and it is also conduct that disturbs the public order. The above

mentioned conclusions regarding protection of health and property must

also be applied to prohibitions of activities that violate these values.

Thus, if a certain activity may be conducted in certain public areas of

the municipality without disturbing the public order or being

inconsistent with good morals, the municipality can not prohibit it in

all of its public areas. In contrast, if the conduct of a particular

activity amounts to potential interference in a protected value, even

though it is operated in any public area in the municipality, the

municipality may prohibit the conduct of that activity in all its public

areas. It is always necessary to evaluate the intensity of the

interference and the importance of the endangered right, on one side,

and the importance of the activity that is to be prohibited, on the

other side.

3. In Art. 3 par. 1 let. c)

of the Generally Binding Ordinance of the City of Ústí nad Labem č.

1/2004, to Manage Local Matters of Public Order, the City of Ústí nad

Labem prohibits the offering of sexual services in public areas. It

thereby prohibits the offering of sexual services in all public areas of

the municipality. This field is not regulated by statute. The offering

of this service endangers good morals generally, and very distinctly

endangers the moral upbringing of children and youth. The very offering

of prostitution that is obvious to children and youth can give them the

impression that this is something “normal,” acceptable. The importance

of this legally protected value, i.e. the moral upbringing of children

and youth, must be considered very high. Thus, the ethical values which

the municipality, as a society of citizens, is entitled to protected,

are affected in an extreme manner. In the Constitutional Court’s

opinion, none of the other activities cited in Art. 3 of the contested

ordinance, even begging, effect a similarly extreme interference in

matters of the public order. These endangered, legally protected values

must also be measured against the freedom of the individuals providing

sexual services. However, the protection of offering this activity in

plain view of the public can not stand as against protection of the

moral upbringing of children and youth.

4.

In interpreting § 10 let. a) of the Act on Municipalities we must also

consider Art. 1 par. 2 of the Constitution, under which the Czech

Republic shall fulfill all obligations that arise to it under domestic

law. The Czech Republic is bound by the Convention for the Suppression

of the Traffic in Persons and of the Exploitation of the Prostitution of

Others [UN, New York, 2 December 1949; Czechoslovakia acceded to this

treaty on 14 March 1958 (the “New York Convention”)]. The Convention

considers prostitution to be an evil that consists of traffic in persons

and their human dignity, which endangers individuals, the family, and

society at large. The aim of the Convention is to prohibit the

regulation, and thus actually the recognition and approval, of

prostitution (see Art. 6 of the New York Convention). Under Art. 10 of

the Constitution, promulgated international treaties that have been

ratified by Parliament and by which the Czech Republic is bound are part

of the legal order; if an international treaty provides something

different than a statute, the international treaty shall apply. Although

this international treaty was not promulgated in the Collection of Laws

and thus is not an international treaty that is part of the legal order

under Art. 10 of the Constitution, in view of Art. 1 par. 2 of the

Constitution, it can not be ignored when interpreting simple law. Simple

law that permits multiple interpretations must be interpreted in a

manner that is consistent with the Czech Republic’s international law

obligations. As stated above, § 10 of the Act on Municipalities does not

contain an unambiguous answer to the question of whether a municipality

can prohibit prostitution at all in all its public areas. The

interpretation that a municipality may prohibit prostitution not only in

some, but also in all public areas, is more compatible with the Czech

Republic’s international law obligations arising from the New York

Convention.  Limiting prostitution to only certain public areas in a

municipality is basically regulation of it, and that is what the New

York Convention wants to prevent. The current legal framework lets a

municipality choose either to not regulate prostitution at all, or to

completely prohibit it in the municipality’s public areas, or to

negatively or positively designate certain public areas where

prostitution can be offered.

5. Also

because prostitution is not regulated by the Parliament of the CR on the

statutory level, the Constitutional Court concluded that the City of

Ústí nad Labem did not exceed its statutorily given jurisdiction, when,

in the generally binding ordinance, or prohibited the offering of sexual

services in public areas in the entire city, and thus forced

prostitution behind closed doors.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of the Chairman JUDr.

Pavel Rychetský and judges JUDr. Stanislav Balík, JUDr. František

Duchoň, JUDr. Vlasta Formánková, JUDr. Vojen Güttler, JUDr. Pavel

Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Vladimír

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

Miloslav Výborný, JUDr. Eliška Wagnerová and JUDr. Michaela Židlická,

ruled on a petition from the Minister of the Interior seeking the

annulment of the Generally Binding Ordinance of the City of Ústí nad

Labem, no. 1/2004, to Manage Local Matters of Public Order, with the

participation of the minister of the interior and the City of Ústí nad

Labem, as follows:
 

I.

Article 3 par. 1 let. a), b) and e) and Art. 4 of the Generally Binding

Ordinance of the City of Ústí nad Labem, no. 1/2004, to manage local

matters of public order, are annulled as of the day this judgment is

promulgated in the Collection of Laws.

II.

The proceeding is stopped in respect of Art. 3 par. 1 let. d) and Art. 5

of the Generally Binding Ordinance of the City of Ústí nad Labem no.

1/2004 to Manage Local Matters of Public Order.

III. The remainder of the petition from the minister of the interior is denied.



REASONING

I.


1.

On 8 December 2004 the Constitutional Court received a petiton from the

minister of the interior, Mgr. F. B., seeking the annulment of the

Generally Binding Ordinance of the City of Ústí nad Labem no. 1/2004, to

Manage Local Matters of Public Order. Because the petition meets the

formal requirements under Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations (the “Act on the Constitutional

Court”), nothing prevented the plenum of the Constitutional Court from

considering it.
 


II.
 

2.

From the record of the 10th session of the Ústí nad Labem City Council,

held on 11 March 2004, as well as from ordinance no. 1/2004, the

Constitutional Court determined that ordinance no. 1/2004 to manage

local matters of public order was duly passed at the 10the session of

the Ústí nad Labem City Council, held on 11 March 2004, by twenty six

votes, with twenty six representatives present (out of a total of 37).

The ordinance was posted on the official bulletin board of Ústí nad

Labem City Hall on 12 March 2004 and went into effect on 27 March 2004;

it was taken down from the official bulletin board on 26 March 2004.

Thus, we can conclude that the contested generally binding ordinance was

passed and issued in a constitutionally prescribed manner, by a body

authorized thereto [§ 12 par. 1, § 84 par. 2 let. i), § 87 of the Act on

Municipalities, as amended by later regulations].
 


III.
 

3. The text of the cited generally binding ordinance, approved by the Ústí nad Labem City Council, is the following:

The City of Ústí nad Labem
Generally Binding Ordinance of the City of Ústí nad Labem
no. 1/2004 to manage local matters of public order

The

Ústí nad Labem City Council, under § 10, §35 and § 84 par. 2 let. i) of

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

amended by later regulations, voted on 11 March 2004 to issue the

following generally binding ordinance (the “ordinance”):
Art. 1
Introductory provisions

1. The aim of this ordinance is, on the basis of legal authority and in

accordance with the valid laws, to ensure public order in the City of

Ústí nad Labem (the “city”) in those sectors which have been entrusted

to its jurisdiction (local matters).

Art. 2
Definition of terms

1. Public areas are all squares, streets, marketplaces, sidewalks,

public greens, parks and other spaces accessible to everyone without

restriction, i.e. serving for public use, regardless of ownership of the

space. 1)
2. Disproportionate noise annoyance of citizens means

such conduct as annoys citizens during the day and the night time, in

particular by noisy use of musical instruments, musical apparatus, tape

recorders, radio and television receivers and the noise of visitors to

facilities where alcoholic beverages are served.
3. For purposes of

this ordinance and for purpose of inspection of the observance of

obligations to protect others from noise and vibrations, night quiet

time means the time between 10:00 p.m. and 6:00 a.m. 2)
 

Art. 3
Specification of activities that could disturb the public order in the city, and the time when these activities are banned
1. Activities that could disturb the public order in the city, in outside and inside spaces, are:
a.

conducting public musical productions, live or reproduced (e.g. dance

events, balls, discotheques, technoparties, etc.), in particular if they

are connected with the opportunity for alcohol consumption,
b. begging and other annoyance of citizens of a similar nature, except for duly permitted public collections, 3)
c. offering sexual services in public areas,
d. unrestrained movement of dogs in public areas,
e.

the production of amusement parks, merry-go-rounds, circuses and mass

sporting events in public areas. These activities can be produced only

with the prior consent of the appropriate city district office, in

places according to the attachment (map).

Art. 4
Protection of citizens from noise and the obligation to ensure protection of citizens from noise

1. Everyone is obligated to behave so that, during the night quiet time

specified in Art. 2 par. 3 of this ordinance he will not disturb the

night peace beyond the level specified by special regulations.
2.

The producer of a public production and the operator of a relevant

facility (e.g. restaurants, clubs, games arcades, etc.) is responsible

for seeing to it that the noise in the outside and inside spaces will

not exceed the highest permitted noise level specified by special

regulations. 4)
3. A musical production open to the public may be

conducted in inside premises only if they were zoned for that purposes

by a decision of the building office. This activity is banned in

non-residential or residential premises that are not zoned for it by a

building office decision.
4. The producer of a public production is responsible for ensuring a sufficient number of properly marked producer services.
5. Local noise restrictions are in effect in the following localities in the city of Ústí nad Labem:
(a list of the localities follows)

Art. 5
Setting obligations for unleashing dogs in public areas

1. In public areas the owner or possessor of a dog is required to have

it identified with an identification tag, which he will obtain when

registering the dog at the appropriate office. He is also required to

have the dog on a leash, except in localities identified by a sign

saying “Area for Unleashed Dogs.” The following localities are

designated as “areas for unleashed dogs.”: (a list of the localities

follows.
2. In such defined areas, the owner (possessor) of an

animal is still fully responsible for his dog, and is required to

observe all generally binding legal regulations (e.g. the Civil Code,

the Act on Protecting Animals of Abuse, the Veterinary Act, the Act on

Wildlife Management, etc.). The localities for unleashed dogs are

pictured in an attachment that is an inseparable component of this

ordinance.
 

Art. 6
Inspection
Inspection of observance of this ordinance shall be performed by officers of the City Police of Ústí nad Labem. 5)
 

Art. 7
Penalties

1. Breach of obligations in this ordinance by an individual or legal

entity, and any conduct inconsistent with this ordinance will be

penalized
a. with individuals, as a misdemeanor
b. with legal

entities or entrepreneurs, in the conduct of their business activity, as

another administrative offense, unless it is an offense that can be

punished under special legal regulations.
2. Special regulations will be applied for imposing penalties. 6)
 

Art. 8
Closing provisions
Application

of this ordinance does not affect the obligations provided by other

regulations. Generally Binding Ordinance of the City of Ústí nad Labem

no. 89/2002, on Certain Restrictive Measures to Manage Local Matters of

Public Order and to Protect Citizens from Noise, is annulled.
This ordinance goes into effect on the fifteenth day after it is promulgated.

Mgr. Jan Kubata
Deputy Mayor
Mgr. Petr Gandalovič
City Mayor
_________________
1) § 34 of Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as amended by later regulations
2) § 34 par. 2, first sentence, of Act no. 258/2000 Coll., on Protection of Public Health and Amending Certain Related Acts
3) Act no. 117/2001 Coll., on Public Collections and Amending Certain Acts (the Act on Public Collections)
4)

government order no. 502/2000 Coll., on Protection of Health from the

Detrimental Effects of Noise and Vibrations, as amended by government

order  no. 88/2004 Coll., with effect as of 1 April 20004 and later

regulations
5) § 2 par. 1 let. a) of Act no. 553/1991 Coll., on Municipal Police
6) § 58 of Act no. 128/2000 Coll. no. 200/1990 Coll., on Misdemeanors, as amended by later regulations
     § 58 of Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as amended by later regulations)

 

IV.
 

4.

The cited ordinance went into effect on 27 March 2004. By a measure of

17 September 2004, ref. no. MS 1656/2-2004, the petitioner opened

administrative proceedings to suspend the ordinance, and the decision to

suspend the ordinance was delivered to the city of Ústí nad Labem on 24

November 2004. However, as of the day that this petition was filed, the

city of Ústí nad Labem has not arranged a correction in the matter, and

therefore the petitioner filed a petition with the Constitutional Court

under Art. 87 par. 1 let. b) of the Constitution of the CR and § 64

par. 2 let. g) of the Act on the Constitutional Court seeking the

annulment of this ordinance.
 

5.

In the constitutional complaint, the petitioner states that, in

accordance with 124 par. 2 of Act no. 128/2000 Coll., on Municipalities,

as amended by later regulations (the “Act on Municipalities”), he

concluded that the ordinance is inconsistent with the law, because it

provides obligations (bans) without a statutory basis, and beyond the

framework of independent municipal authority, which is inconsistent with

Art. 2 par. 3 and Art. 4 par. 1 of the Charter of Fundamental Rights

and Freedoms and Art. 2 par. 4 and Art. 104 par. 3 of the Constitution.

The petitioner provides the specific reasons for the unlawfulness of the

ordinance provisions as follows:
 

6.

Art. 2 par. 1 of the ordinance specifies what public areas are,

although only by reference to § 34 of the Act on Municipalities. The

ordinance does not specifically designate a public area, or so-called

“other areas” in the city. The petitioner points to Constitutional Court

judgment Pl. US 2/2000, under which it is necessary for an ordinance to

unambiguously designate “other areas” that are accessible to everyone

without restriction. Uncertainty regarding places to which the ordinance

obligations apply is inconsistent with the principle of legal

certainty.
 

7. Art. 2 par. 2

of the ordinance specifies conduct that could, under the ordinance,

cause disproportionate noise annoyance to citizens, in the day time and

night quiet time. The petitioner believes that, according to

Constitutional Court judgment Pl. US 14/99, limitation of noise should

not be the subject matter of a generally binding ordinance, because this

involves legal relationships that are regulated by separate legal

regulations. As regards conduct that disturbs the night quiet time, this

is the misdemeanor of disturbing the night peace, which is already

defined in § 47 par. 1 let. b) of Act no. 200/1990 Coll., on

Misdemeanors, as amended by later regulations, and annoyance in the day

and night quiet time is regulated as a civil law matter under § 127 of

the Civil Code.
 

8. Art. 2

par. 3 of the ordinance defines the night quiet time for purposes of

inspection of observance of obligations regarding protection from noise

and vibrations. According to the petitioner, because a municipality’s

independent jurisdiction does not include regulation of noise and

vibrations, it therefore also does not include inspection thereof or

defining time periods for purposes of inspection.
 

9.

Art. 3 states in the title that it defines activities that could

disturb the public order in the city, and defines the time and place

where these activities are forbidden; however, the article does not

contain any specification of place or time. Under § 10 let. a) of the

Act on Municipalities, a municipality may specify that activities that

could disturb public order in the municipality may be conducted only at

places and times determined by a generally binding ordinance. Thus,

according to the petitioner, if the municipality wishes to so define

certain activities, it must, in order to maintain legal certainty,

specify the place and time that they are conducted.
 

10.

Art. 3 par. 1 let. a) of the ordinance provides that the organization

of public productions, in live and recorded form, especially if they are

connected to the possibility of alcohol consumption, in outdoor and

indoor premises, are activities that could disturb public order in the

city. The municipality does not specify in which public areas activities

that could disturb public order in the city can not be conducted, but

specifies in a blanket manner the possibility of disturbing public order

by these activities in the entire city. According to the petitioner,

that is inconsistent with § 10 let. a) of the Act on Municipalities,

which specifies that a municipality may specify by generally binding

ordinance the places and times of activities that could disturb the

public order in the municipality, or specify that such activities are

prohibited in certain public areas in the municipality. According to the

petitioner, a municipality thus significantly interferes in the legal

certainty of citizens, as well as in a fundamental right guaranteed by

the Charter of Fundamental Rights and Freedoms, the right to property,

which can be limited only in the public interest, on the basis of law,

and for compensation. Under § 10 let. b) of the Act on Municipalities, a

municipality has a legal entitlement to regulate the arrangement,

conduct and termination of publicly accessible businesses, including

dance events and discotheques of business activities, but can not

prohibit these business activities in a blanket manner. A municipality

is also entitled to limit the serving and sale of alcohol under § 4 par.

3 of Act no. 37/1989 Coll., on Protection from Alcoholism and Drug

Addiction, as amended by later regulations, but not to prohibit events

onnected with the consumption of alcohol, or to define them as

activities that disturb the public order in the entire city.
 

11.

Art. 3 par. 1 let. b) of the ordinance provides that activities that

could disturb the public order in the entire city include begging and

other annoying of citizens of a similar nature. Here, the city defines

activities that can disturb the public order, in terms of the entire

city, whereby, according to the petitioner, it is again in conflict with

§ 10 let. a) of the Act on Municipalities. The petitioner believes that

everyone can do what is not forbidden by law, as indicated by Art. 2

par. 3 of the Charter. However, begging is not forbidden, and annoyance

is governed by the Civil Code in § 127, and evoking public outrage is

governed by § 47 par. 1 let. c) of the Act on Misdemeanors. Thus,

according to the petitioner, the municipality has exceeded its defined

jurisdiction with this provision of the ordinance.
 

12.

Art. 3 par. 1 let. c) of the ordinance provides that offering sexual

services in a public area is an activity that could disturb public

order. This provision is already inconsistent with the provision where

the cited activity can disturb the public order. If the municipality’s

intent is to define this activity as one that disturbs the public order

in the entire city, then according to the petitioner the city again

comes into conflict with § 10 let. a) of the Act on Municipalities. The

petitioner believes that by making this definition in a blanket manner,

for the entire city, apart from public areas, the municipality could

come into conflict with the right to conduct business (Art. 26 par. 1 of

the Charter) and with the right to property guaranteed by the Charter

of Fundamental Rights and Freedoms. As regards defining the cited

activity in public areas, according to the petitioner the municipality

is required, in order to ensure the legal certainty of citizens, to

specify the public areas where the activity is forbidden.
 

13.

Art. 3 par. 1 let. e) of the ordinance provides that the production of

amusement parks, merry-go-rounds, circuses, and mass sporting events are

activities that could disturb the public order in the city. Under § 10

let. b) of the Act on Municipalities a municipality may, by ordinance,

impose obligations for the production, conduct, and termination of

publicly accessible cultural and sporting events. Thus, according to the

petitioner, a municipality is not authorized to impose a blanket ban.

The petitioner believes that this ban by the municipalities is

inconsistent with the right to conduct business, guaranteed by the

Charter, and with the right to property, because it makes the ban

applicable to the entire city. Operating amusement parks is an

unrestricted trade, therefore the exercise of the trade licensing agenda

falls under the state administration, and a municipality has no

statutory authorization to regulate it through a generally binding

ordinance. Thus, according to the petitioner, the city is not authorized

to permit these events, but the representative body is authorized to

specify where they can be conducted and when.
 

14.

Art. 4 par. 1 of the ordinance provides that everyone is required to

behave so as not to disturb the night peace beyond a degree provided by

special regulations. Disturbance of the night peace is a misdemeanor

under § 47 par. 1 let. b) of the Act on Misdemeanors. Therefore,

according to the petitioner, it is up to the specified bodies to

evaluate the misdemeanor and, as necessary, arrange for correction, or

impose a penalty. The Act on Protection of Public Health provides the

requirement to protect citizens from noise, and also identifies the

bodies responsible for protection of public health, which do not include

a municipality. The petitioner also states that noise annoyance is also

governed by § 127 of the Civil Code.
 

15.

Art. 4 par. 2 provides that the producer of a public production and the

operator of the relevant facility is responsible for seeing to it that

the noise does not exceed the maximum permitted level. The ban on

exceeding noise limits for public productions is provided in § 32 of Act

no. 258/2000 Coll., on Protection of Public Health; the limits are

provided by an implementing regulation. Bodies of state administration

of public health may evaluate whether the law was or was not observed,

and may specify any liability or penalties; according to the

petitioners, a municipality has no statutory authorization to regulate

this issue. In this regard, the petitioner points to Constitutional

Court judgment Pl. US 14/99, under which the subject matter of a

generally binding ordinance is not supposed to be noise restriction,

because this involves legal relationships governed by separate legal

regulations, such as the Act on Public Health, the Civil Code, or the

Act on Misdemeanors.
 

16.

Art. 4 par. 5 of the ordinance defines localities for so-called local

noise restrictions. This does not belongs in a municipality’s

independent jurisdiction; for that reason, according to the petitioner,

this is also inconsistent with § 35 par. 1 of the Act on Municipalities.
 

17.

Art. 4 par. 3 of the ordinance provides that a public music production

can be held only in premises designated thereto by a decision of the

building office. The obligation to use a building only for purposes that

were approved by the final approval permit is provided in § 82 of Act

no. 50/1976 Coll., on Zoning and the Building Code (the Building Act),

as amended by later regulations. Thus, according to the petitioner, a

municipality does not have statutory authorization to provide such an

obligation in an ordinance; only bodies designated thereto by the

Building Act have an obligation to ensure inspection of the observance

of statutory obligations, and only these bodies have the ability to

impose penalties. Thus, according to the petitioner, the municipality

has acted beyond the framework of its specified independent

jurisdiction, and thereby interfered in the exercise of state

administration.
 

18. Art. 4

par. 4 of the ordinance provides that the producer of a production is

responsible for ensuring a sufficient number of duly marked producer

services. The petitioner sees this as inconsistent with the principle of

legal certainty, because a sufficient number of duly marked producer

services is a matter of subjective evaluation.
 

19.

Art. 5 par. 1 of the ordinance provides the obligation to have dogs on a

leash except in places marked with a sign reading “Area for Unleashed

Dogs.” Areas designated for unleashed dogs are indicated by the

generally binding ordinance. According to the petitioner, an area where

dogs must be kept on a leash must be provided by a legal regulation, not

by a portable sign; otherwise this is inconsistent with the legal

certainty of citizens.
 

20.

Art. 7 of the ordinance provides penalties. According to the petitioner,

by setting obligations (bans), the municipality interfered in

neighbors’ and property rights, which are regulated as civil law rights,

and therefore can not be classified as misdemeanors. The petitioner

believes that if the proposed articles were deleted from the ordinance,

this provision would be consistent with the law.
 


V.
 

21.

In response to a request from the Constitutional Court, the city of

Ústí nad Labem responded to the petition from the minister of the

interior in its filing of 7 February 2005. The response states that, as

regards the criticism that Art. 2 par. 1 does not precisely define what

public areas are, it must be said that a clear designation of particular

areas is not practically feasible. In the case of large cities, such as

Ústí nad Labem, the city’s large land area is a barrier to such

unambiguous designation, as is the large number of places to which the

designation would apply. Moreover, if the city designated such areas by

giving the numbers of individual parcels of land, such a designation

would be confusing to the citizens anyway, and certainly would not have

the desired result. The designation used in the ordinance is general,

but it is more understandable for the citizens; in addition, every time

these areas changed the generally binding ordinance would have to be

amended.
 

22. Insofar as the

petition argues that a part of the issue is already regulated by special

regulations, the response points to Constitutional Court judgment Pl.

US 15/97, under which, “if a generally binding ordinance contains a

provision that provides an obligation imposed by statute, that provision

is a superfluous addition to the statutory regulation, which, in and of

itself, does not have a normative content, but the mere redundancy can

not be seen as sufficient grounds to find the ordinance unconstitutional

or unlawful.” As regards the object that part of the issue falls under

the regime of Act no. 200/1990 Coll., on Misdemeanors, the city of Ústí

nad Labem refers to Constitutional Court judgment Pl. US 18/97, under

which, “under § 48 of Act no. 200/1990 Coll., as amended by later

regulations, these generally binding municipal regulations can specify

the elements of offenses against the public order.”
 

23.

As regards Article 4 par. 4, the response states that it is not

possible to define the necessary number of organizers, e.g. in regards

to the expected number of visitors, because, of course, different

numbers of organizers will be necessary to maintain public order at an

open-air event or at an even in the enclosed area of a football stadium

or ice rink; the possibility for subjective evaluation will always

exist.
 

24. Insofar as Art. 5

par. 1 of the ordinance is criticized for inconsistency with legal

certainty, because the areas where a dog must be kept on a leash must be

provided by legal regulation, the city of Ústí nad Labem states that

this article of the ordinance does precisely provide the localities for

“unleashed dogs,” and one can therefore conclude that the legal

regulation also designates the places where dogs must be kept on a

leash. They are all the places other than those that are designated as

“areas for unleashed dogs.”
 

25.

The city of Ústí nad Labem considers the most serious aspect to be the

fact that certain parts of the generally binding ordinance are

criticized for inconsistency with the fundamental rights of citizens

guaranteed by the Charter of Fundamental Rights and Freedoms, the right

to property and the right to conduct business. In the opinion of the

city of Ústí nad Labem, the right to property and the right to conduct

business can be restricted, but the specific instances must be reviewed.

In general, such a restriction is consistent with one of the

fundamental constitutional principles, the principle that one

individual’s freedom ends where the freedom of another begins. Insofar

as it is objected that the city bans certain activities in a blanket

manner, that is not so; the city merely provides stricter rules for the

conduct of such activities as, in the experiences of city authorities,

most often lead to disturbance of the public order. Such activities are

not forbidden by the ordinance; it merely provides rules for their

conduct, in view of the interest in keeping public order in the city.
 

26.

The city of Ústí nad Labem concludes its response by stating that

insofar as the generally binding ordinance was contested in this extent,

it is a question what purposes the statutory authorization of § 10 of

the Act on Municipalities serves, when virtually all the activities

cited there are already regulated or affected in some manner by other

generally binding regulations; the cited provision would thus be in the

position of a kind of unusable proclamation, which certainly could not

have been, and was not, the intent of the legislature.
 

27.

At the same time, the city of Ústí nad Labem states that it does not

agree to waive a hearing in proceedings before the Constitutional Court

under § 44 par. 2 of the Act on the Constitutional Court.
 

28.

The ombudsman, JUDr. O. M., stated in his response of 12 January 2005

that he would not participate in the proceedings before the

Constitutional Court.
 

29. In

a public hearing on 8 March 2007, the Constitutional Court also

considered it proven, from the statements of both parties to the

proceedings, that the provisions of Art. 3 par. 1 let. d) and Art. 5 of

the generally binding ordinance of the city of Ústí nad Labem no.

1/2004, to manage local matters of public order, ceased to have legal

effect before the proceedings before the Constitutional Court were

completed.
 

 

VI.
 

30.

In ruling on the petition to annul the generally binding ordinance, the

Constitutional Court evaluates whether the ordinance was passed and

issued without the bounds of the municipal jurisdiction provided by the

Constitution of the CR, and in a constitutionally prescribed manner, and

whether its content is not inconsistent with constitutional acts and

other acts (§ 68 par. 2 of the Act on the Constitutional Court). To make

this evaluation, the Constitutional Court generally applies a four-part

test: 1) Reviewing the authority of the municipality to issue generally

binding ordinances. 2) Reviewing the question of whether the

municipality, in issuing the generally binding ordinance, did not act

beyond its statutorily defined substantive jurisdiction (conduct ultra

vires). 3) Settling the question of whether the municipality, in issuing

the generally binding ordinance, did not abuse the jurisdiction

entrusted to it by statute. 4) Reviewing the content of the ordinance in

terms of “unreasonableness.” Here we must state that the first two

criteria are formal criteria, and the remaining two apply to the content

of the contested regulation, even though these last two criteria also

display aspects of conduct ultra vires (in the material sense of the

word).
 

31. The Constitutional Court chose the same method of testing the generally binding ordinance in the present matter.
 

32.

Re 1) Art. 104 par. 3 of the Constitution of the CR, under which

representative bodies, may, within the bounds of their jurisdiction,

issue generally binding ordinances, gave municipalities the authority to

issue generally binding ordinances. In that sense the Constitutional

Court is following on from the decision that it made in the matter file

no. Pl. US 5/99, published as no. 216/1999 Coll. It follows from the

foregoing that this norm creation by municipalities must be seen as

original creation of law.
 

33.

Because the contested generally binding ordinance was issued by the

municipal representative body in the manner described in point II. of

this judgment, we can conclude that, as regards the performance of its

authority, the municipality acted in a constitutional manner.
 

34.

Re 2) Art. 104 par. 3 of the Constitution of the CR, cited above, which

establishes municipal competence to issue generally binding 

ordinances, is applied by § 35 par. 3 let. a) of the Act on

Municipalities. Under this provision, a municipality, when exercising

its independent jurisdiction (under § 35 par. 1 of the Act on

Municipalities), is guided by the law when issuing generally binding

ordinances. This statutory order corresponds to the definition in § 35

par. 1 a 2 of the Act on Municipalities, which specifies substantive

areas in which a municipality is authorized to create original law, i.e.

without a statutory authorization in the true sense of the word

(judgment file no. Pl. US 3/95, published as no. 265/1995 Coll.). Thus, a

municipality is limited by the bounds of its jurisdiction as set by

statute, can not regulate issues that are reserved to statutory

regulation, and can not regulate matters that are already regulated by

public or private law regulations (cf. case law of the Constitutional

Court, in particular in the area of breeding and owning animals in

municipal territory, judgment Pl. US 4/98, published in Collection of

Decisions of the Constitutional Court, vol. 14, no. 78, judgment Pl. US

17/02 of 20 October 2004, available in electronic form at

www.judikatura.cz). In cases where a municipality is an entity that

determines obligations for a citizen by unilateral prohibitions and

orders, i.e. if it issues a generally binding ordinance that contains

legal obligations, it may do so only on the basis of and within the

limits of law, because it is bound by Art. 2 par. 3 of the Constitution

of the CR and Art. 2 par. 2 of the Charter of Fundamental Rights and

Freedoms.
 

35. Article 2 par.

2 of the Charter of Fundamental Rights and Freedoms contains this

provision: “State authority may be asserted only in cases and within the

bounds provided for by law and only in the manner prescribed by law.“

Article 4 par. 1 states: “Duties may be imposed upon persons only on the

basis of and within the bounds of law, and only while respecting the

fundamental rights and basic freedoms of the individual.” Article 2 par.

4 of the Constitution of the CR states: “All citizens may do that which

is not prohibited by law; and nobody may be compelled to do that which

is not imposed upon him by law.”
 

36.

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

regulations, provides in § 10: “A municipality may impose obligations in

the exercise of its independent jurisdiction by issuing a generally

binding ordinance
a) to manage local matters of public order; in

particular it may specify which activities that could disturb the public

order in the municipality or be inconsistent with good morals,

protection of security, health and property, can be conducted only in

places and at times determined by the generally binding ordinance, or it

may specify that such activities are prohibited in certain public areas

in the municipality, …”
b) for the organization, conduct and

termination of publicly accessible sports and cultural enterprises,

including dance events and discotheques, by setting binding conditions

in the scope necessary to ensure public order.
 

37.

Thus, if a municipality, in the above-defined area, issues a generally

binding ordinance whereby it specifies activities that could disturb the

public order in the city, and provides obligations for purses of

ensuring the protection of citizens from noise and for unleashing dogs

in public areas, such actions can not be considered actions ultra vires;

in other words, in such cases the municipality is acting in the

substantive area that was entrusted to its independent jurisdiction

(intra vires).
 

38. Re 3) Of

course, whether the municipality misused the substantively defined

independent jurisdiction entrusted to it by statute is a different

question.
 

39. Under § 35 of

the Act on Municipalities, the independent jurisdiction of a

municipality covers matters that are in the interest of the municipality

and its citizens, unless they have been entrusted by statute to the

regions, or unless they are part of the transferred jurisdiction of

municipal bodies or a jurisdiction that has been entrusted to the

administrative authorities by a special statute as the exercise of state

administration, as well as matters that are entrusted to a

municipality’s independent jurisdiction by statute. Municipal

independent jurisdiction includes, in particular, matters specified §

84, 85 and 102, with the exception of issuing municipal orders. In its

independent jurisdiction, and in accordance with local requirements and

local customs, a municipality also takes care of creating conditions for

developing social services and meeting the needs of its citizens. This

includes, in particularly, meeting the needs for housing, protection and

development of health, transportation and communications, the need for

information, upbringing and education, overall cultural development, and

the protection of the public order.
 

40.

In this case the declared purpose of the generally binding ordinance

was supposed to be to ensure matters of public order, in particular by

specifying activities that could disturb the public order in the city

and setting places and times where these activities are prohibited, as

well as by imposing obligations for securing protection of the citizens

from noise and imposing obligations for the unrestrained movement of

dogs in public areas. When reviewing the constitutionality of the

ordinance, the Constitutional Court sees to it that the content of

obligations that, under § 10 let. a) a let. b) of the Act on

Municipalities, may be imposed by a municipality in the area of securing

local matters of public order and for the organization, conduct and

termination of publicly accessible sporting and cultural enterprises,

not be provided in such a way as to become inconsistent with mandatory

statutory norms or with the constitutional order. As the Constitutional

Court stated in its judgment of 12 June 2001, file no. Pl. US 2/2000,

“generally binding municipal ordinances are a form of norm creation by

entities of territorial self-government, and in the hierarchy of legal

regulations according to their legal force they must be consistent with

statutes and the legal regulations issued for their implementation.

Statutory frameworks (and their implementing regulations) thus always

take precedence: if a statute enacts certain rules for a particular area

(and it is not fundamentally limited in doing so), a local government

entity may not proceed contra legem when creating norms in its

territory.
 

41. In this

regard, concerning the statement from the city of Ústí nad Labem

concerning the petition to annul the ordinance, which states that it is a

question what purpose is served by the statutory authorization in § 10

of the Act on Municipalities, when practically all the activities

provided in it are already in one way or another regulated or affected

by other generally binding regulations, and the cited provision would

thus have the status of a kind of unusable declaration, the

Constitutional Court states the following: We can agree with the city of

Ústí nad Labem that the subject of the statutory frameworks includes

legal relationships that are otherwise entrusted to independent

municipal jurisdiction by § 35 par. 1 and 2 of the Act on

Municipalities. This fact also arises from the hierarchy of legal

regulations, which reflects the importance of individual state functions

and the states of the parties performing them. The priority of

constitutional acts and other statutes is a fundamental construction

element of the democratic essence of the state, where the parliament, as

the representative of a sovereign people, issues generally binding

norms of the highest legal force. The statutory (§ 35 of the Act on

Municipalities) and constitutional frameworks (Art. 104 par. 3 of the

Constitution of the CR) indicate that a municipality, when issuing

generally binding ordinances, may not exceed the bounds of its

independent jurisdiction as provided by statute. However, municipal

representative bodies, when issuing generally binding ordinances, must

also respect the existing legal framework, that is, the existence of

statues, as norms of a higher legal force, and they are not authorized

to regulate the relationships the statues regulate in a different manner

through a generally binding ordinance. If a municipality regulated

relationships that had already been regulated by statute, this would not

be merely superfluous to the statutory framework. That is manifested in

the fact that a special legal framework also contains methods for

overseeing the observance of the established rules and related penalty

rules. By incorporating a statutory rule into a generally binding

municipal the ordinance, a municipality would actually broaden its

penalizing activity, because it could independently penalize the

violation of a rule provided by the generally binding ordinance.

Violation by a legal entity or an individual entrepreneur of a rule

provided in a generally binding municipal ordinance would be an

administrative offense under § 58 a §59 of the Act on Municipalities.

For that reason as well, it is impermissible for a municipality to use a

generally binding ordinance to regulate obligations that are already

imposed by a special statute.
 

42.

In order for a municipality not to exceed its statutory authority when

issuing generally binding ordinances, the subject matter of the

ordinance must always be local matters; in the event of specifying

undesirable conduct, this must be conduct that is not otherwise

penalized by the state and that is of a local character. As the

Constitutional Court has already ruled several times, generally binding

ordinances can not regulated matters that are reserved to statute (e.g.

Constitutional Court judgments file no. Pl. US 42/97, Pl. US 2/2000, Pl.

US 50/03, Pl. US 14/99). This arises from the essence of the

authorizing provision, § 10 of the Act on Municipalities, whose purpose

is for a municipality to regulate through generally binding ordinances

matters that are, by their nature, not regulated by special regulations

as the exercise of state administration and that are also matters of

local importance.
 

43. As

stated in the judgment of 17 May 2005, file no. Pl. US 62/04, published

in the Collection of Laws as no. 280/2005 Coll., the Constitutional

Court respects local government as the expression of the right and

capability of local bodies to govern public affairs in the bounds

provided by statute, within the scope of their responsibility, and in

the interests of the local population. However, responses to socially

undesirable events in a municipality can not be handled by authoritative

determination of the relationship between individuals through norm

creation by the municipality to which it was not authorized by statute.

Instead of passing an ordinance, municipalities can use other,

constitutional approaches to resolve problems arising in the

municipality in connection with managing local matters of public order,

e.g. by publishing a “Notice” on the official bulletin board to refer,

with a precise citation, to the existing provisions of statutes, or by

an announcement that the fulfillment of obligations arising from these

statutory regulations will be thoroughly observed and violation will be

punished in accordance with the statute, providing references to

examples of penalties. In this regard the Constitutional Court refers,

in particular to Act no. 200/1990 Coll., on Misdemeanors, which, in §

47, defines offenses against the public order, and lists as a

misdemeanor conduct that disturbs the night peace [§ 47 par. 1 let. b)],

evokes public outrage [§ 47 par. 1 let. c)], or that dirties public

areas, a publicly accessible building, or publicly beneficial facility

[§ 47 par. 1 let. d)]. Of course, from a formal standpoint a

municipality could not identify such a notice as an “Ordinance,” because

an ordinance plays a different role in a municipality’s independent

jurisdiction. The Act on Municipalities expressly permitted

municipalities to use ordinances to specify obligations to manage local

matters of public order, but these obligations are aimed at activities

not regulated in special statutes by the state administration. The

public order is not an absolute category, but a changeable value, whose

content is guided by social, ethical, political, and business

relationships and opinions. Evaluating whether a particular situation is

or is not contrary to the public order is up to the discretion of the

relevant administrative entity. This is given by the fact that

municipalities fulfills one of their police functions in the area of

public order, and often, with inadequate knowledge of the statutory

framework and its scope, attempt, by issuing their own statutory

regulations, to prohibit certain conduct that they consider harmful, but

that is already regulated by valid statutes. It is the form and content

of setting new prohibitions, or even obligations consisting of active

conduct, that can come into conflict with the constitutional principle

that obligations can be imposed only on the basis of statutes. The

Constitutional Court believes that the existing legal framework gives

municipalities sufficient scope to penalize the flawed conduct by

individuals and legal entities that could disturb the public order.

However, municipalities are not able to define this scope sufficiently

precisely, so it remains a reality that, in issuing generally binding

ordinances, they simple reproduce, to a considerable extent, the

individual provisions of valid statutes. However, as stated above, that

misses the point of issuing generally binding municipal ordinances,

which is the administration of their own matters, and can not include

mere loose reproduction of statutes concerning the role of the state

administration, or even the creation of norms in that area.
 


VIII.
The Review
 

44.

The Constitutional Court evaluated the contested generally binding

ordinance of the city of Ústí nad Labem (the “city”) in view of the

constitutional framework described above, and determined that the

provisions of that ordinance cited in the annulling verdict of the

judgment are inconsistent with the constitutional order and with

statutes.
 

45. The provision

of § 34 of the Act on Municipalities defines public areas as all

squares, streets, marketplaces, sidewalks, public greenery and other

spaces accessible to everyone without restriction, i.e. serving public

use, regardless of ownership of the space. Thus, in article 2 par. 1 of

the ordinance the city merely takes over the statutory definition of

public areas, which the Constitutional Court does not consider to be

unconstitutional. The mere use of a legal term in a generally binding

ordinance is not inconsistent with the principle of legal certainty,

which does not require a municipality to explicitly define the parcels

of land that it considers to be public areas.
 

46.

We must agree with the petitioner that insofar as the city specified,

in article 3 of the ordinance, activities that could disturb public

order in the city, then it was fundamentally required, in accordance

with § 10 let. a) of the Act on Municipalities, to specify in the

ordinance the places and times for these activities to be conducted, or

do specify that such activities are prohibited in some public areas in

the municipality. As was already state above, under Art. 2 par. 4 of the

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

duties may be imposed only on the basis of, and within the bounds of

law. In view of this rule, Art. 104 par. 3 of the Constitution must be

interpreted to the effect that a generally binding ordinance which

imposes obligations on individuals and legal entities presupposes a

statutory provision that authorizes it to impose obligations. One such

statutory provision is § 10 of the Act on Municipalities, the relevant

part of which reads:
“A municipality may impose obligations within

its independent jurisdiction by a generally binding ordinance a) to

manage local matters of public order; in particular, it may specify what

activities that could disturb public order in the municipality or be

inconsistent with good morals, protection of safety, health and

property, can be conducted only in places and at times determined by the

generally binding ordinance, or may provide that such activities are

prohibited in certain public areas in the municipality, (…)”
 

47.

The text of § 10 of the Act on Municipalities does not contain an

express rule under which a municipality could not prohibit the cited

activities in all public areas. This conclusion can be drawn from the

cited provision only using an argument a contrario. The result of

applying this argument is that a prohibition applying to all public

areas can not be based on § 10 let. a), the part of the sentence before

the semi-colon. However, this conclusion must be subjected to closer

scrutiny. In the cited provision, the legislature tried to address the

conflict between an individual’s constitutionally guaranteed freedom,

the right to conduct business, on one side, and protection of the public

interests and the municipality’s right to self-government on the other

side. It resolved this conflict basically so that a municipality may

limit the conduct of certain activities, subject it to its conditions,

but not completely prohibit it. However, this can not apply absolutely.

It is quite evident with the protection of constitutionally protected

legal values such as health and life. There is no rational reason why a

municipality should have an obligation to tolerate on some of its public

areas activities that endanger these fundamental protected values. It

would be inconsistent with the constitutionally guaranteed inviolability

of the person (Art. 7 of the Charter), which includes protection

against interference in the personal integrity of every individual, for a

municipality to be required to identify public areas in its territory

where it does not prohibit activities that could be inconsistent with

protection of health. The same applies to activities inconsistent with

protection of property (cf. Art. 11 of the Charter). The provision of §

10 let. a) of the Act on Municipalities must therefore be interpreted so

that, if activities interfering with protection of health, property, or

safety interfere in these constitutionally protected legal values only

in some public areas, the municipality is forbidden to prohibit them in

its entire territory. Therefore, the cited provision must be understood

as a specific expression of the general principle of proportionality.
 

48.

Just as the public authorities are required to protect health and

property, so are they required to protect public order. Although the

cited provision distinguishes public order and good morals, it is not

possible to have a sharp distinction between the two. The public order

can also be disturbed by conduct that is inconsistent with good morals.

Prostitution in public areas is a typical example. This conduct is

inconsistent with good morals, and it is also conduct that disturbs the

public order. The above mentioned conclusions regarding protection of

health and property must also be applied to prohibitions of these

activities. Thus, if a certain activity may be conducted in certain

public areas of the municipality without disturbing the public order or

being inconsistent with good morals, the municipality can not prohibit

it in all of its public areas. In contrast, if the conduct of a

particular activity amounts to potential interference in a protected

value, even though it is operated in any public area in the

municipality, the municipality may prohibit the conduct of that activity

in all its public areas. It is always necessary to evaluate the

intensity of the interference and the importance of the endangered

right, on one side, and the importance of the activity that is to be

prohibited, on the other side.
 

49.

If the city specified activities that could disturb the public order in

the city in article 3 of the ordinance, then, in accordance with § 10

let. a) of the Act on Municipalities, it was required to determine the

place and time for the conduct of such activities in the contested

ordinance, or provide that such activities are prohibited in some public

areas in the municipality, unless there exist the abovementioned

grounds on which it can prohibit them in all public areas in the

municipality.
 

50. In Art. 3

par. 1 let. c) of the contested ordinance the city prohibits the

offering of sexual services in public areas. It thereby prohibits the

offering of sexual services in all public areas of the municipality.

This field is not regulated by statute, in view of the New York

agreement cited below. From the use of the word “sexual services” and

form the fact that this is an activity that can disturb the public

order, we can conclude that the prohibition is aimed against the offer

of sexual services for payment; in other words, this provision of the

contested ordinance prohibits prostitution. The conduct of this activity

endangers good morals generally, and very distinctly endangers the

moral upbringing of children and youth. The very conduct of prostitution

that is obvious to children and youth can give them the impression that

this is something “normal,” acceptable. The importance of this legally

protected value, i.e. the moral upbringing of children and youth, must

be considered very high. Thus, the ethical values which the

municipality, as a society of citizens, is entitled to protected, are

affected in an extreme manner. In the Constitutional Court’s opinion,

none of the other activities cited in Art. 3 of the contested ordinance,

even begging, effect a similarly extreme interference in matters of the

public order. These endangered, legally protected values must also be

measured against the freedom of the individuals providing sexual

services. However, the protection of the conduct of this activity in

plain view of the public can not stand as against protection of the

moral upbringing of children and youth.
 

51.

In interpreting § 10 let. a) of the Act on Municipalities we must also

consider Art. 1 par. 2 of the Constitution, under which the Czech

Republic shall fulfill all obligations that arise to it under domestic

law. The Czech Republic is bound by the Convention for the Suppression

of the Traffic in Persons and of the Exploitation of the Prostitution of

Others [UN, New York, 2 December 1949; Czechoslovakia acceded to this

treaty on 14 March 1958 (the “New York Convention”)]. The Convention

considers prostitution to be an evil that consists of traffic in persons

and their human dignity, which endangers individuals, the family, and

society at large. The aim of the Convention is to prohibit the

regulation, and thus actually the recognition and approval, of

prostitution (see Art. 6 of the New York Convention). Under Art. 10 of

the Constitution, promulgated international treaties that have been

ratified by Parliament and by which the Czech Republic is bound are part

of the legal order; if an international treaty provides something

different than a statute, the international treaty shall apply. Although

this international treaty was not promulgated in the Collection of Laws

and thus is not an international treaty that is part of the legal order

under Art. 10 of the Constitution, in view of Art. 1 par. 2 of the

Constitution, it can not be ignored when interpreting simple law. Even

if an international treaty is not part of the Czech legal order under

Art. 10 of the Constitution, simple law that permits multiple

interpretations must be interpreted in a manner that is consistent with

the Czech Republic’s international law obligations. As stated above, §

10 of the Act on Municipalities does not contain an unambiguous answer

to the question of whether a municipality can prohibit prostitution at

all in all its public areas. The interpretation that a municipality may

prohibit prostitution not only in some, but also in all public areas, is

more compatible with the Czech Republic’s international law obligations

arising from the New York Convention.  Limiting prostitution to only

certain public areas in a municipality is basically regulation of it,

and that is what the New York Convention wants to prevent. However, the

Constitutional Court, obiter dictum, points to the fact that an

international treaty that does not meet the requirements of Art. 10 of

the Constitution can not be used to override an unambiguous provision of

domestic law. If a provision of simple law is clear (lex clara), it is

not possible to apply an international treaty that is not a treaty under

Art. 10 of the Constitution, but the undisputed provision of the simple

law of the Czech Republic should be applied. This rule is important in

resolving the question of whether the existence of the New York

Convention prevents municipalities from merely defining certain public

areas where prostitution can be offered. However, § 10 let. a) of the

Act on Municipalities has resolved this question unambiguously. It is

clear from it that a municipality may designate certain public areas

where prostitution can be offered. In this regard, the interpretation of

the cited provision is completely clear, and it can not be rejected

simply by reference to an international treaty that does not meet the

requirements of Art. 10 of the Constitution. Thus, we can summarize that

the current legal framework lets a municipality choose either to not

regulate prostitution at all, or to completely prohibit it in the

municipality’s public areas, or to negatively or positively designate

certain public areas where prostitution can be offered.
 

52.

As regards offering prostitution, this conclusion can also be supported

by historical analysis. The above mentioned § 10 let. a) of the Act on

Municipalities is inspired by § 17 of the previous Act on

Municipalities, i.e. Act no. 367/1990 Coll., under which a municipality

could, through a generally binding ordinance issued in its independent

jurisdiction, specify, in order to manage local matters of public order,

which activities that could disturb public order in the municipality

can be conducted only in places and times specified by the ordinance, or

could specify that such activities are prohibited in certainly publicly

accessible areas in the municipality. That provision was included in

the then Act on Municipalities by Act no. 279/1995 Coll. According to

the background report to that Act, prostitution is a socially

pathological phenomenon, which, history shows, can not be completely

eradicated. However, it can be regulated so that it does not disturb the

public order, does not endanger the upbringing of children and youth,

and does not insult the public’s moral sense. The aim of the proposed

legal regulation, therefore, is to enable municipalities, in their

independent jurisdiction, to use generally binding ordinances, in the

local environment, to effectively combat the negative consequences of

prostitution. Insofar as the text § 17 of the previous Act on

Municipalities was almost word for word used in the present Act on

Municipalities, we can assume that the legislature thereby also accepted

the reasons that led to the existing legal framework. The background

report does not in any way indicate that municipalities should be forced

to tolerate prostitution in some public areas, if its conduct there can

disturb the public order, endanger the upbringing children and youth,

or offend the public moral sensibility. On the contrary, it indicates

that they have the ability to prohibit prostitution everywhere where its

conduct can have these consequences.
 

53.

For these reasons, and also because prostitution is not regulated by

Parliament on the statutory level, the Constitutional Court concluded

that the city of Ústí nad Labem did not exceed its statutorily given

jurisdiction, when, in the generally binding ordinance, or prohibited

the offering of sexual services in public areas in the entire city, and

thus forced prostitution behind closed doors.
 

54.

In article 3 par. 1 let. a) and b) the city also defines other

activities that could disturb the public order in the city, without

specifying a place and time where these activities can be conducted, and

without specifying that such activities are prohibited in certain

public areas in the municipality. None of these activities disturbs the

public order as seriously as the offering of sexual services in public.

There is thus no international law obligation of the Czech Republic that

would prohibit regulation of these activities. It is also, unlike with

prostitution, generally evident, nor do the city’s statements indicate,

that the conduct of these activities would interfere in legally

protected interests in all public areas in the city. Therefore, it is

necessary to begin with the premise that the city was not authorized to

prohibit these activities generally, but only in certain public areas.

However, these were not defined in the generally binding ordinance. In

view of this fact, the Constitutional Court found these provisions of

the ordinance to be inconsistent with § 10 let. a) of the Act on

Municipalities, and therefore annulled them.
 

55.

Art. 3 let. e) provides, that the production of amusement parks,

merry-go-rounds, circuses, and mass sports events in public areas is

possible only with the prior consent of the offices of municipal

districts (ÚMO) in the locations in the appendix. Here the

Constitutional Court agrees with the petitioner that § 10 let. b) of the

Act on Municipalities authorizes the municipality to use a generally

binding ordinance to set binding conditions for the organization,

conduct and termination of publicly accessible sporting and cultural

enterprises, including dance events and discotheques, in the scope

necessary to secure the public order, but not to tie the opportunity to

conduct such publicly accessible sporting and cultural enterprises to

the prior consent of the municipality. Thus, that provision of the

ordinance is inconsistent with § 10 let. b) of the Act on

Municipalities.
 

56. As

regards article 4 par. 1 of the ordinance, on disturbance of the night

quiet time, the legal relationships governed by that provisions are

subject to § 47 par. 1 let. b) of Act no. 200/1990 Coll., on

Misdemeanors, which provides that “anyone who disturbs the night quiet

time commits a misdemeanor.” In view of this, setting obligations

concerning the observance of night time quiet can not be the subject

matter of a generally binding municipal ordinance. The petitioner also

points to the Civil Code, whose § 127 prohibits annoying one’s neighbors

with noise over a level appropriate to the situation. However, private

law legal regulations basically do not regulate matters of public order,

but the private interests of persons. Therefore, the private law

framework in § 127 of the Civil Code (unlike the framework in the Act on

Misdemeanors) is also not a legal framework that would prevent a

municipality from regulating matters of public order in connection with

noise annoyance. If a municipality wished to use an ordinance to

regulate private law relationships analogously to § 127 of the Civil

Code, it would be acting ultra vires, because private law relationships

are not a matter of public order.
 

57.

Responsibility to not exceed the public health noise limits regulated

by article 4 par. 2 of the ordinance is enshrined in § 32 of Act no.

258/2000 Coll., on Protection of Public Health, so that fulfillment of

that obligation shall be ensured by the person operating a services,

and, in the case of a public musical production, the organizer, and if

the organizer can not be determined, then the person who provided a

building, other facility, or land for that purpose. In view of the fact

that the cited Act clearly regulates the responsibility for exceeding

public health noise limits from service providing facilities and noise

from public musical productions, the city is not authorized, on the

basis of the authorizing provision of § 10 let. b) of the Act on

Municipalities, to regulate this responsibility differently through a

generally binding ordinance. Thus, that provision of the ordinance is

inconsistent with § 35 par. 3 let. b) of the Act on Municipalities and

with Article 104 par. 3 of the Constitution.
 

58.

The prohibition on organizing publicly accessible musical productions

outside the premises designated thereto by a decision from the building

office arises from § 85 of Act no. 50/1976 Coll., on Zoning and the

Building Code (the Building Code), as amended by later regulations,

under which a building can be used only for the purposes provided in the

final building permit, or in the construction permit. Insofar as Art. 4

par. 3 of the ordinance limits the organizing of publicly accessible

musical productions only to non-residential or residential premises that

are designated thereto by a decision of the building office, this is

therefore a regulation that, in view of § 85 par. 1 of that Act, is

redundant; at the same time, this is a legal framework that governs

relationships regulated by statute, which, as stated above, makes that

provision inconsistent with § 35 par. 1 of the Act on Municipalities,

because the city subjected to the ordinance relationships that fall in

an area regulated by statutes, and the observance of obligations arising

from those relationships is under the inspection of state

administration bodies.
 

59.

As regards the responsibility of an organizer to ensure sufficient an

duly identified organizer services, as regulated by Art. 4 par. 4 of the

ordinance, the Constitutional Court does not share the petitioner’s

opinion that the cited article is inconsistent with the principle of

legal certainty, which requires all generally binding regulations to

have a precise, clear, and understandable formulation. This provision

corresponds to a considerable extent to § 6 par. 5 let. b) of Act no.

84/1990 Coll., on the Right to Assembly, under which the person calling

an assembly is required to ensure a sufficient number of competent

organizers of at least 18 years of age. However, the legislative

activity of a municipality can not be subjected to stricter requirements

than the legislative activity of the legislature. In this case the use

of a relatively indefinite legal term is substantively justified by the

variety of situations to which it is to be applied, as the City of Ústí

nad Labem indicates. Thus, this provision is within the bounds of

certainty that are necessary to respect the principle of legal

certainty. On the other hand, however, in this framework the City of

Ústí nad Labem regulates an area that is already regulated by statute,

the Act on the Right to Assembly. Therefore, the Constitutional Court

also had to annul that provision, for the abovementioned reasons.
 

60.

In contrast, however, the Constitutional Court agrees with the

petitioner that Article 4 par. 5 of the ordinance, which provides that

local noise restrictions are in effect in the subsequently named

localities, is, in view of the uncertainty of its content, from which it

is not clear what local noise restrictions means, is inconsistent with

the principle of legal certainty.
 

61.

Evaluating whether the municipality acted reasonably is not simply a

question of whether it acted in accordance with the authorization

provided to it by statute. Rather, finding a lack of reasonableness

requires weighing the contested ordinance in terms of its effects,

measured by general reasonableness (cf. Constitutional Court judgment of

13 September 2006, file no. Pl. US 57/05). Insofar as it is already

clear from the findings that some parts of the ordinance will not stand,

either in terms of review of the question whether the municipality

acted ultra vires when issuing it, in terms of misusing the competence

entrusted to it by statue, it was not necessary to review those sections

of the ordinance for unreasonableness. In those parts of the contested

ordinance where the municipality acted within the authority entrusted to

it, the Constitutional Court did not find any facts that would indicate

that these provisions of the contested ordinance were generally

unreasonable.
 


IX.
 

62.

In view of the foregoing, the Constitutional Court had to annul Art. 3

par. 1 let. a), b) and e) and Art. 4 of the generally binding ordinance

of the City of Ústí nad Labem, no. 1/2004 to manage local matters of

public order, under § 70 par. 1 of the Act on the Constitutional Court,

due to inconsistency with the cited provisions of the Constitution of

the Czech Republic, the Charter of Fundamental Rights and Freedoms, and

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

regulations. In view of the fact that Art. 3 par. 1 let. d) and Art. 5

of the generally binding ordinance of the City of Ústí nad Labem no.

1/2004, to manage local matters of public order, ceased to be in legal

effect even before proceedings before the Constitutional Court were

concluded, the Constitutional Court stopped that part of the proceedings

under § 67 par. 1 of the Act on the Constitutional Court. It denied the

remaining part of the petition from the minister of the interior of the

CR.

Instruction: Judgments of the Constitutional Court can not be appealed.

 

Brno, 8 March 2007