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HEADNOTES
A
municipality may issue a generally binding ordinance exclusively under
its independent jurisdiction if there is interference in the rights and
freedoms of citizens; limitation of this interference through a
municipal ordinance is possible, while in transferred jurisdiction it
issues directives on the basis of authorization in statutes and within
the bounds provided by statute (§ 11 of Act no. 128/2000 Coll., on
Municipalities, as amended by later regulations).
Under
Art. 4 par. 2 of the Charter of Fundamental Rights and Freedoms the
limits of fundamental rights and freedoms may be regulated only by
statute and not by a municipal ordinance.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court, composed of JUDr. František Duchoň, JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří Malenovský JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Pavel Varvařovský and JUDr. Eliška Wagnerová, ruled in the matter of a petition from Mgr. Stanislav Gross, Minister of the Interior, to annul the generally binding ordinance of the town of Litoměřice no. 4/95, on Banning Communist, Fascist and Nazi Propaganda in the Town of Litoměřice, approved by the Litoměřice representative body on 6 April 1995 and in effect as of 3 May 1995, as follows:
Litoměřice
town ordinance no. 4/95, on Banning Communist, Fascist and Nazi
Propaganda in the Town of Litoměřice, of 6 April 1995, is annulled.
REASONING
On
28 July 2003 the Constitutional Court received a petition from the
minister of the interior, Mgr. Stanislav Gross, to annul the generally
binding ordinance of the town of Litoměřice no. 4/95, on Banning
Communist, Fascist and Nazi Propaganda in the Town of Litoměřice,
approved by the Litoměřice representative body on 6 April 1995 and in
effect as of 3 May 1995.
The contested ordinance reads:
“ORDINANCE
no. 4/95
on Banning Communist, Fascist and Nazi Propaganda in the Town of Litoměřice
The Litoměřice representative body, by resolution from its meeting on 6 April 1995, issues this generally binding ordinance.
§ 1
Communist, Nazi and Fascist propaganda is banned in the town.
§ 2
Communist, Nazi and Fascist propaganda means:
a) Calls for a violent change of the constitutional order.
b) Using the symbols of these criminal movements when promoting them.
c) Questioning the criminal nature of the regimes which these movements represented.
§ 3
The approved ordinance goes into effect on the fifteenth day after it is promulgated, i.e. 3 May 1995.
Deputy Mayor Mayor
Ing. Milan Šlegr Ing. Milan Tejkl”
Jiří Landa round stamp
The Ministry of the Interior received the generally binding ordinance after district offices were terminated and it took over their agenda as part of the transfer of jurisdiction in supervising the lawfulness of municipal legal regulations. The Ministry of the Interior concluded that the generally binding ordinance in question is inconsistent with the law. The Regional Office of the Ústí nad Labem Region took the same position in its statement of 15 April 2003. In view of this, the Ministry of the Interior, by a measure of 5 June 2003, began administrative proceedings to suspend the ordinance. During the administrative proceedings the town of Litoměřice did not arrange a remedy in the matter, and therefore the Ministry of the Interior, by decision of 27 June 2003 file no. MS/1077/2-2003, suspended the generally binding ordinance. This decision was delivered to the Litoměřice Town Office on 30 June 2003, and on that day it entered into force under § 124 par. 2 of Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as amended by later regulations.
The contested ordinance reads:
“ORDINANCE
no. 4/95
on Banning Communist, Fascist and Nazi Propaganda in the Town of Litoměřice
The Litoměřice representative body, by resolution from its meeting on 6 April 1995, issues this generally binding ordinance.
§ 1
Communist, Nazi and Fascist propaganda is banned in the town.
§ 2
Communist, Nazi and Fascist propaganda means:
a) Calls for a violent change of the constitutional order.
b) Using the symbols of these criminal movements when promoting them.
c) Questioning the criminal nature of the regimes which these movements represented.
§ 3
The approved ordinance goes into effect on the fifteenth day after it is promulgated, i.e. 3 May 1995.
Deputy Mayor Mayor
Ing. Milan Šlegr Ing. Milan Tejkl”
Jiří Landa round stamp
The Ministry of the Interior received the generally binding ordinance after district offices were terminated and it took over their agenda as part of the transfer of jurisdiction in supervising the lawfulness of municipal legal regulations. The Ministry of the Interior concluded that the generally binding ordinance in question is inconsistent with the law. The Regional Office of the Ústí nad Labem Region took the same position in its statement of 15 April 2003. In view of this, the Ministry of the Interior, by a measure of 5 June 2003, began administrative proceedings to suspend the ordinance. During the administrative proceedings the town of Litoměřice did not arrange a remedy in the matter, and therefore the Ministry of the Interior, by decision of 27 June 2003 file no. MS/1077/2-2003, suspended the generally binding ordinance. This decision was delivered to the Litoměřice Town Office on 30 June 2003, and on that day it entered into force under § 124 par. 2 of Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as amended by later regulations.
In
its petition, submitted under § 64 par. 2 let. g) of the Act on the
Constitutional Court and under § 124 par. 3 of Act no. 128/2000 Coll.,
on Municipalities (Municipal Establishment), as amended by later
regulations, the minister of the interior states that the authorization
for a municipality to issue generally binding ordinances on matters
within the municipality’s independent jurisdiction is enshrined in Art.
104 par. 3 of the Constitution of the Czech Republic (the
“Constitution”), but at the same time it is constitutionally restricted
to the effect that the independent municipal jurisdiction, within which a
generally binding ordinance can be issued, may only be provided by
statute (Art. 104 par. 1 of the Constitution). According to the
petitioner, at the time the ordinance was issued, that statute was the
then-valid Czech National Council Act no. 367/1990 Coll., on
Municipalities, as amended by later regulations, which states in § 13
par. 2 that in exercising its independent jurisdiction a municipalities
is guided only by statutes and other legally binding regulations issued
by central bodies to implement them. Under § 16 par. 2 such ordinances
must be consistent with statutes and these legal regulations. The sphere
of matters entrusted to the independent jurisdiction of municipalities
(towns) was provided by way of example in § 14 of the Act. At the time
the generally binding ordinance was issued, it was inconsistent with §
14, § 16 par. 1 and § 36 par. 1 let. f) of the Act. After the Act was
annulled, the generally binding ordinance became inconsistent with § 10,
§ 35 and § 84 par. 2 let. i) of Act no. 128/2000 Coll., on
Municipalities. Issuing the ordinance in question also does not fall
within the transferred jurisdiction of municipalities, as in that case
at the time it was issued it would have been inconsistent with § 24 par.
1 of the then-valid Czech National Council Act no. 367/1990 Coll., on
Municipalities, as amended by later regulations, a at present with § 11
par.1 of Act no. 128/2000 Coll., on Municipalities. In view of the fact
that territorial self-government bodies can issue legal regulations only
on the basis of statute and within its bounds and that the ordinance in
question was issued without express statutory authorization and bans an
activity which falls under neither the independent nor the transferred
jurisdiction of municipalities, it is, according to the minister of the
interior, also inconsistent with Art. 2 par. 4, Art. 79 par. 3 and Art.
104 par. 1 and 3 of the Constitution and Art. 4 of the Charter of
Fundamental Rights and Freedoms (the “Charter”).
The
town of Litoměřice, in the mayor’s statement of 18 September 2003,
stated that it takes cognizance of the petition to annul the ordinance
on Banning Communist, Fascist and Nazi Propaganda in the Town of
Litoměřice, without responding to it.
The
Ombudsman, who was sent a copy of the petition to annul the ordinance
in accordance with § 69 par. 2 of the Act on the Constitutional Court,
informed the Constitutional Court by official letter of 10 October 2003
that he would not join the proceedings.
Under
§ 68 par. 2 of the Act on the Constitutional Court, in its decision
making the Constitutional Court reviews the content of a statute or
other legal regulations in terms of consistency with constitutional
statues, and in the case of other legal regulations, also in terms of
consistency with statutes; it determines whether they were passed and
issued within the bounds of constitutionally provided jurisdiction and
in a constitutionally prescribed manner. In this regard, the
Constitutional Court determined from the record of the meeting of the
town representative body held on 6 April 1995 v Litoměřice that the
contested ordinance was approved at the meeting by 14 votes in favor, 5
votes against, and 6 abstaining. Because the municipal representative
body then had 27 members, 2 of whom were not present at the meeting, we
can state that the contested ordinance was passed in a correct manner (§
38 par. 5 of CNC Act no. 367/1990 Coll. as amended by later
regulations). The Constitutional Court also determined that the
contested ordinance was duly posted on the official notice board of the
Town Office in Litoměřice on 17 April 1995 and taken down on 4 May 1995,
so it entered into effect on 3 May 1995 (§ 16 par. 3, 4 of the cited
Act). Therefore, the Constitutional Court believes that the contested
regulation was passed and issued in a constitutionally prescribed
manner.
The Constitutional
Court then considered the issue of active standing to submit a petition.
After district offices were terminated, the authority to supervise the
exercise of municipalities’ independent jurisdiction was transferred to
regional offices and the Ministry of the Interior (§ 123 et seq. of Act
no. 128/2000 Coll., on Municipalities, as amended by later regulations),
as was the authority to supervise the exercise of municipalities’
transferred jurisdiction (§ 126 et seq. of the cited Act). Thus, the
petition to annul the generally binding ordinance in question was
submitted by an authorized person under § 124 par. 3 of Act no. 128/2000
Coll., on Municipalities and § 64 par. 2 letter b) of the Act on the
Constitutional Court.
However,
in the Constitutional Court’s opinion, the contested ordinance was not
passed and issued within the bounds of constitutionally provided
jurisdiction, and it was inconsistent with the statutory framework of
municipal establishment both at the time it was issued and after that
framework was amended by Act no. 128/2000 Coll. as amended by later
regulations. The Constitution, in Art. 104 par. 3, defines the power to
issue generally binding ordinances so that municipal representative
bodies can issue them only within the bounds of their jurisdiction. The
ordinance in question was issued when CNC Act no. 367/1990 Coll., on
Municipalities (Municipal Establishment), as amended by later
regulations, was valid, which permitted municipalities to issue
generally binding ordinances both in their independent and transferred
jurisdiction. Independent municipal jurisdiction was regulated in § 14
of the cited Act as follows: paragraph 1 provided individual activities
falling under independent municipal jurisdiction as examples, while
paragraph 2 regulated independent municipal jurisdiction to the effect
that a municipality also ensures, in its territory, economic, social and
cultural development, and the protection and creation of a healthy
environment, and is not authorized to perform activities which special
statutes entrust to other bodies as part of the exercise of state
administration. A municipality could issue generally binding ordinances
on matters falling under transferred jurisdiction only on the basis of
authorization in a statute and within its bounds (§ 24 par. 1 of the
cited Act). In view of the non-existence of such a special statue,
establishing transferred municipal jurisdiction in this area, when it
was issued the ordinance in question could not have been a generally
binding ordinance issued under § 24 par. 1 of the cited Act. The
ordinance in question is a norm which contains a ban on performing an
activity which it calls “propaganda,” i.e. a norm establishing an
obligation of natural persons or legal entities, limited only to the
territory of the municipality of Litoměřice. The term “propaganda” must
be interpreted as the public dissemination, defense and recommendation
of certain thoughts, opinions or positions. Thus, the ban contained in
the ordinance is directed into the area of freedom of speech defined in
Art. 17 of the Charter as the right to express one’s views in speech, in
writing, in the press, in pictures, or in any other form, as well as
freely to seek, receive, and disseminate ideas and information
irrespective of the frontiers of the state. Freedom of speech is also
similarly enshrined in international treaties by which the Czech
Republic is bound (Art. 19 of the International Covenant on Civil and
Political Rights, promulgated under no. 120/1976 Coll. and Art. 10 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms promulgated under no. 209/1992 Coll.). Under Art. 17 par. 4 of
the Charter freedom of speech and the right to seek and disseminate
information may be limited only by law in the case of measures that are
necessary to protect the rights and freedoms of others, the security of
the state, public security, public health, or morals. The Czech Republic
has already implemented such permissible limitation on freedom of
speech and freedom to disseminate information through a statute [e.g. §
198a, § 260 and § 261 of the Criminal Code, § 15 par.1 of Press Act no.
46/2000 Coll. as amended by later regulations, § 31, § 32 par.1 let. b),
c), e), and f) of Act no. 231/2001 Coll., on Radio and Television
Broadcasting ].
In its
judgments, the Constitutional Court has repeatedly stated that
independent municipal jurisdiction can not include the power to issue a
generally binding ordinance which contains a ban on an activity which is
essentially nothing more than a paraphrase of the elements of crimes
set forth in, e.g. §§ 260 and 261 of the Criminal Code (cf. e.g., the
judgment in file no. Pl. ÚS 42/95 in the Collection of Decisions of the
Constitutional Court of the Czech Republic – volume 5., 1st edition,
Judgment no. 47, Praha 1996 - part I., the judgment in file no. Pl. ÚS
43/95Collection of Decisions of the Constitutional Court of the Czech
Republic – volume 5., 1st edition., Judgment no. 60, Praha 1996 – part
I, the judgment in file no. Pl. ÚS 45/95 in Collection of Decisions of
the Constitutional Court of the Czech Republic – volume 5., 1st
edition., Judgment no. 46, Praha 1996 – part I). Thus, by issuing an
ordinance with this content, the town of Litoměřice exceeded the bounds
of jurisdiction provided by the Constitution and CNC Act no. 367/1990
Coll., on Municipalities (Municipal Establishment), as amended by later
regulations. The Constitutional Court adds that if a municipality wants
to expressly manifest its political will in this regard, it can perhaps
do so by other adequate means, but not by a normative act.
The
basic starting point for the Constitutional Court’s deliberations when
reviewing the petition from the minister of the interior to annul the
generally binding ordinance of the town of Litoměřice of 6 April 1995
was, in this case, the consideration of whether the ordinance in
question was issued within the municipality’s jurisdiction and whether
it is consistent with the law and with the constitutional order. As in a
number of similar cases, the Constitutional Court concluded that the
ordinance in question was issued by the town of Litoměřice outside of
its jurisdiction, established at the time in question by CNC Act no.
367/1990 Coll., as amended by later regulations, and then considered the
issue of whether the municipality’s lack of jurisdiction continued
after amendment of the legal framework of municipal establishment by Act
no. 128/2000 Coll., as amended by later regulations. It took as its
starting point the principle that the wording of the legal framework
valid at the time of the Constitutional Court’s decision make is
decisive for the court’s deliberation concerning whether the generally
binding ordinance is consistent with the law and with the constitutional
order. That framework is now Act no. 128/2000 Coll., on Municipalities
(Municipal Establishment), as amended by later regulations, which
governs both independent municipal jurisdiction (§ 35 et seq. of the
Act), and transferred municipal jurisdiction (§ 61 et seq. of the Act).
Under the cited Act, a municipality can issue generally binding
ordinances only in the sphere of its independent jurisdiction, while in
the sphere of transferred jurisdiction it issues directives on the basis
of statutory authorization and within statutorily specified bounds (§
11). Under § 10 of the cited Act, a municipality can impose obligations
through a generally binding ordinance only in enumerated spheres, or if a
special statute so provides. The scope of independent municipal
jurisdiction is defined in § 35 of the cited Act and § 84 of the cited
Act, and neither of these provisions establishes municipal jurisdiction
to limit the fundamental rights and freedoms, entrusted in Art. 17 par. 4
of the Charter exclusively to statutes.
Therefore,
on the basis of the foregoing, the Constitutional Court concluded that
the contested ordinance is inconsistent with Art. 104 par. 3 of the
Constitution, and § 13, § 14 and § 16 par. 2 of CNC Act no. 367/1990
Coll., on Municipalities (Municipal Establishment), as amended by later
regulations. After that Act was annulled, the generally binding
ordinance became inconsistent with § 10, § 35 a § 84 par. 2 let. i) of
Act no. 128/2000 Coll., on Municipalities (Municipal Establishment), as
amended by later regulations. Without it being necessary to consider
other grounds stated in the petition, the Constitutional Court ruled
that the town of Litoměřice ordinance of 6 April 1995, on Banning
Communist, Fascist and Nazi Propaganda in the Town of Litoměřice, is
annulled as of the day this judgment is promulgated in the Collection of
Laws (§ 70 par. 1 of the Act on the Constitutional Court).Notice: Decisions of the Constitutional Court can not be appealed (§ 54 par. 2 of the Act on the Constitutional Court).
Brno, 13 January 2004