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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)
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.
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)
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)
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)
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.
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, (…)”
“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.
Instruction: Judgments of the Constitutional Court can not be appealed.
Brno, 8 March 2007