Pl.ÚS 1/01

The  Constitutional  Court  respects  local  government  as  an
expression  of  the  right and competence of  local  bodies  to
govern public matters within the bounds set by law, as part  of
their   responsibility  and  in  the  interest  of  the   local
population,  but  nevertheless  believes  that  the   contested
ordinance,  in  Art.  2  para. 1  let.  a),  subjected  to  its
regulation  relationships which cannot be governed  in  such  a
manner. The very expression “Celebrations of the Feast  of  St.
Wenceslas” evokes close ties to the church anniversary relating
to  St.  Wenceslas, not only to the religious celebrations  and
rites  connected with this Christian holiday, but also  customs
and  conventions  which  the  civil  society  has  historically
created  in  relation to this holiday outside the framework  of
church  structures. Undoubtedly it is also the right  of  other
communities in the civic society to decide whether, or when and
to  what extent, they will gather for the celebrations held  in
this  regard. The local government undoubtedly has a  right  to
issue  restrictive  measures to protect public  order,  but  by
appropriating   the  right  to  decide  the   date   of   these
celebrations  it  is  entering into relationships  which  exist
between the citizens and religious or other social entities. By
doing  so, it steps out of its independent jurisdiction,  whose
identifying  characteristic  is  precisely  the  fact  that   a
municipality  independently  governs  “its  affairs”.  Decision
making  about the holding of celebrations of the Feast  of  St.
Wenceslas  is  thus an inappropriate means for  protecting  the
public order, as it exceeds the limits of its local nature.
<
                               
The Plenum of the Constitutional Court decided on 11 July 2001,
in  the  matter of a petition from the chairman of the District
Office in Kladno, to annul a generally binding ordinance of the
town of Stochov of 19 June 2000 on ensuring public order in the
town,

                          as follows:

The  generally binding ordinance of the town of Stochov  of  19
June  2000 on ensuring public order in the town is annulled  as
of  the  day  this judgment is published in the  Collection  of
Laws.

                          Reasoning:

                              I.
In  his  filing of 4 January 2001, the chairman of the District
Office  in  Kladno  proposed  the annulment  of  the  generally
binding  ordinance  of the town of Stochov on  ensuring  public
order, of 19 June 2000, which reads as follows:

                 “Generally binding ordinance
                    of the Town of Stochov
                        of 19 June 2000
             on ensuring public order in the town
    
The  City  Council  in Stochov, under § 45  let.  l)  of  Czech
National Council Act No. 367/1990 Coll., on municipalities,  as
amended  by  later regulations, resolved on  19  June  2000  to
issue,  under § 16 of that Act, and in accordance  with  §  17,
this generally binding ordinance:
                               
                           Article 1
                    INTRODUCTORY PROVISION
This  ordinance  governs the management  of  local  matters  of
public   order  in  the  territory  of  the  town  of  Stochov,
consisting  of the real estate registration areas  Čelechovice,
Honice and Stochov.
                               
                           Article 2
          CELEBRATIONS OF THE FEAST OF ST. WENCESLAS
(1)   With  regard to the need to ensure public  order  in  the
municipality during the public celebrations of the Feast of St.
Wenceslas (the “celebrations”), the City Council
a) will determine the date for the celebrations,
b)   will   determine   the  place  in  which,   during   these
celebrations,  market  stalls, amusement  park  facilities  and
other similar attractions will be located.

(2)    The City Council will determine the date under paragraph
1  let.  a)  no later than 31 January each year, and the  place
under paragraph 1 let b) no later than 30 April each year.
                               
                           Article 3
          JOINT, TRANSITIONAL AND CLOSING PROVISIONS
(1)      Violation of obligations set by this ordinance  or  on
its  basis can be prosecuted as a misdemeanor1), except for  an
act  subject to stricter punishment, or other sanctions can  be
imposed for it in accordance with law2).
(2)      The  City  Council will determine dates under  Art.  2
para. 1 for the year 2000 by 31 July 2000.
(3)     This  ordinance goes into effect on 15 July 2000,  with
the  exception of Art. 2 para. 2, which goes into effect  on  1
January 2001.
    
             Ing. Jindřich Sybera in his own hand
                          town mayor
              Stanislava Fišerová in her own hand
                       deputy town mayor
-------------------------------------------
1 § 48 of Act No. 200/1990 Coll., on Misdemeanors
2   e.g.  §  50  of  Act No. 367/1990 Coll., on  Municipalities
(municipal establishment)”

    
In  his  petition  the petitioner stated that  he  reached  the
conclusion that Art. 2 para. 1 let. a) of the generally binding
ordinance  is  in  conflict  with  Art.  2  para.  4   of   the
Constitution of the CR and, together with Art. 2 para.  1  let.
b)  is also contrary to Art. 11 para. 4 and Art. 26 para. 1 and
2  of  the  Charter  of Fundamental Rights  and  Freedoms  (the
“Charter”), and therefore, by his decision of 20 October  2000,
file no. Sekr. 20967/2000, stopped enforcement of the generally
binding  ordinance. At their 15th session, held on 23  November
2000, the representatives of the town of Stochov decided not to
annul  the  ordinance in question, and therefore the petitioner
had no alternative but to submit the petition for annulment  to
the   Constitutional   Court,  together  with   the   following
arguments:
   In  the  petitioner’s opinion, by determining the  date  for
holding  the  public  St. Wenceslas celebrations  the  town  of
Stochov  appropriated the right of the citizens to decide  when
they will gather for the feast celebration. The purpose of such
a  gathering is not, in this case, subject to Art.  19  of  the
Charter, implemented by Act No. 84/1990 Coll., on the Right  of
Assembly,  and therefore the legal framework for  its  exercise
must be sought in Art. 2 para. 4 of the Constitution of the CR,
under which everyone may do that which is not forbidden by  law
and nobody may be compelled to do that which is not imposed  by
law. According to the petitioner, Art. 2 para. 1 let. a) of the
ordinance is in conflict with this constitutional principle.
    
   Under Art. 11 para. 4 of the Charter, property rights can be
restricted  only in the public interest, on the basis  of  law,
and  for compensation. Examples of implementation of the  cited
article  are § 128 of the Civil Code, or § 108 et seq.  of  Act
No.  50/1976 Coll., on Zoning and the Building Code, from which
it  is  clearly  evident  that regulation  of  interference  in
property  rights of the affected entities is subject  to  state
government,  and  not  local  government.  According   to   the
petitioner,  by enshrining the obligation to operate  amusement
park facilities and other similar attractions at a time and  on
parcels  of  land owned by persons other than the  municipality
itself, the municipality interferes in the exercise of property
rights of the persons in question.
    
   The  right  to  do  business and  conduct  other  commercial
activity  is guaranteed by Art. 26 para. 1 of the Charter,  and
conditions for and limitations on this right can only be set by
law. Act No. 455/1991 Coll., on Licensed Trades, indicates that
operating folk technical entertainment, or facilities used  for
purposes of entertainment, is an unrestricted trade. Except for
observing  the  general  obligations arising  for  every  trade
license holder and the general obligations imposed by the legal
order  for  every person, the legal order does not  impose  any
special  obligation  for the operation of amusement  parks  and
other  similar  attractions. The trade licensing  agenda  falls
under state government, and a municipality has no authority  to
regulate   this  area  through  ordinances  issued  under   its
independent   jurisdiction.  The  town  of  Stochov   is   only
authorized to issue an ordinance determining the locations  for
market stalls and fair attractions on its property, or, on  the
basis of § 18 of the Trades Licensing Act it may regulate sales
and  provision of services outside a place of business  through
an  order (before Act No. 128/2000 Coll. went into effect  this
was    by   generally   binding   ordinance   under   delegated
jurisdiction). According to the petitioner, article 2  para.  1
let.  a) and b) of the ordinance implicitly contain limitations
on  the  right  to do business, as it permits the  exercise  of
business activity only at a restricted location and space,  and
in  that  regard these provisions are in conflict with Art.  26
para. 1 and 2 of the Charter.
    
                              II.
The town of Stochov responded to the petition on 12 March 2001.
…..
                             III.
Under  Art. 87 para. 1 let. b) of the Constitution of  the  CR,
the  Constitutional Court has jurisdiction to annul other legal
enactments,  including generally binding municipal  ordinances,
issued under municipalities’ independent jurisdiction, if  they
are  inconsistent with a constitutional act, a statute,  or  an
international  treaty  under Art. 10 of  the  Constitution.  In
these  proceedings, in view of § 68 para. 2 of Act No. 182/1993
Coll., on the Constitutional Court, the Constitutional Court is
also  required to review whether the contested legal regulation
was issued in a constitutional manner. The Constitutional Court
stated  that  the  contested generally  binding  ordinance  was
passed and issued in a constitutionally prescribed manner.
    
    
                               
                              IV.
In  evaluating whether the contested ordinance was issued under
the  municipality’s independent or delegated  jurisdiction,  it
was  necessary to take into account that the generally  binding
ordinance  was  approved while the now annulled Czech  National
Council  Act  No. 367/1990 Coll., on Municipalities  (Municipal
Establishment), was still in effect, under whose  provisions  a
municipality  could  issued  generally  binding  ordinances  in
matters falling under delegated jurisdiction only on the  basis
of  authorization by statute and within its bounds (§ 24  para.
1), and in matters falling under independent jurisdiction (§ 14
para.  1  and 2) it could, by generally binding ordinance,  set
restrictive measures in order to manage local matters of public
order (§ 17).
    
   The  date  of  28  September, on  which  the  St.  Wenceslas
religious rites take place, was declared a national holiday and
the day of Czech statehood by Act No. 245/2000 Coll., in effect
as  of 9 August 2000. under § 3, this is a non-working day, but
no  authorization arises from its text. Because the Czech legal
order  did  not contain, at the time the ordinance was  issued,
nor   does  it  now  contain,  any  other  law  authorizing   a
municipality  to issue generally binding ordinances  permitting
any   regulation  or  organization  of  folk  celebrations   in
connection  with  religious holidays or anniversaries,  we  can
conclude that the contested ordinance does not fall in the area
of delegated jurisdiction.
    
   The ordinance relies on § 14 para. 1 let. o) of the previous
Act on Municipalities, under which a municipality’s independent
jurisdiction  included “local matters of public order  and  the
establishment of municipal (town) police, with the exception of
adjudicating  misdemeanors”. In view of §  17,  a  municipality
could  “In order to manage local matters of public order [§  14
para.  1 let. o)] … by generally binding ordinance issued under
its independent jurisdiction, determine which activities, which
could  interfere with public order in the municipality, may  be
conducted  only  in  places  and at  times  determined  by  the
ordinance,  or  provide that such activities are  forbidden  in
certain  publicly accessible places in the municipality”.  This
was  not  changed in any way by the new, current regulation  of
municipal  establishment implemented by Act  No.  128/2000,  on
Municipalities (Municipal Establishment), in effect  as  of  12
November  2000, under which independent municipal  jurisdiction
includes the regulation of matters which are in the interest of
the municipality and its citizens, unless they are entrusted by
statute to the regions, or except for the exercise of delegated
jurisdiction,  as  well  as  matters  which  are  entrusted  to
independent municipal jurisdiction by a separate statute (§  35
para.   1).   As   part  of  their  independent   jurisdiction,
municipalities  are  authorized  to  issue  generally   binding
municipal  decrees  [§  84  para. 2  let.  i)].  Based  on  the
foregoing,  one  can  assume that the contested  ordinance,  by
delimitation  of  the  regulated issues, falls  under  and  was
issued under independent municipal jurisdiction.
    
   The  constitutional  limits for  issuing  generally  binding
municipal  ordinances under independent municipal  jurisdiction
are  set  in  Art. 104 para. 3 of the Constitution of  the  CR,
under  which  municipal representative bodies can,  within  the
scope   of   their   jurisdiction,  issue   generally   binding
ordinances. This municipal jurisdiction arose from § 13 para. 2
of  the  now  annulled Czech National Council Act No.  367/1990
Coll.,  on  Municipalities,  under  which  a  municipality,  in
exercising its independent jurisdiction, was governed  only  by
statutes  and  generally binding legal  regulations  issued  by
central bodies for their implementation. Under § 16 para. 2  of
this  Act, generally binding ordinances had to be in accordance
with   statutes   and  their  generally  binding   implementing
regulations.
    
   In its earlier findings, the Constitutional Court ruled that
the  list  contained  in § 14 para. 1 of the  previous  Act  on
municipalities “in terms of its interpretation as  a  statutory
authorization to issue generally binding municipal  ordinances,
must be considered enumerative. Its demonstrative text, as well
as  the  general  nature  of  the  delineation  of  independent
municipal jurisdiction, contained in § 14 para. 2 of the Act on
Municipalities,  must  be  applied  only  to  that  independent
municipal jurisdiction where the municipality does not  act  as
an  entity  which determines obligations for citizens  by  one-
sided  orders and bans” (ÚS, vol. 1, no. 4). The Constitutional
Court has also ruled several times that Art. 4 para. 1, Art.  2
para.  3  of the Charter and Art. 2 para. 4 of the Constitution
of  the  CR,  indicate,  as  far as municipal  jurisdiction  is
concerned, that in cases where the municipality does act as  an
entity  which determines obligations for citizens by  one-sided
bans and orders, i.e. if it issues generally binding ordinances
which  regulate  legal obligations, it can do so  only  in  the
event  of express statutory authorization (ÚS, vol.1 no. 4  and
12).
    
  In the matter in question, the Constitutional Court took into
consideration the legislative developments which  occurred  due
to  the new Act No. 128/2000 Coll., while being aware that  the
contested  ordinance was approved when Czech  National  Council
Act N
o.  367/1990 Coll. was still in effect. Under § 10 let.  b)  of
Act No. 128/2000 Coll., a municipality is authorized, under its
independent  jurisdiction,  to  impose,  by  generally  binding
ordinance,  obligations  “to manage  local  matters  of  public
order; in particular, it may determine which activities,  which
could interfere with public order in the municipality or be  in
conflict  with  good morals, protection of safety,  health  and
property, can be performed only in places and at times  set  by
the   generally  binding  ordinance,  or  provide   that   such
activities are banned in some publicly accessible places in the
municipality”,  and under § 10 let. c) of the Act,  obligations
“for  the  organization,  conduct and termination  of  publicly
accessible  sporting and cultural events, including dances  and
discotheques,  by  setting  binding  conditions  in  the  scope
necessary to ensure public order”.
    
   The  Constitutional Court respects local  government  as  an
expression  of  the  right and competence of  local  bodies  to
govern public matters within the bounds set by law, as part  of
their   responsibility  and  in  the  interest  of  the   local
population,  but  nevertheless  believes  that  the   contested
ordinance,  in  Art.  2  para. 1  let.  a),  subjected  to  its
regulation  relationships which cannot be governed  in  such  a
manner. The very expression “Celebrations of the Feast  of  St.
Wenceslas” evokes close ties to the church anniversary relating
to  St.  Wenceslas, not only to the religious celebrations  and
rites  connected with this Christian holiday, but also  customs
and  conventions  which  the  civil  society  has  historically
created  in  relation to this holiday outside the framework  of
church  structures. Undoubtedly it is also the right  of  other
communities in the civic society to decide whether, or when and
to  what extent, they will gather for the celebrations held  in
this  regard. The local government undoubtedly has a  right  to
issue  restrictive  measures to protect public  order,  but  by
appropriating   the  right  to  decide  the   date   of   these
celebrations  it  is  entering into relationships  which  exist
between the citizens and religious or other social entities. By
doing  so, it steps out of its independent jurisdiction,  whose
identifying  characteristic  is  precisely  the  fact  that   a
municipality  independently  governs  “its  affairs”.  Decision
making  about the holding of celebrations of the Feast  of  St.
Wenceslas  is  thus an inappropriate means for  protecting  the
public order, as it exceeds the limits of its local nature.
    
   Therefore,  the Constitutional Court shares the petitioner’s
opinion  that  Art. 2 para. 1 let. a) of the generally  binding
ordinance  of the town of Stochov is in conflict  with  Art.  4
para.  1 of the Charter, under which obligations may be imposed
only  on  the basis of and within the bounds of law,  and  with
Art.  2 para. 4 of the Constitution of the CR and Art. 2 para..
3  of  the Charter, under which nobody may be compelled  to  do
that which is not imposed on him by law.
    
  Likewise, in the Constitutional Court’s opinion, Art. 2 para.
1  let. b) of the ordinance, under which the City Council  will
determine  the place at which, during the celebrations,  market
stalls   and  amusement  park  facilities  and  other   similar
attractions will be located, can not stand. Under § 17  of  the
now annulled Czech National Council Act No. 367/1990 Coll.,  as
well as under the current regulation in § 10 let. b) of Act No.
128/2000  Coll.,  a  municipality may  determine  by  generally
binding ordinance which activities, which could interfere  with
public  order  in  the municipality, may be conducted  only  in
places  and  at times determined by the ordinance,  or  provide
that   such  activities  are  forbidden  in  certain   publicly
accessible places in the municipality. The contested  ordinance
does not determine such places, and the fact that it authorizes
the city council to determine them ad hoc, is not in accordance
with  legal regulations. The Constitutional Court believes that
this provision of the ordinance is also in conflict with Art. 2
para.  4 of the Constitution of the CR and Art. 2 para.  3  and
Art.  4 para. 1 of the Charter.
    
  For the reasons given above, the Constitutional Court granted
the  petition of the chairman of the District Office in Kladno,
and  annulled  the contested ordinance of the town  of  Stochov
under  §  70  para.  1  of  Act  No.  182/1993  Coll.,  on  the
Constitutional Court, as of the day this judgment is  published
in the Collection of Laws.
    
Decisions of the Constitutional Court can not be appealed.

Brno, 11 July 2001