Pl. ÚS 17/98
       “Generally binding municipal ordinance (Jeseník)”
                               
Headnote:
The   Constitutional  Court  considers  local  government   an
irreplaceable  component of democracy: it is an expression  of
the  ability of local bodies to regulate and manage  areas  of
public  affairs.  In  performing  local  government  tasks,  a
municipality must choose adequate means. Otherwise it acts  in
conflict with the Constitution.

Judgment:
The  Constitutional Court of the Czech Republic decided in the
matter of a petition by a group of deputies in the Chamber  of
Deputies  of the Parliament of the Czech Republic to  annul  a
generally binding ordinance of the town of Jeseník,  no.  8/94
of  9  November  1994,  banning fascist, communist,  Nazi  and
racial  propaganda in the town of Jeseník, under § 87  par.  1
letter b) of the Constitution of the Czech Republic and  §  70
of  Act  no.  182/1993 Coll. on the Constitutional  Court,  as
amended by later regulations, as follows:

Jeseník  town ordinance, no. 8/94 of 9 November 1994,  banning
fascist, communist, Nazi and racial propaganda in the town  of
Jeseník,  is  annulled as of the day of promulgation  of  this
judgment in the Collection of Laws.

Reasoning:

I.
      On  22  May  1998  the Constitutional Court  received  a
petition  from  a  group  of 27 deputies  in  the  Chamber  of
Deputies  of the Parliament of the Czech Republic to  annul  a
generally binding ordinance of the town of Jeseník, no.  8/94,
banning fascist, communist, Nazi and racial propaganda in  the
town of Jeseník.

     The contested ordinance states that it was issued under §
16  and  §  36 par. 1 letter 1 of Act no. 367/1990  Coll.,  on
Municipalities (Municipal Establishment), as amended by  later
regulations (the “Act on Municipalities”). The ordinance  text
states  in  art.  1 that fascist, communist, Nazi  and  racial
propaganda is banned in the town of Jeseník. Article 2  states
that  such  propaganda is understood to  mean  a)  demands  to
change  the  constitutional order by  force,  b)  use  of  the
symbols of these criminal movements in promoting them  and  c)
casting  doubt on the criminality of regimes which represented
these movements. Article 3 states that the ordinance goes into
effect on the 15th day after its promulgation.

      In  its  petition the group of deputies  points  to  the
powers of municipal (or city) representative bodies to approve
and  issue  generally binding ordinances in matters under  the
municipality's independent jurisdiction. However,  in  issuing
them,  the representative body is limited by its jurisdiction,
which  can be determined only by statute (art. 104 par.  1  of
the   Constitution).  Such  a  law  is,  first,  the  Act   on
Municipalities, under § 13 par. 2 of which a municipality,  in
exercising its independent jurisdiction, is governed  only  by
laws  and other generally binding legal regulations issued  by
central  bodies  to implement them. Under §  16  par.  2  such
ordinances  must  be  in accordance with the  laws  and  other
specified  legal regulations. The petitioners state  that  the
sphere of matters entrusted to the independent jurisdiction of
municipalities is provided as an example in § 14 and generally
in  §  15  of  the  Act on Municipalities, and  that  one  can
conclude  from  the  purpose  of  statutory  authorization  of
municipal representative bodies to issue ordinances that  this
authorization must be interpreted restrictively, as it applies
only  to  matters in which the municipality is not  a  subject
authorized  to  determine  a citizen’s  duties  by  unilateral
orders and prohibitions.

      The  petitioners  rely  on a  legal  opinion  stated  in
Constitutional  Court  judgment  Pl.  ÚS  26/93,  under  which
violation  of  constitutional jurisdiction in issuing  a  sub-
statutory legal regulation is grounds for its annulment.  They
also state that the Constitutional Court’s published judgments
on  jurisdiction  under  art. 87  par.  1  letter  b)  of  the
Constitution  state  that an ordinance  which  was,  from  the
municipality’s  position, passed in the prescribed  procedural
manner and, per its name, within its independent jurisdiction,
even  though  its  content violated the  relevant  authorizing
provisions  of the Constitution and the Act on Municipalities,
cannot   be  considered  a  legal  regulation  issued   by   a
municipality  within its independent jurisdiction.  Therefore,
under  art. 87 par. 1 letter b) of the Constitution and  §  70
par.  1  of  Act  no.  182/1993, such  a  regulation  must  be
annulled,  because  constitutional jurisdiction  was  violated
when  it was issued, i.e., it was not passed and issued within
the bounds of constitutionally defined jurisdiction.

      In  view  of  the  fact that – in  the  opinion  of  the
petitioners  –  the  contested  generally  binding   ordinance
violated art. 2 par. 4 and art. 104 of the Constitution,  art.
2  par. 2 and 3, art. 4 par. 1 and 2, art. 17 par. 1, 2 and 4,
and  art. 34 par. 1 of the Charter, § 13, § 14 and § 16 of Act
no.   367/1990  Coll.  on  Municipalities,  art.  19  of   the
International Covenant on Civil and Political Rights, art.  10
of  the European Convention for the Protection of Human Rights
and  Fundamental  Freedoms,  the group  of  deputies  proposes
annulling this ordinance.

II.
The  complaint was reviewed in formal terms and no grounds for
rejecting it were found.

III.
      The  Constitutional Court stated that in proceedings  on
the  annulment of the generally binding ordinance, as well  as
another legal regulation, the Constitutional Court reviews its
content according to the criteria provided in § 68 par.  2  of
Act  no. 182/1993 Coll. 6) on the Constitutional Court,  which
include   passing   the  ordinance  within   the   bounds   of
constitutionally defined jurisdiction and its accordance  with
legal regulations of a higher degree of legal force.

      Under  art. 79 par. 3 of the Constitution of  the  Czech
Republic,  local government bodies may issue legal regulations
on  the  basis of and within the bounds of a statute, if  they
are  authorized  to  do so by the statute.  Namely,  municipal
representative  bodies  may,  within  the  limits   of   their
jurisdiction,  issue  generally binding ordinances  (art.  104
par.  3  of the Constitution). The systematic ordering of  the
cited  provisions indicates that the first enshrines the power
to   issue   generally  binding  ordinances   in   transferred
jurisdiction,  and  the second enshrines the  power  to  issue
these    ordinances   in   the   municipality's    independent
jurisdiction. Art. 79 par. 3 of the Constitution is the  legal
basis for derived local creation of legal norms, and 104  par.
3 enshrines the original power to create legal norms.

     The generally binding ordinance contested by the petition
from  the  group of deputies was not issued on  the  basis  of
statutory  authorization in matters falling under  transferred
jurisdiction  (§ 21 et seq. of the Act on Municipalities).  On
the  contrary, as its introductory provision states, it relies
on  § 16 and § 36 par. 1 of the cited Act. That would indicate
that   this  an  ordinance  issued  under  the  municipality's
independent  jurisdiction. The Constitutional  Court  confirms
the  constructions  expressed  in  a  number  of  its  earlier
decisions (e.g. Pl. ÚS 44/95, Pl. ÚS 4/96 etc.) under which  a
municipality may, within its independent jurisdiction,  handle
by  generally  binding ordinances only those tasks  of  public
administration  that the law, in the first place  the  Act  on
Municipalities,  identifies as its  independent  jurisdiction,
with  the additional condition that it do so in a manner which
does  not  conflict  with constitutional  acts,  international
treaties under art. 10 of the Constitution, or laws and  legal
regulations  issued  by central government  bodies  for  their
implementation (art. 87 par. 1 letter b) of the  Constitution,
§  16 par. 2 of the Act on Municipalities). A municipality may
not, under any circumstances, by a generally binding ordinance
regulate something that is reserved for regulation by statute.
The  Constitutional Court concludes that the present generally
binding  ordinance  of  the town of  Jeseník  regulates  those
social  relationships that are reserved for  legal  regulation
only by statute, i.e. a form of legal regulation which can  be
passed  only by the Parliament of the Czech Republic (art.  15
par.   1   of  the  Constitution).  Under  art.  104  of   the
Constitution the jurisdiction of a representative body can  be
provided  only  by statute, which means that a  representative
body  may  not itself expand this jurisdiction using generally
binding  ordinances.  For these reasons  a  generally  binding
ordinance cannot ban a certain kind of propaganda. In terms of
content,  the closest statutory provisions in this  connection
are  § 260 and § 261 of the Criminal Code, on the support  and
propagation of movements aimed at suppressing citizens’ rights
and  freedoms. As that provision of the Criminal Code observes
the requirement of art. 39 of the Charter, under which only  a
statute  may  designate  what conduct  is  a  crime  and  what
punishment,  as  well as what other detriment,  in  rights  or
property, can be imposed for committing it, by that alone  the
contested  ordinance comes into conflict with art. 39  of  the
Charter,  because,  as  a sub-statutory legal  regulation,  it
cannot  regulate  something  that is  exclusively  subject  to
statutory regulation.

    The  Constitutional Court adds that in accordance with its
previous  opinions  (e.g.  Pl. ÚS  1/96)  it  considers  local
government  an  irreplaceable component of the development  of
democracy. Local government is an expression of the rights and
abilities  of  local  bodies, within the bounds  set  by  law,
within  their  responsibility and in  the  interest  of  local
residents,  to regulate and manage areas of public affairs.  A
municipal  representative body is indisputably  a  body  which
cannot  be  indifferent  to whether political  parties,  their
branches  or  their members in the municipality  behave  in  a
manner which conflicts with the law or even meets some of  the
material  elements  of crimes provided in the  Criminal  Code.
Municipal   bodies,   whether  elected   or   appointed,   can
substantially  contribute  to  the  level  of  information  of
responsible  authorities and the public – under  the  Criminal
Code  or  the  Act  on  Association in Political  Parties  and
Political Movements – about whether political parties or their
followers  act  in  conflict  with  what  their  articles   of
association  proclaim.  However, if a municipality  wishes  to
manifest its political will in performing its local government
acts  in the interest of local residents, it must do so  using
adequate  means.  In  the  adjudicated  matter,  the  town  of
Jeseník,  by  choosing  the  means  of  a  generally   binding
ordinance,  i.e.,  a  normative act, acted  in  an  inadequate
manner.  For  the foregoing reasons, the Constitutional  Court
reached  the  conclusion that the contested  ordinance  is  in
conflict with art. 104 par. 3 of the Constitution of  the  CR,
and  §  13  par.  2, § 14 par. 1, § 16 par. 2 of  the  Act  on
Municipalities,   as   amended  by  later   regulations,   and
therefore,  without  considering it necessary  to  review  the
other  reasons  stated in the petition, decided  that  Jeseník
town ordinance no. 8/94, banning fascist, communist, Nazi  and
racial propaganda in the town of Jeseník is annulled as of the
day  of  promulgation of this judgment in  the  Collection  of
Laws.