Decided 13 January 2004 - Pl. US 38/03
                               
                   „Municipal Ordinance Ban“

HEADNOTES
A   municipality  may  issue  a  generally  binding   ordinance
exclusively  under  its independent jurisdiction  if  there  is
interference in the rights and freedoms of citizens; limitation
of this interference through a municipal ordinance is possible,
while  in transferred jurisdiction it issues directives on  the
basis  of  authorization  in statutes  and  within  the  bounds
provided  by  statute  (§  11 of Act  no.  128/2000  Coll.,  on
Municipalities, as amended by later regulations).
Under  Art.  4 par. 2 of the Charter of Fundamental Rights  and
Freedoms the limits of fundamental rights and freedoms  may  be
regulated only by statute and not by a municipal ordinance.

JUDGMENT
The  Plenum  of  the  Constitutional Court, composed  of  JUDr.
Frantisek   Duchon,   JUDr.  Pavel  Hollander,   JUDr.   Dagmar
Lastovecka, JUDr. Jiri Malenovsky JUDr. Jiri Mucha,  JUDr.  Jan
Musil,  JUDr. Jiri Nykodym, JUDr. Pavel Rychetsky, JUDr.  Pavel
Varvarovsky and JUDr. Eliska Wagnerova, ruled in the matter  of
a petition from Mgr. Stanislav Gross, Minister of the Interior,
to  annul  the  generally  binding ordinance  of  the  town  of
Litomerice  no.  4/95, on Banning Communist, Fascist  and  Nazi
Propaganda  in  the  Town  of  Litomerice,  approved   by   the
Litomerice representative body on 6 April 1995 and in effect as
of 3 May 1995, as follows:
      Litomerice town ordinance no. 4/95, on Banning Communist,
Fascist  and  Nazi Propaganda in the Town of Litomerice,  of  6
April 1995, is annulled.

REASONING:

On  28  July 2003 the Constitutional Court received a  petition
from  the  minister of the interior, Mgr. Stanislav  Gross,  to
annul the generally binding ordinance of the town of Litomerice
no. 4/95, on Banning Communist, Fascist and Nazi Propaganda  in
the   Town   of   Litomerice,  approved   by   the   Litomerice
representative body on 6 April 1995 and in effect as of  3  May
1995.

The contested ordinance reads:
“ORDINANCE
no. 4/95
on  Banning Communist, Fascist and Nazi Propaganda in the  Town
of Litomerice


The  Litomerice  representative body, by  resolution  from  its
meeting   on  6  April  1995,  issues  this  generally  binding
ordinance.

                             § 1
Communist, Nazi and Fascist propaganda is banned in the town.

                              § 2
Communist, Nazi and Fascist propaganda means:
  a)  Calls for a violent change of the constitutional order.
  b)   Using  the  symbols  of  these criminal  movements  when
     promoting them.
  c)  Questioning the criminal nature of the regimes which these
     movements represented.


                              § 3
The  approved  ordinance goes into effect on the fifteenth  day
after it is promulgated, i.e. 3 May 1995.


Deputy Mayor                              Mayor
Ing.    Milan   Slegr                             Ing.    Milan
Tejkl”
     Jiri Landa          round stamp


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

Notice:   Decisions  of the Constitutional  Court  can  not  be
appealed (§ 54 par. 2 of the Act on the Constitutional Court).

Brno, 13 January 2004