Introduction
The right to self-government is a constitutionally guaranteed right that forms one of the cornerstones of our constitutional order. This is evidenced by the fact that, in addition to being allocated an entire chapter in the constitution, this right is mentioned right at the beginning in Article 8 of the Czech Constitution. One of the elements of the right to self-government is the ability of municipalities regions to issue generally binding decrees (hereinafter referred to as "GBDs"). [1] These decrees, of course, are subsidiary regulations [2] in the legal system and can only regulate the competencies within the independent jurisdiction of municipalities. [3] They must not deviate from this legal norm. [4]
However, the Constitutional Court has long interpreted this right in a rather restrictive manner in its jurisprudence, subjecting GBDs to thorough constitutional review. This review may be initiated by the Ministry of the Interior after a municipality unsuccessfully requests correction of a GBD to bring it into line with the law. [5] The focus of this text is not on clear abuses of self-government, such as the introduction of entirely new taxes [6] or so-called "sitting bans" [7] that prohibited sitting in certain places in cities. The aim of the text is to examine the decree of the City of Příbram on nighttime quiet, which the Constitutional Court annulled in the plenary judgment Pl. ÚS 38/22.
Revocation of the Municipality of Příbram's Generally Binding Decree
The Municipality of Příbram, through a resolution of the council, approved the issuance of a Generally Binding Decree (GBD) pursuant to Act No. 251/2016 Coll., on certain offenses (hereinafter referred to as the "Act on Certain Offenses"), which will not enforce compliance with the period of nighttime quiet. The contentious part of the decree was specifically Article 3 paragraph 2, which introduced that “every Friday and Saturday during the period from July 1, 2022, to August 31, 2022, nighttime quiet begins at 23:00 unless otherwise specified”, thus creating an exception to the observance of nighttime quiet. The Constitutional Court examined this provision of the decree using the so-called "four-step test," which is a test that the Constitutional Court first employed in proceedings to annul the Generally Binding Decree of the City of Prostějov. [8] The Constitutional Court first examines whether the municipality had the authority to issue this generally binding decree (first step of the test), then whether it exceeded the limits of statutory competence, or acted ultra vires (second step of the test), whether it abused the authority entrusted by law (third step of the test), and finally whether it acted manifestly unreasonably (fourth step of the test). [9]
In this case, the Constitutional Court found that the municipality was authorized to adopt such a decree, as Section 5 paragraph 7 states: "The period of nighttime quiet shall mean the period from twenty-second to sixth hour. The municipality may, by a generally binding decree, establish exceptional cases, especially festivities or similar social or family events, during which the period of nighttime quiet is defined by a shorter period or during which the period of nighttime quiet need not be observed." [10] The City of Příbram availed itself of this option and precisely stipulated this in its decree.
However, the Constitutional Court evaluated that since the restriction of nighttime quiet was not linked to a specific social event, celebration, or family gathering, as mentioned by the law as one of the possible justifications for extending the period of nighttime quiet, the municipality exceeded its authority
Interference with the Right to Self-Government
My argumentation largely aligns with the conclusion of the Constitutional Court, and further develops the argumentation of a different standpoint expressed by Judges Jan Wintr, Josef Baxa, Josef Fiala, Radovan Suchánek, and Jiří Zemánek on this matter. [11] These judges expressed the opinion in a separate opinion that the legal interpretation of the majority of the Constitutional Court is too restrictive because, on the one hand, Section 5 paragraph 7 of the Act on Certain Offenses lists illustratively [12], and mainly, the conclusion goes against the democratic consensus within the municipal council.
In my opinion, the Constitutional Court in this case applied a very restrictive interpretation of the statutory provision, and as a result of this interpretation, it deprived the self-government of discretion in establishing nighttime quiet. However, it cannot be said that this amounted to a complete substitution of the statutory regulation, as the infringement on the rights of others in this case is not significant, as it involves only an hour less of nighttime quiet and that too on precisely defined days. Moreover, the measure was properly justified in the decree, as reminded by the City of Příbram in its objections, which the Constitutional Court addressed.
The right to self-government is guaranteed [13], and for territorial self-government to function effectively, it must have the ability to regulate certain matters, not only its own budget or management of property but also to manage local order matters within the limits of the law. If the content of this administration does not include extending nighttime quiet even by a few hours, then what does it entail? The Constitutional Court, with a very formalist interpretation, hinders the management of local affairs, thereby restricting the right to self-government. If territorial self-government is to be a community capable of at least partially governing itself, it must be given the opportunity to do so. Interpreting laws to their disadvantage amounts to limiting the right to self-government.
It is true that the Constitutional Court's argumentation about protecting the rights and freedoms of others is relevant and must be taken into account; however, it would undoubtedly be excessive, for example, to completely abolish nighttime quiet for a considerable period, but this did not happen in this case, and the right to self-government must therefore prevail.
In judgment Pl. ÚS 38/22 of June 20, 2023, the Constitutional Court annulled the Generally Binding Decree of the City of Příbram. In my opinion, this limited the right to self-government in favor of protecting the rights of others, which was unnecessary, and it cannot be conclusively stated based on the interpretation that the municipality exceeded its powers and acted ultra vires. This text summarized the entire case and presented arguments in favor of reconsidering the conclusions reached by the Constitutional Court. If self-government is to be truly guaranteed, it is necessary to fulfill it with substantive content, not just the formal possibility of issuing rules. [14]
Suggested citation: Hejduková, Georgia, Disempowerment of the Right to Self-Government in the Jurisprudence of the Constitutional Court, or the Annulment of the Municipality of Příbram's Generally Binding Decree, CHR - Student Blog, 28/4/2024, https://www.chrprfcuni.com/post/disempowerment-of-the-right-to-self-government
[1] Čl. 104 Ústavy České republiky.
[2] Aleš Gerloch, Teorie práva, 8. aktualizované vydání (Plzeň: Vydavatelství a nakladatelství Aleš Čeněk, s.r.o., 2021), s. 91.
[3] Martin Kopecký, Správní právo: obecná část, 3. vydání, Právnické učebnice 114 (Praha: C.H. Beck, 2023), s. 114.
[4] Nález Ústavního soudu ze dne 20. 6. 2023 sp. zn. Pl. ÚS 38/22 , bod 16.
[5] § 64 zákona č. 182/1993 Sb. o Ústavním soudu.
[6] Nález Ústavního soudu ze dne 21.2.2024, sp. zn. Pl. ÚS 42/23.
[7] Eva Dvořáková, „ÚS zrušil části obecně závazné ‚sedací´ vyhlášky města Postoloprty", Advokátní deník, 17. leden 2019, Available from: https://advokatnidenik.cz/2019/01/17/us-zrusil-casti-obecne-zavazne-vyhlasky-mesta-postoloprty-zakazujici-sezeni-na-predmetech-k-tomu-neurcenych/.
[8] Nález Ústavního soudu ze dne 12. 10. , sp. zn. Pl. ÚS 63/04.
[9] Nález Ústavního soudu ze dne 20. 6. 2023 sp. zn. Pl. ÚS 38/22 , bod 16.
[10] § 5 odst. 7 zákona č. 251/2016 Sb., o některých přestupcích.
[11] Srov Nález Ústavního soudu ze dne 20. 6. 2023 sp. zn. Pl. ÚS 38/22, odlišné stanovisko Wintr, Baxa, Fiala Suchánek, Zemánek, bod 11.
[12] Srov Nález Ústavního soudu ze dne 20. 6. 2023 sp. zn. Pl. ÚS 38/22, odlišné stanovisko Wintr, Baxa, Fiala Suchánek, Zemánek.
[13] Čl. 8 Ústavy ČR.
[14] Srov Nález Ústavního soudu ze dne 2.4.2013, sp. zn. Pl. ÚS 6/13, bod 30.