The Constitutional Court found no 124 / 2023 Coll.
The Constitutional Court found of 11 April 2023 sp. zn. Pl. ÚS 92 / 20 on the application for annulment of Sections 16 (2) and 16h (1) (a) of Act No. 247 / 1995 Coll., on Elections to Parliament of the Czech Republic and on amending and supplementing certain other laws, as amended by Act No. 322 / 2016 Coll.
Valid
The Constitutional Tribunal found
Text versions:
15.05.2023
124
FIND
The Constitutional Court
On behalf of the Republic
On 11 April 2023, the Constitutional Court decided under point Pl.
as follows:
Motion denied.
Reasons
Subject matter of the procedure and text of the legal provisions contested
1. The Constitutional Court has received a proposal from the Supreme Administrative Court (hereinafter referred to as the "appellant ') pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') on the repeal of § 16 (2) and § 16h (1) (a) of Act No. 247 / 1995 Coll., on elections to the Parliament of the Czech Republic and on the amendment and additions to certain other laws, as amended by Act No. 322 / 2016 Coll.
2. The contested provision of Paragraph 16 (2) of the SAA reads:
"A natural or legal person intending to participate in an election campaign without the knowledge of a candidate political party, political movement or coalition, their candidate or an independent candidate shall be required to register as a registered third party with the Political Party and Political Movement Supervisory Authority (hereinafter referred to as Office ′) established under the law governing association in political parties and political movements before joining the election campaign. ';
3. The contested provision of Paragraph 16h (1) (a) of the SAA, including the introductory wording, reads as follows:
"A natural person who is a legal or legal person commits an administrative offence by participating in an election campaign without prior registration in a special registry of the Office, contrary to Paragraph 16 (2). '
Proceedings before administrative authorities and administrative courts
4. In the present proceedings before the Supreme Administrative Court, the Association of Freedom of expression ("the complainant ') seeks the annulment of the judgment of the Regional Court in Brno (" the Regional Court') of 29 March 2019, No 73 A 4 / 2018- 55. This judgment dismissed his action against the decision of the Authority to supervise the management of political parties and political movements ("the Supervisory Authority ') of 23 November 2017 No. UDH-SPR-PS-4 / 2017- 12, by which the complainant was found guilty of committing an infringement pursuant to § 16h (1) (a) of the ZVP, in conjunction with § 112 (1) of the First Law No. 250 / 2016 Coll., on liability for and proceedings against infringements. The complainant should have committed this, briefly stated, so that:
a) at the publisher VLTAVA LABE MEDIA, a. s., he entered a total of 342 advertisements with the title "Why does Andrej Babiš want to rule us?" in the form of invitations to 61 sessions held from 4 May 2017 to 30 July 2017 in various places in the Czech Republic. Besedas were linked to the projection of the documentary film Selské Služská vyška and the sale of the book Yellow Baron, with advertising in the paper fulfilling the characteristics of the election campaign according to § 16 (1) of the ZVP,
b) awarded to the trading company RENGL, s. r. o., an outlay of 22 posters with the Yellow Baron campaign in České Budějovice from 28. 7. 2017 to 30. 7. 2017,
(c) by failing to complete the advertising in breach of § 16 (6) sentence of First Law No. 247 / 1995 Coll., as amended, by failing to complete the information on the contracting authority and processor, thereby committing an infringement pursuant to § 16h (1) (c) of the ZPP.
The complainant was fined CZK 27,000 and had to pay the costs of the proceedings of CZK 1 000.
5. That conduct should have been committed by the complainant, according to the Supervisory Authority, at the time of the election campaign, which, pursuant to Paragraph 16 (1) of the ZAP, means "any promotion of a candidate political party, political movement or coalition, or an independent candidate or election agitation for the benefit of the candidate political party, political movement or coalition, their candidate or independent candidate, in particular a public announcement intended for their support or service, including any accompanying action for which a payment is granted or usually granted. A message to the detriment of another candidate political party, political movement, coalition, their candidate or independent candidate shall also be considered as an election campaign." The Supervisory Authority has qualified these actions (see Sub-4) as a negative election campaign in the form of collage depicting Ing. Andrei Babiš and made up of various statements, the form of advertising being capable of adversely affecting the perception of Ing. Andrei Babiš.
6. On the contrary, that film and the book sold could not be considered as part of the campaign, as decided by the Supervisory Authority. According to the Supervisory Authority, all newspaper articles, interviews, books, publications, films, television reports, Internet blogs, comments and other forms of public communications fulfilling, in substance, the rights under Article 17 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') are excluded from the electoral regulation. Furthermore, according to the decision in question, participation in the electoral campaign cannot be derived from the entity's intention, but from its conduct. Liability of a legal person is not a liability for fault. According to the decision in question, the purpose of the so-called registered third party cannot be limited to limiting the costs of the election campaign. The explanatory memorandum does not describe this institute (adopted on the basis of an amendment), therefore the legislator's intention cannot be established. In the view of the Supervisory Authority, the purpose of this institute is to increase the transparency of the electoral campaign, consisting of an accessible overview of its participants and the resources they spend.
7. The Regional Court identified itself with that view of the Supervisory Authority. First of all, he did not testify to the complainant's objection that the decision of the Supervisory Authority was unverifiable because it did not imply why he considered the advertising in question to be a communication to the detriment of candidate Ing. Andrei Babiš, in which he saw the critical nature of the communication and how the invitation was liable to harm the candidate in the eyes of voters. According to the ruling of the Regional Court, the negotiations described had the character of an election campaign that had a negative impact on the perception of a candidate who was the national leader of the political movement YES 2011 for elections to the Chamber of Deputies in 2017. Both from the arguments of the Supervisory Authority and from the advertising and the picture (in the form of collage from statements attributed to the candidate), the above conclusion, which is based on the regional court and on well-quoted legislation, can be concluded. The examination of the decision under the Regional Court also shows that the Supervisory Authority has dealt with all the complaints raised by the complainant during the infringement proceedings. The supervisory authority also stated which documents (and other evidence) it relied on in its decision, while the complainant did not have a problem with the contested decision in the action to deal with and dispute it in an argument.
8. In general, according to the Regional Court, it is always necessary to consider the extent to which a specific communication contributes to the electoral competition by critical evaluation of a candidate in an attempt to encourage political debate and to what extent it seeks to directly influence the electorate in an attempt to influence its choice. How important is the purpose intended by the author, but especially how the message is perceived by the citizen. According to the Regional Court, when announcing a work, it is necessary to assess whether the promotion is politically neutral, or whether the promotion is capable of acting independently (without relation to the work), and to influence the electorate. The Regional Court concludes that the advertising in question contains a communication against Ing. Andrei Babiš and is capable of intervening in an election campaign, which is important that the chosen communication is not a standard way of promoting the book. The leaflet refers to the book as well as the film, and it does not show that it is a promotion book. Although there is the same picture on the book as on the flyer, this connection can only be drawn by a person who knows both. The unlimited possibility of promoting books at the time of the election campaign would, according to the Regional Court, lead to circumvention of the law. The chosen procedure is the protection of the election campaign and, therefore, the electoral competition under Article 22 of the Charter, however it may interfere with other rights in the Charter. The contested decision did not involve significant interference with the complainant's right to do business because the complainant was not prevented from promoting his book and film, but was only fined for advertising that did not meet the legal requirements. According to the Regional Court, there was no interference with the complainant's freedom of expression as it had no restrictive obligation in this area. On the second offense (see sub-4 above), the Regional Court noted that the complainant's conduct was socially dangerous, although his advertising was not anonymous.
9. The complainant lodged a complaint against the judgment of the Regional Court in which it questions the interpretation of the term "electoral campaign 'by the Regional Court. In his view, it was not the intention of the legislator to impose an obligation to register all persons who bring information of a political nature into the public space. In defining the electoral campaign, the appeal must take account of the intention of the applicant, not the actual or alleged impact on the outcome of the elections. In the present case, the purpose was to advertise the promotion of a book whose sale was an entrepreneurial intention. The complainant considered that the restriction of business only to the sale of" non-political "works was unconstitutional. Each author adapts his work and his promotion to sales. In his opinion, the advertising was not in any way unstandard to promote the book. A distinction must be made between whether the work was ordered for a candidate or the result of independent work.
10. The Supreme Administrative Court has provisionally concluded that the complaint complies with the formalities and the conditions for its hearing are fulfilled. At the preliminary hearing, the Senate concluded that the advertising under consideration had fulfilled the electoral campaign characteristics under Paragraph 16 (1) of the ZVP, and in its view the proposed contested provisions cannot be applied in a constitutional manner as follows: Therefore, by order of 14.7.2020 No Ars 4 / 2019-53, he suspended the appeal proceedings and submitted the present application to the Constitutional Court.
Arguments of the appellant
11. According to the appellant, the campaign is one of the forms of freedom of expression, enshrined in Article 17 (1) of the Charter, Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and Article 19 (2) of the International Covenant on Civil and Political Rights. The obligation to register (cf. Obligation to register) third parties (under threat of sanctions) constitutes a restriction on this right, as is apparent, for example, from the judgment of the European Court of Human Rights of 25.1.2002 in the Karademini case and against Turkey (complaint Nos 37096 / 97 and 37101 / 97). In the course of the legislative process, the aim of the regulation is to ensure greater transparency of the electoral campaign, to protect the free competition of political forces and equal access to elected functions. Such objectives are considered legitimate by the appellant, since they can be regarded as" the protection of the rights and freedoms of others' within the meaning of the case law of the European Court of Human Rights (ECHR). However, according to the appellant, the amendment in question does not constitute an appropriate restriction on those who wish to express their views on the candidate entities or their election programmes during the pre-election period.
12. In accordance with the case law of the Constitutional Court and the ECHR, the appellant considers a free political debate to be the basis and the very core of the concept of democratic society, and the scope for its restriction on matters of public interest is thus very narrow. In the pre-election fight, it is of importance in ensuring that views are expressed on the composition of the legislature. The appellant pointed out that the earlier view of the ESLP, expressed in the Grand Chamber judgment of 19.2.1998 in Bowman v United Kingdom (complaint No 24839 / 94), allowing a wide margin for national discretion in the regulation of the election competition, was overcome by later case-law, namely the judgment of 11.12.2008 in the case of TV Vest AS and Rogaland Pensjonistparti v Norway (complaint No 21132 / 05). On the contrary, the court rejected leniency against pre-election interventions in freedom of expression. In its judgment of 21 February 2017 in the Orlovskaya Iskra case against Russia (complaint No 42911 / 08), he also rejected the argument of the Government calling for a wider area to limit freedom of expression in order to ensure the smooth running of the elections. Moreover, in the Czech Republic, the protection of freedom of expression is strengthened beyond the Convention itself by the content of Article 17 of the Charter.
13. In the first step of the proportionality test, the appellant concluded that the contested scheme constitutes an appropriate means of achieving the above-mentioned objective of transparency of the electoral campaign. The obligation to register third parties may, in particular, serve to better respect the financial rules of the electoral campaign. However, it is also incompetent to cultivate the content of this campaign, which is the objective for which the case-law has long been calling (cf., for example, Resolution of the Supreme Administrative Court of 18 February 2013 No. Vol. 44 / 2013-72, No 2833 / 2013 Coll. NSS). The mere fact of registration does not guarantee the integrity and integrity of the campaign management, as required by Article 16 (5) of Act No. 247 / 1995 Coll., as amended, the infringement of which, unlike virtually all obligations in Act No. 247 / 1995 Coll., as amended, continues to be impunity. The contested legislation does not therefore contribute to regulating the content of the electoral campaign.
14. If there is greater transparency, the contested regulation fails in the next two steps of the proportionality test. According to the appellant, that objective can be achieved by other, less restrictive means of freedom of expression. It points out that the promoter of draft law No 322 / 2016 Coll. saw a means to ensure the transparency of the electoral campaign in the obligation to include data on the contracting authority and processor on promotional materials. According to the appellant, such a device would be sufficient. The provision of data on each promotional material is also more conducive to the freedom of expression of the campaign participants, as it does not require the State to agree to the exercise of constitutionally guaranteed rights (and subject to further obligations related to this). The previous registration does not meet any additional objective beyond those alternative obligations. In turn, the absence of circumvention of the restrictions on electoral costs of candidate entities can be achieved by more careful scrutiny by the Supervisory Authority. Such a system could be more challenging for the State, but such complications should not be addressed by the State by restricting the fundamental rights of other entities.
15. The need for the legislation under review also refutes the fact that the legislator did not at all ascertain how the newly introduced obligation to include data on the contracting authority and the processor on promotional materials in combination with the limits for the election campaign for the candidate parties would appear in the course of the election campaign and, in addition, introduced compulsory registration of third parties associated with the control of the funding of their campaign (cf. their participation in the election campaign). However, according to the appellant, such a procedure would be appropriate only after a demonstration of the malfunction of the lighter rules. In the light of the ECHR case-law, it could be concluded that the contested scheme is not necessary in a democratic society.
16. Even if the adjustment were to pass the second step of the proportionality test, the necessity test, it cannot be considered appropriate in relation to the constitutional interests concerned. In such a measure, the appellant considers the principle of registration itself to be problematic for the realisation of freedom of expression, which constitutes a classic negative status. For this freedom, the authorisation principle is justified, for example, in the case of broadcasting licences limited by both technical and interest in controlling the programme composition of broadcasting. However, there is no such interest in the contested adjustment. The obligation to register has a deterrent effect (so-called chilling effect) on the exercise of freedom of expression and thus constitutes a completely disproportionate restriction. The registered third party may only take part in the campaign from the day following the time of registration, which is hampered by a number of other obligations (establishment of a transparent account, notification of websites to publish information, etc.). These obligations are being prosecuted by all third parties, not just those likely to circumvent the financial rules of the election campaign for candidates. At the same time, the legislator did not impose similar obligations on candidates in municipal elections, with it being so burdensome for them that elections could often not even be held. According to the appellant, it is thus completely illogical for those requirements to be disproportionate to the applicant but proportionate to those who only freely exercise the right to express their political opinion. Nor is the very general definition of the concept of a political campaign in favour of the obligation to register, particularly in its negative form (a communication to the detriment of the candidate). The appellant considers it a problematic way in which the Authority and the Regional Court have tried to interpret the provision in a constitutional manner. Distinguishing expressions by subject (e.g. journalists) could lead to unequal treatment (potentially unpredictable) with different groups of persons exercising their constitutional right. The same statement could therefore be assessed in a legally different manner only on the basis of the person who gives it. According to the "ordinary citizen's view 'criterion set out by the Regional Court, the importance of his speech and the subsequent punishment could be shifted without the author's intention, since the responsibility for committing the offence is objective for legal and business natural persons, and negligence is sufficient for non-entrepreneurs.
17. The appellant concludes that the contested regulation cannot be interpreted in a constitutionally consistent manner. However, the obligation under Paragraph 16 (2) of the ZVP cannot be seen as a mere registration in the spirit of reporting obligations. According to the appellant, this is prevented by other provisions of the law according to which a person is registered and may also refuse registration by the Supervisory Authority. Participation in the campaign cannot be initiated before registration, under the threat of sanctions. It is precisely for the failure to comply with the obligation to register that the complainant has been sanctioned by a procedure led by the applicant.
18. For the sake of completeness, the Constitutional Court states that that order was not adopted unanimously and that Judge Petr Mikeš made a different opinion on it. In his view, the contested regulation is constitutionally conformal, and the possible compliance with the proposal would lead to a reduction in the protection of political competition. With reference to the finding of the Constitutional Court sp. zn. Pl. ÚS 73 / 04 (N 17 / 36 SbNU 185; 140 / 2005 Coll.; all decisions of the Constitutional Court are available at https: / / nalus.ujud.cz), he stated that earlier legislation had a lack of malpractice and correction of electoral offences. In fact, these were ethical rules, without the possibility of sanctions (except for enormous action in the form of annulment of elections). The voters themselves do not take much into account the ethical behaviour of candidates in the election competition. Given the amount and marketing focus of the funds spent on the election campaign, it is legitimate to ask the campaign participants for some transparency regarding its funding. The contested provisions do not regulate any action but only one for which (usually) payment is granted. It is therefore not about limiting the possibility of expressing itself in meetings, in the media, via the Internet and so on (not about paid advertising). It is really about regulating election advertising. Such an arrangement does not, according to its opinion, interfere with the ECHR case-law. By abolishing the contested regulation, the limits of the electoral campaign would become virtually unlimited, as nothing would prevent unregulated third parties from running the campaign. Without the regulation of third parties, according to the different opinion of Judge Peter Mikeš, the objective of transparency and control of the funding of the election campaign cannot be achieved. The indication itself of the contracting authority and the processor of the communication is merely a formal means of not revealing the ownership of legal entities. Nor can the majority of the Senate be agreed that circumvention of the financial limits for the conduct of the campaign may prevent the Supervisory Authority, without any adjustment. He won't have any authority. However, a different opinion considers it an unconstitutional fact that a third-party registration constitutes a real anchoring of the authorisation principle in this area, as that administrative authority can in fact impede the entry of entities into the electoral campaign. However, for this reason it is not necessary to repeal the contested provisions. As a more appropriate solution, the different opinion of Judge Peter Mikeš considers the annulment of Paragraph 16e (4) of the ZVP. However, the Supreme Administrative Court is not entitled to such a proposal. Changing the authorisation principle to reporting could solve problematic issues. However, the regulation does not consider the different opinion to be contradictory to constitutional order.
Observations of the parties pursuant to Article 69 of the Constitutional Court Act
19. The Judge-Rapporteur, acting in accordance with the procedure laid down in Article 69 (1) of the Law on the Constitutional Court, sent a motion to Parliament as a party to the proceedings on behalf of which both its chambers act, and pursuant to Article 69 (2) and (3) of that Law to the Government and to the Ombudsman.
20. On behalf of the Chamber of Deputies, its then President, Mgr. Radek Vondráček, who stated that the contested provisions had been fully newly amended by Act No 322 / 2016 Coll. The bill was debated in the Chamber of Deputies in the seventh term as House Press No. 568. These provisions were not included in the original version of the government proposal. Compulsory registration of third parties was proposed by the guaranteeing constitutional legal committee in the amendments contained in the resolution of that committee of 30 March 2016 No 206 (House Press No 568 / 5). The related sanctions have been newly amended in the version in which the Senate returned the bill to the Chamber of Deputies. The bill was passed at the 48th session of the Chamber of Deputies in its seventh parliamentary term on 29 June 2016. When discussing the draft law at third reading, it was decided on the draft law as a whole in vote 59, in which the 162 Members present in favour of the draft law as a whole were elected by 95 Members and no Member voted against. The Chamber of Deputies has given its assent to the bill (Resolution 1271). The Senate returned the bill with amendments (Resolution 513). The Senate resolution was circulated to Members on 26 August 2016 as the House Press 568 / 10. The Chamber of Deputies, which returned the bill, discussed on 6 September 2016 at its 49th meeting. It adopted the bill as approved by the Senate (Resolution No 1308). In vote 37 of the 152 Members present in favour of the 92 votes, 36 votes against. When discussing the bill at third reading in the Chamber of Deputies and the bill returned by the Senate with amendments, a comprehensive debate took place, among other things, on the issues of compulsory registration of third parties. In detail, it referred to published stenoprotocols from these debates. The law adopted was delivered to the President of the Republic for signature on 12 September 2016. The President of the Republic signed the law. The Act was published on 3 October 2016 in the Collection of Laws in the amount of 126 under No. 322 / 2016 Coll. The then President of the Chamber of Deputies stated that the relevant law had been adopted by the prescribed procedure, signed by the relevant constitutional authorities and duly declared.
21. On behalf of the Senate, the President of the Senate, RNDr. Miloš Vyšl, stated that the Chamber of Deputies referred the draft amendment to the Senate on 28 July 2016 (Senate Press No. 308, 10th term). The bill was ordered to the Constitutional-Legal Committee as a guarantee committee and also to the Committee on Territorial Development, Public Administration and the Environment. At its 27th meeting on 17 August 2016, the Guarantee Committee adopted Resolution 138 recommending the Senate to return the proposed bill to the Chamber of Deputies with amendments. Similarly, the Committee on Territorial Development, Public Administration and the Environment adopted Resolution 132 at the 27th meeting of 17 August 2016, recommending the Senate to return the proposed bill to the Chamber of Deputies with amendments. When discussing the bill in committees, the low legislative and material quality of the electoral campaign arrangements was highlighted, including the institute of registered third parties. The Senate dealt with the bill at the 27th meeting of 24 August 2016. In his observations, the President summed up the speeches of some senators and senators, stating that the debate, as well as the amendments, did not ask the question of the constitutional or political acceptance of the Institute by a registered third party. On the contrary, the aim was to eliminate the most flagrant shortcomings in the design of that institute. The points of the amendment contained in the resolution of the Guarantee Committee - as regards their relationship with the Institute of Registered Third Persons - were adopted by the Senate after the debate and, therefore, the President of the Senate summarised their material content in his observations. Firstly, the replacement of the word "participating 'for" intending to participate' in Paragraph 16 (2) of the ZVP, thus highlighting the prospective nature of the institute. Secondly, the modification of the sub-parameters of the Institute of Registered Third Persons has been transcribed by legislation - technically, in a language, logically and systematically (see the amendments aimed at its content to Sections 16e (1) to (9) of the ZVP). Thirdly, there has been a systematic regulation of the organisation of infringement issues, including an infringement of participation in an election campaign without prior registration within the meaning of Section 16 (2) of the FTC. Finally, in Paragraph 16c (3) of the ZVP, it was proposed to add the words' with their knowledge ', which should have defined the relationship between the maximum amounts of campaign expenditure and the method of calculating them, precisely in the light of the activities of third parties. The Senate adopted in vote 11 at its 27th meeting (10th term), inter alia, all the points of the amendments which affected the Institute of Registered Third Persons, in the form in which they were included in the annex to the resolution of the Guarantee Committee, when, of the 68 Senators present, they opposed the proposal 47. Subsequently, by its 513th resolution, it decided to return the bill to the Chamber of Deputies, as amended, when in vote 13 of the 68 senators present were in favour of Proposition 49, against which they were 3. The Senate, according to its President, discussed the matter in a constitutional manner and did not find this contrary to the constitutional order of the Czech Republic when discussing the proposal.
22. The Government decided to exercise its right to intervene and, by its resolution of 25 August 2020, mandated the Minister of Justice, Mgr. Maria Benešová, who was at the same time empowered to make a detailed statement on the proposal, in cooperation with the First Deputy Prime Minister and the Minister of the Interior, proposing to reject it. In its observations, the Government first summarised the course of the legislative process and the content of the explanatory memorandum to Act No 322 / 2016 Coll. The purpose of the introduction of the Institute of Registered Third Persons, on the basis of an amendment to the Constitutional-Legal Committee of the Chamber of Deputies, was in particular to prevent the uncontrolled and uncontrollable circumvention of electoral campaign spending limits. This is one of the institutions protecting the free competition of political forces under Article 22 of the Charter. The withdrawal of such an adjustment could result in massive influence on electoral preferences, as the law would not prevent the campaign from being conducted through related entities, thereby circumventing legal restrictions. According to the Government, this adjustment helps to fulfil the requirement of an honest and fair campaign management. In this respect, the Government agreed with the argument set out in the different opinion of Judge Peter Mikeš. In order to be able to replace the obligations in question by a more thorough inspection carried out by the Supervisory Authority, the Government stated that, following the annulment of the contested regulation, that authority would not have any jurisdiction vis-à-vis third parties. A number of other obligations are linked to the registration obligation, which allow supervision of compliance with electoral campaign rules. The designation of the contracting authority and processor itself on electoral material shall not prevent circumvention of the rules on the financing of the election campaign. This would only ensure formal transparency, but it will not help to clarify the sources of campaign financing. The Government considers that the Supreme Administrative Court, in doubt about the applicability of the "ordinary citizen's view 'criterion, ignores the statutory objective criterion of applicability. Regulation of the way in which a campaign is conducted by third parties is also necessary because the infringement itself of an order to conduct a campaign is not sanctioned honestly and fairly.
23. According to the Government, the contested regulation is capable of passing the proportionality test as constitutionally conformal. The obligation to register third parties has filled in one of the difficult legal loopholes in electoral law, preventing, in particular, the anonymous conduct of the campaign and the easy circumvention of its financial limits, thereby ensuring a level playing field for access to public functions. In particular, the purpose of this regulation is to provide the public with information on the participants in the electoral fight. The method and implementation of the registration shall not show the characteristics of the authorisation principle. Refusal of registration is only possible for entities that cannot be legally registered by a third party (e.g. foreign legal entities). Cases where registration is prevented by inactivity or delay in proceedings have not yet been identified. The supervisory authority shall deal with the requests in reverse. The subsequent obligations are then necessary to ensure greater transparency of the campaign. The reduction of those obligations, as requested by the appellant, would not lead to that objective. As a result, public awareness of the electoral struggle would be reduced. According to the Government, it will not be possible to compensate for this by "more careful supervision by the Supervisory Authority," because, by complying with the proposal, all limits binding the registered third parties would fall. The interpretative difficulties mentioned by the appellant can be solved by applying the principle in dubio for reo (i.e. persons implementing their freedom of expression). According to the Government, the method of registration is similar to that of the periodical printing according to the press law. Third party regulation is justified, according to the Government, in particular by the impact that those persons may have on the electoral campaign and the outcome of the elections. The Government concluded that, in its view, the contested regulation is not contrary to the constitutional order of the Czech Republic and proposes that the Constitutional Court reject the proposal.
24. The Ombudsman stated that he would not exercise his right to intervene.
25. The observations made by the parties and the Government were sent to the appellant in the light of a possible reply.
Replication of the applicant
26. In its reply of 29 October 2020, the appellant maintained its proposal and stated in particular that the Government had not explained what the compulsory registration of third parties for the conduct of the election campaign should protect political parties from. It stressed that Article 17 (5) of the Charter lays down the right of everyone to seek information, but the sanctioned obligation on registered third parties to provide data on themselves, which are subsequently published on the Internet, places them in a position similar to those of mandatory bodies pursuant to Article 17 (5) of the Charter. There can be serious doubts about the legitimacy of such an objective. The Government's argument that a third party who is "concerned about the supposed deterrent effect" can participate in an election campaign with the knowledge of the candidate (i.e. without registration) fails to see that third parties can also conduct a "negative" campaign without explicitly supporting a particular candidate whose campaign expenditure could be counted against. A negative aspect is undoubtedly part of the guarantee of freedom of expression, i.e. not being forced to speak (to support another candidate). The government also expressed concern that, without registration, the Supervisory Authority could not oversee an election campaign conducted by third parties. This cannot be entirely agreed with. Supervision of the course and, above all, financing electoral campaigns would be more complicated, but not impossible. The main reason for the adoption of the contested legislation was the fight against anonymous campaigns and the circumvention of the limits on the expenditure of candidates for election campaigns. In this respect, the appellant appears to be a fairly effective means of already imposing on promotional material data on the contracting authority and processor, which removes the element of anonymity from the election campaign. At the same time, the Supervisory Authority could, on suspicion of circumventing expenditure limits by candidates, conduct an investigation into the sources from which it obtained funds to pay for the campaign. Finally, the arguments put forward by the ECHR in Bowman reveal that not only the government, but also the ECHR itself are taking indiscriminate positions. In this situation, all that remains is to give priority to a higher national standard of protection of fundamental rights under Article 17 (1) of the Charter. From the point of view of the Convention, nothing prevents it.
Abandonment of oral proceedings
27. The Constitutional Court concluded that, in view of the content of the application and the written observations of the parties to the proceedings, further clarification of the case could no longer be expected from the oral hearing and therefore, on the basis of Paragraph 44 of the Law on the Constitutional Court, it decided on the case without its regulation.
Procedural assumptions of the annulment procedure
28. The Constitutional Court further assessed whether the legal procedural conditions for the hearing of the application under Article 87 (1) (a) and Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court were met.
29. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. The General Court shall be entitled to make a proposal if it proposes the repeal of the law or its individual provision, the application of which is to be immediate or necessary; not only hypothetical use or other broader context (Order of the Constitutional Court of 23.10.2000 sp. zn. It follows from the purpose and meaning of the so-called specific control of the constitutionality of legislation that the law (or its individual provisions) to be applied in the resolution of the case is only a law which impedes the achievement of the desired, i.e. a constitutional consensus result; If it had not been removed, the outcome of the ongoing proceedings would have been different, namely unconstitutional [see the finding of 6 March 2007 sp. zl. ÚS 3 / 06 (N 41 / 44 SbNU 517; 149 / 2007 Sb.), recital 26].
30. The Constitutional Court found that the Supreme Administrative Court was actively legitimate in bringing an application for annulment of the contested provisions, since those provisions are to be applied in the appeal proceedings against the judgment of the Regional Court before it. As it is lodged on the annexed file, in both the administrative action and the complaint, the complainant contends that the application of the contested provisions has affected its constitutional rights. It sets out the constitutional legal argument with which the appellant has partly identified, and concludes that it is not possible to have a constitutional interpretation in the case under consideration. In doing so, the Constitutional Court takes into account that, without the contested legislation, an action against a decision of the Supervisory Authority would not have taken place and that without it the proceedings would have become irrelevant. The appellant is therefore actively authorised to submit the application.
31. The contested provisions of the SAA have not yet been amended. The proposal therefore also fulfils the procedural conditions of the proceedings under Sections 66 and 67 of the Constitutional Court Act. It is known to the Constitutional Court that in February of this year, together with the draft Election Management Act (see Press No. 379, IX. Election Assembly), a draft law was also submitted to the Chamber of Deputies, amending electoral and other laws in connection with the adoption of the Election Management Act (see Press No. 380, IX. Election Assembly). However, the Act foresees that the contested provision of Paragraph 16 (2) of the ZVP will specify its personal competence (jointly enshrined in the criminal liability for natural, legal or commercial persons) and therefore Article 16h of the ZVP is repealed as a whole, with the fact that the contested provision of Paragraph 16h (1) (a) of the ZVP should be included in the newly formulated version of Section 16g (1) (a) of Act No 247 / 1995 Coll., as amended.
Constitutional conformity of the legislative process
32. The Constitutional Court has examined the progress of the legislative process and found that the data provided in the statements of the Chamber of Deputies and the Senate (sub-paragraphs 19 and 20) shows that Act No 322 / 2016 Coll., by which the contested provisions were inserted into Act No. 247 / 1995 Coll., as amended, was adopted and issued within the limits of the Constitution and in a constitutional manner, which is not disputed by the appellant.
Substantial assessment of the reasons for the proposal
33. The Constitutional Court considered the arguments put forward in the proposal, took into account that it was a matter of carrying out a specific check on the constitutionality of the contested provisions of the ZPP on a proposal from the court, which decided on a particular case of infringement of a particular legal person, in which it raised doubts as to the constitutionality of the regulation, and could not replace the appellant's future decision in an incident, and concluded that the proposal was not justified.
34. Article 5 of the Constitution provides that: "The political system is based on the free and voluntary creation and free competition of political parties respecting fundamental democratic principles and rejecting violence as a means of promoting their interests."
(1) Freedom of expression and the right to information are guaranteed. (2) Everyone has the right to express his views in words, letters, print, image or in any other way, as well as to freely seek, receive and disseminate ideas and information, regardless of national borders. (3) Censorship is inadmissible. (4) Freedom of expression and the right to seek and disseminate information can be restricted by law if measures in a democratic society are necessary to protect the rights and freedoms of others, the security of the state, public security, the protection of public health and morality. (5) State and local authorities are required to provide adequate information on their activities. Conditions and implementation shall be laid down by law. ';
36. Article 21 (1) of the Charter provides that: "Citizens shall have the right to participate in the administration of public affairs directly or by free choice of their representatives."
37. Article 22 of the Charter states that: "The legal regulation of all political rights and freedoms and its interpretation and application must allow and protect the free competition of political forces in a democratic society."
38. Briefly, the core of the proposal under consideration is that the appellant considers the obligation to register for the purpose of conducting an election campaign in Parliament as a registered third party as a contradiction with Article 17 (1), (2) and (4) of the Charter (i.e. not only unconstitutional but also as an unconstitutional complainant). In the present case, the complainant was penalised precisely for failure to fulfil that obligation. The appellant therefore concludes that the two proposed provisions are "contrary 'to the constitutional order.
39. The Constitutional Court, in carrying out a specific check on the constitutionality of laws, shall examine whether the legislator has respected the principle of proportionality and has reached an appropriate balance between competing interests in a matter which is for the Supreme Administrative Court to decide. In the present case, the general "freedom of expression ', which, in the appellant's view, should have been affected by the application of the contested provisions unconstitutionally (the appellant even uses turnover" contrary to the constitutional order'), is, in a simplified manner, affected by the general "freedom of expression ', which, in accordance with Paragraph 16 (2) of the PZP, is thus limited.
40. When considering the constitutional conformity of the alleged intervention, it should be assumed that, on the one hand, freedom of expression under Article 16 (2) of the ZAP "should be restricted" to all persons intending to take part in an election campaign without the knowledge of the candidate 'and, on the other hand, "the protection of the free competition of political forces' under Article 5 of the Constitution and Article 22 of the Charter in conjunction with Article 1 (1) of the Constitution (principle of democratic rule of law). The contested legislation is clearly aimed at protecting it. Like any competition, the electoral competition requires that it be determined at what time the competition is, who is the contestants, who is involved in the competition (and in what jersey) and who is ultimately taking the verdict. It is thus clear that the general rules, principles and standards of regulation and guarantees of freedom of expression as such must be adapted in these circumstances to the purpose of this competition, which is not possible in the absence of clearly defined rules and restrictions in a democratic rule of law pursuant to Article 1 (1) of the Constitution and Article 2 of the Charter. The contested provisions of the ZPP must therefore be seen as part of these rules, with the aim of contributing in particular to the fairness of this competition, which is also defined by the financial constraints of competitors. It is their competition that is at the heart of democratic elections, and without financial support, success is hardly imaginable. In this way, the alleged inconstitutionality of the contested provisions of the FTC must also be treated.
41. In order to compare the constitutionally guaranteed rights or values of the Constitutional Court in its finding case-law [for all cases, e.g. the findings of 1.3.2007 sp. zn. Pl. ÚS 8 / 06 (N 39 / 44 SbNU 479; 94 / 2007 Sb.) or of 18.7.2017 sp. zn. Pl. ÚS 2 / 17 (N 125 / 86 SbNU 131; 313 / 2017 Sb.)] uses a proportionality test which includes three criteria. The first is the assessment of the eligibility to meet the legitimate objective pursued (criterion of suitability) - it is established whether a specific measure can achieve the intended objective of protecting a non-limited basic right or a public good. Another criterion is the assessment of the necessity of the contested legislation, where it is examined whether the choice of appropriate means has made it the most respectful to the limited fundamental law (but this is about freedom, i.e. freedom of expression). The last to assess proportionality (in a narrower sense), i.e. whether the injury to the fundamental right is disproportionate in relation to the legitimate objective pursued. Measures restricting fundamental human rights and freedoms must not, by their negative consequences, exceed the positives that bring a conflicting interest in their adoption.
42. However, the proportionality test is used where it is not already found, in the initial prejudicative assessment, that the contested provision is directed directly against an explicitly established and constitutionally anchored rule (this is based on consideration of the values contained in the various provisions of the constitutional order). Therefore, if the contested provision provides, for example, for the possibility of capital punishment, torture, censorship, etc. (explicit constitutional rules which do not allow exceptions). The Constitutional Court did not find anti-constitutionality against the appellant in the contested provisions, so it assessed, using the proportionality test, whether there was any possibility of non-constitutional interpretation and application.
43. In the first step of the proportionality test, the Constitutional Court attested both the government's argument (sub 23 and 24) and, moreover, the appellant himself (sub 14) that the contested legislation constitutes an appropriate means of achieving the objective of transparency of the election campaign (integrity of elections), when the obligation to register third parties may, in particular, prevent the circumvention of financial restrictions on the election campaign, thereby safeguarding the conduct of a properly conducted electoral competition. According to the Constitutional Court, the contested legislation provides for the protection of the free competition of political forces by preventing (within the limits of the possibilities) one candidate, who, for example, has unlimited financial possibilities, through, inter alia, third parties, from controlling not only the media space, but also the space of advertising or generally the space "for life 'or" biosphere' (i.e., in layman's terms, "the voter should not be afraid to open up even the can ') with his promotional and agitation materials, or manifestations of his political competitors.
44. In other words, the contested legislation is intended to prevent the uncontrolled and uncontrollable circumvention of the limits of the campaign costs laid down in Act No. 247 / 1995 Coll., as amended. Moreover, it is also known from the appellant's decision-making practice that it is often easier to convince voters of the simple, non-exhaustive and short-term slogans (see, for example, the Resolution of the Supreme Administrative Court of 15 February 2018 No. Vol 16 / 2018- 33, No 3717 / 2018 Coll. NSS, recital 32), which, however, are marketing well targeted and massively disseminated, which, according to the Constitutional Court, always requires a significant financial background.
45. In view of the fact that the appellant itself argues that the contested legislation will not stand only in the second and third steps of the proportionality test, it is sufficient, in view of the above, to conclude briefly by the Constitutional Court that the contested legislation has the capacity to meet the legitimate objective pursued, and therefore, in the criterion of appropriateness (i.e. the first step of the proportionality test) it will be sufficient.
46. The second step of the proportionality test is to assess the necessity of examining whether the most respectful means for limited fundamental law have been used in the selection of appropriate means. The appellant considers that the above objective can be achieved by other means, freedom of expression by less restrictive means, such as the obligation to provide information on the contracting authority and processor on promotional materials. According to the appellant, such a device would be sufficient. Moreover, the appellant considers that the non-circumventing of the limits for electoral expenditure can be achieved by more careful scrutiny by the Supervisory Authority.
47. The Constitutional Court does not agree with its view as it considers that the proposed solutions cannot be achieved by the appellant (see below). In this regard, it is necessary to recognise - it is possible to refer to extensive professional literature on matters of fact assessment in the decisions of constitutional courts in other States, cf. ÚS 43 / 18 (28 / 2022 Sb.) - that, in the absence of a system which in the Czech Republic would specifically verify and ex post evaluate the economic and social effectiveness of the legislation adopted, the decision of the Constitutional Court judges may in some respects be guided by an internal conviction [cf. 26. 2. 2019 sp. zn. Pl. ÚS 37 / 16 (N 31 / 92 SbNU 324; 119 / 2019 Sb.]. What is important, however, is that the contested legislation creates the preconditions for each of the participants concerned to know who is on whose side and how much the aid is' worth '.
48. Most importantly, this legislation cannot be regarded as a contradiction with Article 17 (1), (2) and (4) of the Charter, as it is a content neutral standard of review, since a registered third party is not required to grant a "colour" or (as before 1989) Act No. 247 / 1995 Coll., as amended, does not explicitly provide that a participant in an election campaign can only agitate as a pre-appointed candidate. That is why this person is described as "third" in this way - it is not necessary to indicate in advance who he will act for, and no one can even control it. It cannot change the fact that registration (and penalty for failure to comply with the obligation to register) can only take place after the registration of candidates has been carried out, as the Constitutional Court already delivered in its resolution of 26.1.2021 sp. zn. In addition to the time limit (and the limitation of the obligation and supervision of its implementation), the "expenditure 'is crucial, namely the control of the amount of expenditure (" for consideration'), which is further defined in Section 16e (7) of the FDA. An interpretation according to which such a (then hardly "third") person would subscribe only to a specific person, and not to another person, even though no one would defend it in the correct accounting, or even that it would not be allowed to express its opinion (publicity, agitation) only for a pre-elected candidate, from the announcement of the elections until the end of the elections, cannot be found constitutionally consistent or reasonable. It is not clear to the Constitutional Court how such an argument of contradictions could stand in the correct interpretation of § 16e ZVP.
49. In this context, the Constitutional Court recalls that the powers of the Constitutional Court are specifically defined in Article 87 (1) and (2) of the Constitution, and under Article 87 (1) (a) of the Constitution, the Constitutional Court can only abolish the provisions of the law which are contrary to the constitutional order, but cannot replace them in any way. It therefore "only" plays the role of the so-called negative legislator in this respect. The law itself could only be amended by the legislator [cf., for example, the Resolution of 29 June 1998 sp. zn. II. ÚS 272 / 98 (U 42 / 11 SbNU 323)]. Therefore, the Constitutional Court cannot in any way interfere in the decision-making of the legislature in the present case, how specifically to regulate the social relations concerned, but can only assess whether the contested provisions are constitutionally compatible and, if not, abolish those provisions.
50. In addition, the Constitutional Court notes that, even if there were better, more appropriate or more effective means to achieve the desired objective, this does not necessarily mean that the legislature of the chosen solution is unconstitutional, in a situation where, according to the Constitutional Court, the solutions cited by the appellant do not lead to the same objective, no other Constitutional Court is known, all of which would be extremely unreasonable [see the findings of 21.4.2009 sp. zn. Pl. ÚS 29 / 08 (N 89 / 53 SbNU 125; 181 / 2009 Coll.) or of 27.11.2012 sp.
51. The Constitutional Court has already pointed out that the contested provision of § 16 (2) of the ZVP and the consequences of its infringement pursuant to § 16h (1) (a) of the ZVP must be interpreted in the context of the modification of elections, electoral law and electoral competition (campaigns) in constitutional order and in Act No. 247 / 1995 Coll., as amended, in particular in accordance with § 16e of the ZVP. This provision undoubtedly implies a prohibition of "bribery" (within the meaning of Paragraph 16 (1) of the ZAP) of participation in an election campaign, but this prohibition fulfils the requirement of Article 2 (3) of the Constitution, i.e. the requirement of public authority neutrality in elections in terms of support of one of the candidate parties (Paragraph 16e (2) of the ZAP), together with other prohibitions ensuring fair competition in relation to other entities in terms of their connection to political parties, public funding, etc. However, this is not disputed by the appellant. Thus, the purpose of the contested legislation is to oversee "what" I participate in (when it is financed under Paragraph 16e (7) of the ZAPP), not "who." The fact that it will be for some of the candidate entities or against one of them should make sense, and a constitutionally consistent interpretation of the latter, as it can certainly be better than the registration. In this context, the Constitutional Court also stresses the need for the use of (sound) reason in the interpretation of § 16e (9) (in particular in fine) and § 16e (10) ZVP, where the interpretation of the deductible amounts and the list of the envisaged forms of participation in the election campaign, where, in particular, the interpretation of § 16e (10) (d) ZVP is to be followed by the traditional maximum of noscitur and sociis.
52. If a group is excluded from participating in an election campaign, then the turnover of the "registration application 'is appropriate, because it is clear that the Supervisory Authority is not merely a registered place, but records by those who supervise (not only register) whether, in particular, the conditions of Paragraph 16e (2) of the ZAP are met, as required by the requirements of public authority neutrality in the electoral competition and the risk of circumventing the bail-outs for the participation of third registered persons in the election campaign. The fact that there is no need for consent (" without knowledge ") of the candidate (which could be a problem of the so-called horizontal exercise of fundamental rights) is clear.
53. If the appellant considers that this objective can be achieved by setting out the obligation to provide information on the promoters and processors on promotional materials, the Constitutional Court finds that this means would only be aimed at achieving that objective if all the stakeholders involved in the political struggle acted honestly and fairly (in fact no restrictive legal regulation was needed in this respect). But as is also known from recent history, this idea is far from reality. The case law of the Constitutional Court provides an example of an advert published before the second round of the 2013 presidential elections, which was awarded by a third party different from the candidates, according to which one of the candidates stated, inter alia, that President Edvard Beneš would have been brought before the Hague Tribunal for War Criminals under today's laws, leading to an apology from the media agency Mindshare (see resolution of 28.11.2013 sp. zn. Pl. ÚS 21 / 13). The point is that if the obligation on promotional material were only to include data on the contracting authority and processor in a very simple way (e.g. through so-called white horses, both foreign nationals or even Czech citizens "homeless" or with a permanent residence in the reporting offices, or through domestic legal persons, but with an untraceable ownership structure ending somewhere in "tax havens," i.e. entities that are virtually untraceable, it would be possible to circumvent this obligation with the result that such an unfairly acting entity (such as the candidate political party) could provide for a truly unlimited funding of an ongoing electoral campaign (both positive and negative) through these entities. The Constitutional Court recalls that in such ways a potentially dishonest political entity could devise much more than was just mentioned as an example. According to the Constitutional Court, compliance with the obligation to provide information on the contracting authority and processor on promotional materials would then only declare formal transparency. In fact, if the contracting authority of the electoral communication of the persons referred to above whose ownership or sources of funding are unclear, this will in no way contribute to the transparency of the electoral campaign, and not at all to a more sophisticated electoral campaign, as the appellant believes (see sub 13 above).
54. From this point of view, the appellant's view that not bypassing the rules on electoral expenses can be achieved by more careful scrutiny by the Supervisory Authority seems to be somewhat unrealistic, as it is already clear from the above-outlined possible procedure of a potentially dishonest political entity that such a check could not be successful, despite the fact that it would be fait accompli and the complex problem of assessing it on the basis of a different concept of judicial review of the validity of elections, the so-called finding of non-potentiality, but of fact - a violation of the law in a way that has grossly affected the outcome of the election, vote or election of the candidate chosen.
55. In order to interpret these provisions according to the principle of coherence of the regulation, it is not without meaning that (both the principle of materiality affecting the outcome and the regulation of the campaign management) was inserted into Act No. 247 / 1995 Coll., as amended, by Amendment Act No. 322 / 2016 Coll.
56. The competence of the Supervisory Authority is also linked to the very constitutionality of the need to register a third party with the Supervisory Authority. As part of the second step of the proportionality test, taking into account the appellant's arguments and the Government's observations and in the light of the foregoing, the Constitutional Court does not find any other appropriate means of achieving that objective than the registration principle of the Supervisory Authority, as enshrined in the contested provisions. In addition, the refusal of registration is only possible for entities which cannot be legally registered by a third party (e.g. trust funds, foreign legal entities) and, as the Government has stated, the appellant does not relinquish it in this part, where the registration is prevented by its inactivity or delay in the proceedings before it has not yet been identified or identified. According to the Government, the Supervisory Authority handles the requests in reverse. However, even if this were not the case, such a body (requesting registration) has sufficient procedural tools to exercise its rights (in a procedure against failure to act by an administrative authority, including a guaranteed judicial review).
57. The Constitutional Court must, with respect to the division of power and when assessing the step of necessity in the proportionality test, be restrained to the solutions it has chosen in other possible solutions, as required by Article 20 of the Constitution, by the legislature called for to do so. In the absence of further arguments by the appellant, beyond the one already dealt with above, it cannot consider other alternatives by the legislator of the chosen solution and assess whether they would actually achieve the legitimate objectives pursued at a similar level [see also the finding of 25.9.2018 sp. zn. ÚS 18 / 17 (N 156 / 90 SbNU 525; 261 / 2018 Sb.)]. The Constitutional Court therefore summarises, by reference to all the above, that the legislation which the appellant contests meets the criterion of necessity in the second step of the proportionality test, since the other predetermined solution would not have been so effective with the same degree of limitation of rights and freedoms.
58. As part of the last, third step of the proportionality test, the Constitutional Court examines the proportionality of intervention (proportionality in the narrowest sense), i.e. whether the damage to the fundamental right of one carrier is disproportionate to the interference in the fundamental right or freedom of another (the involvement in the rights and freedoms of others, here other participants in the electoral competition) or in relation to the legitimate objective pursued (free and democratic elections). In other words, it must be examined whether, in the case under examination, the alleged unconstitutional restriction on freedom of expression under Article 17 of the Charter does not, by its negative consequence, exceed the positives of the contested legislation, which aims, inter alia, to protect the free competition of political forces within the meaning of Article 22 of the Charter. Taking into account the specificities of the content of the contested provisions (see paragraph 48 - Content neutrality) and their wording (see paragraphs 30 et seq., recitals 30 et seq., and recitals 39 et seq. of the judgment of 18 July 2017, Pl. ÚS 2 / 17 (N 125 / 86 SbNU 131; 313 / 2017 Sb.) on the quality test of the law according to the ECHR case-law, in particular paragraphs 30 to 39 of the preamble, the requirements of availability, predictability and guarantees before arbitrary or arbitrary application of the executive, which could lead to a formal interpretation of the concept of "participation 'in Section 16 (2 of the VPP). In this way it is also necessary to interpret the contested and the related provisions of Act No. 247 / 1995 Coll., as amended. Their purpose is to regulate the electoral competition with funds, thereby circumventing the limits on campaign spending, not to prevent the expression of views on candidates in a different way (without paying the election campaign funds pursuant to Paragraph 16e (10) of the ZAPP) and unnecessary harassment or even questioning the rationality of the executive proceedings. However, the incident on the basis of which the appellant referred to the Constitutional Court is not such a case, but the need not only for a constitutionally consistent but also for a reasonable interpretation of the provisions of the ZPP in question should be recalled, because in another factual constellation such an arrangement would not have to stand.
59. The Constitutional Court in the past, i.e. before the contested provisions were put into effect, found that it considered that the regulation of the electoral campaign was insufficient when, in the decision of 26.1.2005 sp. pl. Pl. ÚS 73 / 04 (N 17 / 36 CollNU 185; 140 / 2005 Coll.) found, inter alia, that it "expects the legislature to consider, on the basis of the knowledge obtained, issues of both substantive and procedural regulation of the review of the validity of elections and their verification so as not to create unnecessary problems and to be intrinsically consonant '. In addition, he considered that" a system of means of protection of elections and electoral rights should be considered, as well as other subjective rights during the election campaign (such as the abbreviated procedure for print corrections and apologies), so that the perpetrators may be penalised for violating such rules. The threat of abolishing the election result as the only possible consequence in this case is contrary to the constitutional principle of the proportionality of public intervention. This certainly does not preclude a candidate who has committed a serious electoral offence (e.g. fraud, bribery) from being disqualified. In this context, the Constitutional Court is forced to state that, compared with other countries, the rules governing the shortcomings of the electoral process, electoral offences and even the rules governing the electoral campaign are, on the one hand, very small, and, on the other hand, their roots are essentially rooted in the conditions of the regime corresponding to the' elections' of the previous regime. The electoral legislature will therefore have to consider whether the electoral culture of voters, candidates and public officials is at such a level that adjusting these issues is unnecessary, or whether it will guide electoral behaviour through pre-established rules which will create a state of legal certainty for the subjects of the electoral process and which will at least be a precondition for the electoral economy. "
60. The legislature therefore responded, inter alia, in part (see the order of 25.1.2022 sp. zn. The new regulation also regulates electoral behaviour as well as third parties by sanctioning their violations against the rules of the electoral campaign, thereby ensuring that the electoral struggle is as equal and transparent as possible, which is not possible without regulation. The Constitutional Court also maintains in its assessment of the current case that the electoral campaign must have some pre-established rules which guarantee compliance with the fair electoral competition of the candidate entities in accordance with Article 5 of the Constitution and Article 22 of the Charter in conjunction with Articles 17 and 21 (1) of the Charter.
61. This is precisely the starting point for the Constitutional Court's ruling on the current case. The election campaign does not serve as a priority for someone to express their opinion in general. He can do that anytime. At the time of the election campaign, however, this is the need for a legal (and enforceable) regulation of the conduct of the electoral competition, which is primarily attended by the candidate players as the main players. The nature and purpose of the electoral contest will be preserved even if no one is found to be willing to participate in the registered "third" position, i.e. that there will be no other natural, legal or business natural persons who will "without knowledge" (sc. without consent) within the specified limit funds for the benefit or disadvantage of the election of a candidate, without their opinion being subject to control or restriction. If the appellant contends that such registration is not needed in municipal elections, the Constitutional Court merely recalls that in municipal elections there is a completely different financing arrangement for participation in the municipal election campaign. When there is a financial limit, there will be the possibility of circumvention and thus the need to regulate the possibilities of such circumvention. Therefore, this claim was not found to be justified either.
62. The Constitutional Court also recalls that, in the decision of 10.7.1997 in sp. zn. III. ÚS 359 / 96 (N 95 / 8 SbNU 367), "the constitutional right to express its views (Article 17 (2) of the Charter), regardless of the possible restriction of the law (Article 17 (4) of the Charter), is already limited in substance to the rights of others, whether those rights derive from the constitutional order of the Republic, or from other obstacles of the law, protecting the social interests or values'. In assessing the contested legislation in view of its intervention in freedom of expression under Article 17 of the Charter, the Constitutional Court considers that it is decisive that the regulation in question is not subject to any form of election campaign conducted by third parties, but only to such promotion as may be granted or normally paid, with expenditure (not views) to be recorded (§ 16 (1), first sentence in fine, in conjunction with § 16e (7) to (11) of the ZAPP). Therefore, it is not an intervention in any form of freedom of expression under Article 17 (1) of the Charter, but only in a speech for which the person concerned has spent the funds, that is to say, simply paid someone (cf. Paragraph 16e (9) of the Act). From the point of view of constitutionally consistent interpretation, this provision [i.e." any promotion (...) for which payment is granted or usually granted '] must be interpreted as meaning that it is the legal regulation of so-called electoral advertising, i.e. in particular paid advertisements, billboards, television, radio or newspaper advertisements, pay advertisements on the Internet, direct marketing through paid staff (e.g. telemarketing), etc. For the sake of completeness, the Constitutional Court adds that, given the significant differences, it did not deal with comparing freedom of expression in the form of election campaign funding (see for example the United States of America).
63. The nature of the matter is not to present its own views, for example, at public gatherings, in unpaid media spaces (e.g. through blog or discussion forums) or through personal profiles on social networks on the Internet or in the form of multiple mass emails (not about paid advertising or activity). The Constitutional Court admits that, in practice, the election campaigns of the so-called grey zone (e.g., self-production and self-printing of decontaminating leaflets to a political competitor in the small town and their distribution to the electorate, which cannot always be interpreted as paid election advertising, see sub 53 for other effective forms, but in such cases there is still the possibility to cancel the result of elections as such in the event of extreme excesses in the conduct of the election campaign [What expert problem of evaluation of defects in the conduct of the electoral campaign is the assessment of its constitutionality and legality, see the finding of 2. 4. 2019 sp.
64. It can be seen from the above that the alleged interference in freedom of expression under Article 17 of the Charter, consisting of registration with the Supervisory Authority (with a threat of a subsequent penalty), concerns only those entities which are involved in the election campaign by being willing to spend funds in the legally defined time. However, such entities can no longer be seen as being the "absolute" freedom of expression of Article 17 (1) and (2) of the Charter outside this defined time in § 16 (3) of Act No. 247 / 1995 Coll., as amended, but precisely because they are already active participants in the electoral campaign spending funds on it. Thereafter, their regulation under the Constitutional Court (including in the light of the conclusions expressed in the sp. zn. Such regulation does not exclude either in its decision-making practice or in the ESLP, which the appellant himself recognises (sub 13 and 25), despite the fact that it is problematic to imagine that the main players (candidate) will be regulated, while others will act without rules in the election campaign by catch as catch can style.
65. The Constitutional Court also stresses that the requirements for the involvement of third parties are only formal (registration with the Office of Supervision) and are set, according to the Constitutional Court, a reasonable financial limit for participation in the election campaign [according to Paragraph 16e (8) of the PZP, for elections to the Chamber of Deputies an amount of CZK 1 800 000 including value added tax (hereinafter referred to as "VAT"), for elections to the Senate of CZK 40 000 including VAT for each constituency, if only the first round of elections is held, or the amount of CZK 50 000 including VAT for each constituency circuit, if the first and second round of elections are held], when the financial limit cannot be found under the Constitutional Court. For elections to the Chamber of Deputies, this is at most 50% of what the candidate political party or movement can spend.
66. From this point of view, it should be stressed that, if there is an interference with any freedom, it is not the freedom of expression linked to the financial costs, but the freedom of information self-determination within the meaning of Article 10 (3) of the Charter, where it is necessary for registered third parties to require, for the purpose of checking compliance with Act No. 247 / 1995 Coll., as amended, the provision of the necessary data (see, in particular, section 16e (1) to (7)). The Constitutional Court does not suspect anyone here that the exclusion of the participation of the public sector and other entities referred to in Paragraph 16e (2) of the ZVP would be regarded as a restriction on freedom of expression, as this was typical of the period until November 1989, or, in the case of other entities, it could be circumventing the rules laid down for the conduct of the electoral campaign in general. The problems can therefore be expected precisely where attempts are made to circumvent these rules either by avoiding registration or by spending money on valuable transactions, thereby distorting paragraphs 16 to 16i of Act No. 247 / 1995 Coll., as amended, as amended by the Rules of Electoral Competition.
67. In assessing the veracity of the proposal (and the need for the contested regulation under the proportionality test), the Constitutional Court cannot disregard the consequences of the annulment (without compensation) of the contested provisions for the observance of fair competition within the meaning of Article 5 of the Constitution and Article 22 of the Charter. By abolishing the contested provisions, the limits on the conduct of an election campaign would become unlimited and circumstantial as in the past, and the amendment of the legislation on the spending on the election campaign would become irrelevant, as would a significant part of the supervisory authority's remit. Taking into account what the Constitutional Court has already stated on the first and second steps of the proportionality test, nothing would prevent a candidate who would like to exceed the limits for funding his campaign, so that a de jure "independent" third party campaign, claiming to do so without the knowledge of the applicant, even if they were de facto linked to him. These third parties would then not have to meet the financial limits, but would also not have to meet any additional requirements for the integrity and transparency of the electoral campaign (for example, the requirement to set up a special election account and the information related thereto), and at the same time their campaign expenditure would not even be included in the candidate's ceiling. The annulment of the contested provisions would, according to the Constitutional Court, seriously threaten to distort the free competition of political forces, with an extension of Article 5 of the Constitution.
68. Here it can also be recalled that a dissent on the basis of a resolution on the basis of which the appellant made the current proposal, which stresses that: "The winner of the elections should not be the one who can afford to conduct the most costly campaign, even if the origin of the funds is completely transparent." While it is true that the richest is not guaranteed an election victory, even if they spend as much money as they can, their possibilities are increasing significantly, in addition to the use of new technologies, by acting on voters' views, which may no longer be transparent at all, which, in the view of the Constitutional Court, increases the need for their regulation.
69. These are in particular different forms of artificial intelligence such as social bots, i.e. social shoes (creating, reforming, sending information, tweets about candidates and their opponents using computer programs), astroturfing (hiding real supporters, sponsors, artificial creation or multiplication of support), or blockchain-technology, which consists of influencing search engines and offering preference to certain (here not products) candidates, their themes and programs and suppressing competition, for example, by creating a number of spam, so that the election messages of candidates disappear as we know them from other countries. In them, these technological possibilities of "third" (plus, of course, unregistered) persons are considered to be a growing problem (see Brkan, M. Artistic Intelligence and Democracy: The Impact of Disinformation, Social Boats and Political Targeting. Delphi No 2, 2019, p. 66-71; Svantesson, D.J., van Caenegem, W. Is it time for an offer of "disconnect algorithic manipulation for electronic gain"? Article 2 Mitsch, L. Soziale Netzwerke und der Paradgmenwechsel des öffentlichen Meinungsbildungsprozesses. Deutches Verwaltungsblatt, No 19, year 2019; and in particular Mast, T. Schöne neue Wahl - Zu den Versprechen der Blockchain-technology für democratische Wahlen. Juristen-Zeitung, No 5, No 2021, p. 237-246; Fox, A. Automated Political Speech: Regulating Social Media Boots in the Political Sphere. First Amendment Law Review, No 3, p. 114-166). It is precisely the regulation of the action of "third," non-candidate, but in the background or at the forefront of standing entities that is necessary in order to maintain fair electoral competition [see the pessimistic conclusions made in the work of the Computational Propaganda. Political Parties, Politicians, and Political Handling on Social Media. Wooley, S. C., Howard, Ph.N. (Edts). Commission Implementing Regulation (EU) 2015 / 2447 of 7 December 2015 amending Implementing Regulation (EU) No 540 / 2011 laying down detailed rules for the application of Regulation (EU) No 540 / 2011 of the European Parliament and of the Council as regards the list of approved active substances (OJ L 343, 14.12.2015, p. 1). This will be even more significant in the future, because it will no longer be the actual participants in the electoral competition and the influencers (influencers) in electoral relations, but only those who will create artificial profiles of supporters, give "lines" or "clouds" to candidates, have discussions with opponents using robots (bots), give instructions on how to vote, edit the ballot, vote for who is supported and stand in surveys, etc.
70. In the Czech Republic, the regulation or prohibition of such practices or the obligation to transparency of so-called social shoes, which is defined by the new California law in Article 17940 (a) as an automated online account, where all or essentially all of the actions or contributions of this account are not the result of any person's actions (an automated online account where all or substantially all of the activities or posts of that account are not the result of the result of a person's activities). According to Article 17941 (a) of this Act, the user is to know (from 1 July 2019) whether such a programme does not serve to incite the purchase of goods or influence voting ("incentivizing and purchase" or "influencing and vote" - a message is required - "I am a bot," which is known in the Czech Republic rather from the opposite side when downloading information requesting confirmation "I am not a robot"). All of these phenomena have a general scope, so it is beginning to talk about the so-called post-truth world, but given the key importance of elections and campaign campaigns, it is important to know that increasing interference with the election campaign by a third party (it may not only be outdoor pilgrims, as in the Czech Republic, but false messages from these forms) is an important incentive not only to monitor these practices, but also legislative efforts to regulate them. Therefore, the Constitutional Court considers it necessary to draw attention to these new circumstances, because, compared to the content of the neutral regulation of the participation of "third 'persons in the electoral campaign under the contested provisions, this is a far more serious problem for the conduct of fair electoral competition in accordance with the constitutional order than it is in the present case of the appellant, where it is a fine for promoting a brochure aimed at one important candidate in the elections.
71. Intervention into freedom of expression pursuant to Rule 17 The Charter, according to the applicant, represents the need for prior registration of a third party with the Supervisory Authority. Although the Constitutional Court is aware of a particular issue of the contested legislation in the light of the fact that the registration principle is linked to the restriction of freedom of expression, inter alia, because of the legislation contained in the last sentence of Paragraph 16e (4) of the ZVP, according to which "a registered third party may start to participate in an election campaign not earlier than the day following the date of registration ', this legislation will nevertheless stand as a rule for participation in an election competition, because that is how it is to be seen. Another conclusion would be called into question, for example, by the registration of candidates themselves, because, first of all, it is not an intervention in freedom of expression (when registering and checking the applicant's opinion is not examined, if it is not stated for some reason by the registered third party itself, which is exceptional in practice), but it is mainly a constitutionally consistent acquisition of personal data that does not contradict Article 10 (3) of the Charter and serves the legitimate objective of ensuring fair competition, although it can be hoped that the legislator, after evaluating the knowledge and experience of this regulation, will adopt a clearer and unambiguous regulation.
72. First, the legislation under review without the need for registration and the possibility of follow-up by the Supervisory Authority would be completely ineffective, since the Supervisory Authority would not know who it has and can control in accordance with the principle of legality (Article 2 (2) of the Charter), which the third parties who would need to circumvent the rule would be able to abuse and, secondly, would lead to the above-mentioned and undesirable anonymous conduct of the campaign and to easily circumvent its thresholds, which would be without meaning, which could increase the actual possibilities of influencing political competition.
73. Moreover, as mentioned above, the refusal of registration is only possible for entities which cannot be legally registered by a third party (e.g. public authorities, political institutions, foreign legal entities, etc. - see Section 16e (2) of the ZVP), thereby excluding the approval of the Supervisory Authority, notwithstanding the possibility of judicial review of its activities. It is also without prejudice to the Government's argument that registration under the contested provisions is similar to the method of registration of periodical press pursuant to § 7 of Act No. 46 / 2000 Coll., on the rights and obligations in the issue of periodical press and on the amendment of certain other laws (press law), as amended by Act No. 227 / 2009 Coll., when this practice of certain restriction of freedom of expression is also socially accepted. It must also be reiterated that if the Supervisory Authority were to be inactive in the case of a registration, such a body (requesting registration) has sufficient procedural tools to exercise its rights (in a procedure against the failure of an administrative authority, including a guaranteed judicial review).
74. In addition to the above, the Constitutional Court adds that the contested provisions will also stand in the context of administrative punishment. It cannot be ignored that the burden of proof to prove that the conduct fulfilling the nature of the administrative offence has been committed by the accused of an administrative offence is naturally borne by the administrative authority (see, for example, judgment of the Supreme Administrative Court of 24.5.2006 No 2 As 46 / 2005-55). The principle of investigation, in a pure form, which commands the administrative authority to do whatever is necessary to establish the facts properly, regardless of the degree of procedural activity or, on the contrary, the indifference of the party to the proceedings (see, for example, judgment of the Supreme Administrative Court of 27.11.2012 No 1 As 136 / 2012-23). In this distribution of the evidence obligations, it is legitimate that the Supervisory Authority, which must bear the full burden of proof in the administrative proceedings, should have at its disposal an adequate and at the same time effective tool to meet this public objective at all, which is precisely the prior registration of a third party in a special register of the Supervisory Authority. Thus, the contested regulation does not constitute a disproportionate remedy even in terms of administrative criminal law.
75. The judicial review, as is evident from the present case, is then guaranteed to registered third parties even if they commit the administrative offence in question pursuant to § 16h (1) (a) of the ZPP, for which they are liable to a fine of between CZK 10,000 and CZK 100,000 [see also § 16h (5) (a) of the ZAP, in addition to the reports of the Supervisory Authority (at https: / / www.udhpsh.cz / news), more recent overviews such as Sylvester, T. Short for administrative punishment by the Supervisory Authority of political parties and political movements. Administrative law, No 4, year 2020, p. 237-246, and, more generally, Jelínková, J. Assessment of the proportionality of the amount of the offence fine. Administrative Law No 3-4, 2022, p. 149- 159).
76. Moreover, the legal order guarantees the possibility of moderating the fine by the court or even abandoning its imposition. If the court decides on an action against a decision by which an administrative authority has imposed a penalty for an administrative offence, it may, in a situation where the sentence has been imposed in a manifestly disproportionate amount, waive it or reduce it within the limits of the law permitted, if such a decision may be made on the basis of the facts from which the administrative authority came and which the court supplemented, where appropriate, by its own evidence, in non-essential ways, and propose such action by the claimant in the action (§ 78 (2) of Act No 150 / 2002 Coll., the administrative court order). In other words, even if, in a particular case, a registered third party were to infringe the obligations laid down by the contested provisions and this would be a reason for which the court would have to dispense with the sanction imposed, the law admits that possibility.
77. The Constitutional Court therefore did not, on the basis of all the above, support the appellant's argument. Taking into account the constitutional requirement that the political system of the Czech Republic, in conjunction with Article 22 of the Charter, be based on the free competition of political parties, that is to say that the constitutional order of the democratic rule of law "implies the mediation of the opinion of voters not only by the free choice of their representatives (Article 21 (1) of the Charter in Fine), but also by means of a choice between the programmes and candidates of political parties' (see page Pl. ÚS 44 / 17). This part of the political competition is also covered by the need to restrict freedom of expression under Article 17 (4) of the Charter (general cases of restrictions on freedom of expression) because it is a competition under established rules of fair conflict. The contested provisions in the context of the entire electoral campaign legislation pursue, inter alia, the legitimate objective of protecting the free competition of political forces under Article 5 of the Constitution in conjunction with Article 22 Lists governed by pre-established and transparent rules, which also require knowledge of who they" kick "(special constitutional coutres of restrictions on freedom of expression). Without the registration of a third party with the Supervisory Authority and without the fulfilment of other conditions of transparency for such registration, effective control of the funding of the election campaign by third parties that may be established, even secretly, on the basis of candidate entities cannot be ensured. Therefore, this political competition cannot be determined solely by the financial possibilities of the candidate electoral bodies, which may influence public opinion by" occupying "a larger part of the media and other (e.g. the" poster ") area (except for the guarantee of equality of action under § 16 (4) to (8) of Act No. 247 / 1995 Coll., as amended).
78. It can also be overlooked that freedom of expression must be interpreted in the context of the particularities of the electoral campaign. This is held before the elections, which are held at regular intervals (Article 21 (2) of the Charter), and are predetermined by Article 17 (1) and (2) of the Constitution, whereas the opening of an election campaign under (not entirely satisfactory) the current legislation is based on the announcement of elections and the announcement of their outcome (Article 16 (3) of Act No. 247 / 1995 Coll., as amended). From the point of view of the rules of the campaign's conduct, the old maximum may still apply, that the election campaign begins the day after the election, although it turns out that a new form of campaign is starting to question the election result and the victory of the opponents. No one's stopping anyone from doing that. Likewise, no one has been forced to lead electoral agitation since the election was announced by the President of the Republic, but at its discretion, the electoral strategy and tactics and financial possibilities. It is not to be reminded that more candidate parties have been convinced of the "importance of being at the head" of opinion polls several months before the elections, no matter how much money and effort they have spent by then.
79. The differences in their content, legal nature and purpose should be respected between freedom of expression and electoral agitation (see for example Issacaroff, S., Kaplan, P. S., Pildes, R. H. The Law of Democracy. Legal Structure of Political Process. The election campaign is not only about freedom of expression of opinion in a positive or negative sense (that is, freedom to express or to remain silent), but about getting attention, the interpretation of a programme which is promised for the next term, the acquisition (in particular) of voters to come to the elections and vote for a programme embodied in the electoral party and, in particular, for its candidates. Unlike freedom of expression, there is a "predetermined" purpose, content, time and place of electoral communication. The Constitutional Court therefore underlines that the relationship between an individual and public authority is regulated by the system of fundamental rights and freedoms, but not just by isolated rights and freedoms, which is finally evidenced by a number of constitutional coupons guaranteeing the interaction of fundamental rights and freedoms in the Charter. In the light of the classification of their interactions (conflict, conflict, competition and cooperation), the right to participate in public administration and access to elected functions (Articles 21 (1) and (4) and 22 of the Charter, Article 5 of the Constitution) and freedom of expression (Article 17 of the Charter) is a relationship of cooperation, where freedom of expression is applied in terms of electoral competition, which must have rules precisely in terms of purpose, content, time and place. There is a difference between the possibility of "going to the field" and the possibility of joining a match in which I have to respect the rules of participation, behaviour, time duration of the game, color of jersey, number of players, etc.
80. The Constitutional Court is not aware of any other way of interfering with the rights of third parties wishing to take part in the electoral competition with less intensity in their freedom of speech at the time of the election campaign. This is an indirect restriction of freedom of expression, but against which the State's substantial interest in protecting fair-conduct free competition for political forces is standing. The contested legislation will therefore also stand in the third step of the proportionality test. It is essential from the point of view of constitutional conformity that this is a regulation of freedom of expression usually characterised as a content neutral (content neutral test, content neutral scrutiny or content neutral restrictions - such as the content neutral demand for night rest, noise, place of expression). In such a case, regulation is not primarily aimed at what and how the so-called registered third party can express, what the content of its communication, opinion or opinion may be, nor does it distinguish in terms of content or opinion between registered third parties. It requires only a limitation on the costs associated with "expression 'in the election campaign, without this being linked to the prior consent of the direct participants in the electoral competition (" without the knowledge of the candidates'), not that they do not know about this, because it is sufficient to look at the Supervisory Authority's website), so that it only requires an assessment of what has been communicated to the Supervisory Authority and what can or should be included in the costs.
81. These third parties are not limited in terms of determining what they may or should say, what they may not say, under which conditions they may say so, etc., but are likewise not limited in who they provide money or other form of similar support. The Constitutional Court thus notes that this regulation is not a manifestation of the legislator's evil intention to intervene in a properly conducted electoral contest (see the finding of 2.2.2021 sp. zn. Pl. ÚS 44 / 17, recital 62). It is therefore only about the limits of financial support (in favour of whom) and the permissible interference in the freedom of information self-determination (Article 7 (1), Article 10 (3) of the Charter). At the same time, the Constitutional Court admits that the appellant's argument is not manifestly unfounded and reflects the problems that can arise in the case-law practice of decision-making on the basis of the neutral content of regulation (see, for example, in Seculow, J. A., Zimmerman, E. M. Uncertainty Is the Only Certain: A Five-Category Test to Clarify the Unsure Boundaries between Content-Based and Content-Neutral Restrictions on Speech. Emory Law Journal, No 2, 2015, p. 454 et seq.)
82. On the other hand, the Constitutional Court points out the legal view that the content of the communication in the electoral campaign was already cited (sub-47) in the finding of the sp. zn. Pl. ÚS 73 / 04, whose reasons apply to anyone participating in the election campaign, as well as to the public authorities (in particular the courts) which object to the conduct of the electoral campaign in breach of Act No. 247 / 1995 Coll., as amended, assess (see, for example, the listing in the resolution of the Supreme Administrative Court of the sp. Finally, it is important to stress that this form of financial participation can also be content neutral when large sponsors have given equal amounts to the different political parties that have opposed each other. Therefore, in the level of control of the constitutionality of the contested provisions, it cannot be argued that such interference (to the extent of infringement) is taking place in freedom of expression. Similarly, it is important for the Constitutional Court's negative opinion that the contested legislation, in the context of the overall regulation of the limits of the electoral campaign, sets only a maximum amount of the aid financially expressed, and is not a manifest discrimination against such supporters; In addition, it is a regulation of an area in which funds cannot be succeeded on a national scale, but at the same time it does not result in a return to practice where public functions (as opposed to public debts) within the meaning of Article 21 (4) of the Charter can be purchased, as was possible up to the 18th century (compared to the possibility of purchasing authorities associated with tax collection from ancient times - Schuller, W. Ämterkauf im römischen Reich. Der Staat, No 1, 1980, irrespective of the professional competence of the applicant).
83. The Constitutional Court thus concludes that the contested provisions can be interpreted in a constitutional manner (see sub-sub-50) that their application by the Supervisory Authority and administrative courts is possible to the extent that it does not unduly interfere with the constitutional rights and freedoms of third parties. In conclusion, the Constitutional Court merely recalls the very constitutional requirement of a constitutionally consistent interpretation of legislation, particularly in the field of legal regulation of political and electoral competition (Article 9 (3) of the Constitution and Article 22 of the Charter). This obligation also arises for the courts and administrative authorities, on the one hand, from Article 1 (1) in conjunction with Article 90 of the Constitution and, on the other hand, in conjunction with Article 95 (2) of the Constitution [cf. the finding of 26.3.1996 sp. zn.
84. What has just been mentioned (sub 67) does not mean that the practice of applying the contested provisions in specific cases may not raise doubts. However, the Constitutional Court in its case-law [see the findings of 30 June 2015 sp. zn. Pl. ÚS 21 / 14 (N 122 / 77 CollU 759; 199 / 2015 Coll.), of 12 December 2017 sp. zn. Pl. ÚS 26 / 16 (N 227 / 87 CollU 597; 8 / 2018 Coll.) and of 11.2.2020 sp. zn. Pl. ÚS 4 / 17 (N 21 / 98 SbNU 163; 148 / 2020 Sb.)] for such situations does not exclude the possibility of reviewing their constitutionality on the basis of new or other arguments brought in proceedings pursuant to Article 95 (2) of the Constitution in connection with § 64 (3) of the Constitutional Court of the Constitutional Court. The Constitutional Court therefore recalls that the review of the constitutionality of the ZPP has been carried out in a situation where the contested legislation has only just become part of the rule of law and responds to new experiences with the leadership of an electoral campaign using knowledge of political marketing and the functioning of the Supervisory Authority. In the present case, the Constitutional Court decides on the basis of a proposal affecting only certain aspects of the legislation relating to the proposal. In a particular check of the constitutionality of the contested provisions of the ZPP, it is difficult and ascending beyond the limits of impartiality to contemplate or even to devise how in future Act No. 247 / 1995 Coll., as amended, (or other electoral laws regulating the conduct of an election campaign registered by a third party) will be used, or what practical shortcomings can yet be revealed and which cannot be bridged by a constitutionally consistent interpretation. This applies, in particular, to the current issue of political struggle, where, as on every battlefield (which is ultimately one of the original meanings of the word campaign), the situation can change if not every moment, so with the experience of every subsequent election to Parliament's chambers.
Conclusion
85. For all these reasons, the Constitutional Court found no grounds for annulment of the contested provisions of paragraphs 16 (2) and 16 (1) (a) of the ZAPP, since the appellant's argument did not demonstrate any inconsistency, let alone the alleged contradiction of the contested provisions with the constitutional order.
86. The Constitutional Court therefore rejected the application for annulment of the provisions under Paragraph 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Judge of Vojtěch Šiměl took a different position on the decision.
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Regulation Information
| Citation | The Constitutional Court found no 124 / 2023 Coll., on the application for annulment of Sections 16 (2) and 16h (1) (a) of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended by Act No. 322 / 2016 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.05.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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