The Constitutional Court found no 140 / 2005 Coll.
The Constitutional Court of 26 January 2005 found an appeal under Article 87 (1) (e) of the Constitution of the Czech Republic
Valid
The Constitutional Tribunal found
Text versions:
15.04.2005
140
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 26 January 2005 in plenary composed of JUDr. PhDr. PhDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner and JUDr. Michaela Židlická about the remedy under Article 87 (1) of the Constitution of the Czech Republic, submitted by the Obchanskany Democratic Party
as follows:
Jan Čávorník was elected Senator in the elections to the Senate of Parliament held on 5 and 6 November 2004 and on 12 and 13 November 2004 in constituency No 19, Prague 11.
Reasons
Proceedings before the Supreme Administrative Court
By order of 3 December 2004 No. Vol 10 / 2004-24, the Supreme Administrative Court decided on the proposal of Ing. A. Z. that the elections to the Senate of the Parliament of the Czech Republic held in the constituency No 19, Prague 11, on 5 and 6 November 2004 and on 12 and 13 November 2004 are invalid. It also decided to pay the costs in such a way that none of the parties had the right to them.
In the proceedings before the Supreme Administrative Court, the appellant Ing. A. Z. argued that electoral campaign No 19 did not take place honestly and honestly because false information was repeatedly published in the local press. Thus in the UHRNEV Rapporteur No 10 / 2004, published by the City (hereinafter referred to as the "EMU") Prague 22-Uhraneves in a load of 3000 copies, which was distributed to approximately 3000 households of this MČ, its mayor M.C. stated, among other things, that the property "knowingly lying is not foreign to the plaintiffs." In addition, he referred to the 8th page of the same press release, where without any other comment he published a full page text of an anonymous letter dated 2001 addressed to the then President of the KDU- ČSL, Dr Cyril Svobov. It was intended to contain a number of false information against the appellants. In particular, he was accused of committing fraud with subsequent illegal enrichment by performing a refined multiple shift in the state's apartment, and that he may have also committed a million-dollar fraud by transferring to the OPTIM-EKO, and thus de facto to himself, land in the cadastral territory of Praha- Šeberov, that he was involved in the removal of the "Silica sewage system" built up under strange circumstances, and that he was involved in the "firing of millions." The anonymity in question was wrongly stated that he was running for "Senate Member" in 1998 and that he was cheating on voters by misleading information on the candidate. The conclusion of the anonymity is that the writers are primarily concerned with failing to obtain parliamentary immunity and thus escape the investigation. The members of the council of Prague-Petrovice are listed as authors of this letter. However, the author of the article did not make any attempt to establish the anonymity of this anonymity, although the then mayor of the MČ Praha- Petrovice, Mgr. M. L., confirmed in a letter dated 14 October 2001 that the letter in question had not been written by the members of the council.
Another false article, according to the applicant, was to be published in the Petrovický newsletters, published by the Prague-Petrovice MSC, which came out on 3 November 2004 in a special edition in a total of 50 000 copies, although the current cost is 2,700 copies. On page 8 - 10, an interview of a member of the editorial staff and at the same time a member of the Council of Prague-Petrovice Ing. P. Ř. with JUDr. M. č. In his view, this interview was intended to give the impression that it should threaten citizens in its Senate election campaign by building communications in the JVK route (short version of the southeast motorway circuit). In particular, he found a sentence from Dr. Z. 's reply, which stated that "Mr Z. encourages the concerns of the citizens of South-East Prague to earn tens of millions of crowns on their own children's health. The JVK project would only benefit him today." In addition, the appellant stated that it was fighting against the implementation of the JVK communication from the outset, so on the contrary, it rejected any profits associated with its construction from the outset. The appellant further stated that, at the end of the public interview, the editor of Ing. P. ø. made a summary in which he literally stated: "Your words, which completely remove the glomerol from Mr Z.' s head, are likely to hurt many people, people who believed in him by this time and constantly emphasized that he is fighting the highway selflessly for the benefit of all of us. Unfortunately, in searching for information about the highway, we found similar information in other places about...... human nature. It's disillusionment for me, too. I had no idea that the JVK problem and the fear of people could be turned into their own electoral program, taking care of their money and feeding it artificially - so that it could last best for several parliamentary periods. It is all the more disappointing to me that I have been (until today) a member of the OPTIM-EKO civil association, which Ing. Z. created and led. There was once a real danger of communication in close proximity to our homes, and so, like other members and supporters, I believed that I was spending money, time and energy only for a good cause, and not for someone's personal gain. Let us hope that everything will end well for the people of southeast Prague." From this conclusion, the appellant concludes that Ing. ø. identified itself as Petrovic Rapporteur and Petrovic City Hall with the statements of JUDr. Z., and thus gave its statements considerable seriousness and importance.
In the proceedings before the Supreme Administrative Court, the appellant claimed that the press had infringed Act No. 247 / 1995 Coll., on the elections to the Parliament of the Czech Republic and on the amendment and addition of certain other laws, as amended, (hereinafter referred to as "Election Act '), which in § 16 (2) requires that the election campaign be conducted honestly and fairly. He said he failed the second round of the Senate elections by just 325 votes. He took third place with 13.07% of the votes cast, while the second candidate, Mr P. J., received 14.33% of the votes cast. 102 236 voters were recorded in constituency 19, and if the Special Number of the Petrovic Rapporteur were delivered to 50 000 households and at least one voter registered in each of them, it is highly likely in his view that he influenced voters originally determined to vote for the appellants in their decision not to vote at all or in the selection of candidates. If this were to happen, only 1% of the voters so addressed are at least 500 people. On this basis, it concludes that.
The Supreme Administrative Court requested the opinion of the State Election Commission, which referred to its observations in its reply to the submission by Ing. Z., in which it emphasised the wording of Paragraph 16 of the Election Act, including the questions of the honest and fair conduct of the election campaign. In the opinion of the State Election Commission, this adjustment must be seen as a kind of moral appeal to individual candidates whose violation does not involve any specific penalty for elections to Parliament. The State Election Commission further informed the appellant of the possibilities of redress by means of civil or criminal law and, in terms of the conduct of the elections and their results, by a proposal under Article 87 of the Election Act.
The Supreme Administrative Court carried out the taking of evidence by Hehronev Rapporteur No 10 / 2004 and Petrovic Rapporteur of the Special Number of 21 October 2004. He found out that the Hehřonev Rapporteur is published by the Ministry of Culture Prague 22 and registered by the Ministry of Culture, the Department of Mass Media. The author is responsible for content and factual correctness. As far as the Petrovic rapporteur is concerned, he found that it is published five times a year and is registered by the Ministry of Culture. The publisher is the Prague-Petrovice and editor of Ing. P. R. The special edition of October 2004 had a deadline of 15 October 2004, the print was published on 22 October 2004 and 50 000 copies came out on 3 November 2004.
The Supreme Administrative Court further provided proof of the copies of the letter of the Mayor of Prague-Petrovice, Mgr. M. L., dated 1 October 2001, No 245 / 2001 / Star, in which it informs the then President of the KDU- ČSL that by telephone the material (anonymous application to exclude the applicant from the KDU- ČSL) was spoken with the members of the council and on this basis it is empowered to state that the members of the representative of the MČ Praha- Petrovice are not authors of the material. The same opinion was announced to the editor of the journal Lightning, who was interested in this anonymous letter.
The Supreme Administrative Court of the permanent list of voters of the Prague MSC confirmed that it was listed under order number 318 A. Z. with a note that he can vote. He also provided evidence of a copy of the minutes of the Senate election in constituency No 19, Prague 11, held on 5 and 6 November 2004, according to which in the first round of the elections out of a total of 25,726 valid votes for all candidates he received the first J.N. 10 201 votes, representing 39.65%, the second P.J. 3 689 votes, representing 14,33%, and the third A.Z. 3 364 votes, representing 13,07%. Candidates in other places got fewer votes. Therefore, J. N. and P. J advanced to the second round of the election.
The Supreme Administrative Court granted the application for annulment of the elections. He relied on his case-law (see NSS Reports No 10, 2004, R 354), which, in order to comply with the proposal, requires a first illegality, i.e. a breach of certain provisions of the electoral law, a second relationship between that illegality and the election of a candidate whose election is contested by an election complaint, and a third fundamental intensity of that illegality, which must at least significantly call into question the choice of the candidate in question in its implications. He concluded that Paragraph 16 of the Election Act does not provide for an exhaustive campaign, but only applies to its final so-called "hot" phase. The election campaign is one form of exercise of fundamental rights, such as freedom of expression, right of information, right of association, right of assembly, etc. Paragraph 16 of the Election Act is a clarification of these fundamental rights and constitutional principles, in particular the principle of free competition of political forces in democratic society and the principle of equality of the need for electoral law. Although Article 16 (1) of the Election Act refers only to the use of the area to improve electoral posters, it is, in the view of the Supreme Administrative Court, clear without any reasonable doubt, given the constitutional principles set out, that this is merely an example of a demonstration of the generally valid access to the communication possibilities available to the municipality. It implies that the principle of equality between candidate entities must be respected when using all means of communication held by the municipality. In the present case, however, in the view of the Supreme Administrative Court, this principle was not respected. The infringement was committed by the release of the UHRNEVE Rapporteur No 10 / 2004 and the Special Number of the Petrovic Rapporteur immediately before the first round of the Senate elections. In the view of the Supreme Administrative Court, the information published in these press releases was likely to harm the appellant Ing. A. Z. significantly in the eyes of his potential voters. The specific circumstances of the case, namely the issue of rapporteurs just before the elections, the apparent unilateral nature of the views presented, the method of distribution, the significantly higher cost of the extraordinary edition of the Petrovický newsletcher, etc., show convincingly that this intention by the publisher of those periodicals was followed.
The Supreme Administrative Court further concludes that the nature of the information published in those rapporteurs is beyond the requirements of fairness of the electoral campaign, as set out in Article 16 (2) of the Election Act, namely the publication of an anonymous letter from 2001, in particular when it was issued without any comment as a letter from the members of the Prague-Petrovice council, without verification of the copyright of those members. The Supreme Administrative Court further established a relationship between the violation of the electoral law and the election of J. N. Referring to the finding of the Constitutional Court sp. zn. I. ÚS 526 / 98, which implies that the assessment of the violation of the electoral law does not concern whether the infringement took place objectively or subjectively, but that each case must be assessed materially, individually and taking into account all specific circumstances. It is therefore not decisive whether the elected candidate for the violation of the electoral law was involved in any way, directly or indirectly. What is important is that in the present case, the appellant ended up in third place in the Senate elections with a difference of 325 votes from the candidate who took second place. In the view of the Supreme Administrative Court, the close distinction between the votes which the appellant did not move to the second round could indeed have been due to the circumstances in which the Supreme Administrative Court sees a violation of the electoral law. If that illegality had not occurred, the appellant could have actually advanced to the 2nd round of elections, under which even the chances of its election cannot be excluded; There is therefore a "certain relationship" between the violation of the electoral law and the election of the candidate.
Finally, the Supreme Administrative Court also addressed the question of assessing the intensity of the illegality. It stated that, in a situation where the appellant did not get into the second round of the Senate elections for a relatively narrow difference in the missing votes, the intensity of the illegality needed to establish the nullity of the elections is naturally lower than in the case of a significant difference in votes.
Content of the appeal
The Constitutional Court was served on 13 December 2004 with the submission of the Civil Democratic Party (hereinafter referred to as "the appellant '), marked as" an appeal in respect of the verification of the choice of the Senator pursuant to Article 87 (1) (e) of the Constitution of the Czech Republic and Article 85 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended'. This submission was then supplemented by a document registered on 20 December 2004 and marked as "Adding the appeal to new facts'. In it, the appellant states that on 14 December 2004 the Senate Mandate and Immunity Committee adopted a resolution in which it stated in point II that it was unable to verify the mandate for the constituency No 19, Prague 11, having regard to the fact that the Supreme Administrative Court decided by its Resolution No 10 / 2004-24 that the elections in that district were invalid.
The appellant challenged all the grounds on which the Supreme Administrative Court relied. As far as illegality is concerned, they are particularly opposed to the extensive interpretation of Article 16 (1) of the electoral law, as it was referred to by the Supreme Administrative Court. The Election Act in Paragraph 16 (1) mentions only the areas for posting electoral posters. It does not appear from the text of the law that it is a demonstrative or exemplary list. Therefore, the conclusion that this provision applies to any communication possibilities available to the municipality does not support the legal text. That provision should be interpreted in the light of the principle enshrined in Article 2 (4) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 2 (2) (to be correctly read as Article 2 (3)) The Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), i.e. that everyone may do what the law does not prohibit him from doing, and that no one must be forced to do what the law does not impose on him, and the principles enshrined in Article 2 (3) of the Constitution and Article 2 (4) of the Charter (rightly to be Article 2 (2) of the Charter), i.e. that state power can only be exercised in the cases, limits and manner laid down by the law. It therefore considers that the provision cited cannot be interpreted as affecting the periodicals issued by the municipality.
Nor does it agree with the conclusion of the Supreme Administrative Court that there has been a breach of Paragraph 16 (2) of the Election Act, according to which the election campaign must be conducted honestly and fairly, in particular false information about the electoral bodies must not be disclosed. In its view, the criterion of integrity and integrity is to a certain extent subjective and must therefore be assessed in relation to the body. It does not agree with the conclusion of the Supreme Administrative Court that it is not decisive whether the elected candidate for the violation of the electoral law (albeit indirectly) participated. In its view, the finding cited by the Constitutional Court, sp. zn. I. 526 / 98, shows the exact opposite conclusion. However, it considers it essential that Paragraph 16 (2) of the Election Act implies that only false data on candidates and political parties can be regarded as dishonest and dishonest conduct. In the absence of proof of the truthfulness or untruthfulness of the data provided in the proceedings, the court could not conclude that the rule of law contained in Article 16 (2) of the electoral law had been fulfilled. In addition, the appellant, referring to that finding of the Constitutional Court, stresses the freedom of expression and the right to information guaranteed in Article 17 of the Charter. It pointed out that the electoral law was amended, and in Paragraph 16 (5) the ban on electoral agitation was lifted the last 48 hours before the elections, thereby further liberalising the electoral struggle for freedom of expression. In her view, otherwise the vague and unclear provision of Paragraph 16 (2) of the electoral law must be interpreted in a very restrictive manner. Another interpretation constitutes an infringement of the freedom of expression and the right to information, a breach of the candidate's subjective right to be elected and the right of voters to be represented in the representative body by the candidate elected by them.
From the point of view of the comparative appellant pointed out the issue of violations of electoral regulations in the Ukrainian presidential elections in November 2004 and the decision of the Federal Constitutional Court (BVerfGE, Vol. 103, p. 111n. of 8 February 2001), in which the Court dealt with Article 78 (2) of the Constitution of Hessen with the Federal Law of Germany, and in this context gave a restrictive interpretation of the concept of "negotiations against good manners' which affects the electoral outcome.
The appellant further contends that the decision of the Supreme Administrative Court is completely unrevisable in the part where it assesses the relationship between its alleged illegality and the choice of J. N. In her view, the course and outcome of the election in constituency number 19 lead to the conclusion that there is no possibility of a relationship between the alleged violation of the electoral law and the outcome of the elections. Thus, the Supreme Administrative Court is based only on an unsubstantiated presumption that the narrow difference in votes could indeed have been caused by that illegality, but does not in any way argue that it was actually caused. The appellant notes that under the election campaign, a period of 16 days before the election date should be understood, not, for example, the entire term or year before the election. The problem that has been at issue has been discussed for several years, in a very sharp tone, from which even the disputed materials are not removed. Therefore, the likelihood of their influence on the behaviour and views of voters is limited. Nor can any other conclusion be drawn from the results of the elections, whether by comparing the results of the 1st and 2nd round of the elections in District 19 or by comparing the results of the KDU- ČSL in other Prague Senate districts, as well as in the 2002 municipal elections. In this context, apart from the legal argument, the appellant argues in fact that it disputes the importance of the texts in question in those rapporteurs. In particular, it points out that both periodicals, the content of which could not have been affected in any way, respond to the first issue of the first issue of the Courier of South-East Prague, published by the Prague-Křislice, which is Ing. A. Z. Mayor. This first issue was issued on 29 September 2004 in a load of 50,000 copies, and on the first page there is an article with the title "What do the mayors C., N. and H. shut up about?" Articles published in the Hehronev Rapporteur and the Petrovic Rapporteur are only a reaction to these and other information, which Ing. A. Z. presents. In addition to this, he proposes to question the Mayor of Uhraneves and Petrovice for evidence. It further states that the October issue of the Petrovic rapporteur is not directly related to the elections. The mayor's statement only explains some of the facts, stressing that Ing Z. himself, in one of his leaflets dated 2 October 2004 (although the author said it should be correctly 2 November 2004), entitled "The disregard of attacks against me is escalating," he states that he would like to join the mayor's statement. It is clear that this is a subjective view of the mayors, not objective information. The high cost was agreed by all mayors, with a number of 50 000 units corresponding to the number of households in the municipalities (probably to be the MCE) whose mayors signed the declaration. To the material on page 8 - 10 of the Petrovic rapporteur, the complainant proposed evidence that would prove the truth of the claim in the interview Ing. P. Ř. with JUDr. M. No. She also pointed out that Ing. Z. was the one who, in the second issue of the Southeast Prague Courier (also in the load of 50,000 copies) clearly called on citizens to give him their vote. If, therefore, the law was infringed, on both sides, and according to the principle of nemo turpitudin suam allegare test (no one can rely on their own dishonesty), it should not be decided on the nullity of elections.
The appellant also challenges the criterion of the intensity of the unlawful To justify its decision, the Supreme Administrative Court concluded that the intensity of the illegality required to establish the nullity of the elections was naturally lower where the close result of the elections was limited than in the case of a significant difference in votes. In its view, this criterion does not provide a firm benchmark and, above all, does not result in law. In addition, the Supreme Administrative Court acted in conflict with this criterion, which it had established itself, by defining it in such a way that the intensity of the illegality must be related to the person of the candidate who was elected, but refers to the person Ing. A. Z., the candidate who was not elected.
The appellant further criticises To the Supreme Administrative Court that by his procedure he prevented J. N. from attending the proceedings. The motion for a decision on the nullity of elections, together with a call for comments, was addressed to the Senate of the Parliament of the Czech Republic. Thus, J. N. 's motion to declare the nullity of the elections was delivered until 7 December 2004, after the court had already ruled. Therefore, he did not have an opportunity to comment. Following this circumstance, the appellant draws attention, in addition to the appeal, to the completely different procedure of the Supreme Administrative Court in the proceedings under appeal and to the procedure in which it decided on the proposal of the Communist Party of Bohemia and Moravia for the annulment of the elections held on 12 and 13 November 2004 in constituency No 31 (Ústí nad Labem). The main irregularity is that the Supreme Administrative Court carried out extensive evidence here, while in the case of J. N., it did not even give him an opportunity to comment on the application for annulment of the election.
Proceedings before the Constitutional Court
The Constitutional Court requested the observations of the parties and the intervener, which define for this type of procedure the special provision of § 88 of Act No. 182 / 1993 Coll., on the Constitutional Court ("the Law on the Constitutional Court ').
On behalf of the Senate of the Parliament of the Czech Republic, his President MUDr. In its observations, it briefly summarises the situation and content of the appeal against the order of the Supreme Administrative Court of 3 December 2004, which decided that the elections to the Senate of the Parliament of the Czech Republic held in constituency No 19 on 5 and 6 November 2004 and on 12 and 13 November 2004 were void. It describes the course of negotiations on the verification of the contested election to the Senate. It stated that, at the founding meeting of the fifth term of office under the heading "Report of the Mandate and Immunity Committee on the outcome of the examination of whether individual Senators were elected validly ', the Senate took note of 54 votes of all Senators present in the resolution of the Mandate and Immunity Committee No 11 of 14 December 2004 on this issue. This fully respected the decision of the Supreme Administrative Court.
On the procedural page, the President of his Chamber, JUDr. D. N., stated that the application had been submitted prematurely and should therefore be rejected under Paragraph 43 (1) (e) of the Constitutional Court Act as inadmissible. In its view, this deficiency was not eliminated by the extension of the submission of 20 December 2004, as it is not an extension of the reasoning for the original proposal, but a completely new proposal, which must be decided separately. It is, however, the responsibility of the Constitutional Court as to how it will proceed on this point. This has also been reflected in her final proposal, where she no longer insists on rejection.
It also explained the reasons for the submission of an application for annulment to the elected Senator J. N. at the address of the Senate. It stated that the Supreme Administrative Court was based on previous experience of delivery in similar cases when this method proved effective. He has been known from official activity that elected senators have had their office in Senate buildings since the election. In oral proceedings, the Supreme Administrative Court pointed out that the Senate mandate was taken up by election and it was difficult to imagine that the elected official would start his duties much later. In any event, however, this cannot in itself constitute grounds for the appeal, having regard to the appellate nature of the proceedings before the Constitutional Court.
The Supreme Administrative Court does not agree with the appellant's assertion that it unlawfully concluded that the provisions of Paragraph 16 (1) of the Election Act apply not only to election posters but also to other communication possibilities held by the municipality. This is a constitutionally conformal interpretation, based on the principle of political pluralism, enshrined in Articles 21 (4) and 22 of the Charter, and respecting the hierarchical order and the internal consistency of the rule of law, according to which the law merely specifies constitutional principles. The interpretation of this legal provision, as submitted by the appellant, was considered absurd and unconstitutional.
In his observations, which he added at the hearing, he placed the main emphasis on the state's neutrality in the elections, although he did not address this issue at all in his reasoning. It considers it crucial that this is public funding financed by public resources and that it is necessary to insist on the objectivity of the reporting and to allow all the candidates to comment. Another approach would constitute a breach of the constitutional principle of State political neutrality (Article 2 (1) of the Charter). As regards Article 16 (2) of the Election Act, the appellant considers the interpretation of that provision as an indirect denial of the right of the Court of Election to assess the correctness of elections, which is contrary to Article 3.3 (d) of the Code of Good Practice in Elections adopted by the Venice Commission of the Council of Europe. The view that the application of this provision as a reason for the nullity of choice may jeopardise the principle of free competition of political forces is considered inappropriate. On the other hand, the appellant considers the decision cited by the Federal Constitutional Court of the Federal Republic of Germany (see above) and other German case-law in this case as confirmation of the legal bases on which its decision is based. The Federal Constitutional Court of the Federal Republic of Germany, in its decision, including by reference to former German case-law in this case, declared it constitutionally consistent that the electoral court should be entitled to declare the elections null and void on the grounds of "irregularities in the process of elections and criminal conduct or acts detrimental to good habits (morals) which affect the outcome of the election." It follows from German case law that the process of creating the will of the people must be carried out independently of the state and the principle of freedom of choice, and the right of political parties to equality of chances implies a ban on influencing the electoral struggle by public works of the government. Otherwise, the validity of the elections is at risk.
As regards the objection to the non-examination of the contested decision, JUDr. N. stated that both rounds of the elections had to be assessed separately in the Senate elections. The Election Act distinguishes between the proposal for nullity of elections and the proposal for nullity of candidate elections. In the present case, the annulment of the first round of elections and their possible impact on the results of the second round was assessed. The nullity of the elections was therefore not assessed in relation to the person elected by the candidate, but in a way that could affect the overall results of the elections. The possible violation of the electoral law of Ing. A. Z. in his election campaign cannot have any influence whatsoever.
Finally, it deals with the objection to a different procedure in this case against the procedure on the KSČM proposal for the nullity of elections in constituency No 31 in Ústí nad Labem. In that proceeding, the alleged violation of the electoral code was examined in its own electoral act, which could not be verified otherwise than by questioning the persons present in that act. In such a case, it was therefore appropriate to abandon the principle of not ordering proceedings pursuant to Paragraph 90 (3) of the Administrative Rules of Procedure (hereinafter "the ECR ').
Finally, it proposed that the Constitutional Court reject the appeal.
In addition, J. N. 's intervener, through his representative, agreed with the appellant's proposal and stressed that he did not participate in the publication of the press releases (the Hehranev Rapporteur and the Petrovic Rapporteur), which, in the view of the Supreme Administrative Court, may have had an impact on the outcome of the elections. He referred to the opinion expressed in the Constitutional Court's finding, sp. zn. I. ÚS 526 / 98, that it is not possible to disregard the degree of infringement of the electoral law by a candidate whose election has been declared invalid.
Ing. A. Z. commented on the appeal, both by himself and through his legal representative. As the heading of the parties to this special procedure is defined in the Law on the Constitutional Court (see Sub V.), it could not be treated as a party to the proceedings.
Evidence before the Constitutional Court
The Constitutional Court carried out the evidence by the Supreme Administrative Court, sp. vol. Vol. 10 / 2004, including the documentary evidence referred to by the order of the Supreme Administrative Court of 3 December 2004 No. Vol. Vol. 10 / 2004-24. From the documentary evidence submitted in the proceedings before the Supreme Administrative Court, the contents of an undated flyer entitled "A. Z.: I must defend against slander!" by which Ing. Z. responded to the articles of the October issue of the Uhranev Rapporteur, and the flyer from 2.10.2004 entitled "A. Z.: The recklessness of the attacks against me escalates!" by which Ing. Z. responded to the articles of the Special Number of the Petrovic Rapporteur.
Resolution of the Senate Mandate and Immunity Committee of the 11th meeting of 14 December 2004 The Constitutional Court found that the mandate for the constituency No 19, Prague 11 had not been verified, having regard to the fact that the Supreme Administrative Court decided by its Resolution No. 10 / 2004-24 that the elections in the constituency were void. The resolution was submitted by Senator J. H. at the first meeting of the Senate of the 5th term of office held on 15 December 2004 and the Senate resolution took note of the report of the Mandate and Immunity Committee on the outcome of the verification of the Senate elections. The transcript of the stenographic record of the meeting of the first meeting of the 5th term of office of the Senate held on 15 December 2004 showed that all 54 senators present voted in favour of that resolution.
From the letter envelopes submitted by the appellant and from the letters in the file of the Supreme Administrative Court, the Constitutional Court found that the request by the Supreme Administrative Court for an application for annulment of the Senate elections held in the constituency No 19 on 5 and 6 November 2004, and on 12 and 13 November 2004, J. N. was sent by postal mail to the Chamber of Parliament on behalf of Mr J. N., Valdštejn Us 7 / 4, 118 01 Praha 1. This consignment was taken over by a member of the Senate Office, Ms S., on 23 November 2004. Resolution of the Supreme Administrative Court of 3 December 2004 No. Vol 10 / 2004-24 was delivered by J. N. by postal mail recommended to "J. N., Chamber of Parliament, Valdštejnský nám. 7 / 4, 118 01 Praha 1." The consignment was lodged on 6.12.2004 for non-contact with the addressee and took over the consignment on 9.12.2004.
Of the first year of September 2004 and of the second year of November 2004, a periodical entitled Southeast Prague Courier, it was found that it was published by the city of Prague-Křislice, both in the cost of 50,000 copies. Both periodicals always deal on three sides of four in different articles by the southeast bypass of Prague. In No.1 it is an editorial of Ing. A. Z. and signed by him "Warning: Project JVK continues," article "What do mayors C., N. and Š. Silent?," signed by "City Council members of Prague - Zřislice," article "How does Prague City Hall Administration keep the Prague Mayor in obedience," signed by -am-, article "How did the Prague Council discuss the crossroads," signed by the V.K., article "What we sacrifice for hypermarkets in Šeberv," signed by J. P., and article "Trade Chain Against Citizens," signed by "Citizen Petrovic." In No.2 it is an editorial of Ing. A. Z., unsigned articles "The study of the development of the south-east of Prague," "Information on communication in the JVK route" and "Bürgermeister promises not to meet!," an article "Ing. A. Z.:" If I am a senator, my vote for the rescue of South-East Prague will be heard much more, "signed by A. M. M. M.," the article "Senator must not be carried in the property," signed by P. P. P. P., V. K. K. K. K., T. P. M. M. M., "signed by" Members of the council of the Prague City Council, "in which he deals with the acquisition of the land of Mr. JUDr No. In the introduction of this number is also the report that No. 1 of the periodical according to the editorial information did not reach all readers. There is also information at the bottom of the first page that the City Council of Prague-Zřežice has approved the issue of the Southeast Prague Courier on the condition that the costs will be paid out of donations or advertising, with the necessary funds from the special-purpose sponsorship gift gathered during the summer.
It was found from the document entitled "Recording of the mayors' meeting held on 19 October 2004 'that the meeting was organised by the Mayor of Prague-Petrovice doc. S. and discussed the question of informing the residents about the motorway circuit by the Mayor of Prague-Z., through the first issue of the journal Courier of Southeast Prague. It was agreed that the cost of issuing a special issue of the Petrovický Rapporteur, which was to be a response to the long-term campaign led by Mayor Z., would be shared by all the represented municipalities according to the number of copies they normally issue in their district. The record was registered by Ing. A. S., Secretary of the Prague-Petrovice City Office, and has three illegible signatures.
The question at the Ministry of Culture has been verified by the Constitutional Court that the publisher of the Uhranev newsletter is the Local Office of Prague 10-Uhraneves, the publisher of the Petrovický newslett is the town district of Prague-Petrovice and the publisher of the Southeast Prague Courier is the town district of Prague-Křelice.
The results of the Senate elections held on the territory of Prague on 5 and 6 November 2004 and on 12 and 13 November 2004 were also requested from the Ministry of Interior, as well as the results of the elections to the City of Prague and to the town councils belonging to the constituency of the Senate on 1 and 2 November 2002.
From the Annex to the Resolution of the State Election Commission of 8.11.2004 No 41 The Constitutional Court found that on 5 and 6 November 2004 (i.e. in the first round of elections) elections to the Senate took place in the territory of Prague in districts 19 - Prague 11, 22 - Prague 10 and 25 - Prague 6 with the following results:
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 19 | 102.236 | 25.880 | 25.726 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| J. N. | ODS | 10.201 | 39,65 |
| Ing. P. J. | SNK sdružení nezávislých | 3.689 | 14,33 |
| Ing. A. Z. | KDU-ČSL | 3.364 | 13,07 |
| J. D. | KSČM | 3.085 | 11,99 |
| Mgr. D. K. | Cesta změny | 3.011 | 11,70 |
| MUDr. I. D., CSc. | ČSSD | 2.131 | 8,28 |
| Ing. P. H. | NEZÁVISLÍ | 245 | 0,95 |
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 22 | 95.177 | 29.048 | 28.890 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| Ing. J. M., CSc. | ODS | 10.068 | 38,84 |
| J. Š. | Strana zelených | 7.137 | 24,70 |
| MUDr. M. A., CSc. | ČSSD | 3.425 | 11,85 |
| RSDr. K. H. | KSČM | 2.864 | 9,91 |
| MUDr. M. K. | Evropští demokraté | 2.383 | 8,24 |
| Prof. Ing. L. M., CSc. | KDU-ČSL | 1.811 | 6,26 |
| Bc. B. M. | ODA | 538 | 1,86 |
| J. B. | Balbínova poetická strana | 429 | 1,48 |
| Mgr. A. G. | NEZÁVISLÍ | 191 | 0,66 |
| Mgr. J. S. | České hnutí za národní jednotu | 44 | 0,15 |
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 25 | 90.499 | 31.945 | 31.763 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| K. S. | US-DEU | 10.547 | 33,20 |
| Ing. M. K. | ODS | 10.495 | 33,04 |
| RNDr. V. E., CSc. | KSČM | 4.691 | 14,76 |
| Doc. J. K. | KDU-ČSL | 3.455 | 10,87 |
| Ing. J. T. | ČSSD | 1.914 | 6,02 |
| Z. R. | Strana zdravého rozumu | 447 | 1,40 |
| J. S. | NEZÁVISLÍ | 214 | 0,67 |
From the Annex to the Resolution of the State Election Commission of 15.11.2004 No 42 The Constitutional Court found that in the second round of the Senate elections held in Prague, the results of the elections were as follows.
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 19 | 102.149 | 19.003 | 18.907 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| J. N. | ODS | 10.407 | 55,04 |
| Ing. P. J. | SNK sdružení nezávislých | 8.500 | 44,95 |
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 22 | 95.189 | 24.105 | 24.031 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| J. Š. | Strana zelených | 13.296 | 55,32 |
| Ing. J. M., CSc. | ODS | 10.735 | 44,67 |
| Volební obvod č. | Počet zapsaných voličů | Počet odevzdaných úředních obálek | Počet platných hlasů |
|---|---|---|---|
| 25 | 90.439 | 26.079 | 25.942 |
| Kandidát | Přihlášen volební stranou | Hlasů | V % |
|---|---|---|---|
| K. S. | US-DEU | 15.088 | 58,16 |
| Ing. M. K. | ODS | 10.854 | 41,83 |
From the Annex to the Resolution of the State Election Commission of 4.11.2002 No 26 The Constitutional Court found that in the elections to the municipal councils held on 1 and 2 November 2002, the results of the elections of the Prague City Council were as follows:
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 70 | 984.932 | 346.723 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 35,54 | 30 |
| Sdružení Evropští demokraté, nezávislí kandidáti | 18,37 | 15 |
| ČSSD | 14,66 | 12 |
| KSČM | 10,83 | 8 |
| US-DEU | 5,64 | 2 |
| Koalice SNK, SZ, SOS | 5,03 | 2 |
| KDU-ČSL | 4,56 | 1 |
The other 13 electoral parties received no mandate.
The results of the elections to the town councils belonging to constituency 19 for the Senate elections were found by the Constitutional Court as follows.
Prague 11
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 45 | 65.505 | 22.155 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 28,72 | 15 |
| Sdružení nezávislých | 20,97 | 11 |
| ČSSD | 13,68 | 6 |
| KSČM | 12,95 | 6 |
| Sdružení ED, NK | 11,70 | 6 |
| Sdružení nezávislých kandidátů-místní sdružení | 2,46 | 1 |
| US-DEU | 5,08 | 0 |
| KDU-ČSL | 4,07 | 0 |
The other two electoral parties received no mandate.
Prague-Benice
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 7 | 315 | 266 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 34,37 | 4 |
| M. C. (nezávislý kandidát) | 10,79 | 1 |
| K. C. (nezávislý kandidát) | 9,58 | 1 |
| J. L. (nezávislý kandidát) | 9,47 | 1 |
Five other independent candidates have not received a single mandate.
Prague - Lower Mecholupy
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 9 | 943 | 553 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 65,14 | 7 |
| ČSSD | 13,42 | 1 |
| KDU-ČSL | 12,38 | 1 |
Another election party received no mandate.
Prague 15
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 25 | 22.659 | 7.275 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 43,08 | 11 |
| Koalice SZ, SNK | 18,12 | 5 |
| ČSSD | 17,51 | 5 |
| KSČM | 9,7 | 2 |
| US-DEU | 7,76 | 2 |
| KDU-ČSL | 3,83 | 0 |
Prague-Kolovraty
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 13 | 1.493 | 900 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 78,43 | 11 |
| KSČM | 17,63 | 2 |
One independent candidate received no mandate.
Prague City - Královice
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 5 | 217 | 115 |
The Association of Independent Candidates in Prague-Královice, which was the only one that registered the candidates, received all the mandates.
City district of Prague - Křislice
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 7 | 279 | 188 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| Sdružení KDU-ČSL, NK | 52,41 | 4 |
| Sdružení nezávislých | 22,41 | 2 |
| Sdružení občanů Křeslic - sdružení NK | 16,47 | 1 |
Another election party and one independent candidate have not received a mandate.
Prague City
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 9 | 196 | 123 |
There were seven independent candidates who were all elected.
Prague-Petrovice
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 15 | 4.664 | 1.973 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| Sdružení občanů Petrovic | 19,24 | 3 |
| OPTIM-EKO | 18,91 | 3 |
| ODS | 16,29 | 3 |
| Sdružení nezávislých | 13,63 | 2 |
| ČSSD | 12,22 | 2 |
| Občané pro Petrovice | 7,92 | 1 |
| KDU-ČSL a nez. obč. Petrovic | 5,54 | 1 |
The other two electoral parties have not received a single mandate.
Prague 22-Uhraneves
| Počet volených členů zastupitelstva | Počet zapsaných voličů | Počet odevzdaných obálek |
|---|---|---|
| 21 | 3.854 | 1.883 |
| Volební strana | Odevzdané hlasy v % | Zastupitelů |
|---|---|---|
| ODS | 70,02 | 15 |
| ČSSD | 17,56 | 4 |
| Sdružení nezávislých | 9,97 | 2 |
The other two electoral parties have not received a single mandate.
The appellant's proposal to carry out the documentary evidence referred to as "Annexes A-D 'was rejected for overcapacity, since part of it was merely a claim made by the appellant and part of it was not relevant to the present case.
Assessment of the conditions for proceedings before the Constitutional Court
The Constitutional Court first examined whether the conditions of the procedure under which it is able to negotiate and rule on an appeal against a decision on the verification of the choice of a Member or Senator under the fourth section of the second part of the Law on the Constitutional Court were fulfilled. The current substantive and procedural legislation is unclear, as it is not clearly defined what the appeal is to be directed against. Article 87 (1) (e) of the Constitution and Article 85 of the Law on the Constitutional Court correspond to the legal situation at the time when such legislation was adopted. According to the then applicable § 47 of the ČNR Act No. 54 / 1990 Coll., on the elections to the Czech National Council, the Supreme Court of the Czech Republic, following an election complaint, issued only its opinion, which it was obliged to send to the Czech National Council. Its Mandate and Immunity Committee under § 40 (1) (a) of the ČNR Act No. 35 / 1989 Coll., on the Rules of Procedure of the Czech National Council, also on the basis of this opinion, examined whether individual members of the Czech National Council had been validly elected and then, on its proposal under Article 113 (2) of the Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation, the validity of the election of Members was to verify the Czech National Council. In this legislative situation, it was logical that the appeal should have been directed against the decision of the Czech National Council (understand the relevant chamber of the legislature) to verify the choice of its member.
The legislation currently in force has substantially strengthened the role of judicial review of the validity of elections, which is now entrusted to the Supreme Administrative Court. It is no longer the opinion contained in the resolution, but the resolution which is decided on the substance of the nullity of the elections, the vote or the election of the candidate (Paragraph 90 (1) (c) in conjunction with Paragraph 53 (1) of the same law). The Mandate and Immunity Committee of the relevant chamber of Parliament, based on the minutes of the State Election Commission and, where appropriate, the decision of the Supreme Administrative Court on the outcome of the elections, also has an obligation to examine the validity of the election. Nor is the Rules of Procedure of Parliament's chambers, any other law or Constitution itself currently addressing who, how, to what extent and under what circumstances verifies the election of a Member or Senator. This situation has led to a practice in which Parliament's chambers merely take note of the report of their mandates and immunity committees. Therefore, in the present case, as in the case dealt with by the Constitutional Court under sp. zn. I. ÚS 526 / 98, the Senate did not decide that it did not verify the choice of the Senator concerned but merely took note of the report of its Mandate and Immunity Committee, which stated that the choice could not have been verified in the light of the decision of the Court. In so doing, the verification of the choice is not formally (in the light of language) made by the Supreme Administrative Court or the State Election Commission or any other body.
For comparison in the period of the pre-war Czechoslovak Republic, verification of the election of a Member and Senator was defined by the relevant Chamber in a completely different way from the last legislative regulation. The then electoral court defined the verification in such a way that - "the verification of a Member's choice is by nature a certificate that the conditions of his or her selectivity are fulfilled in the person elected and that there are no grounds to exclude him from his or her selectivity '(Collection of fundamental decisions and resolutions by the electoral court. III. part, Prague 1925, usn. no. 119, p. 52). Such a model would currently correspond to the verification of compliance with the provisions of Article 19 (2) of the Constitution and Article 57 of the Election Act. A similar concept of verification by the Chamber of Parliament indicated the finding of the Constitutional Court, sp. zn. I. ÚS 526 / 1998. In such a case, however, there would be two different and legally different decisions, as would the legal proceedings prior to them. Whereas, in the case of verification, it would be a public certificate of the outcome of the decision of the people or voters of the constituency concerned, which is valid if it is not proved otherwise (a new decision on the basis of a renewal of proceedings is possible), in the case of a decision on the validity of the choice by the Supreme Administrative Court, it is an individual act with which the rei iudicatae principle applies. In the current legislation, these concepts are not sufficiently distinguished, and it is also problematic and very strange that decisions on this issue are even entrusted to three institutions (not including the conclusions of the State Electoral Commission on the final outcome of the elections), although decisions are usually made by one body (Parliament or the electoral court) or two bodies (first, however, Parliament or its special body, which only verifies and only then the court).
According to the provisions of the Constitutional Court Act in question, an appeal may be brought by a Member, a Senator or, where appropriate, an Election Party for which a Member or a Senator has been candidate against a decision that he has not been validly elected, or by one whose electoral complaint under the Election Act has been upheld, against a decision by the relevant chamber of Parliament or its institution to validate the election of a Member or Senator. It is therefore not only an appeal against the decision of the relevant chamber of Parliament, but also an appeal against the decision that a Member or Senator has not been validly elected. This can also be inferred from the systematic interpretation of the whole section, as the party to the proceedings is, under Paragraph 88 (1) of the Law on the Constitutional Court, the authority which decided on the annulment of the election of a Member or Senator. According to the current regulation, the decision of invalidity of the election is entitled to be taken by the Supreme Administrative Court. It follows that the appeal is also directed against the decision of the Supreme Administrative Court. This interpretation can also be derived from the finding of page I of the ÚS 526 / 98 [Collection of finds and orders of the Constitutional Court ("the Reports of the Decisions'), Volume 13, Found No 27, p. 203; published under No 70 / 1999 Coll.], to which the Constitutional Court refers. Finally, the Constitutional Court concludes that the issue must be interpreted in such a way that the persons entitled to appeal cannot, as a result of the problematic legal regulation, be liable to harm.
The appeal was lodged by the Civil Democratic Party which made the intervener's application for registration, namely the body which is actively legitimate in bringing the device. It was delivered to the Constitutional Court on 13.12.2004. The ambiguity and inconsistency of the current legislation is reflected, inter alia, in the question of the timeliness of the appeal, as the Supreme Administrative Court pointed out in its observations. It is not only a question of whether this period comes from the resolution of the relevant chamber of Parliament or from the decision of the Supreme Administrative Court on the same subject. It is also that the number of parties before the Supreme Administrative Court is different from that of persons entitled to appeal (as will be discussed in more detail below). Whereas, in proceedings before the Supreme Administrative Court, the parties are the appellant, the competent electoral authority and the person whose choice has been contested are the persons entitled to appeal, the appellant in proceedings before the Supreme Administrative Court, the one whose choice has been contested (otherwise also the Member, the Senator), and, finally, the party for whom he has been acting, as in the present case. Since the electoral party is neither a party to the proceedings before the Supreme Administrative Court nor a member of the relevant chamber of Parliament, neither the decision of the Supreme Administrative Court nor the decision of the relevant chamber of Parliament can, formally speaking, ever be properly notified to it. The Constitutional Court notes, therefore, that even here the adjustment has lagged behind the evolution of electoral legislation and can be considered unnecessarily complex. In view of the above-mentioned opinion on the need to interpret unclear legal provisions in such a way that the persons entitled to appeal could not be made aware of such confusion, it can be concluded that, in view of the date of the decision of the Supreme Administrative Court in this case (3.12.2004), the 10-day period should be considered as not earlier than the end of 13.12.2004. The Constitutional Court therefore notes that the appeal was lodged on time and in no way can the appeal be considered premature.
As regards the scope of the review in the context of the appeal procedure, it was not necessary to address this issue in view of the fact that the appeal challenges all the essential reasons for the resolution of the Supreme Administrative Court (closer to sub-sub-point II).
Furthermore, the range of parties and interveners was assessed. It is precisely defined for this type of procedure in the provisions of Sections 87 and 88 of the Constitutional Court Act. It is a special provision in relation to the general provision of Section 28 of the Law on the Constitutional Court. It follows from those provisions that neither the party to the proceedings nor the intervener brought pursuant to Paragraph 85 (1) (a) of the Law on the Constitutional Court is the one who made the application to the Supreme Administrative Court for the annulment of the elections and his application was granted. Nor can its participation in the proceedings be inferred from Article 36 (1) of the Charter as it ensures the protection of individual rights. The subject of an appeal under the fourth section of the law is the protection of electoral law in general, in particular the electoral outcome, which authorises Parliament to exercise its powers in a composition which reflects the will of the electorate. Therefore, the purpose of the regulation of this part of the electoral judiciary is not primarily to provide protection for the subjective rights of candidates and voters, but to protect the electoral procedure or process as a whole, which corresponds to the definition of a range of bodies actively authorised to apply to the Supreme Administrative Court (§ 90 (1) of the EC Treaty). While the protection of subjective rights in such proceedings is not excluded, it is merely a reflection of the main function of the proceedings. The mission of this special procedure is to protect the electoral process and its outcome, to protect subjective rights other procedural means of protection of rights, as foreseen by, for example, the Civil Code, the Press Act, the Radio and Television Broadcasting Act, but also the electoral regulations under the so-called objection procedure, all using the principle of vigilantibus, non dormientibus iura subveniunt [law helps the vigilant, not the sleeper (Codex Iustinianus 7, 40 1)]. The law in this regard is clear and therefore no room for action under Paragraph 28 (3) of the Constitutional Court Act was created. However, Ing. A. Z. was allowed to consult the file of the Constitutional Court, in accordance with Section 63 of the Constitutional Court Act, by virtue of Paragraph 44 (2) of the Civil Code, as a serious reason was found on its part.
Pursuant to Article 15 (1) of the Law on the Constitutional Court, the chambers of the Constitutional Court shall decide on cases under Article 87 (1) and (2) of the Constitution which do not fall within the competence of the full court. The scope of the plenary is defined in Section 11 (2) of the Law, with the letter (k) [until 31.3.2004, point (j) - footnote (b)) of that provision allowing the plenary of the Constitutional Court to reserve other matters than those expressly mentioned in Section 11 (2) of the Law to decide. This mandate was used by the plenary of the Constitutional Court and, by its resolution of 18 December 2003, published under No 14 / 2004 Coll., laid down, inter alia, that it reserved a decision on an appeal against a decision on the verification of the election of a Member or Senator under Article 87 (1) (e) of the Constitution. Since the application was contested by the Constitutional Court during the period of validity of this order, it is for the Constitutional Court to decide on it.
The Constitutional Court's Board therefore notes that the conditions under which it can negotiate and decide on the application are met. It merely recalls that the Constitutional Court is competent to decide to the extent defined by the Constitution and the Law on the Constitutional Court. This procedure cannot therefore replace criminal, criminal, civil or press law proceedings. Similarly, these proceedings (e.g. proceedings in matters of personality protection under § 11 et seq., Act No. 40 / 1964 Coll., Civil Code, as amended) cannot serve as a procedural means of challenging the validity of elections.
Substantial assessment
As has already been stated, the fundamental function of the appeal procedure against a decision on the verification of the choice of a Member or Senator is to ensure that elections are properly executed. More specifically, elections are to be conducted properly or correctly at regular intervals ("genuine periodic elections...," "d'elections péridiques, honnétes..." - Article 25 of the International Covenant on Civil and Political Rights, the older regulation referred to the purity of elections) on the basis of the principle of general, equal, direct electoral law by secret ballot while respecting the free choice of citizens. This is a basic measure of the international standard of free and democratic elections. The role of the Constitutional Court in this particular case is not to assess whether our regime of electoral justice complies with all constitutional requirements (in particular Articles 1 (1), 2 (1), 5, 6, 18 (2), 19 (2) and (3) and 20 of the Constitution, as well as Articles 2, 17, 21 (1), (3) and (4) and 22 of the Charter) and international obligations of the Czech Republic (in particular Article 25 of the International Covenant on Civil and Political Rights and Article 3 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms). The essence of this procedure is to ensure that these rules are complied with, and not only those whose voting rights have been infringed in a subjective sense but each of the parties concerned (Paragraph 90 (1) of the EC Treaty) can give the impetus to indicating control mechanisms. The subject matter of the substantive law procedure is to assess whether the authorities competent to verify elections or decide on their validity have acted within the limits and rules laid down by the relevant constitutional and legal provisions. Although the Constitutional Court decides on an appeal against the order of the Supreme Administrative Court and the Senate, this does not mean that it is bound only by the limits of § 87 (3) to (5) of the Election Act. In addition, as the final instance of the electoral judiciary, it remains a judicial body for the protection of constitutionality, and the above-mentioned provisions of the Constitutional Order and the Law on the Constitutional Court are an essential measure of its decision-making.
From the point of view of the Constitutional Court, the substance of the case under examination is to ensure the protection of the fundamental provisions of the constitutional order, which follow the principle that the people are the source of all state power and, inter alia, contribute to this role in establishing it through free and democratic elections. This is also the case with the legal regulation of the electoral judiciary and the verification of elections. As regards the procedural arrangements of the electoral justice system and the procedure in such proceedings, it follows a rebuttable assumption that the electoral outcome is in line with the will of the electorate. Submission of evidence to refute it is the duty of those who oppose electoral misconduct. In the course of the 20th century, this view was promoted practically in general. The view of 19th century electoral theory and practice that any illegality results in the nullity of elections, unless proven otherwise, has already been overcome. It is therefore not decisive whether a three-step system will be chosen for the review, as the Supreme Administrative Court does in the form of its pre-war predecessor, or a system of one, two or four steps (infringement of the law - causal link - seriousness of the infringement - influence on the composition of Parliament), and what methods will be chosen. Our electoral judiciary does not know the absolute flaws of electoral proceedings (so-called absolute confusion of electoral proceedings), i.e. such a violation of the provisions of the electoral regulation, which would result in automatic cancellation of elections, candidate elections or voting. All possible defects and errors must be regarded as relative in this respect and their importance should be measured by their impact on the outcome of the elections to the representative body as such or on the outcome of the election of a particular candidate, or on the result of the vote, in accordance with the principle of proportionality. The Election Act narrows the possible electoral defects to the violation of the provisions of the "Law" - there was no need to deal with the constitutionality of this narrowing. This process is based on the constitutional principle of the protection of the decision, which came out of the will of the majority expressed by free decision-making and respecting the rights of the minority (Article 6 of the Constitution), as already stated by the Constitutional Court in the decision-making procedure in point Pl. The adjustment for the verification of elections is alternatively based on the assumption of an objective causal link between the electoral defect and the composition of the representative corps or at least a possible causal link (principle of potential causality in the electoral judiciary). However, this possible causal link, as enshrined in Article 87 of the Election Act, must be interpreted as a mere abstract possibility. From Article 21 (4) The Charter can be derived from the right of the chosen candidate to perform his duties uninterrupted for a specified period of time [cf. the finding of the Constitutional Court sp. zn. Pl. ÚS 30 / 95 (Collection of Decisions, Volume 5, Found No 3, p. 17; published under No 31 / 1996 Coll.), which highlighted the right of candidates to exercise these functions without obstacles in the event of election]. It should be noted, for example, that decisions made by voters as a sovereign can only be changed by the judiciary in exceptional cases where defects in the electoral process have caused, or could have proven, a different choice and another candidate would have been elected. The subject of the proceedings is therefore the annulment of the election of J. N., not the non-election of Ing. A. Z. Moreover, the German case-law, which was referred to by the parties, is based on the court's power to abolish elections only in the event of a proven causal link between the identified electoral defects and the results of the elections.
This is the basic constitutional basis followed by the Constitutional Court in its decision-making. In the present case, it was possible to limit itself to the constitutionally conformal interpretation of Article 16 (1) and (2) of the electoral law, which led the Supreme Administrative Court to declare the nullity of the elections in Senate constituency No 19. These provisions shall read as follows:
"(1) For the election campaign, the mayor may reserve an area to improve electoral posters 16 days before the election date. The possibility of using it must be consistent with the principle of equality between candidate political parties and coalitions or candidates in the Senate elections.
(2) The election campaign must be conducted honestly and fairly, in particular, false data must not be published on the candidates and political parties or coalitions on whose candidate lists they are listed. '
The election campaign is one aspect of the evaluation of the free and democratic elections properly carried out. As regards its definition, which has become the subject of a dispute in the present case, the Constitutional Court states that the electoral campaign is no longer explicitly defined in the electoral law in terms of its length and content. This is an essential characteristic of our electoral law, unlike a number of other countries, where the issue of agitation and electoral material in particular, not to mention control and restrictions on campaign spending, is often regulated very closely. The time period for putting up posters is merely an order that regulates conditions in the so-called hot phase of the election campaign. However, the election campaign can only be conducted logically and rationally from a standardized point of view if elections are announced (in terms of subject) or if candidates or candidates are already registered (in terms of subject). This does not necessarily mean that voters are not affected by the number of other significant long-term factors in terms of algorithm - obtaining information for election decisions - realizing their own interests - taking an opinion and evaluating them - decision to vote for a party or candidate. This is a long-term process of forming electoral preferences. The appellant's view that the election campaign is only the last 16 days before the election date cannot therefore be accepted.
Our electoral regulations have already abandoned the definition of an election campaign as a certain time period, as introduced by, for example, Section 27 (1) of Act No. 54 / 1990 Coll., on Elections to the Czech National Council. This avoids the problems of blaming the electoral parties for starting the election campaign prematurely, as well as the limits that freedom of expression and the right to information represent here. Nor is such a definition necessary to remove moratorium on electoral agitation. As regards local media, originally their use was possible, after problematic experience, the amendment of the Act on Elections to the Czech National Council (Act No. 94 / 1992 Coll., amending and supplementing the Act of the Czech National Council No. 54 / 1990 Coll., on Elections to the Czech National Council, as amended by the laws of the Czech National Council No. 221 / 1990 Coll. and No. 435 / 1991 Coll.) was prohibited from using the local radio for electoral agitation of political parties except for the mere announcement of the holding of electoral assemblies. Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and addition of certain other laws, also adopted this regulation. Act No. 204 / 2000 Coll., amending Act No. 247 / 1995 Coll., on Elections to the Parliament of the Czech Republic and amending and supplementing certain other laws, as amended by Act No. 212 / 1996 Coll. and the Constitutional Court found published under No. 243 / 1999 Coll., Act No. 99 / 1963 Coll., Civil Code, as amended, and Act No. 2 / 1969 Coll., on the establishment of ministries and other Central Authorities of the Czech Republic, as amended, then deleted the regulation of the use of the local radio. Nor does it respond to developments in this area where municipalities issue their newsletters, and in addition to local radio, they also have their television, teletext and websites.
Under Paragraph 16 (1), the mayor may reserve an area to improve election posters 16 days before the election date. The possibility of using it must be consistent with the principle of equality between candidate political parties and coalitions or candidates in the Senate elections. The Supreme Administrative Court concluded from that provision by extensive interpretation that it was merely a "demonstration of the generally applicable access to the communication possibilities with which the municipality had its possession '. In his view, it is concluded that the principle of equality of candidate entities must be respected when using all means of communication held by the municipality.
The Constitutional Court does not fully identify with such an approach to the interpretation of Paragraph 16 (1) of the Election Act. First of all, the legal provision does not imply what measures the mayor is to take to achieve equal use of the reserved area for posting election posters by election parties. In practice, each of them must have access to these areas. The equality of approach lies in the equal possibility of using these areas, not in fact how the election subjects were used. Therefore, from the mere fact that some have put fewer posters on the designated areas than others, or that even some have not put up any posters, it cannot be concluded without any further indication that equal possibilities for their use have not been maintained. The various paragraphs of § 16 of the electoral law must be interpreted in an overall context. Therefore, it cannot be overlooked that there are precise conditions under which, in addition to the scope for posting electoral posters, public media can be used for the election campaign. Printers, whose publishers are municipalities, are closer in nature to the public media than to the campaign posters. If the legislator wanted to lay down rules on their use during elections, he would have to do so directly in the law, as was the case in the early 1990s.
The Election Act transforms the legislation implementing one of the fundamental political rights in practical terms, namely the right to vote and to be elected, expressed in Article 21 of the Charter. Pursuant to the last sentence of Article 21 (3) of the Charter, the conditions for the exercise of the right to vote are laid down in the law. If the law does not prohibit the use of municipal periodicals for election campaigns, then they can be used for election campaigns while maintaining equal access to electoral parties. An interpretation of the law cannot extend the law where there is no support for it in the law, especially where it is not the exercise of the supreme authority of the municipality as a public body. Paragraph 16 (1) of the Election Act is worded unequivocally as referring only to the area for posting electoral posters. The purpose of this provision is, first and foremost, not the rule for leading an election campaign, but the authorisation of the mayor in the field of public order and the preventive protection of property from "wild" sticking up posters long before his own vote. The obligation to ensure equal access results from the above constitutional principles. In the present case, it was not about whether Ing Z. had access to these media, but about whether the publication of those materials constituted a violation of the rules of the electoral campaign, as provided for in Article 16 (2) of the Election Act. The respect for the equality of access of electoral parties to the media issued by public bodies is not in the light of Article 5 of the Constitution and Article 22 of the Charter of the Dispute.
Therefore, the fundamental problem in the case at hand is not a violation of Paragraph 16 (1) of the electoral law, which could, hypothetically, be inferred only by an extensive interpretation, only if the electoral parties were not allowed to do so. The Supreme Administrative Court sees as a fundamental precondition for its satisfactory statement a breach of the principle of fair and fair conduct of the electoral campaign, as defined in Article 16 (2) of the Election Act. This was in his opinion fulfilled when the above mentioned articles and statements were published against Ing. Z.. The Supreme Administrative Court sees a violation of the principle of equality of candidates in the fact that in two periodicals, the publishers of which are municipalities, two articles were published just before the elections containing criticism of one of the candidates for elections, which, in his view, is incorrect and unfair. Even if the conclusion of the Supreme Administrative Court, with which the Constitutional Court does not agree that these printed matter are the same as the area designated by the Mayor for sticking up posters, it would not be a violation of the principle of equality as defined in Article 16 (1) of the Election Act. It is a right of equal access, not the obligation of all election subjects to stick up a certain, for all equal, number of posters. In this sense, it would therefore only be possible to talk about inequality if, for example, Ing. Z. sent his or her election allowance before their closure and they refused to print it. However, no such findings were made by the Supreme Administrative Court.
Paragraph 16 (2) of the Election Act is essentially the result of the reluctance of the electoral campaign actors to conclude pre-election agreements on the rules of the electoral fight for the designation of an "arbitrator" to assess whether the obligations of such an agreement are being met precisely "honestly and honestly." It is precisely such rules that this turnover is directed towards it, which cannot be prejudiced, for example, by the importance of good manners under Paragraph 3 (1) of the Civil Code. Likewise, the electoral legislator himself was unwilling to process the electoral code, as were the honourable statements of the campaign leadership that must be signed by those who want to run. It was his business to re-establish the nature of the electoral authorities. It did, however, result in no longer being an electoral body that would at least oversee compliance with election legislation and draw flexible conclusions at the time of the election campaign.
There is no doubt that the media with which they have local authorities, even if they are not official bulletins not covered by the press law, are subject to stricter rules in terms of use in the election campaign than those of publishers who are individuals of private law. This does not mean their obligation to provide mechanically the same space for individual candidates and persons, but there must also be a rule of equal access. Another procedure would be contrary to the rules of free competition of political parties under Article 5 of the Constitution and free competition of political forces under Article 22 of the Charter. If the legislator no longer prohibits the use of such media, the use of such media for election agitation purposes must be measured by the rules on equality of chances, and the publisher or operator of such media must consider whether it is able to ensure that such a principle is respected. However, it cannot be agreed with the appellant that the rule of Article 2 (3) applies The charter that what is not forbidden is allowed. The principle of equality of chances arising from the principle of free competition between political parties and political forces (Article 5 of the Constitution, Article 22 of the Charter), as rightly adduced by the Supreme Administrative Court, applies to such printed matter when it is made available to the electoral parties. Another approach could suggest to voters that only certain electoral parties prefer the municipality as a public-law corporation.
There is no dispute that the printed matter, issued as the municipal rapporteur, must maintain correctness and neutrality by being in the hands of the public authorities. In the position of mayor, the candidate must comply with certain rules because he is an official in this capacity and therefore does not generally have freedom of expression as ordinary citizens. In short, he cannot use his position as mayor for his election campaign or for someone else's election campaign. The materials submitted show that the agitation of the mayors against Ing. A. Z., whether direct or indirect, was not in accordance with the requirements of the fair and fair conduct of the election campaign (in particular the abuse of anonymity), as can be inferred from § 16 (2) of the electoral law. In the articles that were solely taken into account by the Supreme Administrative Court, it was not a conflict of candidates for the role of senator, but a dispute between mayors, who have different views on investment actions that affect their various parts of the city, and who are using a more vulnerable position of the opponent to make a more effective attack on them. At the time of the election campaign, this had to be seen as an attempt to influence the outcome of the elections, even though the Constitutional Court found that otherwise it was a matter of longer duration, and in this case it was a response to the speech of a supporter of another solution that was also running for the Senate.
Another question is the appearance of mayors and other local authorities' officials in such means as in this case. This is no longer a question of equality between the opportunities of the political parties for which they were elected, but of their representation as public officials representing the interests of the municipality and its inhabitants, as is apparent from the wording of their promise to commit themselves to their honour and conscience to perform their duties conscientiously, in the interest of the municipality (s) and its (their) citizens, and to follow the Constitution and the laws of the Czech Republic [cf. § 69 (2) of Act No. 128 / 2000 Coll., on Municipality (municipal establishment)]. In such a case, it cannot be argued that they may, by virtue of their role in the election campaign for the benefit of a party, invoke the freedom of expression provided for in Article 17 of the Charter as public officials and officials. However, this does not mean that, as party officials or as natural persons, they are not allowed to stand or even stand as candidates in the election campaign, but it also does not prohibit them from giving their position in this speech. The fact that the mayor acts in a political or other dispute as a politician (not an official person) does not mean that he will not be able to state a fact that is usually notorious for the citizens of the municipality. It would be absurd to deny the mayors and other public officials and to engage in an election campaign. This would also be a violation of the equality of the chances of these officials as candidates and their parties and a violation of the constitutional principle of free competition, which logically requires the possibility of competing parties. Therefore, it is only possible to consider as a differentiating criterion that the Mayor, as an official and official of the municipality, may use funds which another citizen cannot use (budget funds, telephone, computer, service car, official board of the municipal office, speeches related to his office, forms with the official head of the municipality or municipal office, supplying his performance of the punc official, etc., which may in particular affect older voters). The use of such funds is inadmissible in the election campaign. However, the Supreme Administrative Court has passed on that question. In this context, it should also be pointed out that the German case law cited in this context by the Supreme Administrative Court refers as an electoral error to a situation in which numerous and massive violations of the ban on the use of public funds in an election campaign or where the authorities of the State substantially affect the election of their institutions. It can be concluded from this that the cancellation of elections can only occur as a result of a fundamental and substantial breach of state neutrality during elections. However, this is not the case in the present case.
Similarly, the procedure was objectively noted by the fact that the intervener only had the opportunity to point out in the proceedings before the Constitutional Court the other circumstances of the controversy which arose on the basis of the first number of the Southeast Prague Courier, issued by the City of Prague-Křelice. While these circumstances put the articles of the Hehranev rapporteur and the Petrovic rapporteur in a somewhat different context than those set out in the preamble to the decision of the Supreme Administrative Court, this could not have affected the negative assessment of the fact that an anonymous unverified text was misused in one issue. At this point, the Constitutional Court agrees with the assessment of the Supreme Administrative Court, but it differs in what conclusions to draw within the meaning of the principles set out in § 87 of the Election Act.
With regard to the content of the electoral campaign, the Constitutional Court is aware that, in its course, voters are often very emotional and sharp-headed in the form of arguments to influence their electoral behaviour and decision-making. However, the purpose of the electoral campaign in pluralistic democracy is undoubtedly also to assess the most controversial issues of the political party and candidate agenda in general, as well as their personal characteristics and capacity to hold an elected public office. Only in this case will voters be able to decide on the knowledge of the matter, and only then can the constitutional principle that the people are the source of all state power be fulfilled. If the electoral law refers to the requirement of an honest and fair conduct of an election campaign, it means what was previously referred to as the purity of the elections (cf. § 56 (1) of Act No. 75 / 1919 Coll., which embodies the order of election in the Czech Republic). However, these terms cannot be interpreted from the point of view of private law and general morality, as they are used in terms of election campaign conditions, which is nothing more than a struggle for voters' votes. Its negative manifestations can be regulated, but cannot be ruled out by law.
In this context, the Constitutional Court considers it instructive to state the findings of the Election Court of 23 April 1926 (Collection of Fundamental Decisions and Organs of the Election Court. IV. part, Prague 1928, No. 183, p. 58), in which this court stated in a similar context that the "serious violation of the freedom and purity of elections" required is, however, an unacceptable agitation, which will turn into a terrorist, making physical and psychological pressure on the free decision of voters to the extent that even the secrecy of the election is not able to secure the free decision of the electorate. However, if the agitation of these borders has not passed, it cannot be seen as a violation of the freedom and purity of elections, even if it has come from the officials. "Although today's legislation and legal consciousness have shifted significantly, it still characterises the necessary public-law way of looking at the question addressed, how the Supreme Administrative Court overshot Ing. A. Z. and which is, in its essence, a more civil-law problem. The lack of effective protection in this respect will always lead to efforts to resolve such disputes through electoral complaints. However, the protection of personality rights in this procedure can only play an instrumental role in ensuring and respecting the rules of the proper conduct of the campaign.
Therefore, the Constitutional Court concluded that neither the objective nor the potential causal link between the content of the printed matter and its extension between the electorate and the election of J. N. Nut had been established that the Supreme Administrative Court only addressed the question of whether Ing. Z. could have advanced to the second round of Senate elections. However, in view of the above presumption of the validity of the outcome of the elections, it was not demonstrated that the substance of the basic substantive provision of our electoral justice was fulfilled, i.e. whether, within the meaning of Paragraph 87 (4) of the Election Act, the provisions of that law were infringed in a way that could have affected the results of the elections. While this cannot be demanded by the appellant, it clearly follows from this substantive provision that the infringement should actually affect the results of the elections. In fact, the Supreme Administrative Court did not address a question which the Constitutional Court considered to be material in the light of the fulfilment of Paragraph 87 (4) of the Election Act, namely whether it could be argued with a sufficient degree of probability that, in the second round of elections, the hypothetical transfer of Ing. Z. to the 2nd round would not have led to the election of Senator J. N. However, the Supreme Administrative Court completely abrogated this question, although it cannot be concluded without a reply that the results of the Election were affected, as required by Paragraph 87 (4) of the Election Act for their infringement. Instead, he focused only on evaluating the results of voting in the first round of elections in relation to the candidates Ing. A. Z. and Ing. P. J. Infringement of Paragraph 16 (2) of the Election Act in itself, without further evidence, cannot even lead to the conclusion that Ing. A. Z. could advance to round 2.
In addition, the reason for the annulment of the election could be a conclusion which is better in line with Article 87 (5) of the Election Act, namely that in such a case J. N. would not be elected by the Senator with a high degree of probability. However, this cannot be inferred from the above data on the results of the 1st and 2nd round of elections, from the participation in these elections, from the support of the party for which Ing Z. was candidate in the district. Here it is necessary to refer to the election results as indicated in sub IV. It is enough to say here against any other possible outcome that, in all three of Prague's Senate elections, the candidates of the ODS obtained virtually the same number of votes in both the 1st and 2nd round of elections. In the second round of elections, the same proportion of votes and the turnout of voters fell, which is typical in general, not only for Prague. It cannot therefore be concluded, hypothetically, that, when participating in the 19th constituency, from 18.907 votes cast, J. N. would not have received the same 10.407 votes as in reality. There is also no probable reason to argue that if Ing. A. Z. were to be transferred to round 2, there would be about 21 000 voters, and outside the 10.407 voters would all vote for Ing. A. Z. Basically, this candidate would have to get all the votes of all voters who were willing to come to vote in round 1 for his opponents for the Independent Candidate Association, for the KSČM, for the Change Way and for the CSSD. Likewise, voting for voters in Prague and the related urban areas in the 2002 elections does not allow for a different conclusion with a greater degree of probability. Although the KDU- ČSL won 52% of the votes in the elections at the Prague MSC-Zřežice, with the participation of 188 voters (i.e. 67% participation compared to 25% participation in the Senate 1st round). Similarly, it could be speculated that if Ing. A. Z. were to be transferred to the 2nd round, the electoral participation in terms of party profiling could be even lower compared to the candidate for the Independent Candidate Association, and thus the chances of changing the election result could be even lower. Therefore, there is no logical or statistically verifiable conclusion from the above data that anything could change in the outcome of the second round elections using the absolute majority principle and that J. N. was not elected by the Senator. Therefore, the presumption of the validity of the electoral decision of voters was not contested in such a way that the Constitutional Court could agree with the conclusions of the Supreme Administrative Court as to the validity of J. N. 's choice.
If our electoral legislator is unable to distinguish between the specificities of the review of elections in the event of their validity in the case of the entire Chamber of Deputies or a third of the Senators in the case of elections in one electoral district or in one Senate constituency (cf., in terms of language interpretation, "results" and "results" of elections), such interpretative problems will continue to arise. The election in constituency No 19 was undoubtedly intended to elect a senator, not to move to round 2 of the elections. The result of these elections can therefore only be the election of a senator. Therefore, in such a case, the application of Paragraph 87 (5) appears to be more appropriate, even if the shortcomings of the wording and the grounds for the provision cannot be remedied. In doing so, the Supreme Administrative Court itself set out as an assessment step the assumption that, secondly, the relationship between this illegality and the election of a candidate whose election is challenged by an election complaint and thirdly, the fundamental intensity of that illegality, which must at least significantly call into question the choice of the candidate in question in its implications. In fact, however, he practically only devoted himself to the fulfilment of sub-1 assumption, that is to say, the violation of the electoral law in both printing works, while the question of the significant challenge of J. N. 's choice in this context was actually completely abandoned and he was merely concerned with the possibility of two problematic printing works having an impact on possible action by Ing. A. Z. to round 2.
In this respect, irrespective of the circumstances of service of the application to initiate proceedings before the Supreme Administrative Court, it cannot be overlooked that its conclusions are necessarily marked by the fact that the elected candidate, whether guilty or not, was not able to present his argument to that court. However, the Supreme Administrative Court cannot be accused of cancelling the elections as a whole (but only in one constituency). Election law gives him no choice. Although this deficiency is contrary to the principle of proportionality, the primary purpose of this type of procedure, as well as the protection of subjective law, is not even a review of the constitutionality of the electoral law.
In the light of the above, it was no longer necessary to examine in more detail the question of the appellant's objection concerning the inaccuracy and illogical nature of the Supreme Administrative Court's conclusions on the so-called intensity of illegality. However, the Constitutional Court could not agree with its view that the reasoning of the Supreme Administrative Court is entirely incorrect and illogical on this point, although it is certainly not about the intensity of the illegality (the law is either violated or not), but is about the seriousness of the influence of this illegality on the composition of the assembly. It is natural that, in terms of electoral decisions by voters, the violations of the electoral campaign rules that took place at the time of this decision are more serious, which is the case for undecided voters in the last few days of the campaign. This conclusion of the Supreme Administrative Court stems from a long-standing case-law in electoral matters in our country (in free elections) and also abroad. What is important, however, is that the abolition of elections cannot be treated as punishment for the violation of electoral rules, but as a means of ensuring the legitimacy of the elected body. The likely effect of an electoral defect or an electoral offence (§ 177 of the Criminal Act, § 16 (5) and (7) of the Election Act) on the election result in specific elections with specific voters is crucial. A mere abstract possible causal link is insufficient. A different situation would have occurred if this had been a manifestly unfair way of running an election campaign, contrary to the requirement of proper conduct of elections and electoral competition, which could have resulted with a high degree of probability in the opposite outcome of elections than was expected, for example, in correct pre-election polls. It would have to be shown that, without these publications, the outcome of the Senate elections in the district could be different, which is not demonstrated by the above conclusions.
The Constitutional Court is aware of the complexity of the case and, in particular, of the serious shortcomings and legal gaps in this section. It therefore expects the legislature to consider, on the basis of the lessons learned, 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 consistent (cf. Analysis of the work of Filip, J., Holländer, P., Šiměl, V.: Law on the Constitutional Court. Comment C. H. Beck, Prague 2001, p. 405 - 411). It is also necessary to consider the system of means of defence of elections and electoral rights, as well as other subjective rights during the election campaign (e.g. 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 malfunctions of the electoral process, the electoral offences and 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 regulation 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 that will create a state of legal certainty for the subjects of the electoral process and which will at least be a prerequisite for the electoral economy.
The Constitutional Court therefore concluded, for the reasons set out above, that the intervener in the present proceedings was elected Senator in the elections to the Senate of the Parliament of the Czech Republic on 5 and 6 November 2004 and on 12 and 13 November 2004.
According to Article 91 (3) of the Law on the Constitutional Court, all decisions of other bodies which contravene this finding are therefore no longer valid, i.e. above all:
(a) Resolution of the Supreme Administrative Court of 3 December 2004 No. Vol 10 / 2004-24,
(b) Resolution No 11 of the Senate Mandate and Immunity Committee of the Parliament of the Czech Republic of 14 December 2004, which states that this committee could not verify the mandate for the constituency No 19, Prague 11, having regard to the fact that the Supreme Administrative Court decided by its Resolution No 10 / 2004-24 that the elections to that district were invalid,
(c) Resolution No 2 of the Senate of the Parliament of the Czech Republic of the first meeting of 15 December 2004 by which the Senate "takes note" of point II of the report of the Mandate and Immunity Committee on the outcome of the Senator's verification of the election,
(d) Decision No 653 / 2004 of the President of the Republic Coll., on the announcement of repeated elections to the Senate of the Parliament of the Czech Republic.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges JUDr. František Duchoň, JUDr. Ivan Janů, JUDr. Miloslav Excellent and JUDr. Eliška Wagner.
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Regulation Information
| Citation | The Constitutional Court found No 140 / 2005 Coll., on an appeal pursuant to Article 87 (1) (e) of the Constitution of the Czech Republic |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.04.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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