Found at the Constitutional Court of the Czech Republic No. 161 / 1996 Coll.
Findings of the Constitutional Court of the Czech Republic of 15 May 1996 concerning the application for annulment of the provisions of Sections 35, 65 and 92 (2) of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws
Valid
The Constitutional Tribunal found
Text versions:
12.06.1996
161
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 15 May 1996 in plenary on the proposal of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the provisions of Sections 35, 65 and 92 (2) of Act No. 247 / 1995 Coll., on elections to the Parliament of the Czech Republic and amending and supplementing certain other laws,
as follows:
Motion denied.
Reasons
On 12 February 1996 a proposal was served on the Constitutional Court, accompanied by 42 signatures of Members of Parliament of the Czech Republic, the object of which is to request the annulment of the above provisions of Act No. 247 / 1995 Coll. The Constitutional Court first verified the formal terms of the application and found from the attached signature sheet that it was a duplicate signature in one case. Although this reduced the number of Members to 41, the legal conditions of Paragraph 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court are fulfilled.
The Constitutional Court further examined the formal admissibility of the proposal of a group of Members in terms of its content and found that the application for annulment of the provisions of Sections 35, 65 and 92 (2) of Act No. 247 / 1995 Coll. is admissible in the light of Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). On the other hand, the motion of a group of Members to have the Constitutional Court decide to repeal those provisions of the Law pursuant to Article 87 (1) (b) of the Constitution contradicts the Constitution itself, since Article 87 (1) (b) provides for the repeal of (lower) legislation other than the law. The repeal of the provisions of the Law on the basis of Article 87 (1) (b) of the Constitution is therefore not possible.
However, with the above reservations, the constitutional complaint fulfils the formal conditions. In fact, a group of Members is invading the provisions of Act No. 247 / 1995 Coll., concerning the introduction of so-called electoral bail. With regard to the Chamber of Deputies, the legal regulation provides that a political party or coalition whose candidate list has been registered in the electoral district shall deposit a deposit of CZK 200 000 within three days of the registration notification, with the deposit being a condition for the opening of the printing of ballots of the relevant political party or coalition. If the bail is not lodged, the ballots shall not be printed. The bail will be returned by the Regional Electoral Commission to a political party or coalition on the condition that the party or coalition has advanced to the first skrutinia, that is to say, that it has obtained at least 5% of the votes cast on a national scale. Amounts that are not refunded are revenue from the state budget.
In addition to bail for elections to the Chamber of Deputies, a group of Members also challenge bail for elections to the Senate (§ 65 of the Act cited). The legal regulation is based on the fact that individual candidates are required to post a deposit of CZK 20 000 after their registration and to notify the District Election Commission. The composition of the bail is a condition for starting printing ballots. You don't print ballots without bail. In this case, too, the repayment of bail to the debtor is subject to the condition of a certain degree of electoral success; the amount is refunded if the candidate obtains at least 6% of the total number of votes cast in the constituency. In this case, too, the amounts which are not refunded are revenue from the state budget.
The group of Members is based in its proposal on the concept of bail as a synonym of certainty or guarantee. They state that, in Czech law, bail has so far been an institution of civil and commercial liability law and that it is also used in civil proceedings, tax (administrative) proceedings and procedural law, that bail serves primarily to ensure a private legal obligation or to advance legal tax obligations, and stress that such bail does not fall for the benefit of the State under any circumstances. Only in criminal proceedings and in special cases, bail is also subject to sanctions. The appellants point out that the bail provided by Act No. 247 / 1995 Coll. (the text of the proposal appears to be by mistake mentioned in No. 247 / 1992 Coll.) does not correspond to the usual concept of bail and is in fact a penalty "sui generis" reminiscent of a state-organised gambling.
The group of Members, in its further argument, turns to the regulation of active and passive electoral law as an institution of constitutional law. They state that the contested law infringes the constitutional limits on the exercise of electoral law on two substantive issues in Articles 35 and 65: it introduces the obligation of the subjects of electoral law to deposit bail as a condition for the printing of ballots, and it also introduces the "non-refoulement 'institute, and unrefunded bail is classified as the revenue of the state budget.
As regards the first question, they argue that the regular implementation of elections, their organisation and financial security is an international legal and constitutional obligation of the State. No constitutional standard allows the State to make its legal obligation to start printing ballots by deposit and to impose an obligation on political parties and citizens to fund or guarantee their printing.
The forfeiture of bail in favour of the state budget is also regarded by a group of Members as contrary to both constitutional regulations and international legal obligations of the Czech Republic. The applicants state that the forfeiture of bail to the State is entirely independent of the entity's will and conduct and that it is not at all caused by its unlawful conduct. Only voters shall decide whether the candidate receives at least 6% of the total number of votes in force. The internal contradiction of the electoral law is also seen in the fact that electoral bail is contrary to Article 84 of the electoral law, according to which all the expenditure incurred by the public authorities, municipalities and electoral commissions associated with elections to Parliament is borne by the state budget. The provisions of the Act on the forfeiture of bail-outs for the benefit of the State regard as a financial penalty to the detriment of registered political parties and candidates as having failed the elections and, at the same time, as a forced exceptional contribution by less successful political parties and candidates for the benefit of the State.
Finally, a group of Members turns against electoral bail, pointing out that the non-printing of ballots of duly registered and officially registered candidates and candidates due to the failure to deposit bail is an unconstitutional interference in the constitutional right of all political parties to participate in Parliament's creation and in the constitutional right of individual citizens to apply for electoral favors and parliamentary mandate. They argue that the Constitution envisages a political system based on free and voluntary creation and free competition by political parties respecting fundamental democratic principles, while the provisions of the electoral law deny political parties and coalition with a smaller property background the effective possibility of participating in elections. Bail is an obstacle to free competition and forces political parties to focus on the material aspect of the activity or seek support from other entities that generate revenue regardless of democratic objectives and principles.
In this context, they also object to a breach of the principle of equality in elections by not allowing entities that do not have 1 600 000 CZK per election on a national scale. This amount may seem irrelevant from the point of view of other entities, but may lead to exclusion from elections for smaller entities with small assets. The Group of Members takes the view that any amount, regardless of its size, as a condition for the exercise of passive voting rights favours those who are better prepared to compete in the economic field than to compete in the field of ideas and ideas. Equality must be understood as an opportunity to participate in legislative power without any restriction on property. However, the electoral law can effectively prevent registered parties and candidates from fulfilling passive voting rights precisely because of the lack of assets.
At the end of its proposal, a group of Members points out the contradiction of the electoral law as regards its provisions on bail, with Articles 5 and 19 (1) and (2) of the Constitution and with Article 4 (1), (2) and (4), Article 11 (2), Article 20 (4), Article 21 (1) and (4), and Article 22 of the Charter of Fundamental Rights and adds that the Czech Republic is also bound by international treaties in its electoral law, and in particular Article 3 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, in which states an obligation to hold elections under conditions that ensure the free expression of the views of the people on the choice of the legislative body. In this context they also refer to the prohibition of discrimination under Article 14 of the Convention.
The draft group of Members was sent by the Constitutional Court pursuant to § 69 of Act No. 182 / 1993 Coll. The Czech Parliament shall request written observations within 30 days of the date of service. On 22 March 1996, the Constitutional Court received a written statement from the Chamber of Deputies of the Parliament of the Czech Republic, signed by its President, PhDr. Milan Udem, stating that the electoral law, as well as in its provisions on bail, was approved by a prescribed majority and underwent a proper process of approval and publication, thus representing the degree of consensus reached within Parliament. As regards the reasons for the introduction of electoral bail, the need for restrictions on the fragmentation of political forces in the Czech Republic is cited, which could lead to difficulties in the function of representative body, and in particular the high costs incurred by the State in printing ballots, provided that the competing political parties and candidates are disproportionately high. Finally, it refers to the observations of the Parliament of the Czech Republic on the explanatory memorandum to the government's draft electoral law, in which the general section states that "the bail of candidate political parties in elections to the Chamber of Deputies and the Senate is enshrined in the law, based on experience from abroad, namely France."
According to Article 13 of Law No 182 / 1993 Coll., a majority of at least nine judges present are required to abolish the law or its individual provisions, i.e. for a decision under Article 87 (1) (a) of the Constitution. An application for annulment of a law or its individual provisions shall be rejected if the majority requested by that law does not speak for it, i.e. even if only a minority of judges, the majority voting for annulment, but includes less than nine Judges (Pl. ÚS 36 / 93, Pl. ÚS 4 / 95), declare a refusal.
In the case at hand, the majority of the eight judges voted in favour of the annulment of Article 35 of Act No. 247 / 1995 Coll. and in favour of the rejection of the application for annulment of Sections 65 and 92 (2) of Act No. 247 / 1995 Coll., a minority of seven Judges voted in favour of the rejection of the proposal in its entirety.
The opinion of the relevant minority, leading to the failure by the law to reach the nine votes required for the repeal of the law or its individual provisions, shall be based on the following arguments:
Under the provisions of § 35 (2) of Act No. 247 / 1995 Coll., a political party or coalition is required to deposit a deposit of CZK 200 000 in all the electoral regions in which the political party or coalition is registered. According to paragraph 4 of the provision cited, bail is refunded to a political party or to a coalition if it has advanced to the first skrutinia, i.e. if the political party has received more than 5% of the votes or, in the case of a coalition, more than in § 49 (2) and (3) of Law No 247 / 1995 Coll. the required number of votes. In this context, it is also necessary to mention the right of a political party to a permanent contribution if at least 3% of the votes are obtained in the elections to the Chamber of Deputies, which amount to at least CZK 3 000 000 per year (Section 20, paragraphs 4 and 6 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended).
A similar obligation as for the elections to the Chamber of Deputies is set for the elections to the Senate, for everyone whose application has been registered, to deposit a deposit of CZK 20 000 (§ 65 (2) of Act No. 247 / 1995 Coll.). According to paragraph 4 of the provision cited, bail shall be refunded to those who received at least 6% of the total number of votes in the constituency.
Although the electoral law links the establishment of an election bail to the launch of the ballot, it is not an election allowance, but a special legal institute which constitutes one of the conditions of selectivity.
Article 5 of the Constitution and Article 22 of the Charter of Fundamental Rights and Freedoms provide for the protection of the free competition of political parties, subject to the legal regulation of all political rights and freedoms, and therefore also to electoral rights. Pursuant to Article 19 (1) and (2) of the Constitution and Article 21 (1) and (4) of the Charter of Fundamental Rights and Freedoms, the universality and equality of passive voting rights for elections to the Parliament of the Czech Republic apply. Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 3 The Additional Protocol to this Convention provides for a prohibition of discrimination in the legislation governing free elections.
In the present case, therefore, the question must be answered whether electoral bail is a component of the legal regulation of electoral law which limits the free competition of political parties.
Freedom can be seen as a free choice in which there is freedom to enter into the electoral process with its political alternative (i.e. there is freedom to establish political parties and freedom to propose candidates for the functions of Members in the majority system), freedom to apply for the support of voters and to communicate with the public, as well as freedom to choose from more political alternatives represented by more political parties and more candidates for the functions of Members.
The constitutional system of the Czech Republic is based on the principle of representative democracy (Article 2 of the Constitution), with Article 19 (1) and (2) The constitutions are held according to the principles of proportional representation and election to the Senate according to the principles of the majority system.
The principle of representativeness includes primarily the derivation of the composition of the representative board from the political structure of the civil public. However, it also contains a requirement for the minimum representativeness of the players (political parties and movements) involved in political competition. Its projection is the minimum representativeness of the proposal for registration of a political party pursuant to § 6 (2) (a) of Act No. 424 / 1991 Coll., as amended. A similar requirement is also expressed in the case of an independent candidate for election to the Senate under the condition of his application pursuant to § 61 (6) of Act No. 247 / 1995 Coll.
The law of the Czech Republic therefore contains not only aposterior instruments of integration of the political system (which are restrictive clauses), but also instruments of apriori.
The purpose of political parties is political representation of a part of the public, participation in elections and efforts to obtain representation in representative bodies, especially in Parliament, or in other elected public authorities.
In terms of elections, therefore, the freedom of political competition must be seen, first and foremost, in the constitutionality of the conditions of the electivity of political parties. When assessing the conformity of the contested provisions of the electoral law with the constitutional laws and international treaties pursuant to Article 10 The Constitution is therefore a key question as to whether the legally required electoral bail-out can be placed under the minimum representativeness of the party, or an independent candidate, and whether the legislator has chosen an adequate means to do so (i.e. whether the minimum representativeness can only be demonstrated by a certain number of political party sympathizers, or by a certain number of its members or by other means).
The sense of electoral bail in the elections to the Chamber of Deputies is in the direction of limiting the participation in elections to parties whose representativeness is less than 3% of the votes cast (otherwise the State contribution or the return of bail is guaranteed). It is therefore a certain accesorium for a restrictive clause pursuant to § 49 of Act No. 247 / 1995 Coll. The aim of this accessoria is to limit the number of political parties and votes cast for them, which are not taken into account when determining the election results and allocating mandates under § 49 (3) of Act No. 247 / 1995 Coll..
A similar sense and goal is pursued by the election bail in the case of the Senate elections.
An argument in favour of the appropriateness of the bail-outs as a support instrument indicating the party's minimum representativeness as well as the instrument minimising the number of votes not taken into account in the determination of the election results may be possible to dispute the authenticity of the signatures or the circumstances of their procurement.
In measuring the limitation of the possibility of taking part in electoral bail elections and the meaning and purpose of the electoral bail-out, it is necessary, in particular, to consider the intensity of the restriction, i.e. the extent to which the bail-out rate for independent candidates and political parties is constitutionally unacceptable in terms of minimum representativeness.
If bail is to fulfil its purpose and purpose, and at the same time not to restrict the free and free competition of political forces, it must, in terms of the number of sympathizers, fulfil the minimum representativeness requirement, represent a small sum, non-restrictive or most common personal expenditure. This condition is fulfilled in the legislation of the elections to both chambers of the Parliament of the Czech Republic, although in the elections to the Chamber of Deputies at the limit of capacity.
Those reasons led to the conclusion that the provisions of Articles 35, 65 and 92 (2) of Law No 247 / 1995 were in conformity with the constitutional laws and international treaties provided for in Article 10 of the Constitution and thus to the rejection of the application for annulment.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to give a different opinion on the finding in the minutes of the hearing and its connection to the decision, stating its name under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was used by the judges of the Constitutional Court of the Czech Republic JUDr. Vladimir Klokot, JUDr. Miloš Holeček, JUDr. Vladimir Paul and JUDr. Vlastimil Ševčík.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 161 / 1996 Coll., on the application for annulment of provisions § 35, 65 and § 92 § 2 of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.06.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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