The Constitutional Court found no 243 / 1999 Coll.
The Constitutional Court's finding of 13 October 1999 on the application for annulment of the third sentence of Section 85 of Act No. 247 / 1995 Coll., on the elections to the Parliament of the Czech Republic and amending and supplementing certain other laws
Valid
The Constitutional Tribunal found
Text versions:
10.11.1999
243
FIND
The Constitutional Court
On behalf of the Czech Republic
On 13 October 1999, the Constitutional Court decided in plenary on the draft political party of the Democratic Union, together with a constitutional complaint concerning the annulment of Section 85 of the third sentence of Act No. 247 / 1995 Coll., on the elections to the Parliament of the Czech Republic and on the amendment and addition of some other laws which reads: "which in the elections received at least three percent of the total number of votes in force,"
as follows:
The third sentence of Section 85 of Act No. 247 / 1995 Coll., on Elections to Parliament of the Czech Republic and amending and supplementing certain other laws which are worded "which received at least three percent of the total number of valid votes in the elections," is deleted.
Reasons
On 16 October 1998, the complainant, a political party of the Democratic Union, lodged a constitutional complaint pursuant to Article 72 (1) (a) of Act No 182 / 1993 Coll., on the Constitutional Court. The reason for the constitutional complaint was the decision of the Ministry of Finance not to pay a contribution to the Democratic Union's electoral costs in the amount of CZK 778 790. By letter dated 19 August 1998, the Ministry of Finance notified the Democratic Union of its decision, referring to part of the provision of § 85 of Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and amending and supplementing certain other laws (hereinafter referred to as the Election Act) introducing a limit of three percent of the total number of votes cast in the elections for the payment of the contribution. According to Section 85 of the Election Act, the Ministry of Finance is the authority entitled to pay political parties a contribution to the payment of the electoral costs of CZK 90 per valid vote. In view of the fact that the payment of the election allowance was refused by reference to the provisions of the law, the Democratic Union, together with a constitutional complaint, made a proposal to repeal part of Paragraph 85 of the electoral law, which was the subject of a constitutional complaint.
The Democratic Union sees in the decision of the Ministry of Finance an infringement of Article 22 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), namely the intervention of a public authority in the free competition of political forces in democratic society. According to a constitutional complaint, if any valid vote submitted in the elections is subsidised by CZK 90 for the relevant political party, any further conditions for the payment of this amount constitute an intervention in the free competition of political forces, thus creating unequal conditions for political parties. This inequality of conditions is multiplied by the obligation of the candidate political parties to post bail of CZK 1,600,000. If such bail does not return to some parties or receive a contribution to the election costs for each vote cast, it is economic discrimination against emerging political parties which are disadvantaged against those established, which is directly contrary to Article 5 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), according to which the political system is based on free competition from political parties. According to the Democratic Union, the State requires that the newly created political party, without any state funding, should already cross a 3% threshold in the first elections after its creation, in competition with the state-funded parties. Moreover, the constitutional complaint finds clear discrimination from a citizen's point of view, since the State has decided that a vote will be worth 90 CZK and another vote will not be. Finally, the constitutional complaint points out that it is not only possible to declare the protection of political rights and then to do the opposite with economic instruments. If the real free competition of political forces is to be maintained, this amount must also be paid for each vote cast without further restrictive conditions.
In its observations by the Chamber of Deputies of the Parliament of the Czech Republic as a party to the proceedings, it is argued, first of all, that, pursuant to Article 87 (1) (j) of the Constitution and Article 73 (1) of Act No 182 / 1993 Coll., a political party may apply to the Constitutional Court only in the event of its dissolution or any other decision of a public authority affecting its activities. The current legislation does not allow any other legal reason for the active legitimacy of the political party in the proceedings under § 72 et seq. of Act No. 182 / 1993 Coll., as amended. The Democratic Union is therefore not entitled to submit the proposal. The Chamber of Deputies therefore considers it irrelevant to comment on the proposal to repeal Section 85 of the Election Act and is confined to stating that the electoral law was approved by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared. The legislature has acted in the belief that the adopted law is in line with the Constitution, the Constitutional Order and our rule of law, and it is up to the Constitutional Court to examine the proposal and give its decision.
In view of the objection to the lack of active legitimacy of the political party in the proceedings under Section 72 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court was obliged to first address this reservation. He concluded that the argument of the Chamber of Deputies is based on a misinterpretation of the law and is therefore not justified. Pursuant to Article 72 (1) (a) of Law No 182 / 1993 Coll., a natural or legal person under Article 87 (1) (d) of the Constitution is entitled to file a constitutional complaint against a final decision, measure or other intervention by a public authority in breach of constitutionally guaranteed rights and freedoms. The legal person is undoubtedly the political party that is subject to rights and obligations.
The provision on the heading of the persons entitled to lodge a constitutional complaint is not affected, but only supplemented by Article 73 of Act No. 182 / 1993 Coll., which regulates the special case of dissolution of a political party or any other decision of the State with regard to the activities of a political party, such as the decision to refuse registration of a political party or to suspend its activity pursuant to Article 14 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended, that is to say, matters which are generally decided on by the Government of the Supreme Court. In the case of Article 73 of Act No 182 / 1993 Coll., a political party may make a proposal pursuant to Article 87 (1) (j) of the Constitution if it considers that the decision concerning its activities is not in conformity with constitutional or other laws. This does not restrict the right of a political party in addition to the proposals under § 73 of Act No. 182 / 1993 Coll., as amended.
As regards Article 72 of Act No 182 / 1993 Coll., as amended, a political party, as a legal person, is entitled to lodge a constitutional complaint if it considers that a final decision in the proceedings of which it was a party, a measure or other intervention by a public authority has infringed its fundamental right or freedom guaranteed by a constitutional law or an international treaty pursuant to Article 10 of the Constitution. Since, in the present case of a constitutional complaint, the contested fact arose by the immediate application of the provisions of Paragraph 85 of the Election Act, it is for the Democratic Union to make a proposal, together with the constitutional complaint, for the annulment of the legislation which, by virtue of the application of the consequences of a constitutional complaint (Section 74 of Act No. 182 / 1993 Coll.).
The Constitutional Court also considered whether the constitutional complaint had been lodged by someone manifestly unauthorised under § 43 (1) (c) of Act No. 182 / 1993 Coll., as amended. In its communication of 19 August 1998 No 143 / 61 733 / 1998, the Ministry of Finance stated that it was not entitled to pay the Democratic Union's electoral costs, because the party did not fulfil the legal requirement for the payment of the electoral allowance under § 85 of the Election Act.
The Ministry of Finance does not seem to consider its communication to be a decision of a government body and refers explicitly to the "usual way" against the restrictions that the Democratic Union considers unconstitutional. These "usual paths" can be two. The first is to make a motion to repeal the electoral law through a group of Members or Senators of those political parties already represented in Parliament. However, such (imaginary) action by large parties in favour of small parties that are their potential competitors is hardly foreseeable.
The second way could be a legal action against the Czech Republic represented by the Ministry of Finance to pay the relevant election allowance. But even this path has its pitfalls. Even if, in such a case, the applicant had proposed to the General Court to request the annulment of the contested provision of the electoral law, the Court could, but did not have to, suspend the proceedings and not have to refer the matter to the Constitutional Court pursuant to Article 95 (2) of the Constitution. In such a case, the plaintiff shall refer fully to the opinion of the General Court, which shall have the obligation to refer to the Constitutional Court only if it itself concludes that the law to be applied in the resolution of the case is contrary to the constitutional law.
It is clear that in such a procedure the complainant, i.e. the Democratic Union, could have incurred serious and irrevocable damage pursuant to § 75 (2) (b) of Act No 182 / 1993 Coll. However, the reference to the "usual route 'of the general courts in this case does not stand, even in the light of § 75 (2) (a) of Act 182 / 1993 Coll., since the complainant may not have used up all the procedural means provided by the law to protect his right, the Constitutional Court cannot accept a complaint that is substantially beyond the complainant's own interests - in the present case, a question of general importance which is closely linked to the principle of equality of political parties in electoral competition.
Notwithstanding this serious circumstance, the two routes identified as "normal 'show shortcomings which, in their consequences, would constitute restrictive interference in the conceptual content of the material rule of law and the right to seek the application of the principle of equality guaranteed by the Constitution, the Charter, and the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 36 of the Charter and Article 6 of the Convention). The argument that the Communication from the Ministry of Finance is not a formal decision of the administrative authority will not stand before this. Under Section 20a of Act No. 424 / 1991 Coll., as amended, the contribution is paid by the Ministry of Finance at the request of a political party or movement. In the present case, it is in fact a refusal of the request raised, namely the opinion expressed in the communication of 19 August 1998 under No 143 / 61 733 / 1998. In the view of the Constitutional Court, in this case it is not so important whether the application was formally rejected or simply" measure' or "other intervention 'by a public authority.
The fact remains that this is a negative response by the public authority to the claim raised, albeit with reference that the provisions of the Law do not allow the payment of the electoral allowance. In view of this, it is also appropriate to examine the constitutionality of Paragraph 85 of the Election Act, as the complainant derives the rejection of its claims precisely from the unconstitutional nature of that provision. The Senate of the Constitutional Court, moreover, has the right, pursuant to Article 64 (1) (c) of Law No 182 / 1993 Coll. in the context of the decision on a constitutional complaint, "or, where appropriate, also to make a proposal for the annulment of the law itself if, in its examination, it concludes that it is contrary to the constitutional law.
For all these reasons, The Constitutional Court agreed to discuss an application for annulment of the second sentence of Section 85 of the electoral law, which reads "which received at least three percent of the total number of votes in the elections, '.
The Constitutional Court, having considered all the circumstances of the case, concluded that the proposal to repeal Section 85 of the Election Act, which makes the State's contribution to the Party's electoral costs conditional on the acquisition of at least three percent of the total number of votes in force, is justified.
The opinion of the Constitutional Court is based on consideration of the fundamental issue, namely the relationship between two contradictory aspects of political parties' electoral competition. The first is the demand for free electoral competition between political parties on equal terms, giving political parties an equal chance in electoral competition and leading to a composition of an elected body that best reflects the true differentiation of the political will of voters. The second requirement is the ability of the legislature to take decisions on the basis of the formation of a political majority, i.e. to be a legislative body not only nominal but also functional. In countries with a relatively fragmented spectrum of political parties, the principle of effective integration meets the principle of natural differentiation, as the need for a political majority capable of creating both government and legislative activity is also in the nature of a constitutional state.
Both of these requirements must be respected in a sensitive and balanced manner both in the overall regulation of all elements of the electoral process and in the regulation of the position of political parties. Therefore, from the point of view of a representative democracy, it is permissible to incorporate integration stimuli into the legislation there - and only where there are serious reasons for doing so, in particular provided that the fragmentation of votes among a large number of political parties would result in an unfettered "overgrowth" of political parties, thereby endangering the functionality and capacity of the parliamentary system and the continuity of the parliamentary system. After bad experience with excessive fragmentation of the parliamentary spectrum, European states applying a system of pro-election proportional representation have also largely joined the introduction of integration stimuli, in particular the limitation clause, mostly five%. Such integration interventions by the legislature are generally regarded as constitutionally legitimate if they are carried out to the extent strictly necessary for the formation of the political will of the people needed to take decisions in an elected body, and if such arrangements do not, in their entirety, unduly interfere with the real picture of the political will of voters expressed by their voting, as the principle of free competition of political parties (Article 5 of the Constitution, Article 22 of the Charter) enjoys higher constitutional protection in confronting both of these requirements.
The Constitutional Court has already dealt with integration incentives, particularly in two cases. The first (Pl. ÚS 25 / 96 - No 88 / 1997 Coll.) concerned a five% limitation clause. At that time, the Constitutional Court declared this clause to be constitutionally conformal and found that certain restrictions on differentiation in the distribution of mandates are acceptable if it is a minimum intervention enabling the creation of a House capable of fulfilling its constitutional functions.
The second case was the application for cancellation of the electoral bail-out (Pl. ÚS 3 / 96 - No 161 / 1996 Coll.), which, although supported by the majority of the judges of the Constitutional Court but not the majority qualified, was therefore rejected. In this case, the House of Deputies was to cancel the obligation for each party or coalition to deposit a deposit of CZK 200 000 in each constituency in which it participates in the elections, with a refund of at least five per cent of the vote. As a result, this integration stimulus, which also places small parties before the obligation to deposit CZK 1,600,000 as bail-out for their voting participation in all districts at risk of losing this amount if they do not receive at least five per cent of the vote (§ 35 (4) of the electoral law).
Both the five% limitation clause and this measure are justified by the need to face excessive differentiation of the political spectrum and the existence of numerous small political parties. In fact, the same reasons are based on Paragraph 85 of the Election Act, which is linked to the payment of an election allowance of CZK 90 for each vote given to the party or coalition on the condition of obtaining at least three percent of the total number of votes in force.
As an additional reason for these restrictions, concerns are raised about the parties' recurring self-purpose activity primarily aimed at obtaining state resources, as well as the visibility of their candidates for reasons other than electoral reasons (e.g. for the acquisition of personal popularity, corporate or commercial activities, recession, etc.).
The contribution to the remuneration of electoral costs, as provided for in Section 85 of the Election Act, is in itself nothing quite exceptional in the countries of the European Union. In Germany, France, Italy and Denmark, the more moderate conditions for the payment of the election allowance apply. Belgium and Spain weigh the payout to obtain a parliamentary mandate, Greece weighs three per cent of the vote and the party's candidacy in at least two thirds of the districts, Luxembourg weighs at least five per cent in the respective district, Great Britain, Ireland, the Netherlands and Portugal do not know the direct funding of political parties by the State at all. From this point of view, the solution to the Czech electoral law does not go beyond the European average.
However, the Constitutional Court considers that an objective assessment of the Democratic Union's proposal requires not only an isolated consideration of the contribution itself to the cost of voting, but its assessment in summary of the resulting effect of all these factors in our electoral system.
In particular, it is necessary to distinguish the effect of the five% limitation clause from the electoral bond and the contribution to the election costs. The 5% limitation clause acts directly and primarily only in the system of allocating mandates between individual political parties, that is, only after the election vote has ended, and its impact on the entry of political parties into the electoral competition and on their participation in elections is only indirect, that is, through consideration of whether or not the chance of obtaining parliamentary representation for the party is real. While this consideration may discourage some parties from participating in elections, their freedom to participate in elections and to compete with others in electoral competition is not directly limited.
On the other hand, electoral bail is an intervention primarily not in the distribution of mandates, but directly "in advance" in the freedom to enter the election competition and participate in elections, and clearly acts and priori in the equality of elections by weighing the payment of CZK 1,600,000, which the parties advance for their full participation in the elections, to obtain at least five per cent of the national votes.
This "priorial instrument of integration" is directly included in the Czech Republic in the reduction of the contribution to the remuneration of electoral costs, which, by its nature, also limits other small political parties by way of additional financial advantages, compared with the parties represented by Parliament. In the Czech Republic, there is thus a accumulation of economic barriers for the participation of small parties in an election competition that is unprecedented in any of the European Union's countries with a proportional electoral system. They don't even exist in any sign of election bail. Although there is no electoral bail-out, the limits for granting the electoral cost allowance are also criticised. Thus, for example, in Germany, 2.5% of the votes obtained were found to be unconstitutional by the Federal Constitutional Court and the reregulation of Paragraph 18 of the Political Party Act was reduced to 0,5% for the federal and 1% for the regional elections. In its decision (Entscheidungen St 24, p. 300, 339 n.), the Federal Constitutional Court stated that, while the legislator may make the payment of the electoral allowance dependent on obtaining a minimum number of votes, it has identified a limit of 2,5% as unconstitutional, as it is contrary to the principle of equal political party elections. Democracy is essentially directed against privileges, therefore in 1975, in a different context, the same Constitutional Court found that "everyone should exercise their national civil rights in terms of form and manner with the maximum degree of equality" and that "everyone must have an equal chance of becoming a member of Parliament, regardless of social differences, especially their origin, nationality, education or property" (there, Sv. 40, pp. 317-318).
The principle of free competition of political parties involves the State's obligation to respect the equality of chances of such parties from the point of view of the regulation of the terms and conditions of such competition and the regulation of rights for its participants, as it is essentially the application of the general principle of equality guaranteed by both constitutional and international acts. Any intervention by the legislator in these conditions is a State intervention and should be guided by the general interest. The percentage limitation for the payment of the contribution to the election costs of political parties shall not be a product of pleasure or suitability assessed solely for the interests of established parties.
For the Czech Republic, therefore, the legislature must also respect, when adapting to the creation of political will, that it is particularly limited in this field and that it is denied any differentiated treatment of parties, the basis of which is not a reason for exceptional seriousness. In this context, it can be pointed out that "when paying for the costs of the electoral fight, in principle all parties involved in the electoral fight cannot be entitled to set a minimum share of the votes by pointing out that elections are to create functionable parliaments' (Entscheidungen, p. 24, p. 341). Also in the Czech Republic the criterion for this adjustment must be different. It is not an instrument of further integration, but simply a question of whether the proposals and programmes put forward for election are serious, whether they are focused solely on electoral success and not on other objectives. The purpose of the electoral contribution must not be to restrict the freedom of competition, but to ensure its seriousness. The Federal Constitutional Court of Germany has, for example, explicitly stated that 0,5% of the votes will be sufficient to prove the seriousness of the campaign efforts and make unnecessary verification according to other criteria. The lower the electoral success threshold, the more likely the electoral success is to coincide with the party's political importance.
If modern representative democracies take account of the functioning of the parliamentary system and accept to a limited extent the integration stimulus into the mandate distribution system, this does not mean that integration aspects must take precedence over the principle of free and essentially unlimited competition by the electoral parties. Their free competition is a direct expression of the pluralistic nature of democratic society, and it is the protection of pluralism in political life that is of primary importance for the very existence of democratic society. Therefore, Article 5 of the Constitution and Article 22 of the Charter are significantly protected. Any direct or indirect restriction on the equality of parties in electoral competition may not, on an individual basis or in the cumulation of measures which discriminate or favour certain parties, oppress the participation of political parties in electoral competition itself. The cumulation of financial aid for only certain parties is, in its consequence, a simultaneous accumulation of effective financial penalties for other parties. Therefore, careful consideration should be given to whether the purpose of such measures is not exceeded. This purpose must only be the seriousness of the efforts of the competing parties, which are not aimed at objectives other than participation in the political representation and promotion of their own programme. Integrační stims are, in a representative democracy, only allowed after the completion of the process of free competition between legally equal political parties, i.e. after the addition of votes for the parties, by a certain differentiation in the allocation of mandates, but not primarily by the financial stimulus of some and the disadvantages of other parties, as this would result in modification and stylization in the number of votes cast by the political parties.
The French Conseil constitutionnel also declared in 1990 (Decision No 89-271 DC) the link between the electoral contribution to the acquisition of more than five per cent of the votes in each district as an unconstitutional and contradictory principle of equality, so that, while at present half of the total of the electoral contributions is distributed proportionally between the parties according to the number of members of Parliament, the other half is distributed proportionally to all parties participating in the elections, according to the number of votes obtained, without establishing a percentage limit. In Denmark, it is enough to receive a contribution of 1 000 votes cast in the last parliamentary elections.
The Constitutional Court has already recognised the admissibility of the State financial contribution to political parties in its finding on the financing of political parties (Pl. ÚS 26 / 94 - No 296 / 1995 Coll.), given their irreplaceable functions in the constitutional form of the government of representative democracy. The Constitution in Article 5 assumes that the creation of political will and formation of state power is the result of free competition between political parties within a democratic rule of law. The result of this competition is a certain political profile of elected state authorities. Therefore, intervention by state authorities back in the life of political parties is undesirable where they could limit the free and free conduct of competition. Article 22 The Charter provides that the legal regulation of all political rights and freedoms and its interpretation and application must enable and protect the free competition of political parties in democratic society.
At present, there are material incentives for elections to the Chamber of Deputies to encourage the election abstentions of small parties, which must "pay" on the way to non-refundable electoral bail of the State for not reaching the limit set at five per cent of the votes in force and thus paying a "fine" of CZK 1 600 000 for their simple participation in the election competition. In addition, however, there are a number of restrictions which eliminate the demands of political parties vis-à-vis the State in the case of small parties, even though they play their role in electoral competition in the general interest as well as those of the parliamentary establishment. In addition to the contribution to the election costs, these benefit from a number of other material advantages; are entitled to a permanent contribution to a political party or movement of at least CZK 3 000 000 each year if they have obtained at least three percent of the votes (§ 20 paragraph 4 and § 6 of Act No. 424 / 1991 Coll.). This amount is increased by CZK 100,000 per year for each additional one-tenth of a percentage of votes. They are also entitled to a contribution to each individual mandate under Section 20 (7) of Act No. 424 / 1991 Coll. of CZK 500 000 per mandate and finally receive financial compensation from the State in connection with the parliamentary functions and activities of the parliamentary club. In Germany, for example, there is only an election allowance paid to all parties that have received at least 0,5% of the votes.
The accumulation of a number of financial penalties by small parties (and thus financial advantages for larger parties) is so extensive in the current regulation that "suffocating" of those small parties that do not have enough funds to run an election campaign and pay bail. Knowing this, the potential voters of such parties are already dodging their votes by themselves if "their party does not have the means to become visible in competition with others." The higher the limit for small parties, the less votes cast will express their true importance and the weaker the credibility of electoral results. However, voter voting is to be an expression of free decision in the free competition of the parties, and the integration factor is to be effective only after the end of free competition.
The disproportionate accumulation of material sanctions is counterproductive in its consequences, as it only affects those democratic political parties that do not have a lot of hearty sponsorship gifts and that are prevented by the accumulation of financial sanctions from leading an adequate election campaign or even entering an election contest at all. On the other hand, other, also small, political parties may have sufficient funding from influential sponsors who link them to the political promotion of their own interests.
In view of all these circumstances, the Constitutional Court has concluded that the link between the contribution to the remuneration of the electoral costs of obtaining at least three percent of the total number of valid votes in the elections to the Chamber of Deputies and, in particular, taking into account other restrictions on political parties that have received less than five or three percent of the votes, exceeds the necessary level to establish the seriousness of the electoral intentions of the parties and interferes with the equality of political parties' chances in the electoral competition. In this summary of financial penalties, for some of them, participation in elections becomes a financial luxury.
The Constitutional Court has therefore annulled the relevant provisions of the electoral law with effect from the publication of a finding in the Collection of Laws for its contradiction with Article 5 of the Constitution and Article 22 of the Charter. It is up to the Parliament of the Czech Republic to consider whether, in the existence of electoral bail, a limit - say, about 1% - should be left for elections to the Chamber of Deputies as evidence of the seriousness of the electoral intentions of the parties, and thus the condition for paying a contribution to the election costs.
A constitutional complaint consisting of a request by the Democratic Union to pay a contribution to the election costs of CZK 7778 790 in connection with the previous elections to the Chamber of Deputies held in 1998 will be decided by the First Chamber of the Constitutional Court as soon as this plenary of the Constitutional Court is enforceable.
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 243 / 1999 Coll., on the application for annulment of the third sentence of Section 85 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 | 10.11.1999 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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