The Constitutional Court found no 283 / 2005 Coll.
The Constitutional Court found of 22 June 2005 on the application for annulment of Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of the public interest and on the incompatibility of certain functions (Act on Conflict of Interest), as amended
Valid
The Constitutional Tribunal found
Text versions:
15.07.2005
283
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 22 June 2005 in plenary in the composition of Stanislav Balík, František Duchoň, Vojen Güttler, Pavel Holländer, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the group of Senators of the Czech Parliament to repeal Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of public interest and incompatibility of certain functions (Act on Conflict of Interest), as amended by the Act,
as follows:
Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of the public interest and on the incompatibility of certain functions (Act on Conflict of Interest), as amended, shall be repealed on the date of the publication of the decision.
Reasons
On 14 March 2005, the Constitutional Court received a proposal from a group of 53 Senators (hereinafter referred to as the "appellant") to repeal Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of the public interest and the incompatibility of certain functions (the Act on Conflict of Interest), as amended, with the allegation that the adoption of the Act in breach of the constitutional procedure had been infringed by Article 40 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
The appellant submits that the bill was discussed in the Chamber of Deputies and approved at its third reading at its 38th meeting, held on 24 November 2004. On 6.12.2004, the bill was passed on to the Senate, which rejected it on 28.1.2005. Nevertheless, the law was delivered to the President of the Republic for signature on 28 January 2005, but it exercised its right under Article 50 of the Constitution and returned it to the Chamber of Deputies on 10 February 2005. The President of the Republic considered the interpretation of Article 40 of the Constitution to be questionable, whether the term "electoral law 'used in that provision also includes the law on elections to the councils of the municipalities or regions, or whether it concerns only the law on elections to the Parliament of the Czech Republic. The Chamber of Deputies maintained its position that the Senate had not dealt with the draft law in the Constitution within 30 days and that the bill within the meaning of Article 46 (3) of the Constitution was to be adopted by the futile expiry of the deadline and on 22 February 2005 the Act again approved the votes of 112 Members of 120 present. The Act was published on 28 February 2005 in the Collection of Laws under No 96 / 2005 Coll. and, with the exception of paragraph 16 [Paragraph 8 (2) (b)], became effective on 1 March 2005.
The appellant draws attention to Article 40 of the Constitution, according to which it is necessary to approve the two chambers for the adoption of the electoral law and the law on the principles of conduct and contact between the two chambers, as well as on the outside and the Senate Rules of Procedure. In the case of those laws requiring the explicit agreement of both chambers, the situation foreseen by Article 46 (3) of the Constitution cannot therefore arise, according to which the draft law is adopted unless the Senate has negotiated it within the prescribed period of 30 days. According to the appellant, there are two issues of interpretation in the present case. First of all, the interpretation of the concept of electoral law within the meaning of Article 40 of the Constitution, but also whether the contested law is an electoral law, since it mainly amends Law No 238 / 1992 Coll. and only point 43 adds to Act No 238 / 1992 Coll. part Three, relating to the amendment of Act No. 491 / 2001 Coll., on the elections to the municipal councils and on the amendment of certain laws, as amended, and part Four, which amends Act No. 130 / 2000 Coll., on the elections to regional councils and on the amendment of certain laws, as amended.
The appellant considers that, despite the unusual legislative-technical method (instead of directly supplementing Act No. 491 / 2001 Coll. and Act No. 130 / 2000 Coll., Act No. 238 / 1992 Coll. on a new part which subsequently amends the laws cited), the contested law can be regarded as an electoral act, since any amendment to the existing laws governing elections, even if limited in scope, may change the basic parameters of the electoral system. In this sense, it refers to the finding of the Constitutional Court, sp. zn. Pl. ÚS 21 / 01 [Collection of finds and orders of the Constitutional Court ("the Reports of the Decisions'), Volume 25, Found No 14; declared under No 95 / 2002 Coll.], analogous to the case in which the Constitutional Court supported material, i.e. content, and subsequent categorisation of the laws.
On the question whether the contested law is an electoral law within the meaning of Article 40 of the Constitution, the appellant responds positively and argues with a language, systematic and teleological interpretation. It states that the very fact that the Constitution uses the term electoral law in a single number cannot be inferred that it should be a single law and refers, for example, to the provisions of Articles 11, 52, 63 (2) or 105 of the Constitution, which make it clear that there may be several laws governing a particular issue, not just a single law. It follows that the wording used in Article 40 of the Constitution does not lead to the conclusion that it should only be a law on elections to the Parliament of the Czech Republic; on the contrary, it can be seen that it is any law containing electoral material. It is therefore a framework designation, whereas in the other two cases it is a designation of the name of the law. According to the appellant, the language interpretation should be supplemented by a systematic interpretation. This interpretation method leads to the conclusion that, if the legislator intended to limit the scope of the term electoral law used in Article 40 of the Constitution only to the law on elections to the Parliament of the Czech Republic, it would certainly specify the content of this electoral law, for example, as it did in Article 107 of the Constitution, when it used the term "Senate Election Act." Using teleological interpretation, the appellant also argues that Article 40 of the Constitution provides for a stricter regime for the adoption of certain laws. Tightening the legislative procedure is reflected in the need for both chambers to agree to the draft law. Whereas, in the case of a law on the principles of conduct and contact between the two chambers, as well as on the outside and the law on the Rules of Procedure of the Senate, such a requirement is justified by the necessity of consent not only to the Chamber of Deputies, but also to the Senate with a law which affects its position and functioning, the electoral law is of crucial importance for the functioning of democratic society. The role of the Senate, as legislative and democratic safeguards in the legislative process, can be asserted precisely by setting the parameters of electoral systems not only in the legislative body, but in all representative bodies.
In order to reject the restrictive interpretation of the concept of electoral law, the appellant considers that there are other supporting arguments. The first is that the current individual electoral laws, although formally independent, are interconnected and refer to each other in respect of some electoral institutes such as electoral districts, permanent electoral lists, the State Election Commission, etc. It is therefore clear that by amending one of the other electoral laws it is possible to amend, indirectly amend, the law on elections to the Parliament of the Czech Republic, which is an argument for a stricter legislative procedure in respect of all laws containing electoral material. The second argument is the possibility of adjusting elections to all representative corps by a single law, the so-called electoral code already prepared by the Ministry of the Interior, which shows that the Central Administration considers that the issue in question is so interconnected that it can be adapted in one law. Finally, the appellant also pointed out a historical point where the text of the explanatory memorandum to the Constitution stated that "Article 40 defines the scope of cases where the agreement of the two chambers is necessary, otherwise the law is not adopted ', from which it can be considered that the intention was to introduce rules of the legislative process for a limited number of laws which ensure the equal status of the Senate in relation to the Chamber of Deputies.
From a more general point of view, the appellant considers, with reference to the finding of the sp. zn. He pointed out the procedure for discussing the law on elections to the European Parliament, which the Chamber of Deputies referred to the Senate on 6.12.2002, the Senate discussed it on 9.1.2003 (i.e. after 30 days) and returned it to the Chamber of Deputies on 15.1.2003 with amendments. The Chamber of Deputies has again voted on the proposal and adopted it as amended by the Senate. If it had acted in the same way as in the case of the contested law, it would have to consider the Election Act to be adopted by the expiry of the 30-day period.
With the proposal for the annulment of the contested law, the appellant also combined the proposal for a preliminary hearing pursuant to the provisions of § 39 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') with the grounds that the tightening of the rules on conflict of functions has an immediate impact on a number of persons who must follow the contested law.
The Senate of the Parliament of the Czech Republic stated in its observations on the proposal of 14 April 2005, signed by its President Prihem Sobotka, that the contested amendment to the Act on Conflict of Interest was referred to the Senate on 6 December 2004. The Senate had no doubt from the outset that a bill containing amendments to the electoral laws was to be discussed under the legislative "equality" regime of the two chambers and that both chambers had to be approved to adopt it. The correct nature of this procedural regime was confirmed by the representatives of the House of Deputies, who were in the Senate bodies who participated in the negotiations of the Senate Senate committees and plenary of the Senate held after 5 January 2005, which would have elapsed the deadline for discussing the ordinary law by the Senate. The Senate initiated the discussion of the draft amendment to the Act at its third meeting of 28 January 2005 and, following the recommendation of the Constitutional Law Committee, the Committee on Education, Science, Culture, Human Rights and Petitions, the Committee on Territorial Development, Public Administration and the Environment and the Mandate and Immunity Committee on Rejection of the Draft and adopted resolution 55, which it rejected. During the plenary session, the Senate was informed that the President of the Chamber of Deputies had interpreted Article 40 of the Constitution with the support of the Organising Committee of the House in such a way that the Act on Elections to the Municipality Councils and the Act on Elections to the Councils of the Regions were not an electoral act under this provision and that the President of the House followed the Act amending the Act on Conflict of Interest, the President of the Republic, on 28 January 2005 to further constitutional action. The Senate opposed this procedure, but no procedural proposal was accepted. By letter dated 1 February 2005, the President of the Senate informed the President of the Republic that the procedure followed by the President of the Chamber of Deputies in the matter in question was fundamentally different from the legislative procedure applied in the Senate and expressed reasonable doubts about the constitutional conformity of the President of the Chamber of Deputies in the procedure.
On the substance of the matter, the Senate pointed out that the concept of electoral law in Article 40 of the Constitution has long-standing and consistently been interpreted in the sense of its literal interpretation by including all laws containing the rules for the constitution of constitutionally defined representative bodies, which are formed by choice, and, mutatis mutandis, the complexes of domestic representative bodies in the field of powers delegated within the meaning of Article 10a of the Constitution. The Senate's position is based on the argument that electoral laws are the most important source of constitutional law, alongside the normative acts of constitutional order, and their primary purpose is to fulfil the contents of the skeleton of the constitutional system. Election laws are included in the constitutions of a number of European states in the so-called organic laws for the implementation of important constitutional mandates for the construction of the state and self-governing organisation of the country, and qualified admission procedures are subordinate in the respective constitutional systems. The Senate recalled that the explanatory memorandum to Article 40 of the Constitution to the concept of electoral law was silent, but it is known that during the negotiations on the draft Constitution, the nature of the listing of acts subject to the regime was changed, while there was a tendency to strengthen the position of the Senate. The Government also does not attach Article 40 of the Constitution to the "protection of one chamber from another 'function, as evidenced by the Prime Minister's statement in the submission of the Act on Elections to the European Parliament in the Chamber of Deputies, the statement by the Minister of Justice on the occasion of the vote of the House on the veto of the President of the Republic to the amendment of the Act on Conflict of Interest, or by the Government's amendment of the Constitution (Parliamentary Press No 349 of the IV parliamentary term, 2003) with a new wording of Article 40 containing a list of the laws to be adopted by both chambers of Parliament; the list also includes the Act on elections to municipal and regional councils.
The Senate stressed that it consistently and majestically shared the view that the interpretation of the term "electoral law" was dynamic. In addition to elections to representative bodies, the law on elections to the European Parliament undermines this concept and, in the case of the introduction of a direct election of the President of the Republic, the implementing law on the election of the Head of State. It appears to be the case that, with the Senate's process of action, a series of terms and relationships governed by the Constitution are reflected in the Senate's control and stabilizing function, which has only been accentuated and confirmed with its actual start-up since 1996. The Senate referred to relatively skillful professional legal comments on Article 40 of the Constitution, where the concept of electoral law according to one includes both the laws on elections to both the Parliament of the Czech Republic and the laws on elections to the Parliament of the Czech Republic (Pavlíček, V. - Hřeběk, J., Constitution and constitutional order of the Czech Republic, Comments, 1st part, Linde, Prague 1998), according to the others it is only a statutory regulation of elections to the Parliament of the Czech Republic, in which the same (protective) meaning is used in Article 33 (2) of the Constitution (Hendrych, D., Svoboda, C. et al., Constitution of the Czech Republic, Comments, C. H. Beck, Prague 1997). The Senate also mentioned the contents of the President's veto addressed to the Chamber of Deputies on the amendment to the Act on Conflict of Interest.
At the end of its observations, the Senate stated that its long-term positions on the matter are in general line with the appellant's argument, except for the consideration of the constitutional practice. During his time, the Senate has discussed several times the laws or amendments to the laws on elections to municipal councils, counties or to the European Parliament, but he has either spontaneously reached his legislative decision on these laws within 30 days, or the present law also contained an amendment to the election law to the Parliament of the Czech Republic, or a different sequence of circumstances for which the use of the procedure under Article 40 of the Constitution was not apparent or was undisputed by the Chamber of Deputies. Only a decision of the Senate on the amendment to the Act on Conflict of Interest with the attached amendments to the laws on elections to municipal and regional councils, which it has made for more than 30 days (53 days) since its referral and without its decision being the subject of an election law to Parliament of the Czech Republic at the same time, is a case of precedent in this respect.
The Senate concluded that it had discussed the amendment to the Act on Conflict of Interest in question and decided on it in a majority belief that it was doing so within the limits of the Constitution and in a constitutional manner and that its decision to reject the Act meant that it had not been adopted. It therefore leaves it to the Constitutional Court to examine and rule on the constitutionality of the contested law.
The Chamber of Deputies of the Parliament of the Czech Republic, in its comments on the proposal of 18 April 2005, signed by its President Lubomír Zaorálk, briefly summarised the course of the legislative process, which began with the adoption of a draft amendment to the law tabled by the group of Members on 18 December 2003.
To justify its procedure The Chamber of Deputies referred to a explanatory report on the draft Constitution (Press 152, VI. of the ČNR), according to which Article 40 of the Constitution "should ensure that both chambers can operate alongside each other without compromising the legislative process. The negotiations between the two chambers in mutual relations must be operational. Both chambers may not act completely independently and without interconnections. 'According to the Chamber of Deputies, the strengthening of the position of the Senate or the position of the Senate in the same way as that of the Chamber of Deputies under this article is to ensure its position towards the Chamber of Deputies and not to create a guardian of all electoral processes in the Czech Republic, even if they do not directly affect it and do not threaten its position within the two-chamber arrangement. With regard to the elections to the Senate, virtually the Chamber of Deputies, the strengthening of the Senate and the current restrictions on the Chamber of Deputies are to be achieved, in particular, so that the Chamber of Deputies cannot unilaterally regulate the terms of the election and creation of the Senate, or the Chamber of Deputies and against its will. This approach is also in line with other standards referred to in Article 40 of the Constitution, i.e. the Senate Rules of Procedure and the so-called Liaison Law. It is a standard where the dominance of the Chamber of Deputies could weaken the position of the Senate in the relationship between the two chambers, or lead, in the extreme case, to the excess of the Senate. However, this connection, as well as any possible influence on the position of the Senate in relation to the Chamber of Deputies, is not given in the case of elections to regional and municipal councils; These laws do not affect the position of the Senate and do not favour each other. The Chamber of Deputies pointed out that the law in question does not concern the electoral material itself, does not change the course of the elections, the rules for determining the results of the elections or the possibility of taking part in the elections. According to the Chamber of Deputies, the appellant completely omitted the context in which the concept of electoral law was applied in Article 40 of the Constitution. According to the Chamber of Deputies, this connection can be found in the interlink between Article 40 and Article 33 (2) of the Constitution, according to which the electoral law also refers to the electoral law of the Parliament of the Czech Republic and not the laws concerning elections to other institutions, including regional and municipal councils (the purpose of these provisions is to prevent the Senate from being dissolved, changing the way it is created, and not preventing the Senate from taking legal measures concerning elections to regional and municipal councils).
The Chamber of Deputies further argued by the systematic division of the Constitution, where Article 40 is included in the title of the second Constitution governing legislative power, and is directly related to Article 18 of the Constitution, which regulates the principles of electoral law in both chambers of the Parliament of the Czech Republic and the principles of the electoral system, and Article 20 of the Constitution, according to which it lays down further conditions for the exercise of electoral law. According to the Chamber of Deputies, it can be concluded that in Article 40 of the Constitution, the legislator was referring to the electoral law governing only the elections to the Parliament of the Czech Republic, not the elections to the councils of the regions and municipalities, which are provided for in Title 7 of Article 102 of the Constitution. Unlike the appellant, the Chamber of Deputies considers that any verbal clarification of the concept of electoral law in Article 40 of the Constitution would be unnecessary. Article 107 However, such clarification was necessary ("the Law on elections to the Senate ') in order to make it clear that it is only an electoral law within the meaning of Article 40 of the Constitution, since this relationship would not be apparent without a closer definition either on the basis of the title of the eighth Constitution or on the basis of the relevant provisions of this Title. The Chamber of Deputies rejected the view that, if it were the intention of the Constitution to apply Article 40 of the Constitution only to the law on elections to the Parliament of the Czech Republic, it would undoubtedly use the reference to Article 20 of the Constitution. However, the Chamber of Deputies considers that internal references can only be used if the internal interconnections are not entirely apparent and cannot be derived from the internal systemics of the law and the coherence of its individual provisions. To use the concept of electoral law in a single number, the Chamber of Deputies argued quite the opposite of the appellant, rejecting its argument based on the literal language interpretation and stressing that any provision of the Constitution must be assessed separately and in the context of other provisions. Inadmissible generalisation cannot be accepted in the present case.
The Chamber of Deputies also opposed the appellant's complaint that it had previously acted differently in similar cases. It stated that the Act on elections to the European Parliament (Act No 62 / 2003 Coll., on elections to the European Parliament and on the amendment of certain laws) was subject to the approval regime provided for in Article 40 of the Constitution, as it contained in Section 71 of the Direct Amendment to Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended. As regards the case used by the President of the Republic as an argument for its different earlier practice, the Chamber of Deputies explained that it was a law on elections to municipal councils (II. In the opinion of the President of the Republic, the Chamber of Deputies then acknowledged that the law required the approval of the Senate because it did not vote again on the rejected law at its last meeting before the end of the parliamentary term on 18 June 1998. The Chamber of Deputies does not consider this view to be appropriate to the relevant legislation under Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies. The Act could be submitted to the Chamber of Deputies for re-vote after the expiry of the 10-day period (Paragraph 97 (3) of the Act cited), which was at the earliest on 22 June 1998. On 19 and 20 June 1998 elections were held to the Chamber of Deputies and, in accordance with § 121 (1) of the Act cited, it was not possible to discuss in the new parliamentary term proposals which were not discussed and decided in the last parliamentary term. In the case under consideration, it is not the House's procedure different from the previous one, but the first one where there is a different view of the matter between the Chamber of Deputies and the Senate. The Chamber of Deputies recalled that it has made every effort to assess and examine the matter in every respect, including whether a similar case has occurred in the past and whether it has been resolved in any way. However, it was the Senate which, unilaterally and without any consultation with the Chamber of Deputies, informed the President by letter dated 6 January 2005 that it was a draft law under Article 40 of the Constitution, as it contains amendments to the electoral laws, and for this reason the Senate did not discuss it within 30 days.
At the end of its observations The Chamber of Deputies expressed the belief that the procedure for adopting the contested law was in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic. It left it to the Constitutional Court to examine the matter and to rule, but it overshot the question as to whether, in view of the legal certainty and minimisation of the intervention, the appellant should not seek only the annulment of those parts of the law in question which relate to the electoral laws of the municipalities and councils; The other parts of the Act on Conflict of Interest, namely, are undoubtedly not subject to the regime of Article 40 of the Constitution and their possible abolition should have been contained in another proposal.
The Chamber of Deputies added a copy of its President's letter of 2 February 2005, addressed to the President of the Republic, in which the President of the Chamber of Deputies responded to the doubts of the President of the Republic on the correctness of the procedure of the Chamber of Deputies when approving and declaring a law amending the law on conflicts of interest. The President of the House has expressed the belief that the provisions of Article 40 of the Constitution do not apply to this case, since, with reference to the explanatory memorandum to the Constitution, the purpose of this article is to ensure that both chambers can operate alongside each other without jeopardising the legislative process. It is therefore the proper functioning of both chambers within a two-chamber system with the dominance of the Chamber of Deputies, with the strengthening of the position of the Senate in securing its position in relation to the House, not as guardian of all electoral processes in the state. According to the President of the Chamber of Deputies, other standards referred to in Article 40 of the Constitution are also in line with this opinion, where, in their preparation, the majority of the Chamber of Deputies could weaken the position of the Senate in their relationship. However, the laws on elections to municipal and regional councils do not have such a character; their possible influence on the position of the Senate in relation to the Chamber of Deputies is not evident. The amendment to the Act on Conflict of Interest does not affect the electoral material itself, so the Senate's legal opinion is purely formal. At the end of his letter, the President of the Chamber of Deputies expressed the view that the Senate's view on the matter was incorrect. If the Senate did not comment on the draft law within 30 days, it was necessary to follow the provisions of Article 46 (3) of the Constitution, according to which the law was adopted by the Senate.
The Constitutional Court informed the Senate Group on the motion to repeal Act No. 96 / 2005 Coll. of the President of the Republic of Václav Klaus and left it at its discretion to take a position on the draft. The President of the Republic by letter dated 31.3.2005 It informed the Constitutional Court that the contested law contained an amendment to Act No. 491 / 2001 Coll., on the elections to the municipal councils, as well as to the amendment to Act No. 130 / 2000 Coll., on the elections to the regional councils which are electoral laws, and it was therefore necessary to approve them by the Chamber of Deputies and the Senate within the meaning of Article 40 of the Constitution. However, the contested law was only passed by the Chamber of Deputies, the Senate expressly rejected it and therefore does not consider it to be a law that has been validly adopted. The President of the Republic maintained his position as communicated to the Chamber of Deputies and attached the text to the Constitutional Court for the purposes of the proceedings.
By letter dated 10 February 2005 addressed to the President of the Chamber of Deputies, the President of the Republic returned to the Chamber of Deputies a law amending Act No 238 / 1992 Coll., on certain measures relating to the protection of the public interest and on the incompatibility of certain functions (the Act on Conflict of Interest), on the ground that the Act contains a direct amendment to the Act on elections to municipal councils and a direct amendment to the Act on elections to regional councils, the adoption of the Election Act being approved by both chambers under Article 40 of the Constitution. In the present case, the law was rejected by the Senate. The President of the Republic stated that it follows from the observations made by the President of the Chamber of Deputies and the President of the Senate that the Chamber of Deputies only considers the Election Act to be an election law to the Parliament of the Czech Republic, while the Senate regards as an electoral law any election law from municipal elections to the European Parliament. The Chamber of Deputies is therefore of the opinion that the law was adopted by the expiry of the deadline for the Senate hearing, namely on 6 January 2005, the Senate insists that the law was not adopted. In order to prevent disputes as to whether or not the law was adopted, the President of the Republic decided to return the amendment to the conflict of interest law and to allow the Chamber of Deputies to vote again on the law. The contradiction between the two chambers lies in the interpretation of the words "electoral law 'referred to in Article 40 of the Constitution. Both approaches can be defended, according to the President of the Republic. The approach of the Chamber of Deputies is a restrictive interpretation, the interpretation of the Senate is based on a logical interpretation that Articles 40 and 33 In fact, the Constitution is here not only to protect the position of one of Parliament's chambers against the other, but to change all the electoral law in the Czech Republic, so that the synergies of both chambers are always needed. The President of the Republic pointed out that the Chamber of Deputies had not always followed a restrictive interpretation in the past and did not vote on the amendment to the municipal elections Act, which the Senate rejected on 11 June 1998 within the 30-day period. The President of the Republic also considered it important that representatives of the Chamber of Deputies took part in the discussion of the amendment to the Act on Conflict of Interest in the Senate bodies after 6.1.2005, after the law had already been adopted. The current interpretation of the Chamber of Deputies therefore considers it to be entirely new, which is being advocated in relation to this amendment. This was also a reason for him to return the law.
Article 11 (1) (a) of the Act, which states that "Article 11 (1) (a) of the Act of the Constitutional Court," is in Article 11 (1) (a) of the Act of the Constitutional Court, "a proposal by a group of 53 senators (a different applicant, thirteen senators and senators) to abolish the provisions of § 1 (1) (b), § 2 (1) (b), § 2 (6) (7), § 4 (3) in the words," § 5 (1), "and a member of the county or city control committee," § 5 (1) sentence of the last in the words, "and a member of the county or city" § 5 (3), "and a member of the council of the county or city" The proposal contained a substantive argument with regard to the allegation of a breach of the contested provisions with Article 1 of the Constitution and Articles 1, 3, 10 (2) and (3), 21 (4) and 26 of the Charter of Fundamental Rights and Freedoms ("the Charter ').
The Constitutional Court found that, at the date of the initiation of the proceedings in this case registered under the sp. zn. Under Paragraph 35 (2) of the Law on the Constitutional Court, an application is inadmissible if the Constitutional Court is already acting on the same subject, and if it has been submitted by a legitimate appellant, it has the right to take part in the hearing of the earlier application as an intervener. The Constitutional Court, by order of 14.4.2005 No. Pl. ÚS 19 / 05-13, rejected the appellant's proposal [Paragraph 35 (2), in conjunction with § 43 (1) (e) and § 43 (2) (b) of the Law on the Constitutional Court], stating that this group of Senators of the Parliament of the Czech Republic is responsible for the status of intervener in the case sp. v. ÚS 13 / 05.
By its submission of 21 April 2005, the intervener took advantage of the fact that it had the same rights and obligations as the parties in the proceedings under sp. zl. Pl. ÚS 13 / 05 (§ 32 of the Law on the Constitutional Court) and, in the event that the Constitutional Court did not comply with the application for annulment of Act No. 96 / 2005 Coll., proposed the annulment of the provisions of Act No. 238 / 1992 Coll. to the extent that it stated in its proposal under sp. v. Pl. ÚS 19 / 05. It pointed out that the amendment to the Act on Conflict of Interest imposed on members of the representatives of the local authorities a non-negligible obligation which had to be fulfilled within a short period of time, thereby, in essence, changing the conditions for the exercise of public office during their term of office. This fact, together with the circumstances in which Law No 96 / 2005 Coll. was adopted, in its effect infringes the principle of legitimate expectations and the principle of trust in law, which is a regulatory expression of the value of legal certainty resulting from the concept of a rule of law under Article 1 of the Constitution.
A minor objection to the provisions proposed for annulment was then justified by the intervener's infringement of the principle of equality and non-discrimination (Article 1 and Article 3 of the Charter), since, contrary to the state of play, the amendment of the Act on Conflict of Interest extended the obligations imposed by law [the obligation to submit an honest notification of personal gain, of activities, of income and gifts, and of immovable property and the obligation to refrain from acting in accordance with § 2 (1) (b)] to members of the Councils in the regions, the capital of Prague, municipalities with extended scope and the urban areas of Prague, which exercise the jurisdiction of municipalities with extended scope. According to the intervener, this definition of personal competence is unconstitutional because it creates an unjustified inequality between regional and municipal councils (including the City of Prague and the City of Prague) and other municipalities, for which there is no legitimate and rational reason. This inequality in the granting of a certain amount of benefits to one another at the expense of another creates an obligation between the representatives of the local authorities and the inequality in relation to Article 10 (2) and (3) of the Charter (the right to privacy), since the law imposes on one group of representatives an obligation to disclose information about their property (Sections 3, 4, 6, and 7) and certain activities pursued (Section 5), which also affects the spouse of the representative. The Act prohibits members from acting in certain commercial matters against the local authority in whose representative they are a member. This partial waiver of the right to business and to pursue other economic activities, or the right to raise funds for their living needs, is contrary to Article 26 (1) and (3) of the Charter. The intervener considers that the increased level of control of citizens over the conduct of their elected representatives is, in principle, positive, decisive and ultimately unacceptable, but considers the change of rules during the parliamentary term. If the statutory obligations were to be imposed on members of all councils since the first elections held after the effective date of the law, the intervener's objections would lose merit. The intervener also argues that the adoption of an amendment to the Act on Conflict of Interest has also infringed Article 21 (4) of the Charter, guaranteeing citizens the right to access elected (and other public) functions on equal terms, which he believes includes not only the right to have access to those functions in their own sense but also the right to exercise. With reference to the case law of the Constitutional Court and of the European Court of Human Rights on the need to establish reasonable and objective reasons justifying the different status of addressees of the rule of law, the intervener repeatedly referred to the absence of such grounds in the present case.
As regards the provisions of § 2 (6) and (7) of the Act on Conflict of Interest, distinguishing between the vacant and non-released members of the regional councils or municipalities with extended competence (including the specificities of the capital of Prague and its urban parts) in terms of the right to pay the remuneration for the performance of the duties of a member of the management, supervisory or supervisory body of a legal person whose founder is that region or city has a majority shareholding or majority share in voting rights, the intervener states that this provision constitutes an unacceptable inequality between the various members of the councils. Paragraph 2 (6) of the Act removes the right to remuneration for the duties performed by the members of the Councils, that is, the right to raise funds for their living needs by works (Article 26 (3) of the Charter), which is discriminatory in relation to the non-authorised members of the Councils. This also infringes the right to public office on equal terms (Article 21 (4) of the Charter).
The interveners' objections to part three and part four of the conflict of interest law largely coincide with those set out above. These parts of the Act are supplemented by the Act on elections to municipal councils and the Act on elections to regional councils by providing for further incompatibility of the function of representative with certain activities. According to the intervener, such a procedure is contrary to the principle of legitimate expectations and trust in law. The amended provisions of the two electoral laws will lead to the termination of the mandate of the members of the municipal and regional councils, which will also infringe the right of these representatives to exercise their public office, to which they were duly elected and in accordance with the law. The effectiveness of these provisions was to be postponed until the elections to the local authorities, where any candidate could consider whether he intends to run under such conditions as to perform the mandate.
The Senate of the Parliament of the Czech Republic, in its observations on the motion by the intervener of 16.5.2005, signed by its President Prehem Sobotka, summarised the chronology of the discussion of draft law 96 / 2005 Coll. and the result of the vote by which this Chamber rejected the draft amendment to the law on conflict of interest. In a general view of the current regulation of conflicts of interest and its expected extension to the area of self-government, the majority of the Senate expressed scepticism about its effectiveness, since the diversity of relations in the implementation of the municipal administration seemed to many Senators to be a substance that could hardly be grasped in the form of simple subordination under the regulation of parliamentary conflicts of interest ratios to produce a beneficial outcome. The Senate pointed out that the proposed amendment pushes the regulation of conflicts of interest from the type of political responsibility to the type of administrative criminal liability without dealing with the nature of the current long-term problem, namely the performance of representatives, Members and Senators in the authorities of business legal entities.
Specific complaints The Senate was then facing a number of legislative legal problems, such as violations of the equality of representatives in their position (so-called loosening and non-loosening representatives), the division of representatives in terms of the right to remuneration for their duties in the bodies of the legal entity in which they represent the municipality, or the extension of a range of functions with which the function of representative is incompatible. The penalty adjustment was adopted, and the sharp criticism was also triggered by the fact that the extension of the incompatibility of functions took effect in the middle of the parliamentary term of the councils, so that many representatives were practically forced to resign before the end of the mandate, which in some sense corrects the results of the elections.
At the end of its observations, the Senate agreed with the application by the intervener that it was up to the Constitutional Court to examine the constitutionality of the draft contested provisions of the Act on Conflict of Interest and to rule on the matter.
The Chamber of Deputies of the Parliament of the Czech Republic, in its observations on the proposal of 17 May 2005, signed by its President Lubomír Zaorálk, summarised the objections raised in three headings.
The first affects those provisions of the Act on Conflict of Interest which, briefly expressed, extend the personal scope of the Act on Conflict of Interest to members of the Councils of certain Territorial Authorities. According to the Chamber of Deputies, the criticised speed of the adoption of the amendment to the Act on Conflict of Interest without the Legiskation Time has been exerted by increasing public pressure to prevent corruption in public administration, but this does not mean that it is retroactive. The distinction between the public authorities concerned does not create discrimination and a breach of the principle of equality. Public administration cannot be based on the absolute equality of all the actors concerned. The municipalities differ from each other in particular on the basis of different material bases, the amount of the budget, the scope of their responsibilities and powers, whether in the exercise of government or government authority. The legislature was led, when determining the public administration bodies to which it extended the personal scope of the conflict of interest law, by considering that, with the increasing scope of the competences of the public authorities, the possibility of corruption and vice versa can increase. The conflict of the provisions of the Act on Conflict of Interest with the constitutional principle of the right to privacy was rejected by the Chamber of Deputies with reference to the Data Protection Act.
On the second heading of objections criticising the different arrangements for the status of a vacancy or non-vacancy of a local authority The Chamber of Deputies stated that, in the case of a vacated member of the council, corruption behaviour may be more likely than that of an unreleased member. The legislature sought to prevent such action by adopting the legal regulation.
The third heading of the objection is aimed at amending the laws on elections to the councils of municipalities and counties, which established the incompatibility of certain functions with the functions of representatives. The Chamber of Deputies stated that it was not aware of the violation of the constitutional order of the Czech Republic.
In its final opinion, it reiterated its belief that the legislature acted in accordance with the Constitution, the Constitution and the rule of law.
The comments submitted by the Chamber of Deputies and the Senate on the participant's proposal were communicated to both parliamentary chambers for possible replies. By letter of 21 June 2005, the President of the Chamber of Deputies added that, in his view, the proposal is incorrectly directed only against Act No. 96 / 2005 Coll., and not correctly against the individual and already effective provisions of its own law on conflicts of interest. The Senate didn't replica.
As a basis for its decision, the Constitutional Court also provided itself with a number of stenograms, resolutions and parliamentary prints freely available in the Joint Czech-Slovak Digital Parliamentary Library at www.psp.cz.
The Constitutional Court ordered oral proceedings to be heard. The appellant and the intervener referred within it to their proposals and arguments contained therein; The President of the Chamber of Deputies, expressed in his reply of 21 June 2005, was rejected as incorrect and inconsistent with the existing case law of the Constitutional Court.
The Senate, as a party to the proceedings for which its President, Přemysl Sobotka, acted at the oral hearing, also recalled the content of the observations submitted on both proposals.
By letter dated 21 June 2005, signed by President Lubomír Zaorálk, the Chamber of Deputies informed the Constitutional Court that no representative of the Constitutional Court's proceedings for the ongoing meeting of the Chamber of Deputies could attend the oral hearing and asked for an apology accepted by the Constitutional Court.
The Constitutional Court, under the provisions of § 68 (2) of the Law on the Constitutional Court, first examined whether Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of the public interest and the incompatibility of certain functions (the Act on Conflict of Interest), as amended, was adopted within the limits of the Constitution established competence and in a constitutional manner.
From the observations of the two chambers of Parliament, the attached annexes and documents available by electronic means (stenoprotocol from the meeting of the Senate on 28.1.2005, the record of the 44th vote of the Senate meeting on 28.1.2005, Senate Resolution 55 of the 3rd meeting of 28.1.2005, the stenoprotocols of the relevant meetings of the Chamber of Deputies and the records of the 122nd vote of the 38th Chamber of Deputies on 24.11.2004 and 442nd vote of the 41st session of the Chamber of Deputies on 22.2.2005) The Constitutional Court found that a group of Members (House Press No. 550 / 0) submitted the draft of the contested law to the Chamber of Deputies. Following the submission of the draft law to the Government of the Czech Republic, the proposal went through three readings in the Chamber of Deputies (first reading on 31.3.2004 at the 30th session of the IV parliamentary term, second reading on 12.10.2004 at the 36th session and third reading on 24.11.2004 at the 38th session), which gave its assent to it on 24.11.2004, when the 169 Members and Members in the present vote on the proposal was 113, against which 36, 20 abstained.
On 6.12.2004, the bill was passed to the Senate (Senate Press 465 / 0), which, at its third meeting of the 5th term of office, was rejected by 52 votes of the Senators and by 72 senators, 14 opposed, 6 abstained.
The law was delivered to the President of the Republic, who exercised his right under the Constitution in Article 50 (1) and returned the law to the Chamber of Deputies on 10 February 2005, stating his reservations. The 41st meeting of 22 February 2005 of 120 Members present voted in favour of staying on the law, 2 opposed. The Act was published under No 96 / 2005 Coll. in the amount of 29 sent out on 28 February 2005. The Act entered into force on 1.3.2005 with the exception of point 16 [Paragraph 8 (2) (b)], which is due to take effect on 1.1.2006.
The contested Act amended the provisions of the Act on Conflict of Interest (No 238 / 1992 Coll., as amended) and the provisions of the laws on elections to municipal councils (No 491 / 2001 Coll., as amended) and the elections to regional councils (No 130 / 2000 Coll., as amended). While the Senate's disapproval of the so-called "ordinary" laws can be bridged by a new vote by the Chamber of Deputies, this is not possible with the electoral law. It is therefore clear in the present case that the fundamental question for the Constitutional Court's decision is the interpretation of the concept of an electoral law in Article 40 of the Constitution. While the draftsman, the Senate and the President of the Republic consider every law governing the rules of the elections for all the representative corps to be the electoral law referred to in the article of the Constitution, the Chamber of Deputies believes that only the parliamentary election law must be understood by such law. From the standpoint of jurisdiction, several opinions were published, including the opposite ones (cf. Pavlíček, V. - Hřebejk, J.: Constitution and constitutional order of the Czech Republic, Volume I: Constitution of the Czech Republic, Linde Praha, 1994, Hendrych, D. - Svoboda, C. and collective: Constitution of the Czech Republic, Comments, Prague, C. H. Beck, 1997, Akila, J.: To interpret the concept of electoral law in the legislative practice of the Senate, Parliamentary Rapporteur, 2001, No. 2, Philip J.: Procedure for the approval of the "electoral law" according to Article 40 of the Constitution of the Czech Republic, Journal of Legal Science and Practice, 2005, No. 1).
It follows from the course of the legislative process concerning the contested law that, when accepting the legal opinion of the Chamber of Deputies, the constitutional procedure prior to the adoption of the contested law could not be criticised; On the contrary, acceptance of the appellant's view would necessarily lead to the conclusion that the contested law was not adopted through a constitutional process (as the Senate rejected his proposal), so that if, after the President's veto was overvoted by the Chamber of Deputies, it must be abolished by the intervention of the Constitutional Court. In dealing with the question thus referred, the Constitutional Court came out of the following considerations.
The division of power between the Chamber of Deputies and the Senate in the course of legislative activities is governed by the Constitution in Articles 39 (4), 40, 42 (1) and 45 to 48. The legislator established three different legal procedures for different types of law.
1. The adoption of the draft Act on the State Budget (Article 42 (1) of the Constitution) gave the Constitution the exclusive competence of the Chamber of Deputies. The point of this constitutional rule is clear. The state budget adopted in the form of a law (only in a formal and not in a material sense) constitutes a fundamental instrument and framework for the implementation of government policy. Given that only the Chamber of Deputies is bound, in its creation and existence, to the majority will, by the government alone, for the functioning of not only the Government, but also the State, the Senate's entry into the process of approving the State Budget Act would be a moment of dysfunctional, especially in not only a theoretically foreseeable situation of a completely different political composition of the two chambers of Parliament. The purpose of the Senate is not to directly influence either creation or government activities; His mission lies in the influence of others (the explanatory report on the draft Constitution expresses it in a brief sentence "The Senate has a control and stabilising function.").
2. Most laws are subject to the legislative procedure described in Articles 45 to 48 of the Constitution. This procedure is characterised by the fact that the Senate is allowed to enter into the legislative process, but it does not have to, and is also bound by the deadline for the bill to be passed, and finally that its position is significantly weaker than that of the Chamber of Deputies. The view of the Senate does not need to be accepted by the Chamber of Deputies and the bill can be adopted (by an absolute majority of all Members) in the text in which it was referred to the Senate. The reason for the weakening of the Senate, as in the previous case, can be found in the need to ensure that political decisions based on the will of the majority expressed by the free vote (cf. Article 6 of the Constitution) can be taken at all. In other words, so that the opinion of a chamber not directly related to the government cannot block the legislative process, although that would be a minority opinion compared to the will of the Chamber of Deputies.
3. He divided the other sub-groups of the Constitution into Articles 39 (4) and 40 of the Constitution from the laws discussed by the Senate as well. The strictest form of the legislative process prescribed here is characterised primarily by the binding consent of the two chambers of Parliament, which have an equivalent status in relation to the final text of the adopted law. In this type of legislative (and constitutional) procedures, the Senate must discuss the proposal, but it is not bound by any deadline, which the Constitution does not explicitly provide for, but this is consistently accepted by traditional parliamentary practice, which is an existing constitutional practice, which, from a constitutional point of view, there is no reason to object. The conclusion that in this procedure the Senate is not bound by the deadline for discussing the draft law is based on a constitutionally conformal interpretation, according to which Articles 39 (4) and 40 of the Constitution are special.
He divided the laws subject to a more rigid approval process by the legislator according to the legal force (the consent of the Chamber of Deputies and the Senate with all constitutional laws is compulsory) and, on the one hand, - as far as the laws are concerned - according to the material which they govern.
Article 40 of the Constitution sets a more stringent procedure for the following laws:
- electoral law,
- the Act on the principles of conduct and contact between the two chambers, as well as externally,
- the Senate Rules of Procedure.
While the purpose of the legislative procedure described ad 1 and ad 2 is quite easily identifiable, the reasons for the binding consent of the two chambers of Parliament to all constitutional laws and the listed simple laws are more difficult to interpret because they are different and difficult to compare.
In relation to constitutional laws, it is sufficient to refer in this context to a generally accepted view, according to which it is desirable that the constitutional procedure be subject to a more rigid regime than the ordinary legislative activity, given the need to amend the fundamental laws of the State, if possible not often and only when reaching a broader than normal consensus.
The extension of the reasons which led the Constitution to include the listed simple laws in the stricter legislative procedure is the subject of the following considerations.
The easiest answer is why the Law on the Rules of Procedure of the Senate was included in the list of laws referred to in Article 40 of the Constitution. It is unreservedly accepted that this is the case from a certain "legislative decency," because it would not be right for the rules governing the internal relations of one of Parliament's chambers to be imposed by the other chamber against the will of the majority. De constitutione lata is then superfluous to analyse the fact that the legislative decency remained only partial, as there are laws other than the Rules of Procedure, which can also significantly influence the internal circumstances of the Senate and those of the Senators.
The reason why the stricter regime of Article 40 of the Constitution is subject to the Act on the principles of conduct and contact between the two chambers, as well as externally, is similar to that of the Senate Rules of Procedure, but that is not the only reason. This so-called liaison law (not yet adopted), from a constitutional point of view, can not only be formulated relatively briefly in its content and would be limited only to adjusting parliamentary - interchamber contacts, but also in a broader way; This could reflect not only Parliament's internal action, but also the solution of fundamental issues relating to the obligations arising from the Czech Republic's membership of an international organisation or institution referred to in Article 10a (1) of the Constitution; The Constitution provides for the possibility for the Liaison Act to entrust the exercise of the powers of the chambers to comment on the decisions to be taken by that international organisation through the Joint Chamber Body (cf. Article 10b of the Constitution). Therefore, whereas the exclusive reason for the inclusion of the Senate Rules of Procedure Act in Article 40 The Constitution is the constitutional need to unregulate the rules of the Senate's operation by a tripled decision of the Chamber of Deputies, the Act on the principles of the conduct and contact between the two chambers, as well as on the outside, addresses this reason - like the constitutional laws - perhaps the need to subject it to a stricter approval process for its importance in relation to the obligations of the Czech Republic towards the international organisation (institution), to which certain powers of the authorities of the Czech Republic have been delegated.
Election law referred to in Article 40 The Constitution is not listed here in the first place on the ground for which the Law on the Rules of Procedure of the Senate has appeared here in the last place, unless it is concluded that Article 40 of the Constitution refers exclusively to those laws concerning the Senate's activities (and creation). Then, however, it would have to be regarded as an electoral law within the meaning of the article cited in the Constitution, only the law on elections to the Senate, and no longer the law governing elections to the Chamber of Deputies. However, such a conclusion would be contrary to both what was stated in relation to the law of liaison and to a stable constitutional practice, according to which both chambers of Parliament consider the law on elections to Parliament without doubt to be an electoral law under Article 40 of the Constitution. Moreover, the "Senate Election Act 'is known by the Constitution (Article 107 (1)), so that, if the legislator, in accordance with Article 40 of the Constitution, would perhaps mean a law governing Senate elections, there would be no reasonable reason to choose different terms for the same.
The term "Election Act 'referred to in Article 40 The Constitution can be interpreted in a completely different way - from strictly restrictive to widely extensive. However, for the reasons set out above, the most restrictive interpretation should be rejected. In seeking an answer to the question as to what the purpose of the" electoral law "is to include under the stricter negotiating regime and which electoral laws the procedure provided for in Article 40 of the Constitution applies, the Constitutional Court concluded that the interpretation of the language and systematic answers cannot be obtained.
A mere language (from the point of view of interpretation principles, although fundamental, but most gross) interpretation of Article 40 The Constitution allows that provision to be interpreted in a way that is absurd (for example, that this provision of the Constitution prescribed an obligation to create a single electoral code - but again without answering the question which the elections should be governed by such a code), or the conclusions that underlie the term of the electoral law of any law (or part of it), which regulates the electoral procedure, regardless of whether or not this procedure is created by the legislature and the local authority, or by which the Czech Republic is elected by its representatives in the European Parliament (possibly by which the law on the Rules of Procedure of the Parliament - as the Senate de constitutione et de l'constitutione et de l'éfereda - the President of the Republic), but also by the bodies of legislative and self-governing bodies, so that such laws would become completely inconsistent. In favour of weakening the weight of the argument of language interpretation, the fact that none of the laws governing elections to the House of the National Assembly during the period of the first Republic, as well as to the Federal Assembly, or the Czech National Council after 1990, were using the legislative abbreviation "electoral law ', so that even from the point of view of language, it cannot be argued that the legal environment was linked without further reference to the modification of elections to Parliament. Moreover, the use of singular rather than plural, wherever possible, is a very common legislative technique, and there is no dispute in the legal theory that the singular term described here - the electoral law here - does not exclude the possibility of adapting the laws thus expressed.
The systematic interpretation in the present case also does not provide a reasonable basis. As can be seen from the proposal, it is precisely by this interpretation that the appellant argues in favour of its conclusions, whereas the Chamber of Deputies also presents in its observations a systematic interpretation - other than the appellant - in support of its legal opinion, which is quite contrary to the opinion of the appellant (and the Senate and the President of the Republic). However, if two contradictory systematic interpretations of the rule of law are conceivable, this finding concludes that a mere systematic interpretation of constitutionally conformal interpretation cannot suffice.
According to the Constitutional Court, for the assessment of the part of Article 40 of the Constitution under examination, it is necessary to come out from a broader perspective, from a point of view which includes, on the one hand, a reflection of the value attributed by the Constitution to the Constitution in the framework of the system governing the exercise of state power and, on the other, a reflection of the relevance of the laws governing electoral material for the safeguarding of the foundations of the Czech Republic declared a democratic rule of law in the Constitution.
As mentioned above, the explanatory memorandum to the draft Constitution characterises the Senate as a parliamentary chamber with a supervisory and stabilising function. These functions of the Senate have been significantly strengthened in the creation of the Constitution compared to the Government's draft Constitution; in relation to the President of the Republic, the power to bring an action for treason has been transferred from the Chamber of Deputies to the Senate and, in relation to the Constitutional Court, from the original outline of the appointment of six judges of the Constitutional Court by the President of the Republic (without the signature of such a decision by a co-signature of the Prime Minister) and six judges of the Constitutional Court by the Senate, although the appointment of appointment powers was transferred exclusively to the President, subject to the consent of the Senate to appoint all the Judges of the Constitutional Court. Thus, even in the Constitution itself, the position of the Senate is postulated not only on an insignificant level; The Senate is not just a representative parliamentary chamber. In fact, the position of the Senate in the system of the highest authorities of state power is inconceivable precisely from the point of view of the role of safeguards preventing excesses themselves from threatening the foundations of a democratic rule of law, with the exception, of course, of the possibility that the legislator (newly) would have to resort to the previously considered but not accepted concept of unicamaralism, where the brakes, counterweights and safeguards of individual state powers would have to be set quite differently than in the Constitution.
In the past, the Constitutional Court took the view that "in a situation where there is a dispute between the bodies applying the Constitution concerning the interpretation of a provision, the dispute must be resolved in favour of the possibility of exercising the constitutional powers which the provision relates to, or in the light of the meaning and purpose of the Constitutional Institute concerned '(cf. sp. zl. ÚS 33 / 97, Reports of the Decisions, Volume 9, Found No 163; published under No 30 / 1998 Coll.). There is no reason to depart from this conclusion either in the present case. The attempt by the Chamber of Deputies to unilaterally reduce the role of the Senate, which, together with other constitutional institutions, is obliged to guard the foundations of statehood (not limited to Senate powers in the area of constitutional and legislative), had to be rejected by the Constitutional Court.
The Constitutional Court is based not only on the subjective interpretation of the Constitutional Tribunal's intention in relation to the position of the Senate in its not only normative activity, but also on the considerations further presented.
In the constitutionally conformal interpretation of the words "electoral law" contained in Article 40 of the Constitution, the context of the constitutional provisions of the Constitution, the title of the Seventh Constitution and Article 21 of the Charter cannot be overlooked.
Self-administration of local authorities is constitutionally guaranteed by one of the basic provisions of the Constitution (Article 8). The right of citizens to self-government, in other words, to self-administration of the municipality and the region through councils whose members are elected by secret ballot on the basis of general, equal and direct voting rights, constitutionally secured and defined by the Head of the Seventh Constitution, in which the right of citizens to participate in the election of their representatives to public administration (Article 21 (1) of the Charter), or to participate in that administration as members of the Councils, is defined in a more constitutional manner, since they have the right to apply for the election of their members on equal terms (Article 21 (4) of the Charter).
Free elections are a condition of a sine qua non democratic state. When it comes to governance, this condition cannot be limited to the creation of legislative powers, that is to say, the election of Members and Senators, but also to the election of representatives who manage public affairs at a territorial level. If the Senate is to carry out its stabilization function, there is no reasonable reason why it should perform this function only in relation to parliamentary elections in the creation of electoral rules, and not in the creation of laws governing elections to those bodies that are self-administered by municipalities and counties. For the stability of democracy is not only important how the chambers of Parliament are elected, but also how citizens elect their representatives at the level of the local government; it cannot be inferred at constitutional level that parliamentary elections would be more important for the maintenance and development of democracy than elections to local and regional authorities. Democracy, if it is to be the true government of the sovereign people, of the people and for the people, cannot, albeit indirectly, be distributed down from Parliament, but must, on the contrary, grow up as a product of civil society from the bottom to the highest authorities of state power, by legislative and constitutional power in them naturally. If it is desirable that the electoral rules for parliamentary elections should not be subject to constant changes and be stabilised as far as possible through a difficult procedure for their adoption, it is equally desirable that such stabilisation should be subject to a stricter legislative regime as well as the rules of elections to regional and municipal councils. This request is all the more pronounced, bearing in mind that, contrary to the elections to the Senate and to the Chamber of Deputies for which the electoral system is constitutionally prescribed, the election of members of the councils is subject only to the constitutional regulation contained in Article 102 (1) of the Constitution; the electoral system of these elections is not constitutionally reglemented.
For the development of democracy, which the Constitutional Court considers to be an indispensable component of the Constitutional Court, it would be completely inappropriate to allow changes to the electoral procedure, on the basis of which the local authorities' representatives are created, including, for example, in essential system components, depending on the majority guaranteed in the Chamber of Deputies, the majority of the government, but the majority, which may also be minimal, may not be a majority existing in both chambers of Parliament. If the opinion of the Chamber of Deputies was accepted, according to which even when the laws governing elections to regional and municipal councils are being debated, the position of the Senate is entirely subordinate to the majority of even 101 votes of Members (according to Rule 47 (1) of the Second Constitution), nothing would prevent the House of Deputies from adjusting completely different electoral rules for each local and regional election, depending on the current belief, even a small majority of governments, depending on which new electoral rules would suit this majority. However, there is no reason why municipal and regional councils should be elected according to regulations that suit the majority of governments.
For these reasons, if the two parliamentary chambers are wholly equal partners in the constitutional activities, it can be concluded that it is appropriate, appropriate and necessary to provide for procedures stricter than those under which the authorities representing the will of the citizens of the municipality or region are not created, for the purposes of determining the electoral procedures whereby their representatives are chosen by the representatives of the local corporations. The way of choosing regional and municipal councils is based on a democratic state.
However, it also follows, as has already been indicated, that all laws governing electoral material cannot be regarded as electoral laws within the meaning of Article 40 of the Constitution. In particular, these are not the electoral rules - even if the legislature (not the legislator), which has itself established the right of local authorities to manage themselves directly in the Constitution) has transferred the exercise of government, the less the laws governing the election of parliamentary chambers and boards or private legal entities. This also follows from the fact that it is the elections to the local authorities, the Chamber of Deputies and the Senate itself, as a primary and necessary precondition for the exercise of state power to the people (cf. Article 2 (1) of the Constitution).
On the basis of the reasons set out above, the Constitutional Court has concluded that the Act governing elections to municipal or regional councils must be regarded as an electoral law within the meaning of Article 40 of the Constitution, so that, in order to adopt that law, it was necessary for it to be approved by the Chamber of Deputies and the Senate, while the Senate was not bound by a deadline of 30 days under Article 46 (1) of the Constitution when negotiating its proposal. It was then concluded that the procedure of the Chamber of Deputies prior to the declaration of the contested law was contrary to the constitutionally prescribed procedure, without which the adoption of the law could not be impeccable. The Constitutional Court therefore complied with the appellant's proposal and annulled the contested law pursuant to Paragraph 70 (1) of the Constitutional Court Act.
As obiter dictum The Constitutional Court attests to the arguments put forward by the appellant and the Senate, according to which the Election Act pursuant to Article 40 The Constitution is also a law on elections to the European Parliament, especially because, under this law, people are elected representatives to an institution which participates in the creation of European law and thus also in the legal order of the Czech Republic.
It is also clear from everything that has been mentioned that the Senate is not responsible for the implementation of Article 33 (2). Constitution to take legal measures on electoral laws governing elections to both chambers of Parliament, to the councils of municipalities and regions and to the European Parliament.
Act No 96 / 2005 Coll. was repealed in all its provisions and not only in Part Three and Part Four, by which certain provisions of the Act on elections to municipal councils and the Act on elections to regional councils were amended in a complicated way. It is not possible for the various parts of a single law to have the various constitutional procedures necessary for its proper adoption. In other words, the law must be subject to a uniform negotiating regime which cannot be both impeccable and unconstitutional at the same time; If the draft law contains parts requiring different procedures to be approved, it must require the most demanding procedure for the constitutional adoption of such a law.
By abolishing Act No. 96 / 2005 Coll. due to defective procedure The House of Deputies, when it was adopted, lost the reason for the review of the constitutionality of those provisions of the conflict of interest law, the abolition of which, for their content, was called upon by a petit formulated in the event that the original proposal was not granted.
Although the reasons already set out were sufficient to reach the conclusion of the Constitutional Court, the Constitutional Court considers it appropriate to respond to the appellant's pleas based on his request for the annulment of the contested law as well as his alleged constitutional practice. In this context, the appellant referred to the legislative process prior to the adoption of the law on elections to the European Parliament. In this respect, the Constitutional Court notes that the appellant's argument is inaccurate; reference can be made to the observations of the Chamber of Deputies and the Senate, as well as to the conduct of the debate preceding the vote of the Chamber of Deputies on the Senate, which shows that the problem now resolved, as part of the proposed bill on elections to the European Parliament, was a direct amendment to the Act on Elections to the Parliament of the Czech Republic, so that the dispute after the theoretical presentation of speakers was concluded by the fact that the direct amendment was the Senate's chosen procedure impeccable. In this context, in the view of the Constitutional Court, there would be a more appropriate notice on the hearing of the House of Deputies for the third term (1998 to 2002) of the Chamber of Deputies. The content of this House's press was the government bill on the amendment and repeal of certain laws in connection with the termination of the activities of the district authorities, while in the context of its discussion, the Chamber of Deputies, on a proposal from its constitutional committee, deleted sections 53, 60 and 57 of the Act on the amendment of the Act on Elections to the Parliament of the Czech Republic, the Act on Regional Councils and the Act on Regional Elections, which was justified in the 47th session of the Chamber of Deputies, precisely by the fact that the electoral laws are subject to a constitutionally different regime. The content of these parts was embodied in House Press No. 1022 (Senate Bill amending Act No. 247 / 1995 Coll., on Elections to the Parliament of the Czech Republic), which was separately discussed by the two chambers of Parliament and subsequently included the amended amendments to the Act on Elections to the Councils of the Regions and the Act on the Elections of the Municipality Councils signed by the President of the Republic and published under No. 230 / 2002 Coll. Therefore, although the appellant's argument in the indicated direction is not correct, the argument of the Chamber of Deputies, which stated in its observations that "it cannot... be a completely new interpretation of the Chamber of Deputies... 'can not stand.
As regards the appellant's proposal for a preliminary hearing of the case, the Constitutional Court did not consider it necessary by a separate order issued pursuant to the provisions of Paragraph 39 of the Constitutional Court Act to state that the matter to which the application relates is urgent. However, even without this formal order, the Constitutional Court considered the matter as a matter of priority; The oral hearing (with the waiver from which the Chamber of Deputies expressed its opposition in its observations on the proposal) was already ordered on 11 May 2005, in a situation where the deadline for the Chamber of Deputies and the Senate had not yet expired, the right to comment on the motion by the intervener. The reason for which the proposal was debated by the Constitutional Court at the earliest possible time found that the Constitutional Court, in particular in the need not to prolong the state of uncertainty, was that, as a result of the different interpretation of one of the constitutional terms in Article 40 of the Constitution, a faulty legislative procedure was adopted on the basis of which a generally binding legislative act was adopted. The appellant's argument to draw attention to the immediate effects of the adopted law on a number of persons was well founded.
Under Article 58 (1) of the Law on the Constitutional Court, the findings by which the Constitutional Court decided on the application for annulment of a law or other legislation or their individual provisions pursuant to Article 87 (1) (a) and (b) of the Constitution are enforceable on the date of their publication in the Collection of Laws, unless the Constitutional Court decides otherwise. In the present case, the Constitutional Court ruled that the finding would take effect on the date of its publication, taking into account the reasons which led to the preliminary examination of the application. In conclusion, it would be possible to add that it would be contrary to the principles of the democratic rule of law if, in the period from the publication to the publication of the finding, the provisions of § 55 of the Act on elections to municipal councils, or § 48 of the Act on elections to regional councils on the termination of the mandate of a member of the council of the municipality or region, could be applied (including the executive state authority).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 283 / 2005 Coll., on the application for annulment of Act No. 96 / 2005 Coll., amending Act No. 238 / 1992 Coll., on certain measures relating to the protection of the public interest and on the incompatibility of certain functions (Act on Conflict of Interest), as amended |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.07.2005 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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