Found at the Constitutional Court of the Czech Republic No. 296 / 1995 Coll.
The finding of the Constitutional Court of the Czech Republic of 18 October 1995 on the application for annulment of certain provisions of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll., and § 3 (4) of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll.
Valid
The Constitutional Tribunal found
Text versions:
21.12.1995
296
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
On 18 October 1995, the Constitutional Court of the Czech Republic decided in plenary on the proposal of a group of 44 Members of Parliament of the Czech Republic to abolish § 17 paragraphs 2 and 3, § 18 paragraphs 2, 3, 4 and 5 and the words "and the Supreme Audit Office" in § 18 paragraph 1 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll., and § 3 paragraph 4 of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll.,
as follows:
1. The date of the declaration of the finding in the Collection of Laws of the Czech Republic repeals the provisions of § 18 paragraphs 2, 3, 4 and 5 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll. On the same day, the words "and to the Supreme Audit Office" shall be deleted from Paragraph 18 (1) of that Law.
2. By the date of the publication of the finding in the Collection of Laws of the Czech Republic, the provisions of § 3 paragraph 4 of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll.
3. Paragraph 17 (2) and (3) of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll., shall be deleted on 1 January 1997.
Reasons
On 1 November 1994, a group of 44 Members of the Parliament of the Czech Republic approached the Constitutional Court with a proposal to repeal certain provisions of the abovementioned laws. Their objections to those laws were justified by the appellants by pointing out that the provisions of Paragraph 17 (2), which prohibit the parties from pursuing any business activity and the provisions on the jurisdiction of the Supreme Audit Office to control the management of parties and movements [Article 18 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll. (full version No. 118 / 1994 Coll.), and in Articles 5, 9 (2) and 97 (1) and the Charter of Fundamental Rights and Freedoms ("List '), were infringed by the Constitution of the Czech Republic (hereinafter referred to in Articles 17 (2), (2) and (2) and (22) respectively.
The applicants take the view that the amendment of the Association Act was subject to the supervision of the Supreme Audit Office by the parties and the movement, contrary to Article 97 (1) of the Constitution, according to which the Supreme Audit Office is entitled to exercise control exclusively of the management of State property and the implementation of the State Budget. In this sense, the scope of that body was also expressed in the provision of § 3 of Act No. 166 / 1993 Coll., which, in the view of the applicants, was supplemented by Act No. 117 / 1994 Coll. by a fourth paragraph in the sense that the management of the political party and political movement with contributions from the state budget of the Czech Republic is, for the purposes of the Law on the Supreme Audit Office, the management of state property.
Pursuant to Article 18 (1) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., the parties and the movement are required to submit annual annual financial reports to the Supreme Audit Office, which include not only contributions from the State Budget [§ 17 (3) (a), (b) of the Act] but also all other revenue, including gifts from natural and non-state legal entities, as well as annual financial statements, i.e. the return on assets and liabilities and the statement of revenue and expenditure (§ 18 (1) of the Act). As the appellants state, the Supreme Audit Office is entitled to review the timeliness, completeness and veracity of all the data contained in the report and, on the basis of the deficiencies identified, even initiate a proposal to dissolve or suspend the party or movement (Sections 18 (4) and 15 of the Act). In Article 18 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., the designated powers of the Supreme Audit Office are considered by the appellants to be unconstitutional and they also consider the extension of the jurisdiction of the Supreme Audit Office pursuant to Article 3 (4) of Act No. 166 / 1993 Coll., as amended by Act No. 117 / 1994 Coll.
A group of 44 Members states that the authority of the Supreme Audit Office should not apply to the management of state contributions either. The State contributions are not assigned, the State budget and the budget of the parties or the movement do not give rise to any financial relationship and the contributions to the party or movement are transferred by the Ministry of Finance through payment.
The appellants also challenge the possibility of dissolving the party or the movement because of the deficiencies in their management, established by the Supreme Audit Office pursuant to the new version of Paragraph 18 (4) of the Act. They base their opinion on Article 20 (3) of the Charter establishing in which cases the exercise of fundamental civil rights, including the right of association, may be restricted.
Finally, the motion of a group of Members challenges the provision of § 17 paragraph 2 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., which prohibits parties or movements acting on their own behalf to conduct any business activity, to establish a legal person who carries on the business activity or to participate as members of such a legal person. The applicants argue that the current regulation allowed parties and movements to operate radio and television stations, publishers, publishers and printers, as well as publishing and promotional activities. The new provision that makes this impossible is radically limiting the possibilities of political action by all political parties and movements to promote their own goals by their own means. Thus, according to the proposal of the group of Members, the free competition of political parties, the condition of which is also a material basis (printers etc.), is threatened by equal opportunities to achieve programme objectives and equal access to public media.
The applicants claim that the amendments to Act No. 424 / 1991 Coll., as amended, by Act No. 117 / 1994 Coll. have changed the essential elements of the democratic rule of law (Article 9 (2) of the Constitution) and therefore submitted a proposal that the Constitutional Court should annul the contested provisions of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll. Since the proposal contained inaccuracies which could have been interpreted in different ways, the Judge-Rapporteur asked the group of Members to make a clear clarification of the proposal, which was the letter of 2 March 1995. The motion to find the Constitutional Court is worded by a group of Members as follows: "1. Paragraph 17 (2) and (3) of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll., are deleted on 1 October 1995. 2. By the date of the declaration of the finding in the Collection of Laws, the words" and the Supreme Audit Office "in paragraph 1 and the provisions of paragraphs 2, 3, 4 and 5 shall be deleted (deleted) in Paragraph 18 of the Act cited. The date of the declaration of the finding in the Collection of Laws repeals the provisions of § 3 (4) of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll. '
In the appellants' view, those provisions are contrary to Articles 5, 9 (2) and 97 (1) of the Constitution and Articles 4, 17 (1), (2) and (4), 20 and 22 of the Charter.
The Constitutional Court, having verified that the motion of a group of 44 Members fulfilled the necessary formalities and conditions of Article 87 (1) (a) of the Constitution and of Act No. 182 / 1993 Coll., on the Constitutional Court, called on Parliament of the Czech Republic to comment in writing on the proposal under Article 69 of Act No. 182 / 1993 Coll. on the proposal.
On 12 December 1994, the President of the Chamber of Deputies delivered Parliament's opinion on the proposal. This statement states that the government's bill, which was the basis of the negotiations of the Chamber of Deputies, did not contain provisions which were challenged by the appellants. This was tabled as an amendment to the parliamentary debate and became part of the Joint Report (Press 832) of the committees of the Chamber of Deputies. It is also clear from the shorthand report on the Chamber of Deputies that these substantial changes to the government proposal have been made in particular by the Budget Committee. During the parliamentary debate, the Government expressed scepticism about these amendments or expressed a direct opposition to them; This was the case with the proposal that political parties could be dissolved because of the deficiencies identified in their management.
Observations The House of Deputies states that the purpose of the amendments was to create the preconditions for political parties and political movements to pursue their mission, i.e. that the exercise of the right of association exercised by them actually serve citizens to participate in the political life of society and political parties, and that political movements can be free from the activities that burden them and remove them from their mission. It also states in the opinion that, by adopting these amendments with political parties and political movement under the conditions laid down by law, contributions from the state budget are being made, and thus the often necessary need for their participation in business activities in a variety of forms which citizens are very sensitive and critical of. The need for state budget contributions to be checked by the Supreme Audit Office, then logically, according to the Chamber of Deputies, results from the fact that they are state property and citizens have an inalienable right to ensure that the State has the necessary level of control over the management of such property. Separate accounting records on the management of contributions from the state budget ensure the protection of the rights of political parties and political movements and their legal certainty. Furthermore, the Chamber of Deputies's statement states that the creation of certain rights of implementation from the state budget is accompanied by the creation of certain obligations to the state budget, to the state and to society, which also justifies the right to state control of the management of these funds. Finally, it adds that the law was passed by the necessary majority of Members of Parliament's Chamber of Deputies, signed by the relevant constitutional authorities and duly declared.
The Constitutional Court also dealt with the substantive content of the group's proposal. Based on a proposal from a group of 44 Members, the contested provisions of the law can be divided into three groups in substance:
1. Existence and scope of financial control of political parties and political movements by the State (state authorities).
2. Acceptance of dissolution or suspension of political party or political movement for reasons of non-submission or deficiencies of their annual financial report.
3. Acceptable participation of political parties and political movements in business activities.
1. Existence and scope of financial control of political parties and political movements by the State (state authorities)
To assess this issue, it is essential to find out what the constitutional status of political parties and political movements is and what their relationship to the state is.
Political parties as an association of natural persons are designated as legal persons in Article 3 (1) of Act No 424 / 1991 Coll. and therefore correspond to the concept of legal person within the meaning of Article 18 (2) (a) of the Civil Code.
Political parties and political movements are corporations on a private legal basis, in which membership is not the result of an act of public authority, but of a free decision of individuals, do not have public law status and therefore enjoy protection arising from fundamental rights and freedoms, to the extent that fundamental rights and freedoms can also be extended to legal persons.
Political parties are neither public authorities nor are in the position of superior or subordinate to them, but are partners of the State and pursuant to Article 5 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., are:
(a) separated from the State;
(b) they may not perform or replace the functions of State authorities;
(c) they may not manage or impose obligations on persons who are not their members.
However, even with regard to their members, the parties may only impose obligations which have been assumed in a manner and to an extent legally recognised by the State. Party obligations, or obligations outside this sphere, are not legally enforceable.
In this concept, our law conforms to the regulation in other European states, which are also based on the strict separation of public power and political parties. For example, the French Constitution formalises the independence of the activities of political parties from the State in Article 4, and in Germany, the Federal Constitutional Court repeatedly referred to the separation of parties from the State as the "basic principle '(Grundsatz der Staatsfreiheit) of the constitutional constitution.
However, the constitutional status of political parties cannot be defined merely as a simple result of the finding that the parties do not have the status of a state body and, as a result, are nothing but private associations. Their position is not that simple at present. After World War II, many institutes surpassed pre-war constitutional pruderia and adjusted the position and role of political parties explicitly also in the constitutional establishment. For example, the French Constitution highlights the role and participation of the parties in the elections (Article 4), and the German participation of the parties in the formation of the political will of the people (Article 21 (1) of the Federal Law).
This constitutional "revelation" of the public role of political parties and efforts for their "publication" has been made in some Western European countries in recognition of a certain public status, i.e. the role that parties have in the state and against the state, without being themselves a state (state, public). This ambivalent nature of political parties gives rise to a number of problems related to the interpretation of their status, function and relationship with the State.
European regulation is largely based on recognition in individual countries that political parties perform certain public tasks necessary for the life of a state based on representative democracy in accordance with the Constitution. The public nature of society undoubtedly has an interest in legitimising the state, which, according to the Constitution, is a democratic rule of law, in a democratic way, i.e. in elections based on competition from political parties. From this general interest, a claim is also made to allow and support the State to perform these tasks for the function of the State. This is also in line with the current arrangements for funding political parties by the democratic state, which is guided by the efforts to contribute to the activities of political parties, as well as by the efforts to partially pay their electoral costs.
The Constitution is based on the principle of representative democracy and on the primacy of the citizen before the State, which finds the expression in Article 2 (1), (3) and (4) of the Constitution, and in Articles 1 and 2 (2) and (3) of the Charter, and in principle that the State should only be as much as is necessary.
The Czech Republic is also among the countries that recognise and contribute to the constitutional role of political parties. The political system is based on "free competition between political parties that respect fundamental democratic principles' (Article 5 of the Constitution), while the parties act as an intermediary between citizens and the state; they are used for their participation in the political life of society, in particular in the formation of legislative bodies and bodies of self-government (§ 1 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll.). In this fundamental function of a political party, the formation of state bodies is preceded by their role in creating political will in the state. In order to create democratic state bodies at all, free competition must be preceded by autonomous, independent political parties, because only in the results of this competition are political contours and proportions of the state. Political parties, in this fundamental function, are in some way at the forefront of the state and the intervention of state authorities, the composition of which is the product of this process, are therefore undesirable if they can influence the conduct of free competition between parties politically, for example by calling the behaviour of certain parties" inefficient 'or "inefficient'. A state body gifted with the authority of a state decision and entering actively its authoritarian assessment into the sphere of competition between political parties is a fundamentally potential risk to democracy at all.
Neither in the Constitution nor in the Charter nor in the international treaties provided for in Article 10 of the Constitution, there is no basis for a principled refusal by the State of financial support for political parties. However, this does not mean that the funding of political parties and political movements by the state has no limits. Political parties and political movements are institutions constituted on the basis and within a constitutional state whose principles and rules bind both the parties and the State. These include the free and voluntary creation and free competition of political parties (Article 5 of the Constitution), and Article 2 (3) of the Constitution, according to which "State power serves all citizens', Article 20 of the Charter, which guarantees the right to join together freely and establish also political parties and political movements and provides that political parties and political movements are separated from the State (paragraph 4). These principles are followed by Article 5 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., which provides for separation of parties and movements from the State, and Article 3 of the same Act prohibiting state authorities from interfering with the status and activities of political parties and political movements. The Constitutional State is obliged to protect individuals in exercising their right of association not only from others but also from itself.
The role of supporting parties and movements in the fulfilment of their constitutional and legal functions could easily cease to be met by a state that would make financial support to political parties and political movements a means of influence on their activities or even a tool to manipulate them. Therefore, financial support for political parties and movements must not exceed the level respecting the generic limit of Article 20 (4) of the Charter, according to which political parties and political movements are separated from the State. European experience confirms that the assumption expressed in Parliament's opinion that, by increasing political parties' state subsidies, the need for additional financial resources for business and other activities will fail. Partial support for political parties is undoubtedly acceptable given the need for a partial balance of their chances. In general, however, it must be assumed that the more the political parties are subsidised by the State, the less they feel the need to seek resources and support their activities in the civil structure of society. The contribution to the activities of political parties should therefore not weaken political parties' efforts for political and material support by their constituents and supporters. Political parties cannot perform their duties if they are at the mercy of the state or rely more on the support of the state than on the support of citizens.
However, not only the State's financial support of the parties, but also its financial control by the State must respect the autonomy of political parties and political movements and their management by means of funds.
The vast majority of European countries therefore regard as a basic means of controlling the financing of political parties in particular the obligation to publish the annual accounts of political parties in official papers or publications. The aim of this measure is to increase the transparency of political parties, which is particularly important to the public of the country. This means is generally considered to be more significant than any type of inventory of political parties' assets by the State, whose effectiveness is estimated at no more than 50%. The public financial reporting obligations of political parties are prescribed by most European Union countries, but also by neighbouring Hungary and Poland.
The Czech Republic has not yet introduced mandatory publication of the accounting reports of political parties and political movements. In the Czech Republic, the control instance of the annual financial reports of the parties and the movement is Parliament and according to Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., also the Supreme Audit Office. The motion of a group of Members is not made public by the annual financial reports of the parties and the movement, but only by removing the Supreme Audit Office from the control system under Article 18 of the Act. The appellants argue that the anti-constitutional competence of the Supreme Audit Office, which is entrusted to it by Paragraph 18 of the Act in the control of the annual financial reports of political parties and political movements, is primarily because these reports include not only contributions from the state budget but also all other revenue, as well as annual financial statements on assets and liabilities and statements of revenue and expenditure of political parties and political movements.
In this context, the appellants also object to the unconstitutional nature of the newly introduced paragraph 4 § 3 of Act No. 166 / 1993 Coll., according to which the management of the political party and the political movement with state contributions for the purposes of Act No. 166 / 1993 Coll. is considered to be the management of state property.
On the other hand, The House of Deputies states that the state contribution to political parties and political movement is a state budget implementation and therefore advocates "the necessity for the State to control the use of contributions from the State budget by the Supreme Audit Office," because this necessity "logically resulted from the fact that it is state property and citizens have an inalienable right to ensure that the State has the necessary level of control over the management of such property."
However, the legislator himself was not convinced of the state nature or the assets of the political parties that the parties acquired from the State when he confidently stated that the management of the parties with State contributions considered the management of State property to be "for the purposes of Act No. 166 / 1993 Coll. '. Rather, he tried to extend the powers of the Supreme Audit Office beyond the constitutional framework of Article 97 of the Constitution by this construction.
Contrary to our adjustment in the countries of the European Community, it is not possible, however, for authorities comparable to our Supreme Audit Office (Supreme Audit Courts) to carry out financial management checks on the parties. On the objection of the Chamber of Deputies, the power to check at most whether the allocation and distribution of state contributions to political parties and political movements took place in a legal and factually correct manner, which, in consequence, cannot mean anything other than state control which is within the organisational framework of the State and provides for the review of the procedure of the Ministry of Finance for the allocation of State contributions under § 20 and 20a of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll. The overall concept of the Supreme Audit Office in Act No. 166 / 1993 Coll. In accordance with Article 4 (1) of the Law, the Supreme Audit Office already examines and also assesses whether the controlled activities are "effective and economical ', it is necessary to exclude this control of the management of the parties with State contributions, since the assessment of the effectiveness and economy of the use of these funds from the point of view of the parties is an internal matter for these entities.
In assessing this issue, the Constitutional Court concluded that the defining of the activities of the Supreme Audit Office in Article 97 of the Constitution is a determining moment, according to which the Supreme Audit Office carries out nothing less and no more than "control of the management of State property and the implementation of the State Budget '. This clear constitutional definition cannot be changed other than by constitutional law and therefore from a procedural constitutional point of view the amendment made by Article 3 (4) of Law No 166 / 1993 Coll. is unconstitutional. However, from a material constitutional point of view, this change is also not acceptable, because" nationalizing "control of political parties and political movements would be an intervention that threatens the principle of separation of political parties and political movements from the state.
The Constitutional Court takes the view that, after the contributions of the State have been allocated to political parties and political movements, it cannot be "management of State property 'within the meaning of Article 97 of the Constitution, but that the use of such contributions is already an internal matter for those entities to whom they have been granted. Therefore, the control of the management of state property can only apply to the phase that preceded the allocation of these contributions, i.e. the process that preceded the national decision on their allocation within the State (in particular within the Ministry of Finance).
The Constitutional Court therefore considers that the appellants' reasoned objection is that state contributions are not assigned and that their provision does not give rise to any financial relationship between the State budget and the budget of the parties or of the movement and, after payment of the State contribution by the Ministry of Finance, this becomes the property of the party or movement. It does not change that the management records are kept separately. When speaking in the Act on the payment of electoral costs, allowances for mandates and the activities of the parties, the State explains above all why and for what reason it supports political parties. The purpose of these provisions cannot be to define the role of the State as a supervisor who prescribes to the parties what is and what is not economic or efficient.
For the sake of completeness, it should be added that the control of the Supreme Audit Office cannot be excluded and, on the contrary, it should be accepted where the control of financial management within and within the State is concerned, even if this management is directly linked to the activities of political parties. This is the case, for example, with regard to the conduct of proceedings at the Ministry of Finance aimed at determining State contributions to individual political parties, or in relation to the amounts received by the clubs of individual political parties from Parliament's budget, because these institutions perform certain tasks and are given certain rights and obligations within the national structure, in this case within the highest legislative body. This is a financial contribution by the State to enable parliamentary factions (clubs) of parties to materially secure their participation in the parliamentary process. Financial control is already within the constitutive power in this sphere, because clubs are a component of Parliament and that state. However, political parties as such are neither the State nor its components.
2. Acceptance of dissolution or suspension of political party or political movement for reasons of non-submission or deficiencies of their annual financial report
Another objection by a group of Members is against the admissibility of the dissolution or suspension of the activity of a political party or political movement if they did not submit their annual financial reports or their reports contained deficiencies (Paragraph 18 (4) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll.).
The appellants challenge not only the participation of the Supreme Audit Office in the process of financial control of political parties and political movements under Paragraph 18 of the Act, but also the right of the Supreme Audit Office to initiate the proposal under Section 15 of this Act (dissolution or suspension of the party's activities), unless the latter places the obligations of political parties and movements associated with the submission of the annual financial report to be fulfilled.
The appellants' objections referred to in Article 20 (3) The Charter goes even further, however, against the newly introduced possibility of dissolution or suspension of the party or movement (Paragraph 15 of the Act) due to a lack of management established by the Supreme Audit Office in accordance with the new version of Paragraph 18 (4) of the Act. In their view, the deficiencies in the management of the parties and the movement are not among the reasons for which it would be permissible to restrict the exercise of the right of association in political parties and movements, let alone the party-founded or the party-based movement for that reason to dissolve or suspend their activities. The law may restrict fundamental rights and freedoms only under the conditions laid down in the Charter (Article 4 (2)).
The Constitutional Court takes account of these objections from the constitutional position of political parties and movements. As a modern state of representative democracy, the Czech Republic is vigilant that political parties can fulfil their role in constitutional establishment. It therefore protects the autonomy of the parties against State interference by both the general principle of separation between parties and the movement from the State and by a direct ban on the involvement of state authorities in the status and activity of political parties and movements outside the express authority of the law and its limits.
This state position is expressed in the "sui generis" privilege of political parties and political movements, which, in line with the presumption of their constitutional conformity, provides them with increased protection and makes it more difficult to dissolve them compared to other organisations.
For the possibility of dissolving a political party or a political movement, first of all, the general limits resulting from the constitutional establishment of the role of political parties and political movements apply. It is, above all, a definition of the nature of representative democracy, which envisages the free and voluntary creation and free competition of political parties, respecting fundamental democratic principles and rejecting violence as a means of promoting their interests (Article 5 of the Constitution). It follows that political parties that do not respect fundamental democratic principles and do not reject violence as a means of asserting their interests do not meet the necessary conceptual requirements of the Constitution. In Act No. 424 / 1991 Coll., as amended, Article 4 specifies the conditions for the formation and operation of political parties and movements in the sense that they cannot act in such a way as to: (a) which infringe the Constitution and the laws or which aim to eliminate democratic bases of the State; (b) which do not have democratic statutes or have democratically established bodies; (c) which aim to seize and hold power preventing the other parties and to seek constitutional means of power, or which seek to suppress the equality of citizens, (d) whose programme or activity endangers morality, public order or rights and freedom of citizens.
From this list, it can be concluded that, in all the above reasons for dissolution of a political party, the relationship with the constitutional requirement that political parties respect the fundamental democratic principles is set out in the final instance. Each of these reasons, in a specific way, also expresses a certain not insignificant degree of threat to the essential elements of the democratic rule of law protected by Article 9 of the Constitution.
In accordance with Article 18 (4) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., a new reason is attached, because, pursuant to Paragraph 18 (4), if the deficiencies identified by the Supreme Audit Office in the Annual Financial Report of the Political Party or the Political Movement have not been removed within the time limit laid down by the Law or by the Supreme Audit Office, the Supreme Audit Office is obliged to inform the Chamber of Deputies, the President of the Republic and the Government without delay, which is an incentive to submit a proposal pursuant to § 15, i.e. a proposal to dissolve or suspend the activities of the Party or Movement.
The wording of Paragraph 18 (4) of that Law is more moderate and does not in consequence imply that the Chamber of Deputies, the President of the Republic or the Government must submit a proposal to dissolve or suspend the activities of a political party or political movement at the initiative of the Supreme Audit Office. There is no legal obligation in this respect.
On the other hand, however, the fact that, on the basis of this provision, the relevant proposal could be made requires the Constitutional Court to consider whether the proposal to dissolve or suspend the activities of the parties or the movement on grounds of irregularities in their management found in the examination of their annual report is constitutional and relevant. The deficiencies in the annual financial report can hardly be qualified as shortcomings in the principles referred to in Article 5 and 9 of the Constitution. However, as regards the inadmissibility of the activities of political parties and political movements in view of the shortcomings referred to in Section 4 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., (violation of Constitution and Laws), the Constitutional Court considers that the wording of § 4 (a) affects an activity which also affects the democratic foundations of the State; Therefore, parties and movements that not only violated the (some) law but those that violate the law cannot take action. This wording expresses an element of endurance, perpetual conduct of a political party or political movement, which, by this repeated violation of laws, acts in a way that threatens the democratic foundations of the state.
After comparing the reasons which, on the basis of the failure to submit the financial report or the deficiencies in the financial report of these entities, justify the motion to dissolve or suspend the political party or political movement, we will find that these are new and different in nature from those permitted by the Constitution in Article 5 and Act No 424 / 1991 Coll., as amended, in § 4. The design of the legally defined initiative, i.e. the recommendation to submit a proposal for dissolution or suspension of action, is contradictory, because it is a proposal based on reasons which the Constitution does not feel. The law doesn't allow.
Weaknesses identified by the Supreme Audit Office are not specified anywhere and can be of the most diverse nature and often of a completely inferior importance. Act No. 424 / 1991 Coll., as amended, sets out in Paragraph 18 (2) potential deficiencies which may result in suspension of activity or dissolution of a political party as follows:
(a) the annual financial report has not been submitted within the deadline; or
(b) has been incomplete; or
(c) was false.
It follows that Paragraph 18 (2) of the Act gives the State Office, which is "an independent supervisory authority '(Section 2 of Act No 166 / 1993 Coll.), the body - unlike the Government - to the politically irresponsible Parliament (Section 10 (9) and Section 12 (9) of the Act), the power to declare to the political party any deficiencies relating to its annual financial report in the vague definition of subsection (a), (b), (c).
By Act No. 166 / 1993 Coll., as amended by Act No. 117 / 1994 Coll., it is also for the Supreme Audit Office to assess whether the "controlled activities... are effective and economical '(§ 4 (1)). This wording extends the scope laid down in Paragraph 18 of the amended Act to the sphere of arbitrarily, which may become a will for some constellations. Leaving Paragraph 18 in full would introduce a head-on system, because it is much more the task of the political parties represented in Parliament to blame a state apparatus that is effective and economical than vice versa.
In this context, it is not negligible either that the audit report on the verification of the annual accounts is not the basis for the finding of deficiencies that justify the complaint within the meaning of Article 15 of the Act, but solely the findings made by the Supreme Audit Office, which is a State body. Let us note that in European democratic states, checks on political parties' annual financial reports are largely entrusted not to the State but to independent, private and test institutions [in Germany and Austria independent testing companies and controllers (Wirtschaftsprüfer) perform this task on a private basis].
It could be argued that even if the motion of a group of Members and merely leaving part of the paragraph of the first Paragraph 18 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., the activity of a political party can also be suspended or, if the party does not comply with the conditions of Section 18 (1), it may also be dissolved. However, it should be noted that the first paragraph of Paragraph 18 of the Act does not give rise to any other reason to suspend the activity of a political party than that the party did not submit the annual financial report at all or to submit it in full by that paragraph. No other deficiency of the annual financial report can justify suspension of the Party's activities. The penalty for incomplete or false information in the financial report is set out in Section 20 (10), so that the payment of the State contribution to the activity is suspended until the defect has been remedied.
It is true that even under Paragraph 18 (1), the dissolution of a political party can also be achieved. However, it follows from Paragraph 14 (2) that the proposal for the dissolution of the party would logically only take place if the party had not submitted an annual financial report or removed its deficiencies in the following year, a fact which contains an element of repeated infringement of legal obligations which, according to the nature of the case, could be qualified as non-compliance with the condition of § 4 (a) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll.
The purpose of the contribution from the State budget is mainly to partially pay the electoral costs already incurred by the parties. This corresponds both to the overall concept of adjustments in European countries and to the wording of § 20 paragraphs 4 and 6, as well as to paragraph 7 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll. The contribution is linked to the election results in previous elections already achieved (number of votes, number of mandates). This does not change the fact that the payment of the contribution is divided in time over the entire term of the parliamentary term. Moreover, Article 17 (3) (a) shows a link to the electoral costs. Paragraph 17 (3) (b) identifies the "permanent contribution 'and the" mandate contribution' in Paragraph 20 (2), and paragraphs 6 and 7 of the two contributions are again linked to election results. It is therefore clear from the nature of the case that the purpose of these contributions should not be the subject of free consideration by the Supreme Audit Office, but is given directly by law, after all, as a partial reimbursement of the costs already incurred. It is determined by the activities of political parties, which are characterised mainly by participation in elections in the Constitution and in the law.
It is equally important that the parties' financial resources stemming from the state budget and all other political parties' sources are mixed in one way in order to exercise the control function of the Supreme Audit Office in § 18 of the Act. The legislature tried to recalibrate - for the purposes of this Act only - by amending Article 3 of Act No 166 / 1993 Coll. the political party's management of contributions from the state budget to some "state property management." However, all aspects of the political parties' annual financial reports, regardless of the origin of their financial resources, are subject by law to the objections of the Supreme Audit Office. The dilemma of the advocates of this regulation is that they want to accept the control of the parties' economy with the resources of the state budget, while the law goes much further and allows the State control of the parties' economy in its entirety and also in terms of efficiency and economy, thereby interfering unduly with the exercise of ownership rights, since Article 11 (1) of the Charter states that "the property rights of all owners have the same legal content and protection '.
However, even if control of the Supreme Audit Office were allowed only against the resources of the parties coming from the state budget, the practical effect would be zero. It is easy for political parties to include critical spending in non-state provenance.
For all these reasons, the Constitutional Court and the motion of a group of Members to abolish the dissolution or suspension of the activity of a political party or political movement in relation to the shortcomings identified in its annual financial report (Section 18 (4) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll.) is well founded.
3. Acceptable participation of political parties and political movements in business activities
The motion of the group of Members further challenges the abolition of the admissibility of the participation of political parties and political movements in business activities, which was carried out by the amendment of Article 17 (2) of Act No. 424 / 1991 Coll. The above arrangements provided that the party and the movement were not to engage in business activities on their own behalf, but that they could participate in the establishment of a legal entity or participate as partners or members of a legal entity already established. According to the legislation prior to the amendment, the legal entity itself could also set up or become the sole members of a legal entity, provided that the special law of a single founder or sole partner allows it. Under Article 17 (2) of the Act, a party and a movement may not, on their own behalf, engage in business activities and may not set up any legal person operating the business or participate as members of such a legal person.
The wording of Article 17 of the amendment cannot be inferred from the conclusion that the Act, as amended, does not prohibit political parties from participating in public limited liability companies. Such an opinion could be based on the grammatical interpretation of Article 17, according to which the parties may not participate as "partners' or" members' of a legal person engaged in business. Although public limited liability companies are not "shareholders', they are" shareholders', i.e. "shareholders', they cannot be considered to constitute a free area for this form of business participation by political parties. The Constitutional Court considers that such an interpretation does not only distort the legislator's intention, but also does not correspond to the material legal situation; Article 17 lays down a general emphasis on the prohibition of participation in a business-oriented legal person and not on the definition of the form of such participation. Therefore," Associate 'and "Member' do not apply exclusively to certain types of companies, e.g. s. r. o., limited companies or cooperatives. In the sense of the law, shareholders or shareholders are" shareholders' who are in their own way involved in the business of a legal entity. This approach is also supported by Paragraph 1 (17) of the amendment, which generally refers to any "legal person engaged in business' without excluding a public limited liability company from this concept.
The appellants see in Amendment 17 to Law No 424 / 1991 Coll. a violation of Articles 17 (2) and 22 of the Charter, thereby restricting freedom of expression and information as well as free competition of political forces. In other draftsmen, the demand for political parties and political movements to participate in business activities, in particular the need to provide a material basis for their activities (printers etc.), with equal opportunities for public formulation of programme objectives, with equal access to public media, etc.
This statement is opposed to the opinion of the Chamber of Deputies, which points out that the parties and the movement are about to be relieved from the activities that burden them and deter them from their mission, and that, as a result of the state contributions, the need for their participation in the business activities that citizens often criticise is still often lacking. However, the practice of European countries confirms that it is an illusory idea that a political party's state contribution would be economically secure and would encourage them not to seek financial resources elsewhere.
Having considered this issue, the Constitutional Court concluded that the prohibition of any participation of political parties and political movements in business activities does not have sufficient support in either the Constitution or the Charter or in international treaties under Article 10 of the Constitution. The view expressed in the Chamber of Deputies' opinion that State contributions will be deprived of the need for additional funding and participation in business activities is considered unilateral by the Constitutional Court. The issue of funding for political parties in Europe is confirmed by the fact that the growing needs of political parties lead to a sustained effort by the parties to obtain new sources of funding, in addition to state contributions and through donations and participation in business activities.
The structure of the financial resources of each political party is different, and some of them draw more from their members' regular contributions, others more from donations, as well as permanent annual and state contributions, and posts vary considerably. Also, the idea that political parties will be banned from any activity, including publication and promotion activities based on an entrepreneurial principle, thus achieving their equal "starting positions" and "moral behaviour" in political competition, contradicts their formally equal approach to de facto non-equal entities, as the nature of diverse political parties also reflects the diverse means of legally financing their costs. This issue cannot be dismissed by reference to state contributions provided.
Therefore, the Constitutional Court considers the general abolition of the participation of political parties and political movement in entrepreneurship to be an intervention contrary to the principle of the proportionality of law in the rule of law in the sense that it is neither an appropriate measure nor a necessary measure to achieve the objectives which the legislator promises to achieve from this measure.
On the other hand, however, the general release of any business activities of political parties and political movements without restriction, which would be the result of events. e The repeal of Article 24 (I) of Act No. 117 / 1994 Coll., does not reflect the fundamental directives of the Constitution and the Act on association in political parties and political movements concerning the meaning and role of political parties in democratic society, nor does it reflect the provisions of Article 4 (4) of the Charter allowing restrictions on fundamental rights, provided that (and also by) their substance and purpose is investigated. Unlimited participation by the parties in the business would not preclude the formation of political parties that deal more with business than with their constitutional mission.
In their proposal to abolish § 17 (2) and (3) of the Act, the appellants invoke the earlier provision of § 17 (4) of Act No. 424 / 1991 Coll., which granted the parties and the movement the right to participate only to this extent: (a) the operation of radio and television stations, publishing, publishing and printing works, (b) publishing and promotional activities, (c) lotteries and raffle, (d) the production and sale of items promoting the programme and activities of the party and movement concerned, (e) the organisation of cultural, social, sports, recreational, educational and political events. The applicants consider this adjustment, which existed before the amendment, to be appropriate. It was also based on the Government proposal for an amendment later amended in the joint report of Parliament committees. In the context of this, they propose that the provisions of Paragraph 17 (2) and (3) be repealed at a later date in order to "allow Parliament of the Czech Republic to re-regulate the management of political parties and movements by then."
In this regard, too, the Constitutional Court considers the motion of a group of Members to be justified. The immediate abolition of the business ban would be contrary to the principle of proportionality in the material rule of law, as the benefits of this decision could be overshadowed by the undesirable consequences of the absolute relaxation of the business activities of political parties and movements. Therefore, the Constitutional Court has decided to postpone the annulment of Article 17 (2) and (3) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., for a sufficient period, for a period of about 14 months after the publication of this finding, in order to give Parliament of the Czech Republic time to adjust the scope and limits of the business activities of political parties and political movements accordingly. The absolute prohibition on business activity still appears to be more acceptable to the Constitutional Court for 14 months than the immediate release of the business space without any restriction.
Therefore, following the procedure, the Constitutional Court decided to repeal the provisions of § 17 paragraphs 2 and 3 of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., until 1 January 1997.
Paragraph 17 (2) and (3) of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., is deleted for a dispute with Article 5 of the Constitution guaranteeing the free competition of political parties, Article 4 (4) of the Charter, according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated, and for a conflict with Article 20 (3) and (4) of the Charter, according to which the exercise of the right of association through political parties and political movements may be restricted only if, in a democratic society necessary for the security of the State, the protection of public security and public order, the prevention of criminal acts or the protection of rights and freedoms of others. Paragraph 17 (2) and (3) of the Act - moreover - is neither an appropriate measure nor appropriate nor appropriate to allow and protect the free competition of political forces, as the legislature obliges Article 22 of the Charter.
With regard to Paragraph 18 (4), the right of initiative to dissolve or suspend the activities of a political party or political movement is also contrary to the requirement of legal stability and certainty in a material legal State because it mandates the Supreme Audit Office to submit an initiative for reasons which the law itself does not allow in Paragraph 4.
Paragraph 18 (1), expressed in the words "and the Supreme Audit Office," and Article 18 (2), (3), (4) and (5) of the same section of Act No. 424 / 1991 Coll., as amended by Act No. 117 / 1994 Coll., shall be deleted from the date of publication of this Decision in the Collection of Laws of the Czech Republic for Dispute Settlement with the Constitutional Principle of the Division of Political Parties and Political Movement from the State (Article 20 (4) of the Charter), and from Article 97 (1) of the Constitution, according to which the Constitutional task of the Supreme Audit Office is the control of the management of the State Property and Implementation of the State Budget only, and, finally, of the Dispute, with Article 11 (1) of the Charter providing equal protection of all owners.
The date of publication of the finding in the Collection of Laws of the Czech Republic is also deleted from the provisions of § 3 (4) of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll., for the contradiction with Articles 97 (1) and (3) and Article 9 (1) of the Constitution. A power to be sensitive to general understanding. the law is also considered to be state property of political parties and of the movement, it could be granted only by amending or supplementing the Constitution by means of constitutional law.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 296 / 1995 Coll., on the application for annulment of certain provisions of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 117 / 1994 Coll., and § 3 (4) of Act No. 166 / 1993 Coll., on the Supreme Audit Office, as amended by Act No. 117 / 1994 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.12.1995 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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