Found at the Constitutional Court of the Czech Republic No. 31 / 1996 Coll.
The finding of the Constitutional Court of the Czech Republic of 10 January 1996 concerning the application for annulment of the provision of § 200l paragraph 2 of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 152 / 1994 Coll.
Valid
The Constitutional Tribunal found
Text versions:
29.02.1996
31
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 10 January 1996, in plenary, on a proposal by J. J., accompanied by a constitutional complaint, to repeal the provisions of § 200l (2) of Act No. 99 / 1963 Coll., the Civil Code, as amended by Act No. 152 / 1994 Coll., with the participation of the Chamber of Deputies of the Parliament of the Czech Republic
as follows:
On 1 July 1996 the provisions of § 200l (2) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 152 / 1994 Coll., on elections to councils in municipalities and amending and supplementing certain other laws are hereby repealed.
Reasons
On 19 January 1995, the Constitutional Court of the Czech Republic received a constitutional complaint from the complainant J. J., which was further supplemented by a submission dated 24 February 1995. The constitutional complaint is directed against the order of the City Council of Romans of 22 December 1994 No 11 / 94- VI / 4 and No 11 / 94- VI / 5 in conjunction with the order of the Regional Court of Prague of 29 November 1994 No 21 C 69 / 94- 8. The constitutional complaint was linked to the proposal to review the constitutionality of the provision of § 200l (2) of the Civil Code, as amended by Act No. 152 / 1994 Coll.
Following the removal of the power of attorney of the complainant, the Second Chamber of the Constitutional Court concluded that the appellant fulfilled the conditions laid down in Sections 74 and 64 (1) (d) of Law 182 / 1993 Coll., on the Constitutional Court, and, by order of 4 October 1995, No II. ÚS 15 / 95-37 suspended the proceedings and the application for annulment of the provision in question was referred to the plenary of the Constitutional Court for a decision pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
As a candidate for LSNS and independent candidates, the complainant participated in the elections to the City Council of Romans in November 1994. On this candidate he was elected a member of the council and on 30 November 1994 the council verified his choice. In the meantime, however, a complaint was lodged against the issue of the complainant's election certificate at the Regional Court in Prague. The Regional Court in Prague accepted this complaint by its Resolution of 29 November 1994 No 21 C 69 / 94- 8 and stated in its statement that the certificate issued by J. J. was invalid.
The reason for the constitutional complaint was the resolution of the City Council of Romans of 22.12.1994 No 11 / 94-VI / 4, by which the City Council of the City Council removes the resolution on the elections No 10 / 94- IV / 4 and takes note of the resolution of the Regional Court of the Regional Council No 21C 69 / 94- 8 on the nullity of the issued certificate of election of Mr J. J., born 12.8.1949, by Mr N. v. 356 / 6, by the Romans, a member of the Municipal Council of the Romans, and the resolution of the same Council of the election of Mr J. J. J. E. VI / 5, which notes and verifies the validity of the election of Mr D. H. D. H., who has taken up the vacancy as a replacement of the complainant.
In its timely submission of a proposal for postal transport on 18 January 1995, the complainant challenged the above-mentioned resolutions of the City Council of Romans as a measure of a public authority which infringed its right of access to the elected office of a member of the council and the right to participate as a member of the council in the administration of the public affairs, which belong to him pursuant to Article 21 (1) and (4) of the Charter of Fundamental Rights and Freedoms ("the Charter '). Their infringement was, in his view, linked to the application of the provisions of § 200l o.s., as amended by Act No. 152 / 1994 Coll., and therefore, in the petit of his proposal, in addition to the annulment of the two resolutions, he proposed to repeal this provision o.s.s.
At the request of the complainant to remove the defects of the proposal, the complainant also specified his original proposal in the petition for annulment of the order of the Regional Court in Prague dated 29.11.1994 No 21 C 69 / 94-8. The original complaint contained this proposal indirectly in the statement of reasons, but not in the petition. This part of the application is justified by the complainant by the fact that the Regional Court's resolution in question infringed its fundamental rights by its effects:
- pursuant to Article 21 (1) and (4) of the Charter, in breach of the complainant's right of access to the elected office and the right to participate as an elected member of the City Council in the administration of public affairs,
- pursuant to Article 2 (2) of the Charter, according to which State authority may be exercised only in cases, limits and in the manner laid down by law,
- pursuant to Articles 36 (1) and (2) and 38 (2) of the Charter, according to which any person has the right to claim his right before an independent and impartial court, the jurisdiction of the court must not preclude the review of decisions relating to fundamental rights and freedoms and where everyone has the right to have his case dealt with in his or her presence and to be able to comment on any evidence,
- pursuant to Article 4 of the Charter, under which the limitation of those rights by law may not infringe the substance and meaning of the rights cited.
In the complainant's view, these rights were clearly affected by the application of Paragraph 200l (2) of the Coll., as amended by Act No 152 / 1994 Coll., which excluded the participation of a citizen whose election as a member of the council is being conducted, which is prevented from making observations on the evidence carried out, which makes it impossible for him to know at all that, and with what result, the legal proceedings are being brought and which makes it impossible to file a constitutional complaint against the decision, as he is not a party to the proceedings. This final conclusion has changed and is no longer rejected in specifying its proposal.
Pursuant to the provisions of Section 69 of Act No. 182 / 1993 Coll., the President of the Chamber of Deputies sent an opinion on the proposal from J. J. J. on 17 November 1995. In its opinion, it states that, according to the explanatory memorandum to the provisions of § 200l o.s., the proposed regulation provides for the necessary amendments and additions so that the procedural regulation governing the procedure of courts and parties to proceedings also affects the specificity of the electoral procedure by allowing the judicial review of the elections to be sought, both in the course of and after their termination. Election acts, which may be reviewed by a court, shall be laid down in an electoral law taxiously, as well as defining the range of bodies authorised to seek judicial decisions, as well as the jurisdiction of the court and the time limits within which such powers may be exercised. Furthermore, the President of the Chamber of Deputies states that, in this context, "it should be taken into account that the activities of the Court as provided for in § 200l o.s. The specificity and difference of this procedure from the so-called contested procedure is reflected in a number of substantial derogations. One of these is the decision of the court on an application without negotiation with the parties, in cases justified by the general interest in the rapid and effective protection of their rights. 'Taking this into account, it considers that the provision cited is a necessary and most necessary part of the o.s..europa.eu The legislature has acted in the belief that the provisions of § 200l o.s. It is up to the Constitutional Court to assess its constitutionality. In this context, the Constitutional Court pointed out that the constitutionality of the provision of § 200l o.s.CS had already been expressed in connection with another case.
Finally, the President of the Chamber of Deputies confirmed that the law was passed by the necessary majority of votes on 22 June 1994, signed by the relevant constitutional authorities and duly declared.
Act 152 / 1994 Coll., on elections to councils in municipalities and on the amendment and addition of certain other laws, brought a number of changes to the judicial review of electoral matters. The seat of a Chamber composed of the President and two Judges shall be the subject of a single-Judge hearing a complaint concerning the issue of an election certificate. Instead of the appropriate application of the provisions of the O.S. on the review of decisions of other institutions, this provision is now included in the specific provisions of Title Five, Part Three, and is thus separate from those of Part Five on administrative justice. There is no longer a provision on the obligation of the court to send the order to the competent council, which is specifically bound by it, as has been the case so far in § 89 paragraph 5 of the Act of the Czech National Council No. 298 / 1992 Coll., on elections to councils in municipalities and on the local referendum. The proceedings are now private and the court refers to the appellant's proposals.
The provisions of § 200l o.s., as amended by Act No. 152 / 1994 Coll., read:
(1) The court without a hearing shall decide on a complaint against the issue of a certificate of election by a member of the council in Municipality 34c.
(2) The applicant is a party to the proceedings.
(3) There are no legal remedies against court decisions.
34c) § 59 of Act No. 152 / 1994 Coll. '
It follows from that provision that only the appellant is a party to the proceedings, but which, within the meaning of Article 59 of Law No 152 / 1994 Coll. is only a "citizen registered in the electoral register, where a member of the council was elected, as well as any party who has submitted a candidate list for elections to that representative," in any case, the person whose rights and obligations are to be negotiated in the proceedings.
Since the proceedings are solely on application, the provisions of Paragraph 94 of the Rules of Procedure, according to which the parties and those whose rights or obligations are to be dealt with in the proceedings are not applicable, and if any of those whose rights or obligations are to be dealt with in the proceedings do not take part in the proceedings from the date of its initiation, the court shall, as soon as it becomes aware of them, issue a resolution bringing them into the proceedings as a party.
Paragraph 59 of Law No 152 / 1994 Coll. rightly protects voters' interest in the correct conduct of elections and the election of those who fulfil the conditions laid down by constitutional and legal regulations. However, the legislator fails to see in its procedural security of this democratic right that, in municipal elections, it is not only the rights of voters and electoral parties, but also the rights of candidates to members of the council and the rights of elected candidates, which result from the right to apply on equal terms for elected functions and, in the event of election, to exercise those functions without obstacles.
The Constitutional Court thus found that the amendment of Law 152 / 1994 Coll. infringes the constitutional provisions in several ways. First, the provision of Paragraph 200l (2) is contrary to Article 38 (2) of the Charter, when the term "his case 'must be interpreted as requiring that anyone whose rights and obligations are to be dealt with in a court proceedings be able to take part in such proceedings and to express his or her views on all the evidence carried out and that the Court of First Instance should act in its presence and in public, provided that the law does not provide for an exception within the meaning of Article 96 (2) of the Constitution, which is, however, only possible in the principle of mouth and public.
Furthermore, this provision is contrary to the provision of Article 14 (1) of the International Covenant on Civil and Political Rights (No 120 / 1976 Coll.), which implies that everyone has exactly the same right to be heard fairly and publicly by an impartial and independent court which "decides on its rights and obligations." (In the determination... of his rights and obligations in a suit at law... everyone shall be appointed to a fair and public hearing...). The similar right of each individual also follows from the provisions of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (No 209 / 1992 Coll.).
The legislature is therefore to ensure that, when these provisions are further amended, everyone whose rights and obligations are under discussion before a judicial authority is able to exercise these constitutional rights (as defined in Section 148 (2) of Act No 182 / 1993 Coll.). The construction of the so-called 'undisputed procedure' with its particularities cannot lead to such fundamental rights not being respected in civil proceedings.
The provision in question makes it possible to negotiate the fundamental political right of a citizen to take part in the administration of public affairs without all those concerned being able to take part in the legal proceedings and even learn about it. It is not only a member of the council, but also other possible stakeholders, such as the electoral party for which the member of the council ran, and the local electoral commission as the body whose decision is the subject of judicial review. Such an arrangement is therefore contrary to Article 1 of the Constitution, which declares the Czech Republic a rule of law based on respect for the rights and freedoms of man and citizen. Finally, it does not provide for the obligation of the regional courts to deliver their decisions to the relevant representatives and electoral commissions which have issued the certificate, not to mention that the validity of elections should be the subject of an electoral judicial review as a process leading to the election of the members of the council in accordance with constitutional and legal rules and not the issue of an election certificate which merely declares a certain legal status.
Following this finding, the Constitutional Court has no longer addressed other complaints from the complainant, but they relate in particular to the handling of a constitutional complaint in further proceedings. It recalls, however, that the fact that someone was not a party to the proceedings in which a final decision on his rights was taken does not make it impossible to call the law by judicial procedure, including a constitutional complaint. However, such a final decision constitutes a "other intervention by a public authority 'within the meaning of Article 87 (1) (d) of the Constitution and the protection of its fundamental right is thus guaranteed.
In this context, it should be stressed that the Chamber of Deputies, when adopting Act No. 247 / 1995 Coll., on Elections to the Parliament of the Czech Republic and amending and supplementing some other laws, has removed this deficiency in the judicial review of the certification of election to the Chamber of Deputies and the Senate. Paragraph 88 of the Act gives the active legitimacy to submit the proposal once again to a citizen who has been entered in the list of voters in the district where the Member or Senator has been elected, as well as to a political party or coalition that has submitted a candidate or registration application. However, the corresponding procedural arrangements in the form of amendments to the o.s. set out in § 200n provide that, in addition to the appellant, the "Member or Senator whose election certificate is contested 'and the competent electoral authority are also involved. This provision already eliminates doubts about the constitutionality of the electoral complaints procedure. In addition, this provision should also be seen in the context of the regulation of the possibilities of defence of the Member or Senator concerned in a special procedure before the Constitutional Court under the provisions of § 85 to 91 of Act No 182 / 1993 Coll.
From the point of view of the enforceability of the finding, it should be noted that the repeal of the provisions of § 200l (2) o.s., as amended by Act No 152 / 1994 Coll., would complicate judicial examination of the results of the elections to municipal councils. These elections are practically still taking place in the form of so-called new elections as a result of the decline in the members of the councils. It is therefore necessary to allow the Chamber of Deputies to make a simple correction to the existing unconstitutional state, since, following the annulment of the non-constitutional provision of Paragraph 200l (2), as amended by Act No 152 / 1994 Coll., it will not be possible to negotiate the application of the constitutionally guaranteed fundamental rights of the candidates elected in any way other than by a new amendment of the o.s.
President of the Constitutional Court of the Czech Republic:
v. JUDr. Holecek v. r.
Vice-President
The right to give a different opinion in the Protocol on the Act on the Act on the Constitutional Court of the Czech Republic and to join it in the decision with its name pursuant to § 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was exercised by the judge of the Constitutional Court of the Czech Republic, Dr. Vladimir Paul.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 31 / 1996 Coll., on the application for annulment of the provision § 200l paragraph 2 of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 152 / 1994 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.02.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0