The Constitutional Court found No 318 / 2009 Coll.
The Constitutional Court found of 10 September 2009 on the application for annulment of Constitutional Act No. 195 / 2009 Coll., to shorten the fifth parliamentary term of the Chamber of Deputies
Valid
The Constitutional Tribunal found
Text versions:
11.09.2009
318
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 10 September 2009 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická in the matter of the motion of Miloš Melčák to repeal Constitutional Law No. 195 / 2009 Coll., shortening of the fifth parliamentary term of the Chamber of Deputies, filed under Article 74 of Law 182 / 1993 Coll., on the Constitutional Court, as amended,
as follows:
I. Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies, is hereby repealed on 10 September 2009.
II. Decision of the President of the Republic No. 207 / 2009 Coll., on the announcement of elections to the Chamber of Deputies of the Parliament of the Czech Republic, countersigned by the Prime Minister, will expire at the same time as Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies.
Reasons
Definition and recap of the proposal
The Constitutional Complaint, received by the Constitutional Court on 26 August 2009, calls for the annulment of the President's Decision No. 207 / 2009 Coll., to announce the elections to the Chamber of Deputies of the Parliament of the Czech Republic, signed by the Prime Minister. At the same time, pursuant to Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, together with the constitutional complaint in question, it makes a proposal to repeal Constitutional Act No. 195 / 2009 Coll., to shorten the fifth parliamentary term of the Chamber of Deputies. That decision of the President feels particularly affected by the fundamental law resulting from Article 21 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which, according to the case law of the Constitutional Court, gives rise to the right to the unimpeded exercise of public office under Article 17 (1) (b) (N 17 / 36 of the SbNU 185; 140 / 2005 Coll.). The breach of this fundamental right is then seen not in the unconstitutional way of application and interpretation of the rule of law in the constitutional complaint of the contested decision of the President of the Republic, but in its legal basis, in Constitutional Law No. 195 / 2009 Coll., which it considers to be contradictory to Articles 21 (2) and (4) and Article 22 of the Charter and Articles 9 (2), 16 (1) and 17 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
By order of 1 September 2009 No. The Constitutional Court postponed the enforceability of the President's decision No. 207 / 2009 Coll., on the announcement of elections to the Chamber of Deputies of the Parliament of the Czech Republic. Subsequently, by order of 2 September 2009 No. Pl. ÚS 24 / 09-20, the proceedings concerning a constitutional complaint by the complainant M. M., led by sp. zn. Pl. ÚS 24 / 09, were suspended and the motion for annulment of Constitutional Law No. 195 / 2009 Coll., to shorten the fifth parliamentary term of the Chamber of Deputies, was referred to the decision under Article 87 (1) (a) of the Constitution.
In the statement of reasons for his proposal, the complainant states that Constitutional Law No. 195 / 2009 Coll. is a constitutional law only formally, but materially contrary to constitutional order, in fact suspends the constitutional order - ad hoc, for just one term of office, it suspends its effectiveness for any period of time chosen by the current qualified majority of Members and Senators, which is not in this sense a law amending or supplementing the Constitution (pursuant to Article 9 (1) of the Constitution). The contested constitutional law then considers it contradictory to the constitutional order in the sense that it amends the essential necessity of a legal and democratic state which, pursuant to Article 9 (2) of the Constitution, is unchangeable. This requirement is to subject the free competition of political forces to the same and, in particular, to predetermined rules.
Furthermore, in favour of the Constitutional Court's power to examine the constitutionality of the constitutional law in question, the appellant submits the following arguments: he considers it an untenable literal interpretation of Article 87 (1) (a) of the Constitution, which would lead to absurd consequences - the possibility of a constitutional law to codify anything beyond constitutional control. From this point of view, it does not find the relevant difference between the shortening of the term of the President or Members of the House and, for example, the extension of their mandates for life, again ad hoc, only Members of this term of office, and even the provision of Article 21 (1) of the Charter would not be an obstacle to this "logic," as the subsequent constitutional law may have the same legal force as the Charter. The formalistic clinging to the classification of the contested law as constitutional law only on the basis of its adoption by a qualified majority is, according to the appellant, contrary to the material concept of the rule of law, with the fact that the Constitution of the Czech Republic is not value-neutral, it is based outside the inaliability of fundamental human and civil rights also on the assumption that the "essential elements of a democratic rule of law" are unchangeable. In this sense, the appellant is regarded as part of the constitutional order not only by law, adopted by a qualified majority of Parliament, but at the same time by a "non-refundable - immutable - essential requirement of a democratic and legal state." It states that the contested "constitutional" law does not meet these conditions, therefore it is not part of constitutional order. That conclusion also follows from the departure from Article 9 (1) of the Constitution, as the contested "constitutional 'law does not change or supplement the Constitution, but it suspends its provision (on the length of the term) for a certain term of office retroactively. In other words, the suspended constitutional regulation then replaces only the ad hoc rule for this term on the basis of the power agreement of certain political forces. It takes the view that the exclusion or deferral of a certain constitutional provision for a certain period of time is appropriate for exceptional situations in the history of the state, such as a threat to its integrity, to a state of war or to natural disasters, and even such procedures cannot be used arbitrarily but only on the basis of constitutional authority. But it says that the reluctance of most political forces to comply with constitutional procedures in the establishment of a new government is not such a situation in a certain term.
The proposal further analyses the meaning and importance of Article 9 (2) of the Constitution in the context of guarantees of democratic free competition for political forces. Reference is made to the Constitutional Court's legal opinion expressed in the decision of the Constitutional Court in Case 53 / 2000 ÚS No. 53 / 2000 of 27.2.2001 (N 36 / 21 SbNU 313; 98 / 2001 Coll.), according to which "Free and free competition of political forces is based primarily on the fact that all political entities follow the same predefined rules based on these very basic principles.... In doing so, it cannot be a choice in its decision-making, but constitutional criteria belonging to the fundamental principles of the political system, which are constitutionally guaranteed, must be respected. If such a risk were not to be ruled out and only by circumventing those principles, it would undoubtedly always lead to a breach of constitutional order, its purpose and its purpose, and would enforce the independence of the Constitutional Court, which, under Article 83 and Article 87, is a judicial body for the protection of both constitutionality and legality." The complainant considers its commitment to the future, in the same way, to all situations in the future, for the concept of a material rule of law, to be a conceptual characteristic of the legal rule. The idea that the rules laid down by law can be suspended for a specific case would, in his view, mean accepting the libel and violation of the principle of the rule of law. It also refers here to the legal opinion of the Constitutional Court, contained in the decision of the sp. zn. Pl. ÚS 24 / 04 of 28.6.2005 (N 130 / 37 SbNU 641; 327 / 2005 Coll.).
According to the appellant, the contested constitutional law infringed the constitutional ban on retroactivity, by retroactively adjusting the electoral term in its course - it began as a four-year term (Article 16 (1) of the Constitution) and was amended (shortened). That retroactivity is considered by the appellant to be a genuine retroactivity, which is contrary to the principle of legitimate expectations, pointing out that the exceptional acceptability of genuine retroactivity in the post-World War II period in public law is limited to issues of dealing with totalitarian past, an example of which is the law on illegality of the communist regime or restitution legislation. However, similar reasons justifying genuine retroactivity are not given in the present case.
The appellant underlines the particular importance of the relationship between elections and the functioning of the democratic rule of law, the pre-determined term of office considers it important to apply the principles of the sovereignty of the people, equality of chances, openness of political competition, the right of Members to exercise their mandate unhindered for a predetermined period of time and, in particular, to guarantee the protection of the rights of the parliamentary minority. A possible breakthrough in these principles can be allowed only on the basis of the Constitution, under generally established conditions (which are the conditions of dissolution of the Chamber of Deputies). It also refers in this context to a number of decisions in which the Constitutional Court decided to protect those principles [Opinion sp. zn. II. ÚS 275 / 96 of 15.10.1996 (N 103 / 6 CollNU 243), Pl. ÚS 24 / 04, Pl. ÚS 73 / 04]. If the Constitutional Court imports the limits of the possibility of the judicial annulment of election elections for an electoral offence in the decision of the Court of First Instance, in the light of the inadmissibility of the decision of the sovereign, the less, according to the complainant, it is permissible for the power to legislate.
The argument that it is possible to codify everything that obtains the constitutional majority, regardless of the provisions on the inconsistency of the essential elements of the democratic rule of law, by the Constitution is rejected by the appellant. It states that it is necessary to include the predictability of the law given by its general nature, as well as the view that the said thesis has already been expressed by the Constitutional Court in the decision of sp. zn. Pl. ÚS 77 / 06 of 15.2.2007 (N 30 / 44 SbNU 349; 37 / 2007 Coll.): "The law in the formal sense cannot be seen in the material legal state as a mere carrier of various changes made across the legal order. On the contrary, the materially perceived rule of law requires that the law be a predictable consistent source of law in terms of form and content. 'It further draws attention - again with reference to the case law of the Constitutional Court (sp. zn. Pl. ÚS 73 / 04) - to the importance of fair conditions of political competition. It accents at this point the difference between shortening the parliamentary term of the Chamber of Deputies in one case and the general rule of dissolution. He is aware of the diversity of constitutional models of dissolution of parliaments and early elections in the democratic countries of the world. It is possible from the point of view of Article 9 (2) However, it is impossible to rely on the democratic nature of the State, to proceed formally in the intentions of its Constitution, while suspending its essential, material elements which guarantee its democratic and legal character.
The appellant analyses the purpose of the dissolution mechanism of the Chamber of Deputies, linked to the declaration of mistrust to the government (or to the denial of confidence of the government), as enshrined in the Constitution, states that this mechanism makes the fall of the government conditional on the serious decision of the opposition to take on the government, aims at excluding demonstrative, unserious attempts to destabilise the government, and places the precise responsibility of the participants in the political competition.
By circumventing this procedure by shortening the term of office The Chamber of Deputies thinks that the political competition is undermined and the competition is preserved already because the new political parties or the movement will necessarily be in time pressure if they are committed to a regular election. It points out that it is not politically neutral, that is, from the point of view of political competition, when elections to the representative corps are held - if they are premature, only their term is legitimate, if it comes from the Constitution's pre-described procedures. For the contested constitutional law, it considers the principle of equal chances in political competition to be infringed [which is supported by a reference to the Constitutional Court's legal opinion expressed in the decision of sp. zn. It specifically states in this context: "The constitutional offenders' modus operandi is that the Constitution, or its essential elements, which guarantee the rules of political competition will not be abolished but ignored, suspended for the time being. While nothing prevents the current constitutional majority from changing or supplementing the Constitution - codification of early elections in any easy way for future reference. A new constitutional rule would be established, replacing the existing one in the future, and if it meant free (straight and open) competition for political forces in the future, it would be a conformal constitutional order, that is, a fundamental requirement of a democratic rule of law. However, it does not; for the next time, he is again applying for a rigid procedure for launching new elections; until the present majority again considers that it is politically advantageous - to her - to ignore the constitutional procedure again and by an ad hoc law to get out of political competition."
From the point of view of the historical appellant points out that the contested constitutional law is in substance identical to that adopted in 1998 and similar to its political circumstances. He considers the 1998 argument based on "constitutional practice" to be unacceptable and further presents an outline of the political and cultural consequences of breaking constitutional principles.
Since, in his view, Constitutional Law No 195 / 2009 Coll. by amending the rules of free, equal and open political competition, which are among the essential elements of the democratic rule of law, by suspending the Constitution in one case, retroactively and in a way limiting the sovereignty of the people, is thus contrary to Articles 21 (2) and (4) and Article 22 of the Charter and Articles 9 (2), 16 (1) and 17 (1) of the Constitution. For all these reasons, the Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies, proposes to repeal it.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations, received by the Constitutional Court on 4 September 2009, the President of the Chamber of Deputies of the Czech Parliament, Ing. Miloslav Vlček states that the debate on the draft constitutional law under consideration discussed in detail the question of the adoption of a special constitutional law, the options for dealing with the current political situation were mentioned and the reservations of some experts and politicians against the proposed substantive solution were considered and the possibility of a general constitutional change in the resolution of the Chamber of Deputies was considered. The need to respect the essential elements of a democratic rule of law has been highlighted.
With reference to the view of the Constitutional Court on the position of the party in the procedure for the control of standards [finding sp. zn. Pl. ÚS 24 / 07 of 31.1.2008 (88 / 2008 Coll.)], in addition to the ordinary statement of the Chamber, the President of the Chamber of Deputies states that Constitutional Law No. 195 / 2009 Coll. was adopted on the basis of a broad political consensus, in a constitutionally prescribed manner, approved by both chambers of Parliament, signed by the relevant constitutional officials and duly declared. According to him, the constitutional law does not contradict the essential elements of the democratic rule of law because the shortening of the parliamentary term of the Chamber of Deputies is linked to the holding of new elections to the Chamber of Deputies. The shortening of the parliamentary term of the Chamber of Deputies does not undermine the principle of the sovereignty of the people, on the contrary, it leads to the need for the former composition of bills of members of the legislature to citizens, which does not contradict the demands of democracy or the rule of law. The constitutional law in question does not change the fact that the legislature is constituted on the basis of a properly held election and is regularly accountable to citizens in elections.
In addition, the opinion of the President of the Chamber of Deputies states that it is not for the Constitutional Court to assess the "constitutionality" of constitutional laws and to abolish constitutional laws, according to the current Constitution. If the Constitutional Court had acquired such an authority, it would have been superior to the Constitution. It is the responsibility of the Constitution itself to ensure that the constitutional laws adopted do not exclude what is compatible with democracy and the rule of law within the meaning of Article 9 (2) of the Constitution.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. At the beginning of its observations, delivered to the Constitutional Court on 4 September 2009, its President, MUDr. Premysl Sobotka, recap the conduct of the negotiations of the constitutional law in question in the Senate, recap, in particular, the arguments in favour of and against its adoption.
From the heading of the first, it states that a one-time constitutional law, while showing signs of non-systemic nature, does not achieve such an intensity as to jeopardise or undermine the principles of a democratic rule of law. A one-time shortening of the parliamentary term of the Chamber of Deputies is not a new institution in our legal order because it has already been "successfully used" in Constitutional Law No. 69 / 1998 Coll., to shorten the parliamentary term of the Chamber of Deputies, and there is therefore no reason for Parliament not to choose the same path at present to shorten the fifth parliamentary term of the Chamber of Deputies, as this solution is able to quickly open the way for early parliamentary elections to end the period of political instability.
From among the critics of the adopted regulation, reference is made to the opinion of the Standing Commission of the Senate for the Constitution of the Czech Republic and the parliamentary procedure adopted at its 6th meeting on 27 May 2009, in which the Commission concluded that the proposed constitutional law is directed against the meaning of the Constitution as the order of general and pre-known rules of governance, intervenes in relations between Members and citizens, as well as in the powers of the Senate, and its adoption is certainly not the only way of reaching early elections to the Chamber of Deputies.
Finally, the President of the Senate notes that the Senate has discussed the draft constitutional law in question within the limits of the Constitution and the Constitution in the prescribed manner, and has approved the contested constitutional regulation by a majority, knowing that its content is not contrary to Article 9 (2) of the Constitution or to other standards which are part of the constitutional order, leaving the assessment of the objections raised by the complainant to the full consideration of the Constitutional Court.
Given the extreme urgency of the matter, The Constitutional Court shortened the deadline according to § 69 (1) of Act No. 182 / 1993 Coll. with the fact that both chambers of the Parliament of the Czech Republic also pointed out the possibility to state immediately after receiving the motion for observations that it considers this to be insufficient. The parties to the proceedings accepted the procedure of the Constitutional Court and sent observations on the application within a specified time limit.
Oral proceedings
For oral proceedings, no proposals were made to supplement the taking of evidence and the parties' statements and their replies to the questions of the Judges did not reveal any new facts beyond the scope of the draft and written observations.
Imperative of the material core of the Constitution of the Czech Republic (Article 9 (2) of the Constitution) and its impact for Article 87 (1) (a) of the Constitution
The Constitutional Court, already in its first finding in the procedure concerning the control of the standards in the matter of the constitutionality of Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its resistance to it, held under sp. zl. The constitutions designed on these foundations are value-neutral: they form an institutional and procedural framework, which is fulfilling very different political content, because the criterion of constitutionality becomes compliance with the constitutional institutions' and procedures' competent and procedural framework, thus of a formal- rational nature.... The knowledge that injustice must remain an injustice, even though it falls into the mantle of the law, has also been reflected in the constitution of postwar Germany, and currently also in the Constitution of the Czech Republic. Our new Constitution is not based on value neutrality, it is not just by defining institutions and processes, but also by including certain regulatory ideas in its text, expressing the fundamental untouchable values of democratic society.... Czech law is not based on the sovereignty of the law. The superiority of laws to lower legal standards does not mean their sovereignty. Even in terms of the scope of legislative competence within the constitutional state, there is no question of the sovereignty of the law. In the concept of a constitutional state on which the Constitution of the Czech Republic is based, the right and justice are not subject to the freedom of the legislator and thus the law, because the legislator is bound by certain fundamental values which the Constitution declares untouchable. The Constitution of the Czech Republic, for example, states in Article 9 (2) that "the amendment of the essential elements of the democratic rule of law is inadmissible '. This puts the constitutional principles of democratic society within the framework of this Constitution above the legislative competence and by the ultra vires of Parliament. With these principles, the constitutional state stands and falls. The removal of any of these principles, carried out by any, albeit majority or entirely unanimous, decision of Parliament, could not be interpreted otherwise than as the removal of this constitutional state itself."
In the find sp. zn. Pl. ÚS 36 / 01 of 25.6.2002 (N 80 / 26 SbNU 317; 403 / 2002 Coll.) The Constitutional Court applied the provisions of Article 9 (2) of the Constitution as a fundamental rule in the interpretation of the Constitution and its amendments: "From the constitutional maximum provided for in Article 9 (2) of the Constitution, the provisions of the Constitution do not apply only to the Constitution but also to the Constitutional Court. In the inadmissibility of the amendment to the essential elements of the democratic rule of law, there is also an instruction from the Constitutional Court, according to which no amendment to the Constitution can be interpreted in the sense that the consequence would be to limit the procedural level of protection of fundamental rights and freedoms already achieved." In this context, it is also necessary to mention the find sp. zn. The Constitution has also included guarantees of insolence in the case of its own interpretation of constitutional order: "If the Constitutional Court itself is not required as a constitutional body, that is to say, a public authority, to commit a benevolence which is also subject to the prohibition, since even the Constitutional Court, or the Constitutional Court itself, is obliged to respect the framework of a constitutional state in which the performance of a benevolence of public authorities is strictly prohibited, it must feel bound by its own decisions, which can only overcome its case-law under certain conditions. This postulate can be characterised as an essential element of the democratic rule of law (Article 1 (1) in conjunction with Article 9 (2) of the Constitution). '
In a number of its decisions, the Constitutional Court also outlined the content of the concept of "essential elements of the democratic rule of law 'in accordance with Article 9 (2) of the Constitution. In the decision of page III of the ÚS 31 / 97 of 29.5.1997 (N 66 / 8 of the SbNU 149), he stated in this connection:" The concept of a democratic state under Article 9 (2) The Constitution is interpreted by the Constitutional Court and by the doctrine. In its decision on the case under point Pl ÚS 19 / 93 The Constitutional Court has put a material and not a formal understanding of the rule of law under that term. "The Court of First Instance also referred to the opinions of the Court of First Instance, according to which the essential elements of the democratic rule of law within the meaning of Article 9 (2) and (3) of the Constitution include" in particular the sovereignty of the people and the principles contained in Articles 5 and 6 of the Constitution and the natural provisions of the Charter of Fundamental Rights and Freedoms, which establish the constitutional right of opposition (Article 23 of the Charter) "1 or, in other words," they are concentrated in several Articles I of the Constitution and I and V. of the Title of the Charter and solemnly declared in the Preamble of the Constitution "2. In the light of the comparative Constitutional Court, the Court also referred to Article 79 (3) of the Basic Law of Germany, Article 110 (1) of the Constitution of the Hellenic Republic and Article 288 of the Constitution of the Portuguese Republic.
The Constitutional Court put the fundamental principles of electoral law into the framework of the material focus of the rule of law - in line with the opinion of the doctrine - [Findings sp. zn.
Several general conclusions can be drawn from these decisions: the Constitutional Court has strongly demonstrated in its previous case-law the need for protection of material outbreaks of constitutional order, it has indicated in part the abstract and partly case-law of its structure, as well as the fact that the consequences of it affect not only democratic legislators but also the Constitutional Court itself. When (sp. zn. Pl. ÚS 36 / 01) was confronted with a constitutional law (changing and complementary constitution) which the court considered to be in conflict with the material focus of the Constitution (Article 9 (2)), it then followed the method of interpretation of the conformal to the courts arising from Article 9 (2) (i.e. by analogy with the principle of priority of constitutionally conformal interpretation prior to deregation). That legal opinion was also maintained in its other case-law [finding sp. zn.
If the Constitutional Court deviated from the previous constant case-law, the above-mentioned legal opinion was not part of the reasons for the decision in question, it was expressed only as obiter dictum. In this context, democratic constitutionalism is in line with the view that the distinction between the importance of ratia decidendi and obiter dicta for the commitment of the precedent is relevant: "the written opinion of the precedent court is not binding in whole, it is binding only on the reason for its decision, the ratio decidendi '.4
The constitutional development of the Czech Republic coincides with the constitutional development of European democracies in protecting the constitutional principles of democratic society.
The German history of 1919 to 1945, among other things, by removing the "material focus of the constitution" from the disposition of the founder, in other words expressed by the "imperative of invisibility" (Ewigkeitsklausel). According to him, the amendment of the Basic Act on the fundamental principles of the Federal Order, the fundamental principles of the protection of human rights, the rule of law, the sovereignty of the people and the right to civil disobedience is inadmissible (Article 79 (3) of the Basic Act). As a result of the regulation of the inviolability of the "material core" of the Constitution, according to the doctrine and the case law of the Federal Constitutional Court, a procedure under which the Federal Constitutional Court, including the alternative, would have declared that the amendment to the Basic Law, would have been legally invalid, would have been definitively decided on the violation of the "constitutional law" with the material core of the Constitution. 5 The opinion of the Doctrinary Court, according to which it is for the Federal Constitutional Court to rule on the nullity of the Constitutional Law amending the Basic Law in breach of Article 79 (3) of the Basic Law, was upheld shortly after the entry into force of the Basic Law, 6 and was subsequently confirmed by the case law of the Federal Constitutional Court itself (BVerfGE, 30, 1 / 24).
The Constitution of the Republic of Austria defines the procedural limitations of the Constitution in the field of its material outbreak and also establishes the competence of the Constitutional Court in this context. According to Austrian constitutionalism, "the review powers of the Constitutional Court are the subject of federal and territorial laws, both simple and constitutional." 7 This competence is derived from the provisions of Article 140 of the Federal Constitution, which provides for the general competence of the Court of First Instance in respect of the control of standards, in conjunction with Article 44 (3) of the Federal Constitution, according to which the overall revision of the Constitution and, where appropriate, the partial revision, if one third of the members of the National Council or the Federal Council so request, must be approved in the form of a referendum. The doctrine takes the view that it is for the Constitutional Court to assess, including in the form of aposterior control of the standards, compliance with that procedure from the point of view of the changing intervention of the legislator in the "material focus of the Constitution '. Its components include representative democracy, the federal organisation, the liberal rule of law and the division of power. 8 It also relies on the legal opinion expressed by the Constitutional Court of Austria in VfSlg. 11.584, 11.756, 11.827, 11.916, 11.918, 11.927, 11.972. It is based on the criticism of the legislative practice, which, in the form of the adoption of constitutional laws in the fields of the material of simple law, circumvents the review power of the Constitutional Court, the Court concludes that such a procedure by the legislator" cannot "seek to break the fundamental principles of the Federal Constitution.
This line of decision was also confirmed by other case law of the Court. In its Decision of 11 November 2001, VfGH 16.327, the constitutionality of the provision of a law to which Parliament has attributed the power of a constitutional provision, namely Article 126a of the Law on Public Procurement, under which "the provisions of the Land laws in force on 1 January 2001 relating to the organisation and jurisdiction of the bodies to which legal protection relating to the award of public contracts is applicable, are not contradictory to the Federal Constitution '. The Constitutional Court has distinguished in advance the simple and qualified constitutional law (i.e. the constitutional law constituting the material core of the Constitution pursuant to Article 44 (3)). He stated that, in order to protect the" existing core of the constitution "of a simple constitutioner, it was not allowed to suspend the Federal Constitution completely in its binding capacity for the partial field of the legal order (regardless of the importance of this sub-branch). In this context, the Constitutional Court did not consider it necessary to examine whether the procedure under Article 44 (3) of the Federal Constitution was being considered. It stated that the suspension of the Constitution is contrary to the principle of democracy and the rule of law and is not in the possession of the Constitution within the meaning of Article 44 (1) of the Federal Constitution. 9 On the basis of that argument, according to the verbatim definition of Article 140 (1) of the Federal Constitution, the Constitutional Court decides" the unconstitutionality of the Federal and Regional Laws, "the Constitutional Court annulled the provisions of Article 126a of the Public Procurement Act, designated by the Constitutional Office as the provision of the Constitutional Act and adopted by the procedure laid down in Article 44 (1) of the Federal Constitution.
The development of democratic constitutionality in democratic countries is currently stressing the protection of values identifying the constitutional system of freedom and democracy, including an alternative to judicial review of constitutional changes. 10
As in the German case, Article 79 (3) The basic law in response to undemocratic development and Nazi evil in the period prior to 1945 (and, by analogy, Article 44 (3) of the Federal Constitution of the Republic of Austria), is the result of experience with the decline of legal culture and the trampling of fundamental rights at the time of the 40-year rule of the Communist regime in Czechoslovakia. As a result of this analogy, the interpretation of Article 79 (3) of the Basic Law by the Federal Constitutional Court of Germany and, by analogy, procedures in other democratic countries for the Constitutional Court of the Czech Republic are deeply inspiring.
If the Constitutional Court makes it necessary to refer a category of constitutional laws to the concept of "law 'in Article 87 (1) (a) of the Constitution from the point of view of reviewing their compliance with Article 9 (2) of the Constitution, with possible derogatory consequences, it does so in the light of its case-law, beginning with the key finding of the sp. zl. ÚS 19 / 93 and doing so in accordance with the values and principles governing constitutional systems in democratic countries. Protecting the material core of the Constitution, i.e. the imperative of the impartiality of the fundamental essentials of the democratic rule of law under Article 9 (2) of the Constitution, is not just an appeal, a declaration, but a constitutional provision with normative consequences. In Article 78 of the Federalists' Charter, Alexander Hamilton has shown that" courts should be the intermediary between the people and the legislature in order, inter alia, to maintain legislation within the limits of its mandate. "11 Without the aforementioned reflection of Article 9 (2) of the Constitution in the interpretation of the provisions of Article 87 (1) (a) of the Constitution, the inadmissibility of the amendment to the essential elements of the democratic rule of law would cease to be of a normative nature and remain only a political or moral challenge.
Only in this context The Constitutional Court notes that the definition of the Constitution for cases in which it is necessary to exclude a category of constitutional law from the scope of the term "law 'explicitly enshrined that fact [see Article 50 (1), Article 62 (h) of the Constitution].
Constitutional conformity of the legislative process
Based on the interpretation thus interpreted of Article 87 (1) (a) of the Constitution, the Constitutional Court, in accordance with the provisions of Section 68 (2) of Act No 182 / 1993 Coll., as amended, as is the rule in the procedure for the control of standards, is also required to assess whether the contested constitutional law has been adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner.
It was found from the Parliament of the Czech Republic that the Chamber of Deputies approved the draft law in question, i.e. Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies, at its 56th session of 13 May 2009, when 172 Members and Members voted against it and 9 opposed it.
On 28 May 2009, at its 7th meeting of the seventh term, the Senate plenary discussed the draft law and approved the draft law by Resolution 181. In vote 4 there were 56 of the 71 senators and senators present for the motion, against which 8 and 7 abstained.
The constitutional law in question was signed by the relevant constitutional authorities and was duly declared under No 195 / 2009 Coll. in the amount of 58 Collection of Laws, which was circulated on 29 June 2009 and, according to Article 3, became effective on the date of its publication, i.e. on 29 June 2009.
Breaking the Constitution by an ad hoc constitutional law (a constitutional law for a unique case) and a contradiction with the essential elements of the democratic rule of law
Intensity of the adoption of Constitutional Law No. 195 / 2009 Coll. is expressed in the explanatory report on the draft Constitutional Act on the shortening of the fifth parliamentary term of the Chamber of Deputies, submitted by Mr Petr Fathoř, Bohuslav Sobotka and Primoz Rabasem (House Press 796): "In view of the current distribution of political forces in the Chamber of Deputies, in which the newly appointed government must, pursuant to Rule 68 (3) The Constitution does not apply until 30 days after its appointment for a vote of confidence and, in view of the fact that the dissolution of the Chamber of Deputies and the announcement of new elections can only occur if three successive governments would not have gained confidence in the Chamber of Deputies [Article 35 (1) (a) of the Constitution], the Czech Republic is threatened for a prolonged period of instability and political crisis. A formally legitimate means of resolving this situation is the holding of early elections in which citizens can reexpress their will and from which a new Chamber of Deputies can be created capable of creating the political background necessary for stabilising constitutional, political and economic conditions.... Thus, the proposed constitutional law offers a solution already elected by Parliament in the 1990s to hold early elections to the Chamber of Deputies in 1998. The political representation at that time (both the government and the two chambers of Parliament) also found agreement on the incitement of early elections through a special constitutional law.... This is therefore the way to hold new elections to the Chamber of Deputies, which is already known to our constitutional practice. The proposed constitutional law does not contradict the essential elements of a democratic rule of law whose amendment is inadmissible under Article 9 (2) of the Constitution. It shall respect, in particular, Article 21 (2) of the Charter of Fundamental Rights and Freedoms, according to which elections must take place within a period not exceeding the regular electoral periods laid down by law. ';
In the parliamentary debate of the draft Constitutional Act, the arguments against its adoption were removed from the context of the different political parties (see, for example, the speech of a Member of Cyril Svoboda at the 56th meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 28 April 2009 [http: / / www.pspp.cz / eknih / 2006ps / stenprot / 056schuz / s056014.htm], Senators Tomáš Töpfera, Petra Pithart and Soni Paukrta at the 7th meeting of the Senate of the Czech Republic on 28 May 2009 [http: / www.senat.cz / xqw / xervlet / pssenat / vocal? action = steno & O = 7 & IS = 4129 & T = 75 # st75].
The Senate Standing Commission on the Constitution of the Czech Republic and Parliamentary Procedures at its 6th meeting, held on 27 May 2009, on the draft Constitutional Act on the shortening of the fifth parliamentary term of the Chamber of Deputies (Senate Press 75) unanimously adopted an opinion stating: "The proposed draft constitutional law is not an amendment to the Constitution in the form of a wording of the general rule. It does not pay attention to constitutional mechanisms - they do not change them, they do not complete them or formally cancel them, but for this single case alone, it sets another way for early elections to take place. The dispute is not about early elections, but about the way to them - systemic and constitutionally conformal on the one hand, or ad hoc on the other. Therefore, the appeal to the right of the people to decide who will govern it (see the explanatory memorandum to House Press 796) is not a relevant argument.... The design model is Constitutional Act No. 69 / 1998 Coll. In contrast, however, the element of surprise is lacking, as the problem is known and the solution proposed. If the path of adopting ad hoc constitutional laws should become common, the Constitution will never change, because it will not be necessary. In that case, however, she is in danger of breaking up with constitutional and political reality - she will gain character, facades'. At the same time, any political crisis will turn into a constitutional crisis, as it will be dealt with by constitutional law.... The present draft law is linked to the doubts of the parties to its constitutionality '. The Commission recognises the possibility of existence, unconstitutional constitutional constitutional laws', or perhaps only deemed, because outside the competence of the (ultra vires) constituency of the constitutional laws adopted, if they are contrary to the essential elements of a democratic rule of law, the amendment of which it declares to be inadmissible under Article 9 (2) of the Constitution. If this had not been the case, the provision in question would not have been of any normative importance.... The proposed constitutional law goes against the meaning of the Constitution as the order of general and pre-known rules of governance, intervening in relations between Members and citizens, as well as in the powers of the Senate. Its adoption is certainly not the only way to reach the early elections to the Chamber of Deputies, and it will certainly reduce the pressure on any change to the Constitution. Not in favour of its stability but at risk of ad hoc circumvention. '
The content of the proposal for annulment of Constitutional Act No. 195 / 2009 Coll., from the observations of the party to the proceedings, as well as from the contradictory arguments put forward in its parliamentary proceedings, for the Constitutional Court follows the following fundamental questions: what definition, conceptual characteristics, according to the Constitution, define the category of constitutional laws? Is there, without further constitutional law, a law that is thus designated by the Parliament of the Czech Republic and adopted by the procedure laid down in Article 39 (4) of the Constitution? Or must they also satisfy other conditions: the condition of competence (authorisation) under Article 9 (1) of the Constitution or other explicit constitutional authority (Articles 2 (2), 10a (2), 11, 100 (3)), and the material condition laid down in Article 9 (2) of the Constitution?
The general nature of the constitutional law as an essential requirement of the rule of law
The constitutional practice of the Weimar Republic between 1919 and 1933 was characterised by the regular breaking of the Constitution by means of special constitutional laws, even for a unique case (which led to the inaccuracies of the Constitution and its instability). There was bitter controversy between positivism (P. Laband, G. Jellinek, G. Anschütz, S. Jaselsohn, W. Jellinek) and materially (value-oriented) constitutionalists (C. Schmitt, G. Leibholz, C. Bilfinger). In European constitutionalism, breaking the Constitution has since been the following policy of parliament: "In the case of breakdowns, the constitutional legal provision is not amended, but, in a unique case - for maintaining its general validity for others - a derogating regulation has been made.... Such breakdowns are by nature measures and not standards, therefore laws are not in the legal sense of the word and consequently constitutional laws.... As legislator, the legislator can only legislate, but cannot break it; the question concerns not legislation, but sovereignty. '12
In response to the practice of the Weimar Republic and its outcome, the Basic Law of 1949 entailed an amendment according to which only a law which explicitly amends or complements the text of the Basic Act (Article 79 (1) of the First Basic Act) may be amended. That constitutional provision excludes the possibility of breaking the Basic Law.
The inadmissibility of breaking the Constitution by an ad hoc constitutional law (for a unique case) is also accentuated in other European democratic countries. 13
The fact that the laws (i.e. fixed legal standards) are to be of a general nature is not an idea of a civil rule developed only in the 19th century. This idea is accompanied by the whole of European legal history. It is located in the sentenses of the great Roman lawyers, lost in the Middle Ages and again revived in the epoch of enlightenment and rationalism. The universality of content is an ideal, typical and essential feature of the law in relation to judicial judgments, governmental and administrative acts. The purpose of the division of state power into legislative, executive and judicial power is to entrust universal and initial power regulation to the state of legislature, based on universal power regulation and decision-making on individual cases of administration and exclusively on individual cases of the judiciary. The requirement of the universality of the law is an important part of the principle of the rule of law and hence the rule of law. As one of the most important theorists of the 20th century's rule of law, F. A. Hayek states: "If we assume that if all the actions of the state are properly approved by the legislator, the estate of the law is preserved, then this is a complete misunderstanding of the importance of the rule of law... The House of Law thus imposes limits on the scope of legislation: it limits them to the kind of general rules known as formal law, and excludes legislation... directly aimed at certain people." 14
The Constitutional Court has repeatedly expressed its views in a number of its decisions on the requirement of the general rule. In the findings sp. zn. Pl. ÚS 55 / 2000 of 18.4.2001 (N 62 / 22 SbNU 55; 241 / 2001 Coll.), Pl. ÚS ÚS 24 / 04 stated the following: "The basic principles of the material rule of law are the maximum of the universality of legal regulation (requirement of the universality of law or of the universality of legislation). The universality of content is an ideal, typical and essential feature of the law (or even of the law at all), in relation to judicial judgments, governmental and administrative acts. The purpose of the division of state power into legislative, executive and judicial power is to entrust universal and initial power regulation to the state of legislature, based on universal power regulation and decision-making on individual cases of administration and exclusively on individual cases of the judiciary. The definition of the definition of the concept of a law (or a law) then depends on the concept of a law (a law) in a material sense, from which laws (legislation) must be distinguished in the sense of formal law. If the laws within the meaning of the formal acts of the legislature by which this body permits, or approves, certain specific measures of the executive bodies (state budget, state contracts, etc.) ', whereas traditional teaching considers that in such cases the legal authority issues - in the form of laws - administrative acts.' (F. Weyr, Czechoslovak Constitutional Law, Prague 1937, p. 37)... As much as they are a source of law in their form (legislation), their content are therefore the application of the law. '
The arguments for the universality of the law were analysed by the Constitutional Court in the judgment in Case C-112 / 02 ÚS 12 / 02 of 19.2.2003 (N 20 / 29 SbNU 167; 83 / 2003 Sb.), in which it stated, inter alia: "In the present case, however, these aspects need to be taken into account in the assessment of the law which regulates a unique case, which therefore also deviates from one of the fundamental material characteristics of the concept of the law, which is universality. Let us remember that the requirement of the universality of the law is an important part of the principle of the rule of law and thus also of the rule of law.... A particular argument against the laws relating to unique cases is the principle of division of power, i.e. the separation of legislative, executive and judicial powers in a democratic rule of law... Article I, Section 9 of the US Constitution, in this context, states:" No law may be given containing a judgment. '.
The issue of the exclusion of judicial review in the case of individual legal regulation was addressed by the Constitutional Court in the find sp. zn.
Arguments in favour of the universality of the law are therefore the division of power, equality and the right to own, independent judge, and the exclusion of insolence in the exercise of public authority.
Article 9 (1) The Constitution may be supplemented or amended only by constitutional laws. Moreover, in a number of its provisions, the Constitution expressly empowers Parliament to enact constitutional laws governing precisely defined material (Articles 2 (2), 10a (2), 11, 100 (3)). In order to assess the constitutionality of compliance in the issue of Constitutional Law No. 195 / 2009 Coll. it is therefore necessary to answer the question whether an ad hoc constitutional law (for a unique case) can be placed under the scope of permissible constitutional changes under Article 9 (1) of the Constitution.
The ad hoc Constitutional Law (for a unique case) is neither an addition nor an amendment to the Constitution. The content of the constitutional law for a unique case can take two forms - either a temporary suspension of the Constitution or a substantive or personal exception to the general validity of the constitutional regulation.
The addition of the Constitution can be characterised by the fact that the supplementary constitutional provisions do not change, while the additional and complementary provisions are not contradictory. The amendment of the Constitution means the abolition or partial repeal of a constitutional provision and, if necessary, the establishment of a new provision. By breaking the Constitution, the Constitution is not abolished, while the broken (in the case under consideration) provisions and provisions breaking (in the case under consideration) are contradictory.
Constitutional Law No. 195 / 2009 Coll. is a constitutional law only in form but not in its content. The content is an individual legal act concerning not a generally defined range of addressees and situations, but a specifically designated body (Chamber of Deputies of the Parliament of the Czech Republic elected in 2006) and a specific situation (ending its term on the election date to be held until 15 October 2009, and shortening the deadlines under the Election Act to the Parliament of the Czech Republic and under the Administrative Rules only for this case). This fact is expressly expressed not only in Article 1 of the Constitutional Law, but also in Article 2 (which represents a direct amendment to the laws implemented by the Constitutional Law!), which contains, for the regulation of the shortening of those time limits, an explicit wording "in this case."
If forced The Constitutional Court will answer the question whether Article 9 (1) of the Constitution empowers Parliament also to issue individual legal acts in the form of constitutional laws (e.g. to issue criminal judgments against specific persons for a specific act, to issue administrative decisions on expropriation, to shorten the term of office of a particular representative of a state body, etc.), the answer is - not! 15 A material view of the assessment of the sources of law by the Constitutional Court with absolute clarity was also expressed in the finding of sp. zn.... According to the Constitutional Court, the classification of the sources of the law must first and foremost be derived from the content of the legal rule. "
Original Constitution in Article 9 (2) The Constitution has put the principle of democratic and the principle of the rule of law on the same level for principles that fundamentally identify the constitutional system of the Czech Republic. As is apparent from the case law of the Constitutional Court, a breach of the principle of universality of the law falls within the scope of the undue distortion of the rule of law. Any exceptions are either cases of the adoption of an act of application of law in the form of a law (such as a State Budget Act), cases of explicit authorisation to issue an ad hoc law (such as constitutional laws issued pursuant to Articles 11 and 100 (3) of the Constitution) or of ad hoc laws, for which exceptional reasons give rise to the conditions of the proportionality test (buyer).
In the absence of constitutional authorisation to issue ad hoc constitutional laws, the constitutional conformity of a constitutional law adopted in contravention of the Constitution as defined by the framework of Parliament's competence could only be established by protecting the material core in accordance with Article 9 (2) of the Constitution. In other words, the protection of the democratic rule of law in the form of the adoption of an ad hoc constitutional law could be accepted in absolutely exceptional circumstances (such as the circumstances of a state of war or a natural disaster, the solution of which is not made possible by the Constitution or the Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic, as amended by Constitutional Act No. 300 / 2000 Coll.), which would have to comply with the proportionality considerations.
As the Constitutional Court consistently judges [see the findings of sp. zn. If the legislature (in the present case, the legislator) finds the purpose of achieving alternative standards by means of it, the constitutionally conformist is the one that limits the constitutional value to the minimum.
If the purpose of the adoption of Constitutional Law No. 195 / 2009 was to speed up the solution of the government (parliamentary) crisis and to the urgent dissolution of the Chamber of Deputies and the opening of early elections, this purpose can also be achieved in accordance with the procedure laid down in Article 35 (1) of the Constitution [in particular in accordance with point (b) of that provision of the Constitution]. As a result of the adoption of the contested constitutional law, the speed of resolution of the government crisis was not the result, but a shift in the date of application of the Chamber of Deputies until the election date - if the Chamber of Deputies had been dissolved, elections would have been held in accordance with Article 17 (2) of the Constitution until 60 days after its dissolution. Breaking the constitutional arrangements contained in Article 35 In addition, the Constitution circumvents the constitutional purpose of the Institute of Dissolution of the Chamber of Deputies of the Parliament of the Czech Republic, which is the constitutional pressure to combine the disbelief (or denial of confidence) of the Government with the knowledge of constitutional consequences in the absence of a new parliamentary majority capable of creating a government. Moreover, it remains to be stressed that the most important public interest resulting from Article 9 (2) The Constitution is the creation of a legitimate Parliament on the basis of a constitutionally unquestionable legal basis for elections.
For reasons thus interpreted The Constitutional Court has not found arguments in favour of failure to comply with the framework of powers for the adoption of constitutional laws as defined in Article 9 (1) of the Constitution.
The Constitutional Court repeatedly points out that it considers the principle of the universality of the constitutional law to be part of the category of essential elements of the rule of law. It recalls that generality is not a purpose in itself, its purpose is to ensure the separation of legislative, executive and judicial powers, equality of constitutional arrangements for similar situations, thereby excluding indiscretions in the exercise of public authority and allowing the protection of individual rights in the form of the right to judicial protection. The purpose and purpose of the constitutional law as a conceptual sign of the rule of law is therefore to protect freedom.
In favour of the constitutional conformity of Constitutional Law No. 195 / 2009 Coll. is argued by the fact that it was not affected by Article 21 (2) of the Charter, it was therefore not extended but shortened by the parliamentary term of the Chamber of Deputies, so that there was no restriction of citizens' voting rights or interference in Parliament's legitimacy. The relevant argument against this argument was resolved already in the parliamentary debate on the draft Constitutional Law on the shortening of the parliamentary term of the Chamber of Deputies in 1998: "The danger of the proposed law is primarily that it sets a precedent for the highest legal force, a precedent that says that it is possible for current, utilitarian political reasons to change the fundamental law of the country. If it's possible once, it's possible every time. For the same reasons, Parliament could suspend the power of the Constitutional Court if the Constitutional Court's decision contradicts the current political will, for the same reasons it could suspend the powers of the President if it contravenes the current political will, for the same reasons it could suspend the Charter of Fundamental Rights and Freedoms if it is an obstacle to the fulfilment of political objectives. The challenge of fundamental legal certainty for political reasons is a challenge of democracy and creates a potential risk of the emergence of authoritarianism and totalitarianism. And it is not valid that the authors of this precedent did not and do not, as I believe, intend to do, and by their proposal they only want to ensure that early elections are held. Political logic does not look back on intentions, and those who will follow the path that this precedent opens may have other intentions and much darker ones. That is why the Constitution of the Czech Republic explicitly states in Article 9 (2) that it is not acceptable to change the essential elements of a legal democratic state." 16 Similarly, as was the case in 1998, in the process of adopting the Constitutional Law on the shortening of the parliamentary term of the Chamber of Deputies, elected in 2006 against the arguments put forward in his favour, the relevant counter-arguments were removed, particularly in the broad opinion of the Standing Commission of the Senate for the Constitution of the Czech Republic and parliamentary procedures.
In addition to the principle of inadmissibility to hold elections within periods exceeding the electoral term of Article 21 (2) of the Charter, the principle of the regularity of the parliamentary term (regularity of the exercise of the right) is also enshrined. The ad hoc Constitutional Law on the Shortening of the Election Period is contrary to the constitutional imperative of the regularity of the Election Period, only in one case and not generally for the future, provides for an exemption from Article 16 (1) of the Constitution.
The Constitutional Court concludes: Even the legislature must not declare a constitutional law a standard which lacks the character of the law, let alone the constitutional law. The opposite is an unconstitutional arbitrage. Excluding the review of such acts by the Constitutional Court would eliminate its role as protector of constitutionality (Article 83 of the Constitution) entirely.
Prohibition of the retroactivity of the Constitutional Law as a fundamental requirement of the rule of law
The Constitutional Court has already established the fundamental aspects of the assessment of the constitutionality of retroactive legislation [that legal opinion was then confirmed in a number of other decisions, see the finding of sp. zn. Pl. He stated that "among the fundamental principles defining the category of rule of law is the principle of protecting citizens' trust in law and the related principle of prohibiting the retroactive application of legal standards.... Therefore, for genuine retroactivity, lex posterior cancels (does not recognise) legal effects at the time of the effectiveness of the legis priority, or causes or combines the rights and obligations of entities with facts that were not legal facts at the time of the effectiveness of the legis priority. '
There is a fundamental difference in the regulation of the shortening of the parliamentary term of the Czech National Council by constitutional law No. 64 / 1990 Coll., on the parliamentary term of the Czech National Council, on the one hand, and shortening of the parliamentary term of the Chamber of Deputies of the Czech Republic by constitutional laws No. 69 / 1998 Coll. and No. 195 / 2009 Coll. on the other hand. The first of the three constitutional laws was adopted before the elections and the constitution of the representative corps, two others after its constitution. The conditions for the exercise of voting rights (both active and passive) were therefore laid down retroactively. With retroactive effects, assumptions have been changed, based on the knowledge that voters were made in the elections to the Chamber of Deputies. 17
The democratic constitution, which is the fiction of the social treaty, expresses in its most general form the framework of human freedom, compatible with the freedom of others, a system of constitutional values and, finally, the structure of the fundamental institutions of public power and the procedure that gives rise to legitimacy. The purpose of these institutions is to guarantee the constitutional framework of freedom, to guarantee internal peace, as well as other constitutional public good. The Constitution is therefore a fundamental document which sets out binding and unsurpassed rules, limits and limits on the creation of the supreme constitutional bodies of state power, the exercise of state power in terms of both material and procedural, as well as the proper and exceptional termination of their mandate.
In the present case, the Constitutional Court notes that the very early termination of the term of office of the Chamber of Deputies of the Parliament of the Czech Republic is the Constitution's anticipated and pending constitution (see the arrangements for dissolution of the Chamber of Deputies and early elections enshrined in Article 35 of the Constitution). However, the Constitution for its application provides cumulatively for both material conditions and the relevant procedure, without any possibility of deviating from them. The contested constitutional law completely ignores both in this case, Article 35 suspends temporarily on an ad hoc basis and provides for a completely different procedure for this single case outside the one envisaged and imposed by the Constitution, without such a procedure being addressable to such exceptional purposes, among which, in the previous interpretation on the question of public interest, the Constitutional Court has set out examples of the circumstances of a war or natural disaster. 18
Such circumvention of fundamental constitutional principles is considered by the Constitutional Court to be incompatible with the principle of the prohibition of retroactivity, in conjunction with the principles of protecting the legitimate trust of citizens in the right and right to vote freely, i.e., among other things, the right to vote with knowledge of the conditions of forming from the elections of the emerging democratic public authorities, including the knowledge of their parliamentary term. The violation of those constitutional principles resulting from Article 1 (1) of the Constitution shall be regarded by the Constitutional Court as interference with the essential elements of the democratic rule of law enshrined in Article 9 (2) of the Constitution.
Bringing reasons for the derogation of Constitutional Act No. 195 / 2009 Coll.
The bases thus laid down constitute the basis for the acceptance of the answer to the above-mentioned questions concerning the conceptual characteristics of constitutional laws, whether they must fulfil, in addition to the procedural condition laid down in Article 39 (4) of the Constitution, the condition of competence (authorisation) in accordance with Article 9 (1) of the Constitution or other explicit constitutional authority (Article 2 (2), Article 10a (2), Article 11, Article 100 (3)) and the material condition laid down in Article 9 (2) of the Constitution. The Constitutional Court is based on the opinion that the validity of the Constitutional Law is given by the fulfilment of all three conditions: procedural conditions, conditions of competence (powers) and material conditions (compliance with the immutable principles of the democratic rule of law). In the present case, it came to the conclusion of the constitutionally inadmissible individual and retroactive nature of Constitutional Act No. 195 / 2009 Coll., the conclusion of an infringement of Article 9 (1) of the Constitution, Article 21 (2) of the Charter in conjunction with Article 16 (1) of the Constitution and Article 1 (1) of the Constitution in an intensive manner establishing intervention in Article 9 (2) of the Constitution.
On those grounds, The Constitutional Court concluded that Constitutional Law No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies, is contrary to the essential elements of the democratic rule of law under Article 9 (2) of the Constitution, which repealed it on 10 September 2009, the date of the publication of this finding.
Derogation according to § 70 paragraph 3 of Act No. 182 / 1993 Coll.
Under the provisions of Paragraph 70 (3) of Law No 182 / 1993 Coll. the Constitutional Court will at the same time state which implementing provisions are no longer in force at the same time as the Law repealed by the Constitutional Court.
In its resolution of 1 September 2009 No. Pl. ÚS 24 / 09-16 on the postponement of the enforceability of the President's decision No 207 / 2009 Coll., on the announcement of elections to the Chamber of Deputies of the Parliament of the Czech Republic, the Constitutional Court stated that the decision in question is of a mixed nature: it contains elements of a legislative act and must also be regarded as an act of application of that constitutional law. For these reasons, the Constitutional Court concluded that the elements of the legislative act (namely the implementing act) contained in the decision of the President of the Republic were based on the reasoning of the procedure under the provision cited in Section 70 (3) of Act No 182 / 1993 Coll.
Obiter dictum
By repealing Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies, the Constitutional Court did not in any way limit the right of citizens to exercise their right to vote, since the only consequence of this action (unless Parliament adopts another constitutionally conformal solution) is that the current democratically established Chamber of Deputies of the Parliament of the Czech Republic will perform its duties until the end of its proper term.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Vladimir Krók and Jan Musil to the decision.
1) V. Pavlicek, J. Høeběk, Constitution and Constitutional Order of the Czech Republic, St. I., Constitution of the Czech Republic. Praha 1994, p. 55.
2) A. Gerloch, J. Høeběk, V. Zoubek, Constitutional System of the Czech Republic. Basis of Constitutional Law, 2nd edition, Prague 1996, p. 84.
3) J. Philip, Shortening the term. Parliamentary rapporteur, No 12, 1997- 1998, p. 132: "The issue of the parliamentary term is a fundamental requirement of the democratic government system '.
4) S. Sajama, Rules for the Use of Precedents. In: Proceedings of the 21st IVR Word Congress. Part II: Law and Practice. Ed. S. Eng, Stuttgart 2005, p. 163. See also N. Duxbury, The Nature and Authority of Precedent. Cambridge 2008, p. 113.
5) T. Maunz, G. Dürig, et alia, Grundgesetz. Kommentar. München 1997, Art. 79, p. 14.
6) O. Bachof, Verfassungswidrige Verfassungsnormen? Tübingen 1951, p. 35, 47 et seq.
7) H. Mayer, Das österreichische Bundes- Verfassungsrecht. Kurzkommentar. OJ L 347, 20.12.2013, p. 671.
8) Ibid., p. 156. This opinion is shared by other representatives of Austrian constitutionalist: P. Pernthaler, Der Verfassungskern. Gesamtänderung und Durchbrechung der Verfassung im Lichte der Theorie, Rechtsprechung und europäischen Verfassungskultur. Wien 1998, p. 46 et seq., 80 et seq.; L. Adamovich, B.-C. Funk, G. Holzinger, Österreichisches Staatsrecht. Band 1, Wien-New York 1997, p. 128 et seq.
9) Under that provision, "The National Council may approve constitutional laws or constitutional provisions contained in ordinary laws, only in the presence of at least half the members, by a majority of two thirds of the votes cast."
10) See the buyer K. Gözler: Judicial review of constituent amounts. And comparative studies. Bursa 2008.
11) A. Hamilton, J. Madison, J. Jay, The Federalist Papers. Cit. according to Czech translation: A. Hamilton, J. Madison, J. Jay, Leaves of Federalists. Olomouc 1994, p. 416.
12) C. Schmitt, Verfassungslehre. (1928), 8. Aufl., Berlin 1993, p. 103- 105, 109- 110.
13) See P. Pernthaler, Der Verfassungskern. Gesamtänderung und Durchbrechung der Verfassung im Lichte der Theorie, Rechtsssprechung und europäischen Verfassungskultur. OJ L 347, 20.12.2013, p. 671.
14) F. A. Hayek, The Road to Serfdom. London 1944. Cit according to Czech translation: A path to slavery. Praha 1990, p. 73-75.
15) In Czech constitutionalism, this view appears already in 1997 as part of the theoretical reflection of the then parliamentary crisis: see J. Filip, Shortening of the parliamentary term. Parliamentary rapporteur, No 12, 1997- 1998, p. 133.
16) See Michael Žantovský's speech on 15 March 1998: http: / / www.senat.cz / xqw / webdav / pssenat / original / 28682 / 24578 (preview of 3 January 2005)
17) On the basis of the retroactivity of Constitutional Law No. 69 / 1998 Coll. see also the opinion of the Doctor (J. Filip, Shortening of the term of office. Parliament's rapporteur, No 12, 1997- 1998, p. 133).
18) For a comparative view, see mutatis mutandis the findings of the Federal Constitutional Court of Germany, Germany, 14, 288, 296 et seq.; BVerfGE 45, 142, 178 et seq.
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Regulation Information
| Citation | The Constitutional Court found No. 318 / 2009 Coll., on the application for annulment of Constitutional Act No. 195 / 2009 Coll., on the shortening of the fifth parliamentary term of the Chamber of Deputies |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.09.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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