The Constitutional Court found no 64 / 2001 Coll.
The Constitutional Court found of 24 January 2001 on the application for annulment of the first sentence of Paragraph 27, § 31 (4), § 48 (4), § 49 (1) (b), (c) and (d) and paragraphs 3 (b), (c) and (d), § 50 (1), (2), § 85 (3) and Annexes No 1 and 2 to Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended
Valid
The Constitutional Tribunal found
Text versions:
16.02.2001
64
FIND
The Constitutional Court
On behalf of the Czech Republic
On 24 January 2001, the Constitutional Court decided in plenary on the proposal of the President of the Czech Republic to repeal the provisions of § 27, first sentence, § 48, § 4, § 49, paragraph 1 (b), (c) and (d) and paragraphs 3 (b), (c) and (d), § 50, paragraphs 1, 2 and 3, and Annexes No 1 and 2 to Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and addition of certain other laws, as amended, and on the proposal of a group of Senators to repeal the provisions of § 31 (4) and § 85, third sentence of the same Act
as follows:
Paragraph 27, first sentence, § 31 (4), § 48 (4), § 50 (1), (2), (3), § 85, the third sentence and Annexes No 1 and 2 to Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended, are deleted from the date of the declaration of findings in the Collection of Laws.
At the same time, the Decree of the Ministry of Finance No. 268 / 2000 Coll., laying down the detailed conditions for the composition and repayment of bail in connection with the holding of elections to the Parliament of the Czech Republic, is no longer in force.
The application for annulment of the provisions of § 49 (1) (b), (c) and (d) and (3) (b), (c) and (d) of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended, is rejected.
Reasons
On 17 July 2000, the Constitutional Court received a proposal from the President of the Czech Republic to repeal the provisions of § 27, first sentence, § 48 (4), § 50 (1), (2) and Annexes No 247 / 1995 Coll., on the elections to the Parliament of the Czech Republic and amending and supplementing certain other laws, as amended, (hereinafter referred to as "Election Act ') for a contradiction with Article 18 (1) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and to repeal the provisions of § 49 (1) (b), (c) and (d) and (3) of the Election Act for a contradiction with Article 5 of the Constitution and Article 22 of the Charter of Fundamental Rights'.
The proposal states that Article 27 of the First Election Act creates 35 electoral counties for elections to the Chamber of Deputies, which represents a significant increase in their number compared to the state before the last amendment to the Election Act (8 electoral counties). It is precisely the number of electoral counties that is a fundamental feature of the electoral system affecting the quality of the projection of the proportion of votes cast into the share of individual political entities in the mandates allocated. The determined number of electoral counties indicates the number of mandates allocated in each county, while the more mandates distributed in the district, the more proportional the system is. As a result of this provision, the electoral system deviates in the opposite direction to the majority system, and, in addition to the statutory closure clause, it creates a "natural" closure clause, which will make at least 10% of the votes in force for the candidate organisation within the framework of the region. The appellant doubts that such distortion of proportionality is appropriate and justified in relation to the objective set, i.e. the establishment of a stable government.
Paragraph 50 (1), (2) and (3) of the proposal states that the way in which the votes obtained are converted into mandates is regulated by it and that the method chosen is a modification of the classical d'Hondt system of the electoral divisor, from which it differs from the initial divisor, instead of number 1 by 1.42. This creates a deformation of the system, which will favour even stronger political actors, to some extent already favoured. The absence of any justification for introducing a factor of 1.42 calls into question the proportionality of the electoral system.
According to the appellant, these fundamental changes to the fundamental features of the electoral system in their complexity go beyond the limits in which the principles of the proportional representation system can still be deviated from without losing their constitutional character. The Constitutional Court's case-law on electoral law leads the appellant to the conclusion on the distortion of proportionality. In the context of the examination of the constitutionality of the five% closing clause (finding No 88 / 1997 Coll.) and the requirement of 3% of the limit of the votes obtained for the grant of the election fee (finding No 243 / 1999 Coll.) The Constitutional Court has reached important legal conclusions and assessments on the balance between the principle of natural differentiation, which is inherent to the proportional system, and the principle of effective integration, which is to be part of that system only to the limited extent necessary to ensure the functioning of the elected body. The appellant believes that the provisions cited unilaterally favouring strong political actors have been grossly undermined by the balance of these principles within the electoral system. Since the provisions of the first sentence of Paragraph 27 of the first electoral law are immediately followed by Annex 1, containing a list of electoral counties for elections to the Chamber of Deputies, indicating their registered office, and Annex 2, in which the maximum number of candidates on the candidate lists is set, is proposed to cancel them.
As regards the provision of Article 48 (4) of the Election Act, which provides for at least 4 mandates in the Election Region, regardless of the number of voters involved in that region, the appellant states that, with the minimum participation of voters, the voter will have a "stronger 'vote in that region than the voters in other counties, where the number of elected Members will be calculated in accordance with § 48 (1) to (3) of the Election Act using a republican mandate number, which is contrary to the principle of equality of electoral law under Article 18 (1) of the Constitution, which requires not only that each voter has the same number of votes, but also that each vote have the same weight, i.e. that one mandate will have an equivalent number of votes.
As a result of the provisions of § 49 (1) (b), (c), (d) and (3) (b), (c), (d) of the electoral law, according to the appellant, there is a significant increase in the closing clause by introducing its census model according to the number of members of the coalition. This may lead to the deterrence of stronger political parties from associating with weaker coalition partners, fearing that they will not cross the increased threshold for joining Parliament together, or the effect of change may discourage voters from choosing a coalition, especially if they become more numerous. The new measure for the entry of coalition electoral bodies into the Chamber of Deputies thus, according to the appellant, constitutionally limits the free competition of political parties enshrined in Article 5 of the Constitution and Article 22 of the Charter.
The Chamber of Deputies of the Parliament of the Czech Republic stated in its observations of 22 August 2000, signed by the President of the Chamber by Prof. Ing. Václav Klaus, CSc., that the new legal regulation of the number of electoral counties corresponds to the principle of proportional representation, as mandates are also distributed according to the new regulation on the basis of the candidate lists of political parties, political movements or their coalition according to the number of votes obtained. The Constitution leaves legislators with relatively broad powers to determine both the number and size of electoral districts and the electoral technique by which the votes cast are transferred to mandates. Thus the Constitutional Court also ruled in the finding No. 88 / 1997 Coll., by stating that the incorporation of certain integration stimuli into the electoral mechanism is permissible where there are serious reasons for this. The electoral law can therefore limit the principle of proportional representation and so-called closure clauses to prevent too many political parties with very low mandates from being present in the Chamber of Deputies. The current way of transferring votes into mandates makes the work of the Chamber of Deputies much harder and, for several years, makes the creation of a stable majority government much more difficult. The increase in the number of electoral counties is a modification of the existing system, but which does not go beyond the limit between the proportional and majority systems, is in accordance with Article 18 (1) of the Constitution and, by strengthening the relationship between the electorate and the Member, is also in line with the requirement that elected Members should display and express the will of their constituents as faithfully as possible. These arguments also relate to Annexes 1 and 2 to the electoral law.
The argument concerning how the votes obtained are converted into mandates using a factor of 1,42 instead of number 1 The Chamber of Deputies said that the proportionality of the electoral system is never and nowhere and cannot be defined by the size of this factor.
The proposal to abolish the provisions of Paragraph 48 (4) of the Election Act because of a conflict with the principle of equality of electoral law is stated in the statement that, at 35 electoral counties, around 6 mandates will fall on one electoral region, comparing the different electoral counties, as they will have approximately the same number of voters and mandates. The provision cited is an exceptional measure, a guarantee in the event that fewer than four mandates would fall to some of the constituencies. Such an exception cannot have a significant impact on the electoral system as a whole, as well as on the overall results of the elections to the Chamber of Deputies. The Chamber of Deputies believes that the principle of equality of voting rights, assessed in terms of the participation of voters in the elections and in terms of the results of the elections, is maintained, as all the votes of all voters apply equally in the census. However, as regards equality in the claim to be represented in an identical manner in the distribution of mandates, some limitation is inevitable, because political representation, split into more than a small number of groups, would arise, which could, as a result, make it much harder or completely impossible to exercise a parliamentary system expressing the will of most voters. The equality of voting rights cannot be identified with the equality of the weighting of individual votes. The Chamber of Deputies pointed out that even according to the current regulation, the votes cast for those political entities that had not reached the 5% threshold for entering the Chamber of Deputies and the results of the 1992 elections, when 42% of the votes were 105, i.e. 52.5%, of the mandates, demonstrated that there was no identity of the number of votes and mandates for the current adjustments.
The conclusion clause for the coalition of political parties and political movements to join the Chamber of Deputies states that the criticised provision does not interfere with the free competition of political forces in a democratic society or with the free competition of political parties. Parties and movements can be created completely freely, enter into political competition and are also free to conclude electoral coalitions. However, it is not justified for the conclusion of a coalition to be an advantage to the parties and to the candidates themselves. The appellant's argument that, by concluding the coalition, a signal is sent to voters, that the coalition partners have the potential to agree on a joint action in the performance of the tasks of a newly appointed House is not convincing, as a similar signal can send, for example, an agreement on post-election cooperation. However, this is in no way a reason for an advantage. It is essential that the conditions be known in advance and apply to all equally. It is then up to the voters to assess the chances of an elected subject. The Chamber of Deputies states that it has adopted the provisions of Paragraph 49 (1) (b), (c), (d) and (3) (b), (c), (d) knowingly in order to strengthen the stability of the political system. The previous legal regulation knew the same procedure, which was different from the current one only by setting lower limits for entering the Chamber of Deputies. If there were no fundamental objections to the previous amendment, there is no reason to have them now. On the contrary, the increase in the percentage limits for the accession of the Coalition to the Chamber of Deputies does not consider it constitutionally inadmissible to take away the meaning and meaning of one of the legitimate means of free competition from political parties, as the appellant contends, but takes the view that the establishment of clear and consistent rules for all those involved in the elections contributes to ensuring the equal position of those parties in their mandate competition.
Finally, it is stated that with the draft Act No. 204 / 2000 Coll., which was amended by the Election Act, the Chamber of Deputies agreed on 26 May 2000 and was approved by the Senate on 23 June 2000. The President of the Republic exercised his right under Article 50 (1) of the Constitution and returned the law to the Chamber of Deputies on 26 June 2000, which, by its resolution of 10 July 2000, remained on the law by an absolute majority of all Members. The resolution on this procedure was published in the Collection of Laws under No. 205 / 2000 Coll., the law itself was declared on 14.7.2000 under No. 204 / 2000 Coll. The Chamber of Deputies expressed the belief that it had acted in accordance with the legal procedure in force and that the law adopted was not contrary to the Constitution or the Charter.
The Senate of the Parliament of the Czech Republic also commented on the proposal, which, in its observations of 10.8.2000, signed by President PhDr. Libouší Benešová, stated that the contested provisions were discussed in the extensive debate when discussing the draft amendment to the electoral law. Opposition raised against the adoption of the amendment, in particular by Articles 5 and 18 (1) The constitutions were essentially similar, as the President of the Republic stated in his proposal. On the contrary, the arguments supporting the adoption of the amendment to the electoral law were based on the view that the proposed amendments are a permissible modification of the proportional representation system and do not go beyond the constitutional limits of Article 18 of the Constitution and, in consequence, set themselves an entirely legitimate objective - to increase the likelihood of a stable majority government being created. It was emphasised that, although the proposed changes lead to the strengthening of the larger political parties, on the other hand, they do not restrict the right of the smaller political parties to take part in the elections and to obtain, according to their results, representation in the Chamber of Deputies, which means that the principle of free competition of political parties guaranteed in Article 5 of the Constitution remains. In his decision, the Senate opted for arguments supporting the adoption of the proposed amendments and approved the draft amendment to the electoral law on 23 June 2000 in the version referred to him by the Chamber of Deputies, when the 79 senators in the present vote 40 and 38 voted against.
On the request of the Constitutional Court, the Ministry of the Interior, which, in its observations of 9 August 2000, signed by Dr. Václav Henych, Director of the General Administration Department, stated that d'Hondt's method is traditionally classified as a system of proportional representation, and its application in the law cannot therefore be contrary to the Constitution, which sets out the principle of proportional representation for elections to the Chamber of Deputies. Therefore, it cannot be contrary to the Constitution or to the new regulation of the number of electoral counties, since the division of mandates will take place according to the principle of proportional representation, nor the introduction of an initial factor of 1.42, since it is only a modification of the d'Hondt method, but fully within the proportional representation system. The Ministry of the Interior considers that the law adopted does not contradict the principle of free competition of political parties, does not contradict Article 22 of the Charter and, by not taking effect until 1 January 2002, all parties have the possibility to choose the appropriate means and methods to achieve the stated objective in sufficient time.
On 1 September 2000, the Constitutional Court received a proposal from a group of 33 Senators of the Senate of the Czech Republic to abolish the provisions of § 27 of the first sentence, § 48 (4), § 50 (1), (2), (3) and Article 25 (1) (b) of the International Covenant on Civil and Political Rights ("the Covenant ') and Article 21 (2) of the Constitution and Article 21 (2) of the Convention on the Protection of Human Rights and Fundamental Freedoms (" Convention'), Article 25 (1) and (b) of the International Covenant on Civil and Political Rights ("the Covenant ') (Article 3 (2), Article 4 and Article 22 of the Charter', Article 22 of the Charter and Article 22 of the Constitution and Article 22 of the Constitution.
The proposal states that an amendment to the electoral law is taking place in the Czech Republic as the organisation of elections changes substantially, the way in which the electoral law is exercised and, above all, the individual components of the electoral system, in order to comply with the political orders of two political parties, which have a narrow majority in Parliament, which might, in certain circumstances, be acceptable if such a procedure did not affect the Constitution of the defined principles of elections, the political system and does not restrict subjective electoral law. The concept of proportional representation is generally understood as transferring quite precisely the political division to Parliament, which corresponds to the vote of the electorate, with Parliament with several political parties and the coalition government usually the result of such elections. However, a group of senators considers that the electoral law does not comply with this principle in terms of its actual fulfilment. The electoral formula, in particular the high first divisor, combined with a large number of electoral counties with a small number of mandates will result in disproportional election results comparable to the one-wheel majority electoral system, which is not only contrary to Article 5 of the Constitution and Article 22 of the Charter, but as a result also by indirect amendment of the Constitution in accordance with a non-corresponding regime of amendment to the Constitution, as well as in violation of the principle of two-chamber Parliament, since a choice is made for the Chamber of Deputies and for the Senate according to the principles of the majority system.
The appellants state that two contradictory aspects of political parties' electoral competition must be based on the assessment of the constitutionality of electoral rules, in particular in relation to Article 5 of the Constitution and Article 22 of the Charter. The first is the demand for free electoral competition between political parties on equal terms, giving political parties an equal chance in electoral competition and leading to a composition of an elected body that best reflects the true differentiation of the political will of voters. The second requirement is the ability of the legislature to take decisions on the basis of the formation of a political majority, i.e. to be a legislative body not only nominal but also functional. Therefore, if some of the legislature's integration interventions can be regarded as constitutionally legitimate, they must be implemented to the extent strictly necessary for the formation of the political will of the people needed to take decisions in an elected body, and if such arrangements in their entirety do not unduly interfere with the real picture of the political will of the voters expressed by their voting, as the principle of free or free competition of political parties is used in confronting both of these requirements. The applicants pointed out that the Constitutional Court dealt with integration incentives in three cases. In a finding published under No 88 / 1997 Coll. in connection with the assessment of the five% limitation clause in the division of mandates, the Constitutional Court found that certain restrictions on differentiation in the distribution of mandates are permissible if it is a minimum intervention allowing the creation of a House capable of fulfilling its constitutional functions. In Found No. 161 / 1996 Coll. The Constitutional Court rejected the motion to abolish electoral bail, so that the integration stimulus remained in force (with reservations). In Found No. 243 / 1999 Coll. The Constitutional Court has held that the link of the contribution to the cost of voting to obtain at least three percent of the total number of valid votes in the elections to the Chamber of Deputies by its scope and, in particular, taking into account further restrictions on political parties that have received less than five or three percent of the votes, goes beyond the necessary level to establish the seriousness of the electoral intentions of the parties and interfere with the equality of political parties' chances in the electoral competition. The appellants pointed out that, if the Constitutional Court found the five% restrictive clause constitutionally conformal, it did so at a time when the electoral law did not create a high natural restrictive clause. The rationale for the finding was that raising the threshold of the restrictive clause must not jeopardise the democratic substance of the elections, and it must always be measured whether this restriction on the equality of electoral law is the minimum measure necessary for the majority needed to be formed in the House to take decisions and establish a government. As a result of the new regulation in the first sentence of Paragraph 27, Annexes 1 and 2 and in the provisions of Section 50 of the Election Act, the natural closure clause for the candidate entity will be at least 10% of the votes in force for the candidate entity, and according to some calculations in the four-mandate constituencies under the provisions of Section 48 (4) of the Election Act, up to 17,6%. Such a unilateral advantage to strong political entities is found by the appellants to be an unjustifiable breach of the fundamental principles of the political system, in particular the principle of free competition of political parties (Article 5 of the Constitution), the principle of free competition of political forces (Article 22 of the Charter), the principle of inadmissibility of the change of essential elements of the democratic rule of law (Article 9 (2) of the Constitution), the principle of the protection of the minority (Article 6 of the Constitution), the principle of government on time (Article 21 (2) of the Charter), the principle of the prohibition of the libel of the legislature in the choice of regulating the conduct of legal entities and their classification and of excessive or superfluous use of the instruments of regulation (Article 1 and 2 of the Constitution). The number of constituencies, the number of mandates in each constituency and the distorting electoral formula are, in summary, unequivocally also a breach of the subjective right of each citizen, as it is prevented from free choice (Article 21 (1) of the Charter) under conditions of free competition by political forces, causing it unjustified restrictions (Declaration and Pact) and preventing it from participating in the properly executed elections [Article 25 (1) (b) of the Pact].
On the application for annulment of the provision of Paragraph 31 (4) of the Election Act, the draft states that the issue of electoral bail is the Constitutional Court, even in a different context, which it dealt with in the Found No 161 / 1996 Coll., the proposal was rejected because it did not obtain the consent of the qualified majority of the judges of the Constitutional Court. The appellants consider that, in view of the change in circumstances (another text of the law, the existence of other restrictions, the decision at the time just before the elections and the non-distinction of bail-outs for the Chamber of Deputies and for the Senate), as well as the change in the political situation, this is not a matter that has already been decided and can be re-examined. According to the contested provision, even small parties are required to complete a total amount of CZK 1,400,000 in all electoral districts, with the risk of losing it if they do not get at least five per cent of the votes in the elections. According to the appellants, there are, of course, inequalities in political conflict, and the financial situation of individual political parties and their supporters has an undeniable effect on this competition, and the law cannot always compensate for these inequalities. However, the legislature must not further increase such existing differences unjustifiably and inefficiently. The principle of equality (Article 4 of the Charter) already applies to the preconditions for the creation of political will. In this context, the appellants pointed out at the conclusion of the German Federal Constitutional Court, according to which a breach of equality always takes place, "when a reasonable nature of the case arises or otherwise in a material way, the reason for the legal distinction in equal treatment ', and" without any urgent reason, the regulation which would further the actual inequality of the chances of the competing parties still exists', and the different opinions of certain judges of the Constitutional Court published together with the finding No 161 / 1996 Coll. On the basis of the foregoing, the appellants consider that Article 31 (4) of the Election Act is contrary to Articles 5 and 6 of the Constitution, Articles 3 (2), 4 and 22 of the Charter, Articles 2, 25, 26 of the Pact and Article 14 of the Convention.
In addition to the closing clause in the case of pre-election coalitions introduced by the provisions of Sections 49 (1) (b), (c) and (d) and (3) (b), (c) and (d) of the Election Act, the proposal states that, in addition to other so-called integration incentives, there is a significant distortion of the electoral outcome in favour of strong and established parties. According to the appellants, in line with the principle of equality, each election candidate should have the same status, whether it presents one large political party or political party together with independent candidates or several political parties. According to the Constitutional Court's finding on the matter of the five% limitation clause, its existence and the above-mentioned grounds are conditional. According to the principle of minimising state intervention in relation to the stated objective, it is always necessary to measure whether limiting the equality of electoral law is the minimum measure necessary to ensure the degree of integration of political representation required to enable the composition of the legislature to form the majority needed for the adoption of decisions and for the establishment of a government backed by parliamentary trust. The applicants point out that, according to experience so far, it is evident that the existing four-coalition political parties are capable of politically acting in terms rather than fragmentation of practical political action. The application for annulment of this provision is justified by the contradiction with Articles 5 and 6 of the Constitution and Articles 20, 21 and 22 of the Charter.
On the contested provision of § 85 sentence of the Third Election Act, according to which 30 CZK will be paid from the state budget for each vote cast to the entity that received at least 2% of the total number of valid votes in the elections, the appellants argue that it is contrary to Articles 5 and 22 of the Charter and the Constitutional Court found no. 243 / 1999 Coll. According to the applicants, the purpose of the electoral contribution must not be to restrict the freedom of competition but to ensure that it is serious. For example, the Federal Constitutional Court of Germany has explicitly stated that 0,5% of the votes will be sufficient to prove the seriousness of the campaign efforts and make unnecessary verification according to other criteria. In its finding, the Constitutional Court of the Czech Republic left the consideration of Parliament as to whether a line should be established in the first place as proof of the seriousness of the electoral intentions of the parties and, consequently, the condition for paying a contribution to the electoral costs, and recommended that such a threshold should be 1% of the votes obtained. This line has not been respected, which discriminates against small and poorer political parties and is becoming serious, particularly in the context of other measures such as electoral bail or the newly considered arrangements for financing political parties.
In its observations of 14.11.2000, signed by President PhDr. Libouší Benešová, on the proposal of a group of senators in the part in which the Constitutional Court was not rejected, the Senate stated that the amendment to the electoral law, including the contested provisions of paragraphs 31 (4) and 85, was discussed at the 20th meeting of the Senate on 23 June 2000, when a number of arguments were raised in the debate for and against the adoption of the amendment. The objections against the adoption of the amendment were based on the view that the proposed legislation unduly strengthens the majority forming elements in the electoral system of proportional representation prescribed by the Constitution for elections to the Chamber of Deputies and that, contrary to Article 5 of the Constitution, it limits the free competition of political parties by unequivocally favouring large political parties. In the context of the funding of political parties, there was also mention of a contribution to the payment of electoral costs under Paragraph 85 of the Election Act, which effectively benefits large political parties financially and disproportionately reduces the possibility of non-parliamentary political parties to assert themselves in elections. In its decision-making, the Senate opted for arguments supporting the adoption of the amendment to the electoral law, according to which none of the proposed amendments deviate from the framework of constitutionality, since, although as a result, they strengthen the position of larger political parties, they do not in any way restrict the right of the smaller political parties to take part in the elections and obtain representation in the Chamber of Deputies according to their results.
In the observations of the Chamber of Deputies of 15 November 2000, signed by the President of Prof. Ing. Václav Klaus, CSc, the draft of a group of senators in that section which has not been rejected, the Constitutional Court has already ruled on the obligation to deposit electoral bail for elections to the Chamber of Deputies and the Senate. The appellants' argument that this was in a different context is not shared by the Chamber of Deputies, because the fundamental objection, the restriction of political parties' competition in elections, was identical to the current argument, and the new legislation does not differ in principle from the previous one. It does not tighten the conditions, on the contrary, the total amount of electoral bail in all regions decreases by CZK 200,000 compared to the previous adjustment. According to the House of Deputies, maintaining electoral bail is in the public interest. If the electoral body is duly registered, it becomes a public institution of its kind with a claim to the care of the State (printing of ballots, processing of electoral results, access to public media and public information in municipalities, protection of candidate rights). The entitlement to this care is equal and unrelated to the electoral support, the membership base or the electoral property regime, so that smaller entities are entitled to the same as the biggest ones, which, without any regulation, can lead to greater expansion of the political spectrum than the public's natural opinion and interest structure. The composition of electoral bail thus helps to consolidate the standard model of the political force structure in the Czech Republic, as it can prevent the participation of political parties with minimal representativeness and contribute to highlighting the functioning of political entities as representatives of real political currents. As far as representativeness is concerned, it must correlate with an adequate degree of stability, while at the same time flexibility and action of the political system. The new legislation does not affect in any way the principle of equal and direct voting rights ensuring a fundamental "non-binding" level of representativeness. The appropriateness of the combination of these components may be different, but the controversy does not concern constitutionality. Therefore, due regard to the functions of an election institute other than representativeness cannot be considered as a restriction of political competition. The only criterion remains the degree of support of voters, no category of entities is favoured or disadvantaged in advance. Since the motion of a group of Members to abolish electoral bail-outs was rejected by the Constitutional Court for the same reasons as the appellants now state, their proposal is inadmissible under the provisions of § 35 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court.
On the proposal for annulment of the provisions of § 85 of the third electoral law for contradiction with Article 5 of the Constitution and Article 22 The Charter states that this provision expresses the relationship between the requirement of free and equal competition between political parties leading to a composition of the legislature which is faithfully in line with the will of the electorate and the requirement of a standard structure of political parties allowing a functional political majority to be established in the legislature. This integration stimulus helps to differentiate political forces and the number of political parties in the legislative body, thereby ensuring the functioning and capacity of the parliamentary system. Account should also be taken of the fact that, by cancelling the entire sentence of the third paragraph of Paragraph 85 (and not just the words concerning the two-per-cent limit of votes obtained), all political entities would be affected without distinction, as the contribution to the election costs could not be paid. However, the whole of Paragraph 85 would have lost its meaning. Finally, the Chamber of Deputies stated that, when deciding on the new text of this provision, it took into account the finding of the Constitutional Court No. 243 / 1999 Coll., in which the Constitutional Court recommended a limit of around 1% of the votes obtained for the payment of the electoral allowance, as well as the requirements to ensure a functioning and effective parliamentary system and the seriousness of the political parties' electoral intentions, and for these reasons it considers that the contested provision should be maintained.
The Constitutional Court, pursuant to the provisions of § 68 (2) of Act No. 182 / 1993 Coll. examined whether Act No. 204 / 2000 Coll., which amended the Election Act, Act No. 99 / 1963 Coll., the Civil Code, as amended, and Act No. 2 / 1969 Coll., on the Establishment of Ministries and other Central Authorities of the Czech Republic, as amended, amending the Election Act in the contested provisions, was adopted within the limits of the Constitution established competence and constitutional regulation.
From the observations of the two chambers of Parliament, from the short-term reports of the 25th meeting of the Chamber of Deputies, the 3rd term of office, held on 26.5.2000, and the 20th session of the Senate, the 2nd term of office, held on 23.6.2000, it is clear that Law 204 / 2000 Coll. was proposed by the Government of the Czech Republic. The law was adopted by the Chamber of Deputies on 26 May 2000, when 117 of the 163 Members in the Chamber of Deputies voted in favour of the motion were against 45. On 23.6.2000, in favour of the proposal referred to by the Chamber of Deputies, 79 senators voted in favour, 38. The President of the Republic exercised his right under the Constitution in Article 50 (1) and returned the law to the Chamber of Deputies on 26 June 2000, stating his reservations. The 26th meeting of 10 July 2000 of 129 Members present were voted against. The resolution on staying on the law was published in the Collection of Laws under No. 205 / 2000 Coll., the law was published under No. 204 / 2000 Coll. in a sum of 63 sent on 14.7.2000.
The Constitutional Court finds that the law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Since the proposal of the President of the Republic preceded the motion of a group of Senators, the Constitutional Court, in the part which coincided with the proposal of the President of the Republic, by a resolution of 19.9.2000 No. Pl. ÚS 42 / 2000-39, as amended by the amending resolution of 23.10.2000 No. The application in its remainder, i.e. concerning the provisions of § 31 (4) and § 85 of the sentence of the Third Election Act, by order of 19.9.2000 No. Pl. ÚS 42 / 2000-34 in the interests of the economy of the proceedings under § 63 of Law No 182 / 1993 Coll. and § 112 of the Civil Code joined the joint proceedings.
1. Paragraph 27 of the first sentence, Paragraph 48 (4), Paragraph 49 (1) (b), (c), (d), Paragraph 3 (b), (c), (d), Paragraph 50 (1), (2) and (3) of the electoral law
Article 27 first sentence:
35 electoral counties are created for elections to the Chamber of Deputies on the territory of the Czech Republic, the electoral counties are set out in Annex 1 to this Act.
Article 48 (4):
The lowest number of mandates in the electoral district is 4. If less than 4 mandates appear in the electoral region, the number of missing mandates shall be allocated gradually from the electoral counties which show the smallest remnants of the division. In the case of equality of remains, the ticket shall be decided.
Article 49 (1) (b), (c) and (d), (3) (b), (c) and (d):
paragraph 1:
On the basis of a record of the election result in the regions, the Czech Statistical Office will find out how many valid votes have been cast for each political party, every political movement and every coalition and beyond,
point (b):
which the coalition, composed of two political parties or political movements, gained less than 10 percent
point (c):
which the coalition, composed of 3 political parties or political movements, has gained less than 15 percent
point (d):
which the coalition, consisting of at least four or more political parties, or political movements, obtained less than 20% of the total number of valid votes.
paragraph 3:
If the Czech Statistical Office finds that at least 2 coalitions or 1 coalition and 1 political party or movement, or 2 political parties or political movement do not advance to the Skrutinia, it will reduce
point (b):
for the coalition referred to in paragraph 1 (b), the 10 per cent limit at the 6 per cent limit
point (c)
for the coalition referred to in paragraph 1 (c), the 15 per cent limit at the 8 per cent limit
point (d):
for the coalition referred to in paragraph 1 (d), the 20 per cent limit at the 10 per cent limit.
Paragraph 50 (1), (2) and (3):
Paragraph 1:
The number of valid votes for each of the political parties, political movements and coalitions that have advanced to the Skrutinia shall be divided gradually by 1.42 within each electoral district; 2; 3 and then one higher. The number of candidates on the ballot shall be calculated, but those candidates who have given up or have been appealed under Paragraph 36 after registration of the candidate list shall not be counted. The value of the shares shall be calculated and reported to two decimal places, rounded up.
Paragraph 2:
All shares calculated in accordance with paragraph 1 shall be ranked in descending order of size and a list of as many shares as the mandates of the Election Region have been allocated under Paragraph 48. In the event of an equality of 2 or more shares in this series, the ranking shall be the decisive number of votes for the political party, political movement or coalition in the electoral region and, if the same is the case, the ranking of the lot. At the same time as the size of the share, the designation of the political party, the political movement or the coalition that has achieved that share shall be indicated.
Paragraph 3:
For each share included in the list referred to in paragraph 2, a mandate shall be given to a political party, a political movement or a coalition.
Article 18 (1) The constitutions of elections to the Chamber of Deputies shall be held by secret ballot on the basis of universal, equal and direct electoral law, in accordance with the principles of proportional representation. As referred to in Article 18 (2) of the Constitution, elections to the Senate shall be held by secret ballot on the basis of universal, equal and direct voting rights, in accordance with the principles of the majority system. It follows from this that our Constitution distinguishes between "proportional representation" and "majority system." However in Article 20 The Constitution provides that further conditions for the exercise of electoral law, the organisation of elections and the scope of judicial review are laid down by law, beyond any doubt that this can only happen within the limits and limits of the two institutions. For greater clarity, the Constitutional Court considers it necessary to state that the proportional and majority principle is two distinct principles of political representation seeking to find a solution to the age-old problem of democratic systems resulting from tensions between the pretended government of all people and the need to ensure optimal functioning of this system. While the advantages of majority representation include, inter alia, preventing the fragmentation of parties and, on the contrary, promoting their concentration, creating a stable government, allowing voters directly to decide which political party should form a government, instead of leaving this decision in coalition negotiations after elections, it is one of the advantages of proportional representation, inter alia, allowing the maximum representation of all views and interests in Parliament, preventing excessive political majorities, promoting the creation of a majority on the basis of negotiations and compromise. These effects are attributed to them by the two basic electoral systems only under certain social and political conditions, and therefore the specific social and political conditions existing in different countries must also be taken into account when assessing these effects.
It should also be pointed out in this introductory section that every social concept is subjected to a differentiation process by this very social nature. So, for example, insights into what can be understood as democracy differ in many cases at such a degree that they are completely divergent. The concept of "proportional representation" cannot therefore be linked to such attributes as absolute certainty, a single definability, but must be understood and interpreted in connection with the inescapability of the process of permanent change, with oscillation on various sections of the continuous continuum and therefore with the mere possibility of approaching one or the other polarity position. If we then introduce the possibility of approximation to a typical model of proportional representation in connection with the process of differentiation and integration, then it seems quite obvious what the Constitutional Court stated already in its finding of 2.4.1997 sp. zn. Pl. ÚS 25 / 96 (No 88 / 1997 Coll.) The collection of findings and resolutions of the Constitutional Court, Volume 7, p. 251 et seq., namely that certain restrictions on differentiation in the distribution of mandates are necessary and therefore permissible. The purpose of the vote is undoubtedly to differentiate the electoral corps. However, the aim of the elections is not merely to express the political will of individual voters and to obtain only a differentiated mirror image of the currents and political attitudes of voters. Since the people are also the executor of state power - primarily through the Parliament of the Czech Republic - and because the exercise of state power presupposes the ability to take decisions, the elections and the electoral system must also have the ability to take such decisions on the basis of the will of the majority. A coherent proportional picture of the voting results in the House's composition could create a political representation divided into a larger number of small groups with diverse interests, which would make making the majority much more difficult or completely impossible. Thus, at the stage of the electoral process in which mandates are distributed, the principle of differentiation is met by the principle of integration, since elections are intended to give rise to a House which, by its composition, allows the formation of a political majority capable of creating both the government and the legislative action which it is responsible for under the Constitution. Therefore, in terms of the principle of representative democracy, it is permissible to put in the electoral mechanism itself certain integration incentives where there are serious reasons for doing so, in particular provided that the unlimited proportional system is fragmented between a large number of political parties, an unbridled "overgrowth" of political parties, thereby endangering the functionality and capacity and the continuity of the parliamentary system. In this fact, the admissibility of the existence of a restrictive clause is, in any event, only for serious reasons, and in a phase of rising boundaries justified only by a particularly intense seriousness. The increase in the limit clause cannot be unlimited, so, for example, 10% of the clause can already be considered as an intervention in a proportionate system that threatens its democratic substance.
On that finding, the Constitutional Court in the present case adds that it is well aware of the complexity of social and political events in which the structure of society is provoked by the action of centrifugal, differential social forces, but not representing its only constitution in the social process, but which can only always be recorded in an antinomic position towards all "centrifugal" integration manifestations. Like these "Centrifugal" integration elements, if they were the only factor of social development, they would finally abolish all social structures by their pressure in the direction of integration and co-operation, thereby leading the human society to the shape of an immobile monolith, and on the contrary, disproportionate dominance of "centrifugal," differentiating, forces would transform human events into any communication of incapacitating expressions, or a sign of structural composition. Therefore, also in the very basis of the structural principle, there is a polarised and co-relatively functional substrate that prevents, on the one hand, disproportionate diffusion of structures, but on the other hand, an already disproportionate degree of integration. The process of differentiation can thus fulfil its essential function of driving force and creative element of historical development and progress only if it is implemented in the soil of the continuum between extreme tendencies whose functional voltage excludes the taking of extreme positions. In political practice, therefore, the "proportional representation" model can and must also do a number of concessions of the principle of integration, but this can only happen in a certain section of the continuum, where it remains "refuted" to its ideal type, in other words, when it shows a tendency to approach that type in its fundamental aspects at least. However, in the view of the Constitutional Court, in the present case, the increase in the number of electoral counties to 35 (§ 27, first sentence), the establishment of the lowest number of mandates in the county to 4 (§ 48 (4)) and the method of calculating the shares and ordering the mandate by means of the modified d'Hondt formula (§ 50 (1), (2), (3)), in its totality, constitutes a concentration of integration elements which, in its implications, already lead to the abandonment of the continuum still eligible to record at least the "return 'model of proportional representation.
To this conclusion, the Constitutional Court naturally does not have any means of exact measurement and examination, often typical of natural sciences, and is therefore, as in the case of social concepts and phenomena at all, referred to rather as compasses, classifications, evaluations, etc. Such means may, however, have a reliable storytelling capability, particularly because in such cases it is not a capture of a certain static point, but a general dynamic, on a given continuum, a tendency. In this respect, based on the report of the Czech Statistical Office of 28 November 2000, no. 1694 / 2000, a comparison of the results of the elections to the Chamber of Deputies in 1998 with the results calculated in accordance with the amendment of the Election Act, can be concluded that there would be a significant increase in the entry threshold for at least 1 mandate in the electoral regions of 35. The smallest increase in this natural closing clause would occur in Liberec (10.49%), Brno (10.78%), while its biggest increase in the Ostrava-city (17.67%), Ústí nad Labem (18.74%), Teplice (18.87%). On average, in terms of individual electoral regions, this natural closure clause is expressed as 14,69%. All of this leads the Constitutional Court to conclude that the amendment to the electoral law in the first sentence of § 27, § 50 (1), (2), (3), concerning the number of electoral counties and electoral divisors, as well as the provisions of § 48 (4), introducing the lowest number of mandates in the electoral district at 4 - contrary to the principle of equality of electoral law enshrined in Article 18 (1) of the Constitution - puts in the electoral process for elections to the Chamber of Deputies rather than the elements of the proportional representation of elements already constituting a hybrid in its summary; However, the Constitution does not foresee such a hybrid as it distinguishes only the proportional representation and majority system. If, in a proportional representation system, the electorate's irrelevant will becomes available in the range of 10,49% to 18,87%, on average 14,69%, then, in the view of the Constitutional Court, this fact is already evidently indicative of questioning the will of the sovereign himself. If the legislator has decided, in terms of elections to the Chamber of Deputies, to apply pro rata representation, then even with respect for integration incentives and the emphasis placed on the functioning of the democratic political system, the necessity of reflecting the will of as many voters as possible should also be monitored. Thus, although the data obtained by the Czech Statistical Office can certainly be debatable in this respect in many ways, for example because, in the 1998 elections, the voter could reflect the effects of different legislation, in the view of the Constitutional Court, despite the fact that there is a possibility of discussion in this respect, there is a clear statement of the existence of an already established fundamental tendency to disfunctional and inadmissible hypertrophy of integration elements in the proportional representation system, a clear statement not only because, in any election, at least similar situations can be ruled out, but also because integration trends are significantly increased by the modified d'Hondt system, expressed in that case, by the electoral factor of 1.42. The determining moment in the proportional representation system is the size of the constituencies, so, as on the one hand, the larger the circumference, the closer the election result is to the principle of proportionality, the smaller the constituency, the more far away the result is. Moreover, it is also clear that Article 18 The Constitution is referring to the global effect of proportional representation models, namely the election of the Chamber of Deputies according to the principles of proportional representation as a whole. If the legislator had a different effect in mind, Article 18 of the Constitution would have to be formulated not globally ("Elections to the Chamber of Deputies take place... according to the principle of proportional representation."), but it would have to explicitly state this intention, such as the Spanish Constitution in Article 63 of the Constitution, that elections are held in each (individual) constituency according to the system of proportional representation. In this way, the Spanish Constitution clearly expressed the particularisation of the pro-representation effect for the purpose of combining proportional and majority elements in the allocation of mandates in individual districts, but our Constitution does not contain such a solution.
In addition, for the sake of comparison, it should be noted that the Bavarian Constitutional Court also took the same view in its decision of 24 April 1992, namely: Vf 5-V-92, in which he stated, inter alia, that the fundamental right of electoral equality does not contradict the division of parliamentary seats belonging to the constituency pursuant to Article 23 (1), second sentence, of the LWG and now divided into 7 constituencies. However, such a distribution clause must focus on the higher principle of the most likely values of the success of each electoral vote in order to bring the composition of the Earth Assembly to a proportional distribution of seats across the country. Where different conversion methods are available for the distribution of seats within the constituency, the legislator must decide on a method that is as close as possible to this objective. A separate application of the d'Hondt method of the highest number in the distribution of the mandatory share of seats may lead to the disadvantages of small parties across the country and to a result which is incompatible with the fundamental right to vote. The distribution of parliamentary mandates must reflect as accurately as possible the ratio of the forces of the parties represented in the Earth Assembly according to the number of votes cast for them throughout the country, so that no party should have a derogation of more than 1 seat. In addition, in the present case, the Constitutional Court adds that the electoral divisor starting under the provisions of Paragraph 50 (1) of the Election Act, number 1.42, multiplies this derogation by making several times the same seats for each party.
For all the reasons set out above, Article 27 (1), § 48 (4), § 50 (1), (2), (3) and the subsequent annexes No 1 and 2 of the Election Act are therefore contrary to Articles 1, 5 of the Constitution and Article 22 of the Charter, Article 9 (2) of the Constitution and Article 18 (1) of the Constitution.
However, as regards the contested provision, paragraphs 49 (1) (b), (c) and (d), and paragraphs 3 (b), (c) and (d), it should be pointed out that the Constitution does not contain any explicit provision on the formation of the Coalition, but only the electoral law. The Constitution enshrined in Article 5 the principle of free competition between political parties, the Charter uses the term "political forces." The legislator, when establishing the level of the closing clause for the coalition of political parties, or political movements, essentially applies the method of the sum of 5 per cent of each individual political party or political movement, which it leaves only in the case of the coalition of more than 4 political parties or political movements, since the closing clause for 4 or more of these parties or movements always accounts for a maximum of 20 per cent of the total number of valid votes. In the view of the Constitutional Court, although the possibility of the provision being effective cannot be excluded, since the legislature, when it actually regulates the possibility of concluding electoral coalitions, should, as a rule, also aim to create conditions for a certain reduction of the 5% threshold to parties capable of entering into the coalition with others - so that the acceptance of electoral coalitions in the amendment to the electoral law does not appear in the present context to reduce the conditions for their participation in the division of mandates as non-functional - the existence of this possible purpose of the legislator can hardly lead to a conclusion on its unconstitutionality. Well, you're a pimp. The Federal Republic of Germany does not, in Article 27 of its Election Act (Bundesvahlgesetz-BWG as amended on 20 April 1998), allow the possibility of creating electoral coalitions, as the parties may only participate individually. Also in the Austrian electoral law of 1992 (Nationalrates Wahlordnung Nr 471 / 1992), a different designation of the party is required (§ 43), and it follows from the law that in practice it is understood as a political party. The acquisition of mandates by coalitions is not explicitly regulated in this law. Election Coalition is not regulated either in the Republic of Hungary and in the Netherlands, where candidate lists are submitted by political parties. In Estonia, where political parties used the opportunity to create a coalition to overcome a 5% closing clause for the next round of mandates, and immediately split up in Parliament and create separate parliamentary factions, this has led to the amendment of the Electoral Act and the ban on electoral coalitions. On the other hand, in the Republic of Poland, candidate lists may also be submitted by election coalitions, when there is no limit at all to the number of bodies associated in the coalition. The closing clause is 8 percent in the election coalition. In the Slovak Republic, a closing clause of 10 percent for 4 or more pages was introduced by amendment No. 223 / 1999 Z. z..
The above, albeit briefly, review of the legislative regulation of the electoral coalition in other states therefore suggests that these states reflect differently the aspect or aspect of the effectiveness of the problem, in other words, that its solution is left to the legislator, which is naturally bound at least by the conclusion clause for one political party. In view of the undisputed existence of heterogeneity of these purposes, pursued by the various political forces, this provision can therefore hardly be considered unconstitutional in the view of the Constitutional Court.
2. Paragraph 31 (4) of the Election Act
The political party, political movement or coalition will add 40 000 CZK to the candidate list. Bail shall be composed in all electoral regions in which a political party, political movement or coalition submits a candidate list to a special account which shall be set up by the district office in the seat of the region no later than 72 days before the election date with the Czech National Bank. Within 1 month of the announcement of the election results, the county office shall return the political party, the political movement or the bail-out coalition to the political party, the political movement or the coalition, if it has advanced to the Skrutinia (§ 49). Interest on bonds and non-refundable amounts is the income of the state budget.
The question of electoral bail was already addressed by the Constitutional Court in its decision of 15 May 1996 in the context of the provisions of § 35 of the Election Act in force at the time. That finding was the way in which it was adopted borderline, and it was precisely in such a way that differences in views of reflectors, cases can be considered to be completely natural and, in the context of constitutionality, an unsurpassed phenomenon if, after more than 4.5 years, the matter may appear in a somewhat different light, in particular if social change occurs during this period, or characterised by strong pressure in the direction of integration stimuli. The Constitutional Court currently appears to be relevant precisely what has been stated in the different opinions of several judges on the finding already stated. It is primarily a fundamental view that this provision is contrary to the Constitution and the Charter, as it is the duty of the State to allow parties legally registered to participate in elections to Parliament and to ensure full implementation of Article 5 of the Constitution. The establishment of bail-outs introduces and priori discrimination by making it impossible for some parties to introduce property (financial) conditions to participate in elections that are the decisive and most watched scene of political parties and to demonstrate the degree of favor of voters. The terms and conditions of registration of political entities are laid down by law and, in the period prior to the elections, considerations on the representativeness of the parties cannot be drawn up on a legal basis. The eligibility of the party to participate fully in the competition of political forces should only be checked in the registration process under Act No. 424 / 1991 Coll., on association in political parties and in political movements, as amended. The degree of representativeness is then expressed by the elections and their results. Effective integration incentives are based on so-called limitation clauses in proportional representation systems, which prefer not to limit the principle of free competition of political parties in elections and apply only at the stage of the distribution of mandates, after the free competition has ended and the results of the vote have been found. On the other hand, voter bail is a preventive and apriori measure that limits "and limines" free competition, with financial levers that do not belong to the elections. Moreover, the sense and functions of the election bail have their specific differences in the proportional representation system that applies to elections to the Chamber of Deputies and others in relation to the majority system applicable to the Senate elections. These specific features are linked to the different characteristics of both electoral systems, the first being based primarily on the principle of selection and differentiation and on the basic value criterion of proportionality by representing political forces against the number of votes they have obtained, while the second underlining the importance of electoral differentiation as a starting point for political integration in favour of the majority expressed. In view of this, foreign experience from countries which apply a proportional representation system and which rely on a five-percent restrictive clause does not support the introduction of electoral bail even in a hint. As an example, countries such as Belgium, Denmark, Germany, Switzerland, Sweden, Norway, Finland, Spain, Portugal and others that are not familiar with electoral bail can be mentioned. This lack of electoral bail in proportional representation systems is no accident, but is a logical consequence of the overall function of this type of electoral mechanism in the system of representative democracy.
Moreover, the legal amount of money prescribed is contrary to the generally understood meaning, as well as the well-established term referred to as bail, although, in the present case, the political party - the State is clearly not a bail-out. In particular, there is a certain (usually contractual) legal relationship, on the one hand, and a sufficiently clearly stated obligation (obligation) on the other, on the other hand, and on the other hand, there must be an objective and realistic possibility of a commitment from a contractual (similar) legal relationship to be fulfilled so that, for example, in the field of public law (exercise of public authority), the State (office) "does not facilitate its task of bail-making to citizens'. Neither of these fundamental terms of the" bail "imposed by the electoral law suits. First of all, in the context under consideration between the political party (coalition) and the State, it is not a legal relationship (even less contractual), since - assessed by constitutional aspects - it is one of the primary obligations of the State to create conditions for competing political parties to be able to achieve the constitutional objective. On the other hand, a single obligation is essentially imposed on political parties to respect" fundamental democratic principles and reject violence as a means of pursuing their objectives "(Article 5 of the Constitution). In other words, if the political system of the Republic is based (among other things) on the free competition of political parties respecting the democratic order of the state, there are no longer constitutionally other obstacles which could prevent political parties from participating in electoral competition, all the more so if these parties have already gone through the filter of the law on association in political parties and political movements (Act No. 424 / 1991 Coll.).
In the view of the Constitutional Court, the provision of Paragraph 31 (4) of the Election Act is therefore contrary to the constitutional order of the Czech Republic, namely Article 5 of the Constitution and Article 22 of the Charter.
3. Paragraph 85 of the third electoral law
A political party, political movement or coalition that received at least 2% of the total number of valid votes in the elections will be paid CZK 30 for each vote cast from the state budget. Also in this case, the Constitutional Court dealt with a similar case in the decision of 13 October 1999 sp. zn. Pl. ÚS 30 / 98, published under No 243 / 1999 Coll., Collection of finds and orders of the Constitutional Court, Volume 16, p. 27 et seq. The Constitutional Court decided, in view of the wording of Paragraph 85 in force at that time, that a political party or coalition, which received at least three percent of the total number of valid votes, will be paid 90 CZK for each vote cast from the state budget. Only a brief comparison of the previously valid and amended wording shows, above all, that there has been a significant reduction in this context of the State contribution granted. The Constitutional Court is aware that the constitutionality of this provision has been decided in a situation where electoral bail-outs have been laid down in the electoral law, but have been abolished in the present case. However, it was stated in that finding what could be considered relevant that, although there is no voter bail in the countries of the European Union, the threshold itself for the grant of the electoral cost allowance is also criticised. Thus, for example, in Germany, 2.5% of the votes obtained were found to be unconstitutional by the Federal Constitutional Court and the reregulation of Paragraph 18 of the Political Party Act was reduced to 0,5% for the federal and 1% for the regional elections. In its decision (Entscheidungen, p. 24, p. 300, 339 n.), the Federal Constitutional Court stated that, while the legislator may make the payment of the electoral allowance dependent on obtaining a minimum number of votes, it has referred to a limit of 2,5% as unconstitutional, as it is contrary to the principle of equal political party elections. The principle of free competition of political parties includes the State's obligation to respect the equality of chances of such parties in terms of the regulation of the terms and conditions of such competition and the regulation of claims for its participants, as it is essentially the application of the general principle of equality guaranteed by both constitutional and international acts. The percentage limitation for the payment of the contribution to the election costs of political parties shall not be a product of any nature or suitability assessed solely for the interests of the established parties. For the Czech Republic, therefore, the legislature must also respect, when adapting to the creation of political will, that it is particularly limited in this field and that it is denied any differentiated treatment of parties, the basis of which is not a reason for exceptional seriousness. The purpose of the electoral contribution must not be to restrict the freedom of competition, but to ensure its seriousness. It is not an instrument of further integration, but simply a question of whether the proposals and programmes put forward for election are serious, whether they are focused solely on electoral success and not on other objectives. The Federal Constitutional Court of Germany has, for example, explicitly stated that 0,5% of the votes will be sufficient to prove the seriousness of the campaign efforts and make unnecessary verification according to other criteria. In view of these and other circumstances, the Constitutional Court has, in its earlier findings, concluded that the link between the contribution to the cost of the election to obtain at least three per cent of the total number of valid votes in the elections to the Chamber of Deputies of the Czech Parliament and, in particular, taking into account other restrictions affecting political parties that have obtained less than five or three per cent of the votes exceeds the necessary level to establish the seriousness of the electoral intentions of the parties and to intervene in the equality of political parties' chances in the electoral competition. In this summary of financial penalties, for some of them, participation in elections becomes an unfunded luxury. In conclusion, the Constitutional Court noted that it was up to the Parliament of the Czech Republic to consider whether there should be a limit for the election of the Chamber of Deputies in the existence of electoral bail, or about 1% of the votes obtained, as evidence of the seriousness of the electoral intentions of the parties, and therefore the condition for paying a contribution to the election costs.
Therefore, taking into account in particular the fact that the amount of remuneration for each vote cast has been reduced from CZK 90 to CZK 30, the Constitutional Court considers that even the reduction of the limit from three percent to two percent in the context of all relevant circumstances cannot change the validity of the conclusion stated in the previous finding of the Constitutional Court, namely that the provision cited is (even after its amendment) contrary to Article 5 of the Constitution and Article 22 of the Charter, which was clearly not respected by the legislator.
For all the reasons set out above, the Constitutional Court has set out the provisions of § 27, paragraphs 1, 2 and 3 of the first sentence of § 48, § 50, paragraphs 1 and 2 of the Law of the Constitutional Tribunal for their conflict with Articles 1, 5 of the Constitution, Article 22 of the Charter, Article 9 (2) and Article 18 (1) of the Constitution, Article 31 (4) of the Act cited for its contradiction with Articles 5 of the Constitution and Article 22 of the Charter, Article 85 of the Third Election Act for its contradiction with Article 5 of the Constitution, and Article 22 of the Charter repealed the date of publication of the Law, while otherwise, as regards the provisions of Article 49 (1) (b), (c) and (d), paragraph 3 (b), (c) and (d) of the Election, the proposal was rejected. In the light of the fact that the provision of § 31 (4) of the Election Act concerning the composition of electoral coupons was repealed, the Constitutional Court decided, pursuant to the provision of § 70 (3) of Act No. 182 / 1993 Coll., that the decree of the Ministry of Finance No. 268 / 2000 Coll., laying down the detailed conditions for the composition and repayment of the bond in the context of the holding of elections to the Parliament of the Czech Republic, also in the parts of the provisions relating to bail for elections to the Chamber of Deputies, would also expire.
The Constitutional Court is aware that, in the light of the deregulation carried out and also in view of the fact that certain provisions of the amendment were not to take effect until 1 January 2002, a situation arises which, in the absence of difficult interpretative disputes, requires active action by legislators, in the spirit of the Constitutional Court's finding, to adopt such amendments to the electoral law, which will allow elections to be carried out without problems.
This finding is enforceable on the day of its publication in the Collection of Laws.
President of the Constitutional Court:
JUDr. Kessler v. r.
According to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, they took different positions
1. judge JUDr. Jiří Malenovský to justify the decision on the application for annulment of the first sentence of § 27, § 48 (4), § 50 (1), (2) and (3) and Annexes 1 and 2 to the electoral law;
2. Judges JUDr. Ivan Janů, JUDr. Antonín Procházka, JUDr. Vlastimil Ševčík and JUDr. Pavel Varvarovský to decide on the application for annulment of Sections 49 (1) (b), (c) and (d) and 3 (b), (c) and (d) of the Election Act,
3. judges JUDr. Vojen Güttler, JUDr. Miloš Holeček, JUDr. Zdeněk Kessler, JUDr. Vlastimil Ševčík and JUDr. Pavel Varvarovský to decide on the proposal to repeal § 85 sentence of the third electoral law.
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Regulation Information
| Citation | The Constitutional Court found no 64 / 2001 Coll., on the application for annulment of § 27 of the first sentence, § 31 paragraph 4, § 48 paragraph 4, § 49 paragraph 1 (b), (c) and (d) and § 3 (b), (c) and (d), § 50 paragraph 1, 2 and 3, § 85 sentence third, and Annexes No 1 and 2 to Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.02.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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