The Constitutional Court found no 70 / 1999 Coll.
The Constitutional Court found of 18 February 1999 on the verification of the choice of Senator JUDr. Dagmar Lastovecký
Valid
The Constitutional Tribunal found
Text versions:
23.04.1999
70
FIND
The Constitutional Court
On behalf of the Czech Republic
The First Chamber of the Constitutional Court decided on 18 February 1999 on an appeal against decisions of the Senate of the Parliament of the Czech Republic of 16 December 1998 and the Mandate and Immunity Committee of the Senate of the Czech Republic No 18 of 15 December 1998 concerning the verification of the choice of Senator JUDr. Dagmar Lastovecká and the resolution of the Supreme Court of 3 December 1998 sp. zn. 11 Zp. 54 / 98
as follows:
In the elections to the Senate of the Parliament of the Czech Republic held on 13 and 14 November 1998 and on 20 and 21 November 1998, Dr Dagmar Lastovecká was elected a senator in force in constituency 58 Brno.
Justification
(legal opinions expressed in a finding of general scope)
1. In the proceedings under Section Three of Title II of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court decides on an appeal against a decision on the verification of the election of a Member or Senator and, since it acts as - sui generis - an appeal instance, it must assess the specific case not only in terms of the protection of constitutionally guaranteed fundamental rights or freedoms, but above all in terms of the credibility of the democratic process of elections.
2. The Supreme Court shall be entitled to decide by way of a statement whether or not the Senator responsible has been validly elected. It cannot therefore be argued that the Supreme Court merely assesses whether or not the complaint lodged is justified and that it is not for it to decide on the validity of the choice.
The Senate body examines the validity of the election from the perspective of others, in particular with regard to Article 19 (2) of the Constitution of the Czech Republic and Article 57 of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and on amending and supplementing certain other laws.
(3) The application lodged (appeal against a decision to verify the choice of the Senator) cannot be formally rejected, stating that it is directed "against a legally irrelevant decision of the Senate." The relevance of the Senate decision on the verification of the election of a Member or Senator can be inferred from the provisions of Section 85 of Act No. 182 / 1993 Coll., on the Constitutional Court.
4. The policy regarding the objective or subjective breach of the Election Act (§ 16) is highly misleading. In general, it should not be solely about whether the electoral law has been infringed objectively or subjectively, but should take into account the circumstances of a particular case and the intensity and manner of infringement of the electoral law. It cannot therefore generally be concluded that any violation of the electoral law causes (if it is argued) the nullity of elections or that the penalty for nullity of elections cannot be affected at all.
5. It is clear from the nature of the matter that no election campaign can be completely prohibited at the time of the "moratorium" 48 hours before the election starts and on election days. Paragraph 16 (5) of the Election Act must therefore be interpreted rather strictly by the legislature's intention to ban an active electoral campaign, i.e. intended and targeted agitation for political parties, coalitions and candidates.
6. Although the appeal procedure against a decision on the verification of the choice of a Member or Senator is a specific procedure - the primary task of which is to protect the function of elections in a democratic society in terms of so-called objective constitutional law - the protection of fundamental rights and freedoms of natural and legal persons must also be reflected in it. Although the electoral law excludes active electoral agitation in a legally defined period, the objective pursued cannot infringe other fundamental rights and freedoms, in particular freedom of expression and the right to information (i.e. the protection of subjective choices of voters). Thus, even in a legally protected period, the media have the right to provide information, to present their own opinions, only to be banned from actively agitating for those who are candidates. Freedom of expression and the right to information are among the main pillars of democratic society, which are naturally used by the media in their work. That fundamental right and its implementation necessarily constitute an essential condition for their free existence.
The right to freedom of expression and the right to information is one of the cornerstones of a democratic state, since only free information and their exchange and free debate make a man a democratic country. It is particularly the press, radio and television that disseminate and mediate information; in this context, freedom of information is of particular importance.
7. The principle of the integrity and integrity of the electoral campaign and the ban on electoral agitation at 48 hours before and during the elections cannot therefore be interpreted as if the law had created a social vacuum that does not allow the existence of freedom of expression and the right of information (in connection with elections).
8. When considering the predictability of the consequences of the law, it cannot be limited only to its grammatical text. It is a judicial decision that - although not of a classical precedent character - interprets the law, possibly completes it and its relative consistency guarantees legal certainty and ensures general trust in law. This applies in particular to the Supreme Court, which is the supreme judicial authority in the field of general justice (§ 92 of the Constitution). This does not, of course, deny that the case-law of the courts, having regard to a number of aspects, in particular taking into account changes in social conditions, can evolve and change.
The purpose of Article 16 (2) and (5) of Act No. 247 / 1995 Coll. is undoubtedly to protect the integrity and integrity of elections. It can be accepted that - institutionally speaking - it would normally not be appropriate to focus solely on the question of whether it was only a candidate (political party) who violated that provision. On the other hand, however, it is difficult to accept a strictly objective criterion and to ignore the fact that, in the case under consideration, the candidate did not subjectively cause a violation of the electoral rule. The opposite interpretation would inevitably result in any entity being able to render the choice of any candidate completely invalid without its doing, which, in fact, could significantly undermine the election. Naturally, such consequences were not intended by the legislator.
President of the First Chamber of the Constitutional Court:
JUDr. Güttler v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 70 / 1999 Coll., on the verification of the choice of Senator JUDr. Dagmar Lastovecký |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 23.04.1999 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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