Found at the Constitutional Court of the Czech Republic No. 88 / 1997 Coll.
The finding of the Constitutional Court of the Czech Republic of 2 April 1997 on a proposal submitted together with a constitutional complaint for the annulment of Sections 49 paragraphs 2, 3 and 4, Section 50 paragraphs 1 and Section 51 paragraph 2 of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, and Section 200n paragraph 1 of Act No. 99 / 1963 Coll., Civil Code, as amended
Valid
The Constitutional Tribunal found
Text versions:
30.04.1997
88
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
On 2 April 1997, the Constitutional Court of the Czech Republic decided in plenary on the proposal of a political party of the Democratic Union lodged together with a constitutional complaint for the annulment of Sections 49 paragraphs 2, 3 and 4, Sections 50 paragraphs 1 and 51 paragraph 2 of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and on the amendment and addition of certain other laws, and Section 200n paragraph 1 of Act No. 99 / 1963 Coll., Civil Code, as amended,
as follows:
Motion denied.
Reasons
On 18 July 1996, a political party The Democratic Union made a constitutional complaint against the resolution of the Central Electoral Commission of 3 June 1996 approving the Minutes on the processing of the results of the elections to the Chamber of Deputies of the Parliament of the Czech Republic and against the resolution of the Supreme Court of the Czech Republic No. Ovs 5 / 96 / Št-24 of 12 June 1996, by which the Court rejected the complaint against the issue of a certificate of election by the Democratic Union against 12 Members of the Chamber of Deputies of the Parliament of the Czech Republic who obtained a mandate in the so-called second Skrutinium.
Part of the constitutional complaint was the proposal to abolish § 49 paragraphs 2, 3 and 4, part § 50 paragraph 1 and part § 51 paragraph 2 of Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and to amend and supplement certain other laws, hereinafter referred to as the Election Act. The Senate of the Constitutional Court therefore suspended the proceedings by its resolution of 9 October 1996 and referred the proposal for the annulment of the provisions of the Law to the decision of the plenary of the Constitutional Court.
In its application for the relevant opinion of the Constitutional Court, the Democratic Union specified its request as follows:
(a) abolish Article 49 (2), (3) and (4) of the electoral law;
(b) in Paragraph 50 (1), cancel the words:... "which advanced to the first skrutinia,...,"
(c) Paragraph 51 (2) shall be repealed, except in part of the last sentence, in such a way that this paragraph is worded as follows: "The candidate list for the second skrutinium shall be drawn up by the Central Electoral Commission according to the preference votes of the individual candidates of this political party or coalition."
The proposing party considers that the contested standards of the electoral law contravene Articles 18 and 19 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and that they are also interference with the constitutionally guaranteed fundamental rights contained in Articles 21 (4) and 21 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). Article 18 The Constitution lays down the principles of universal, equal and direct electoral law in secret voting and on a proportional basis. Article 19 The Constitution guarantees equality in the right to be elected for all citizens of the Czech Republic who have reached the age of 21 and have an active right to vote. Article 21 (4) On equal terms, citizens have access to elected and other public functions and on the basis of Article 21 (1) The Charter shall have the right to participate in the administration of public affairs directly or by free choice of its representatives.
The constitutional complaint shall also include a proposal to modify the procedure for the complaint against the issue of an election certificate in order to remove the words "without a resolution 'in § 200n (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended, on the grounds that the judgment of the Court of First Instance is contrary to Article 38 (2) of the Charter, under which everyone has the right to have his case dealt with publicly without undue delay and in its presence and to be able to comment on all the evidence carried out.
The statement of reasons for the constitutional complaint states that the political party of the Democratic Union was not given a mandate in the last elections to the Chamber of Deputies, even though it received 169 796 votes and, according to the principle of proportional representation, it was to be represented by five Members, because on average 30 296 votes were cast on one mandate. The mandates that were not granted to the Democratic Union were used for the administrative assignment of other candidates who were not elected by the citizens of the Czech Republic in the elections. This interfered with the fundamental rights of Democratic Union candidates who fulfilled the constitutional conditions and yet their passive electoral right under Article 21 of the Charter was not fulfilled. That is how the active electoral right of 169 796 citizens - voters of the Democratic Union, who are not represented by freely elected representatives in the Chamber of Deputies, was also affected.
The Democratic Union further argues that the direct election was actually replaced by the administrative appointment of the Central Electoral Commission, which did not take account of the results of the elections, but merely confirmed the will of the Presidents of several political parties.
Those violations of fundamental rights are understood by the Democratic Union as a result of a special mechanism of a five-percent restrictive clause which infringes the principle of equal voting rights guaranteed by Article 18 of the Constitution. As a result, the same number of valid votes for some citizens was sufficient to create a mandate and not for others. There has therefore been a clear breach of the level playing field. In the elections so defined - the Democratic Union - it did not only decide the number of votes, but the nature of the candidate list for which the respective number of votes was reached.
The Constitutional Court first examined whether the formal requirements and conditions laid down for the application for annulment of the provisions of the law were fulfilled. He found that the proposal had all the formalities and fulfilled the conditions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, according to which, together with a constitutional complaint, an application for annulment of a law or other legislation or its individual provisions may be made, the application of which resulted in a fact which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or, where applicable, the law in the case of another legislation.
The fact that the Democratic Union did not have a mandate in the last elections to the Chamber of Deputies, although it received almost 170 000 votes, can undoubtedly be attributed to the direct application of the provisions of the electoral law on the five-percent closing clause, resulting in the loss of entitlement to the representation of candidates for those candidates who did not receive at least five per cent of the votes. Since neither the Central Electoral Commission nor the Supreme Court could act in breach of the provisions of the 5% clause of the Election Act, the Democratic Union turned to the Constitutional Court pursuant to § 64 (1) (d) of Act No 182 / 1993 Coll.
When the Constitutional Court found that a constitutional complaint met the statutory conditions, it requested a written opinion from the Chamber of Deputies of the Parliament of the Czech Republic. The opinion of the Chamber of Deputies of 5 December 1996, signed by its President, Ing. Miloš Zeman, states that the electoral law was passed by the necessary majority of Members, signed by the relevant constitutional officials and duly declared in the belief that it was in accordance with the constitutional order of the Czech Republic. The Chamber of Deputies rejects the proposal of the Democratic Union, particularly with reference to the following arguments:
First of all, according to the opinion of the Chamber of Deputies, the Constitution does not specify the form of a proportional system in the elections to the Chamber of Deputies and leaves legislators with a relatively broad mandate to determine both the number and size of the constituencies and the electoral technique by which the votes cast are transferred to the division of mandates. Therefore, in view of the scope of the mandate, the electoral law can limit the principle of proportional representation and so-called closure clauses, by which the presence of many political parties with a very low number of mandates in the Chamber of Deputies should be prevented, which would make it much more difficult for it to operate and complicate the establishment of a stable government. According to the Chamber of Deputies, the principle of equal voting rights is not violated, because that is because each voter has one vote in his or her choice and that is equal in weight to that of another voter. The mandates shall be allocated to the electoral regions depending on the number of votes cast in each of them. The conclusion clause is not violated either by the constitutional right of citizens to participate in public governance by free choice of their representatives. This right does not imply a citizen's right to be elected by the candidate who has just been chosen by him. Also, the Constitution's guaranteed access to elected posts on equal terms is not undermined, because this right does not guarantee everyone the right to be elected. Election may take place only under all the conditions laid down by the electoral law, including the obligation to obtain a certain number of votes. In the opinion of the Chamber of Deputies, it does not infringe the electoral law or the principle of direct electoral law, which means that a citizen elects his representatives directly and not through another person. The voter decides on a set of candidates on a candidate list whose ranking is determined by political parties or their coalition. In this system, the voter must therefore count on his choice to be counted to other candidates than he has chosen, according to the order he is familiar with. As regards objections to the court's decision-making procedure on a complaint against the issue of a certificate of election by a Member or a Senator, the Chamber of Deputies considers that this is an exception to the principle of oral and public conduct before a court, which is justified by the need for the Member or Senator to be able to properly implement his mandate. The oral hearing on this complaint would extend the entire procedure unacceptably and thus call into question the validity of the mandate of a Member or Senator for a longer period of time.
It follows from the proposal of the Democratic Union that it is up to the Constitutional Court to examine, in particular, the constitutionality of the so-called five-percent clause. As evidence of its unconstitutionality, the Democratic Union compares, at the end of its constitutional complaint, the wording of the provisions of Article 8 of the 1920 Constitution with Article 18 of the Constitution. The two provisions contain the same text that elections to the Chamber of Deputies are held according to the principle of proportional representation and both do not provide any further specification. If the current electoral law introduces a restrictive clause into a proportional system, it does so - in the Democratic Union's view - without support in the Constitution, as the Constitution, in line with the Constitution of the first Czechoslovak Republic, has established a proportional representation system without any limitation.
There is no doubt that the electoral system for the Chamber of Deputies of the first Republic was based on a pure proportional system and did not indeed contain any more significant restrictions, except for a slight distortion of this principle as a result of the necessity of the second scrutin; Crystallically pure proportionality on behalf is virtually never possible because mandates are indivisible.
In view of this wording of the constitutional complaint, the Constitutional Court is forced first to ask whether the constitutional wording of the principle of proportional representation, which does not contain any limitation on this principle, means a commitment for the implementing electoral law which does not allow any adjustment which would limit the proportional representation in one way or another. As far as the 1920 Constitution is concerned, binding consequences for the concept of electoral law issued under the 1993 Constitution can hardly be drawn from its text. After the First World War, the time of the winning campaign of proportional representation across Europe came and European states only later gained experience with the characteristics and function of proportional representation. At that time, the restriction clause was neither designed nor implemented in theory. Therefore, the wording of the 1920 Constitution on proportional representation is neutral from this point of view and does not contain a "per definition" or a restriction clause, but neither does the prohibition.
Only the European parliaments' experience before and after World War II contributed to finding ways to limit the excessive fragmentation of the political spectrum in Parliament. It was not only the experience of the Reich Assembly of the Weimar Republic or the first Czechoslovak Republic, but also the experience of the French Republic, which in particular strongly confirmed in the fourth Republic (1946 - 1958) that excessive diversification in the composition of the House and unlimited proportional representation could become an instrument of political destabilization and an element of the destruction of the constitutional state.
The theoretical reassessment of the principle of proportional representation and the change in political practice in the current states of representative democracy is of the prevailing opinion that the introduction of certain serious reasons for conditional restrictive measures into the principle of proportional representation does not conflict with the characteristics of the electoral system in the constitution or electoral law as a proportional representation if and unless such measures limit the proportion to a substantial extent. Democratic states gradually introduced a system of proportional representation with a 5% or 3% clause, without considering the principle of proportional representation as impaired.
In this respect, the Constitution does not follow up on the 1920 Constitution, but on the theoretical basis and institutional solution of contemporary democratic states, which practice proportional representation mostly in one way or another in limited form. Therefore, the simple comparison of the two texts of the Institute does not indicate any specific modification of the proportional representation. Of the two identical constitutional texts, which, however, applied in different historical periods, with not entirely adequate concepts of representative democracy, and in fact in two different states, the necessity of a completely identical regulation of the electoral system cannot be inferred.
The Democratic Union further contends that the administrative allocation of mandates to candidates who have obtained them as a result of a five-percent clause at the expense of those parties to whom representation has been denied is an intervention in both active and passive electoral law and in the principle of direct electoral law (Article 18 of the Constitution), as well as in violation of Article 19 (3) of the Constitution, according to which the mandate arises by election. The Democratic Union claims that, in the present case, the mandates were not created by election but by administrative assignment, and as a result of the restrictive clause, the situation arose as if part of the voters had been deprived of both active and potential candidates and passive voting rights.
In the Democratic Union's view, the elections were violated by the administrative mandate of the candidates of the parties who did not receive the number of votes needed for their election. The concept of direct elections needs to be clarified in order to assess this issue. The principle of direct elections is intended to ensure an immediate relationship between the voter's vote and the resulting mandate, a relationship from which a subsequent instance is excluded, which would choose Members on their own account. Such an instance could be, for example, the electorate who elects the electorate to determine who the electorate should be.
The principle of direct choice ensures that the circle chosen is directly and indirectly determined by the votes cast by voters in the elections. Therefore, the electoral process must be adapted so that each vote cast can be attributed to certain persons. However, the principle of direct choice does not prevent the choice of one candidate from being dependent on the co-choice of other candidates, i.e. it does not prevent the choice on the basis of multiple candidate lists on which different political parties are running simultaneously in some order. The Charter election meets the conditions of direct elections, because candidates for future elections are selected by another instance (political party), but this is happening before their own election act. The decision of the parties to draw up the candidate list thus precedes elections and can be understood as - sui generis - an offer to voters. With regard to the voter's own vote, it is sufficient for a direct election if the ranking of the voter's candidates is known in advance and if each vote cast could have been attributed to certain and unambiguously identifiable persons who themselves were candidates for the election. This condition is met even if, on the basis of a five-percent clause, a party is entitled to an additional mandate or mandate above the limit of a continuous proportional representation. In this case, however, it must also be the casting of a further mandate by such candidates who have been duly listed on the party list and for whom voters could already assume, at the time of their vote, that they may possibly obtain a mandate if the party for whom they were candidates is entitled to a further mandate is entitled as a result of the failure by other parties to fulfil the condition of five percent. This method of mandate cannot be rightly described as administrative because it is not a product of free reflection and decision of a particular institution, but a direct consequence of the choice made by voters in certain circumstances in the terms of the clause and in the knowledge of the foreseeable consequences of the electoral system provided for by law.
The common denominator of the objections of the Democratic Union and at the same time the most substantive reservation shall be a reference to an infringement of Article 21 (4) of the Charter according to which citizens have access on equal terms to elected and other public functions and to an infringement of Article 18 (1) of the Constitution according to which elections to the Chamber of Deputies are held on the basis of the principle of equality of choice.
The principle of equality of electoral law can be assessed from two fundamental points of view. The first aspect is to compare the weighting of individual votes. The weighting of individual votes shall be assessed on the census and in the outcome of the vote. The equality of electoral law requires that when counting all votes apply equally, i.e. they have the same weighting (quantitative equality) and the same severity, and that the census allows for the exact numerical differentiation of the electorate, i.e. the exact numerical "identification" of voters' support to individual candidate lists.
The second aspect of equality of electoral law captures equality of vote in terms of democratic principle, i.e. in terms of entitlement to the votes cast for the different candidate lists, to a degree of electoral success that is proportionate to the number values achieved in the elections. It is therefore a claim for such an assessment of the outcome of the vote, which is based on an equal approach to the assessment of the candidate parties' entitlement to success and thus a claim for proportional, i.e. the ratio of the votes cast corresponding, number of mandates.
The Constitutional Court understands the weight of the arguments of the Democratic Union and is aware that its objections are factually well founded by claiming that it has not obtained a mandate in the last elections to the Chamber of Deputies, although it has received 169 796 valid votes, which, in terms of proportional representation, gives a claim to five mandates, because on average it was sufficient for those parties who are represented in the Chamber of Deputies to obtain one mandate of 30 296 votes. This is a real disproportion that is not fair in itself and which contradicts the exact equality of electoral law.
Since this disproportion is a product of a five-percent restrictive clause affecting small political parties, the question remains whether and to what extent the five-percent clause is constitutionally justified and whether or not it is compatible with the general principle of equality of electoral law.
The assessment of this issue is more complex than the first aspect of equality of choice. There, it is very clear that the equality of votes in their census and the determination of the numerical result of elections must be completely consistent and that any differentiation in the numerical assessment of the votes cast is inadmissible and unconstitutional.
However, as regards equality in the right to be taken into account in a reasonable (proportional) way in the allocation of mandates, a certain reduction in differentiation in the allocation of mandates is necessary and therefore permissible. In particular, this is a restriction which results from the practical impossibility to express the exact proportion adequately, for example because the electoral technique does not allow for "adequate" cleavage of mandates.
However, there may also be other serious reasons for reducing equality arising from the purpose and function of elections in a democratic society. 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. Because the people are also the executor of state power - primarily through parliament - and because the exercise of state power presupposes the ability to take decisions, 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.
At the stage of the electoral process in which mandates are distributed, the principle of differentiation is met by the principle of integration, because the elections are intended to create a House which, by its composition, allows a political majority capable of creating both the government and the legislative activity which it is responsible for.
Therefore, from the point of view of the principle of representative democracy, it is permissible to put in the electoral mechanism itself certain integration stimuli where there are serious reasons for doing so, in particular, provided that an unlimited proportional system is fragmented between a large number of political parties, an unbridled "overgrowth" of political parties, thereby jeopardising the functionality and capacity of action and the continuity of the parliamentary system.
After bad experience with excessive fragmentation of the parliamentary composition, European states have, in all cases, also adopted integration stimuli, in particular the limitation clause, which is most often five%. As a general rule, the right of the legislature to regulate the differentiation of the vote's entitlement to a successful representation in proportional choices is recognised and thus to treat the political parties in different ways where necessary to ensure the integration of elections in the formation of the political will of the people, to ensure the unity of the entire electoral system and to ensure the national political objectives pursued by the parliamentary elections.
In any event, the existence of a restriction clause must be conditional only on serious reasons, with the increasing limit of the restriction clause being justified by a particularly intense seriousness. It should be noted at all that the increase in the limit clause cannot be unlimited, so for example, a 10% clause can already be considered as such an intervention in a proportional system that threatens its democratic substance. It is therefore always necessary to measure whether this restriction on the equality of electoral law is a minimum measure necessary to ensure the degree of integration of political reconsideration required to enable the composition of the legislature to form the majority or the majority needed to take decisions and to establish a government backed by parliamentary trust. Therefore, the principle of minimising State intervention in relation to the objective set also applies to the limitation clause. Therefore, the need for electoral restrictions must also be interpreted strictly.
From this point of view, the limit clause cannot be absolute, but it is relative and always depends on the specific ratio of forces in the country and the structure of their differentiation. In Germany, for example, some authors state that, given the stability that the country has achieved over time, the entitlement of smaller parties, especially new parties, to obtain mandates in the Assembly is threatened by a clause to an extent that has already lost the nature of the necessity. On the other hand, the advocates of the clause, which are most of them, argue that the risk of fragmentation is still very topical, because the current stabilised system of the parties is also a product of the clause, and it is not possible to predict the consequences that would arise, e.g. by reducing the limit clause from five percent, e.g. three percent.
In favour of the limitation clause, the comparison with the system is also a majority. The majority electoral system is understood unconditionally by constitutional courts as democratic, although the political views of a large majority of voters are not even represented in Parliament or are not adequately represented in their power. In fact, it stems directly from the nature of a majority electoral system, a kind of restriction clause of its kind, which is far higher than that of a proportional system. It follows that only the votes for the winning candidate are a factor of success, while the other votes are "failing." In the final effect of the election in the elected choir's composition, this significant difference is only more or less offset by diversification of results in individual circuits, so that inequalities in one are offset by opposite inequalities in the other circuits. In the case of the majority system, while the equality of votes in terms of their weighting is fully maintained, the entitlement of individual votes to success is sharply differentiated; Votes for a successful candidate concentrate a 100% share of success, and other votes zero share.
From what has been stated, it can be concluded that the five% limitation clause cannot "and limine" be rejected as an unconstitutional restriction on equal voting rights. Since the principle of differentiation with the principle of integration is met in the assessment of this issue, it remains to be considered whether, in the case of the Czech Republic, the 5% clause is the minimum necessary measure which is necessary for the creation of the Chamber of Deputies to act, to take its decisions and to fulfil its legislative functions, as well as to establish a majority that the government could rely on politically, and whether the level of intervention in the principle of proportionality is not so high as to jeopardise the democratic nature of elections.
The political spectrum of the Czech Republic is, as is known, the result of relatively short developments and is not yet clearly structured or clearly stabilised. In the current parliamentary elections, but also in the first elections to the Chamber of Deputies of the Parliament of the Czech Republic in 1996, the considerable fragmentation of political forces into a large number of political parties that were seeking a mandate in the House was a characteristic feature. Although the number of competitors and movements fell to 20 in the last elections to the Chamber of Deputies, the results of the elections show that, with full respect for the proportionality of the representation, at least three other political parties would have to join the existing three coalition parties to form a government coalition that represents even a weak majority of voters. However, even a coalition of different composition and coloring would not be faced with minor problems. Experience with similar coalitions, particularly in the fourth French Republic, justifies concern and scepticism. Therefore, if there is no distortion of the proportionality of political representation as a result of a five-percent clause in its summary of disagreements, which would justify doubts about the democratic nature of political representation, the Constitutional Court has no choice but to reject the objections of the Democratic Union.
In addition to the objection to the restrictive clause, the Democratic Union also proposed the abolition of the words "without a resolution 'in § 200n (1) of Act No. 99 / 1963 Coll., as amended by Act No. 247 / 1995 Coll., so that this paragraph should read:" A complaint against the issue of a certificate of election by a Member or Senator shall be decided by the court within 10 days'.
The Constitutional Court carefully considered the arguments for and against the abolition of the words "without a resolution '. It is clear that the principle that everyone has the right to have his case heard in public and with his or her involvement is of fundamental importance for judicial decision-making and to be able to comment on all the evidence carried out (Article 38 (2) of the Charter). The importance of this principle is undeniable, even if they pay" cum grano salis, "because according to Article 96 (2): The Constitution may provide for derogations from the Act.
The Constitutional Court also considers that the hearing on a complaint against the issue of an election certificate may be regarded by a Member or Senator as "his case 'within the meaning of Article 38 of the Charter. In this respect, it refers to the grounds for the finding of the Constitutional Court of 10 January 1996, published in the Collection of Laws under No 31 / 1996, which repealed the second paragraph of § 200l of the Civil Code (hereinafter referred to as" o.s.'). The experience so far with complaints of this kind also shows that these complaints relate to a considerable extent to the personal behaviour, behaviour or characteristics of the elected persons rather than to the misconduct of the organisational conduct of the elections, which promotes the right of the contested persons to also be heard in oral proceedings.
On the other hand, the Constitutional Court has also considered the arguments for maintaining the present regulation of the Constitutional Court in the case of § 200l o. s. o. o. also contains elements which do not support the annulment of the words "without hearing a resolution 'in § 200n o. s. It referred to the provision of § 200n o. s., according to which, in similar proceedings, the defendant is also a party (Member or Senator). At the same time, the current regulation of § 200l o.s. leaves the Regional Court to decide on a complaint without an oral hearing by order, excluding legal remedies.
In the case of § 200n o. s., it is from a constitutional point of view a different matter. The Constitution introduced the Constitutional Court into the procedure for verifying the election of a Member or Senator and understands its entry in Article 87 (1) (b). (e) the Constitution - and the Law on the Constitutional Court in § 85 - as a ruling on an appeal against a decision on the verification of the election of a Member or Senator. An appeal shall be entitled to be lodged by the Member, the Senator or, where appropriate, the electoral party for which the Member or the Senator has been candidate, against the decision that he has not been validly elected, and the person whose electoral complaint under the electoral law has been granted, against the decision of the relevant chamber of Parliament or its institution to validate the election of the Member or Senator. A decision by the Supreme Court on a complaint against the issue of a Member's election certificate may also be considered a matter concerning the verification of the election of a Member from the point of view of the Constitution. According to Article 86 of Law No 182 / 1993 Coll., such an appeal is always held before the Constitutional Court. The principle of personal participation, public and oral discussion of the case is thus guaranteed for proceedings before the Constitutional Court which, as an appeal procedure, cannot be separated from the case at issue and which fulfils the constitutional guarantees of Article 96 (2) of the Constitution (oral and public), by obligation. As a result, it can be considered that for this type of legal proceedings the principle of mouth and the public is maintained for all cases in which one of the participants would feel a lack of it when negotiating with the Supreme Court as an injury.
If an oral public hearing had already been put in place before the Supreme Court, it could be assumed that the proceedings would only have slowed significantly. The Democratic Union's proposal leaves for the Supreme Court a period of ten days to decide on a complaint. This deadline appears unsustainable in the proposed solution to the Constitutional Court. The proposing Democratic Union does not seem to have considered the time disposition necessary for individual oral actions. The impossibility of complying with this deadline would bring an element of legal uncertainty into its own proceedings by noting that "ultra vires nemo posse tenetur." Moreover, it can be assumed with certainty that those Members and Senators against whom the election of the Supreme Court has succeeded would undoubtedly turn to the Constitutional Court. All this justifies the view that the entire procedure would be unduly extended. There would be a "tripartite 'procedure: verification of the mandate by the House, proceedings before the Supreme Court with the whole oral procedure and then, mutatis mutandis, proceedings before the Constitutional Court. In comparable European states with a parliamentary system and in the existence of a constitutional court, such as Germany and Austria, verification of the mandate is a matter for the House, and the complaint is admissible for only one court - a constitutional court. In Germany, even a constitutional court does not always have to decide in oral proceedings.
After comparing the arguments for and against the Constitutional Court, the present regulation appears more appropriate. Since the Constitutional Court has not found that it contravenes neither Article 96 of the Constitution nor Article 38 (2) of the Charter, nor the Convention on the Protection of Human Rights and Fundamental Freedoms (Article 6 (1)), it sees no reason to amend Article 200n (1) of Act No. 99 / 1963 Coll., as amended. That is why he rejected this proposal by the Democratic Union.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 88 / 1997 Coll., on a proposal submitted together with a constitutional complaint for the annulment of Sections 49 paragraphs 2, 3 and 4, Section 50 paragraphs 1 and Section 51 paragraph 2 of the Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, and Section 200n paragraph 1 of Act No. 99 / 1963 Coll., Civil Code, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.04.1997 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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