The Constitutional Court found no 98 / 2001 Coll.
The Constitutional Court found of 27 February 2001 on the application for annulment of § 20 (4), second sentence and § 20 (7) of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 340 / 2000 Coll., and § 85 of the Third Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended by Act No. 204 / 2000 Coll.
Valid
The Constitutional Tribunal found
Text versions:
14.03.2001
98
FIND
The Constitutional Court
On behalf of the Czech Republic
On 27 February 2001, the Constitutional Court decided, in plenary, on the proposal of the President of the Republic for the annulment of § 20 (4), second sentence and § 20 (7) of Act No. 424 / 1991 Coll., on the association in political parties and political movements, as amended by Act No. 340 / 2000 Coll., and § 85 of the Third 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 by Act No. 204 / 2000 Coll.,
as follows:
1. Paragraph 20 (4) of the Second Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended, shall be deleted from the date of the publication of this finding in the Collection of Laws.
2. In § 20 (7) of Act No. 424 / 1991 Coll., on association in political parties and in political movements, as amended, the date of the publication of this finding in the Collection of Laws is hereby deleted the words "the term of office of a Member or Senator amounts to CZK 1 000 000 per year."
3. The procedure for the annulment of § 85 sentence of the Third Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and amendment of certain other laws, as amended, is hereby terminated.
Reason
On 2 November 2000, the Constitutional Court received, in accordance with Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (1) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court, the proposal of the President of the Republic to repeal the provisions of § 20 (4) second sentence and part of the provision of § 20 (7) of the Act No. 424 / 1991 Coll., on the association in political parties and in political movements, as amended (hereinafter referred to as "the Act on Political Parties'), and the provisions of § 85 of the Third Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and the amendment of certain other laws (hereinafter referred to as" Election Act ') for a dispute with Article 5 of the Constitution and Article 20 (4) and Article 22 of the Charter of Fundamental Rights of Fundamental Rights.
In the Act on Political Parties in § 20 (4):
"The right to a permanent contribution shall be conferred on the party and the movement which received at least 3% of the votes in the elections to the Chamber of Deputies. If the party and the movement in the subsequent elections do not receive the number of votes needed to represent them in the Chamber of Deputies under a special legislation, there shall be no entitlement to a permanent contribution. ',
is proposed to cancel the last sentence.
In Article 20 (7):
"The term of office of a Member or Senator shall be CZK 1 000 000 per year and the term of office of a member of the Regional Council shall be CZK 250 000 per year. ',
it is proposed to delete the words: "the term of office of a Member or Senator shall be CZK 1 000 000 a year."
The President of the Republic sees contradictions in the present version of the contested provisions of the laws cited
- Article 5 of the Constitution, which reads: "The political system is based on the free and voluntary creation and free competition of political parties respecting fundamental democratic principles and rejecting violence as a means of promoting their interests."
- Article 22 of the Charter, which reads: "The legal regulation of all political rights and freedoms and its interpretation and application must enable and protect the free competition of political forces in a democratic society."
- Article 20 (4) of the Charter, which reads: "Political parties and political movements, as well as other associations, are separated from the State."
At the same time, it was proposed to postpone the repeal of the contested provisions so that Parliament of the Czech Republic was given sufficient time to adopt new legislation.
With regard to the proposal to abolish the provision of § 85 of the third electoral law, the Constitutional Court stated that that provision had already been abolished by the finding of the Constitutional Court of 24 January 2001 sp. zn. Therefore, pursuant to Article 67 (1) of Law No 182 / 1993 Coll., the Constitutional Court stopped the procedure to that extent.
The President of the Republic states, as a reason for his proposals, that the basic principles of the political system of the Czech Republic, which are essential for the democratic nature of the state, are expressed in constitutional order. These include, above all, the free competition of political parties as a basis for the political system (Article 5 of the Constitution, Article 22 of the Charter), which guarantees political pluralism. It means the prohibition of discrimination or, on the contrary, the preference of one political party to another. In other words, the issue is that political parties have equal chances of succeeding in political competition - in elections. They agree that the conditions and structure of the financing of political parties are central to "freedom" of political competition, and the legal order of the Czech Republic therefore regulates various forms of direct state funding of political parties in the Act on political parties and in the electoral law. However, it is a fact that the last amendments to those laws have fundamentally amended the terms of the permanent contribution and the amount of the mandate allowance (Sections 20 (4) and 20 (7) of the Political Party Act), as well as the terms of the payment and the amount of the election allowance (Section 85 of the Election Act).
The President of the Republic notes in its further assessment of the amendments to the amended terms and conditions that, pursuant to Article 20 (4) of the Political Party Act, the political party (movement), which reached the limit of 3% of the votes cast in one election and was thus entitled to a permanent contribution, will not receive a contribution in subsequent elections unless it exceeds the closing clause for entering the Chamber of Deputies laid down by the Election Act. As a result, the last amendment changed compared to the present situation, when the acquisition of 3% of the votes cast gave rise to a permanent contribution without further conditions. This has significantly exacerbated the economic position and thus the future electoral prospects, in particular the emerging (non-parliamentary) political parties, which have already asserted themselves in the minds of voters (proof is a qualified share of the number of votes cast), but in order to gain a share of state power, and thus to represent their electorate in fact, they generally need more time than the next election period.
Under Section 20 (7) of the Act on Political Parties, the contribution to the mandate of a Member or Senator is CZK 1 000 000. The last amendment to the Act has resulted in a double increase in the contribution compared to the state of play, and the regulation in question seems to go beyond the scope of Article 20 (4) of the Charter under which political parties and movements are separated from the State.
The President of the Republic stresses that the direct state funding of political parties is fully legitimate and constitutionally conformal. This privilege results from their mission to transform the will of the people into the will of the state, with the democratic rule of law having a natural interest in forming the will in competing with the parties in the election competition and thus contributing to the part of the associated expenditure. On the other hand, however, it is undesirable for state funding to pursue state interests within political parties. In other words, the parties should not be significantly more dependent on State aid than on support for citizens, thereby losing the incentive to address their members and sympathizers with their programme and activities throughout the entire parliamentary term.
The President of the Republic further notes that the amendments made affect all parts of the State funding system of political parties and can be summarised as increasing differences between parliamentary and non-parliamentary political bodies in this area for the benefit of parliamentary bodies.
At the end of its proposal, the President of the Republic underlines that the contested provisions in their complex lead to a difficult or complete prevention of the enrichment of the current political spectrum by new ideas. The political spectrum is being preserved, the possibility of a political minority becoming a political majority is being troubled, and some players are practically being excluded from the political competition. This is contrary to the principle of equality of political chances, as it is increasingly given to those who have already asserted themselves into the citizens' consciousness, while the share of state support for those who need to assert themselves decreases and makes access to it more difficult. In view of the current stage in the development of our democracy, it is precisely what it considers important to maintain the possibility of alternating representatives of various ideas in the leadership of the state and that the free competition of political parties is limited and distorted by the provisions proposed to abolish, in an unconstitutional manner.
The Constitutional Court asked the President of the Republic to make a statement to the two chambers of Parliament of the Czech Republic, as well as to the Government of the Czech Republic.
The President of the Chamber of Deputies, Prof. Ing. Václav Klaus, CSc, submitted a comprehensive statement by letter dated 3 January 2001 on the various proposals of the President of the Republic. First, Article 85 of the Election Act, and the Constitutional Court left that statement in a joint statement, since the argument concerning the permanent contribution to the terms of reference and the contribution to the payment of the electoral costs cannot be separated from each other and would weaken the arguments of the party. The President of the Chamber of Deputies stated that the provision in the third sentence of that paragraph expresses the relationship between the requirement for free and fair 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 for a standard structure of political parties allowing a functional political majority in the legislature. That provision is justified by the need to face such differentiation of political forces and the number of political parties in the legislative body which do not correspond to the natural structure of political flows in society. Another reason is to try to reduce the repetitive activities of political parties with minimal representativeness, which can only be directed at obtaining state resources, or a goal other than success in elections.
In his view, this integration stimulus is therefore essential in our political and electoral system, as it helps to ensure the functionality and capacity of the parliamentary system and to ensure the seriousness of the electoral competition. Paragraph 85 of the Third Election Act considers it an amendment which does not interfere with the principle of free competition between political parties, as it seeks to express the will of most voters in the legislature.
The current legislation does not diminish the importance of the contribution to the remuneration of electoral costs, as its purpose is not primarily in its size, but in order to correspond to the appropriate costs of the parties to the election and, as far as possible, to help the parties to pay their electoral costs. The aim of this contribution is not to fully compensate for all electoral costs.
It does not agree with the view that the contribution to the election costs has a "unique 'place in financing political parties by the State. Such preference for one form of State aid to political parties is considered unjustifiable, since each form has its own specific and irreplaceable place and all in its entirety co-creates the preconditions for the proper functioning of our political and electoral system. Nor does it agree with the view that" The Constitutional Court highlighted in its finding the importance of this contribution to promote the free competition of political parties, or that this highlighting was almost denied by the legislator's measure'. The conditions for obtaining the contribution are laid down by law in a uniform and equal way for all political actors participating in the competition and, therefore, there is no preference for any political party to the detriment of others or to restrict their participation or competitiveness in elections. This contribution, as well as all other factors ensuring the free and free competition of political parties, is therefore, in its overall view, consistent with the constitutional order.
Account must also be taken of the fact that, by abolishing the third sentence in § 85 of the Election Act, all political entities would be affected without distinction, as the contribution to the cost of election would not be payable if no new legislation was adopted by Parliament. However, the whole of § 85 of the electoral law would be no longer relevant.
The President of the Chamber of Deputies also stressed that Parliament, when deciding on the new version of Section 85 of the Third Election Act, took into account the finding of the Constitutional Court No. 243 / 1999 Coll., which abolished the 3% limit for the payment of an election allowance of CZK 90 for each vote obtained. It believes that the 2% limit corresponds to that finding (the Constitutional Court recommended in that finding a "around 1% vote '), as well as the above requirements to ensure a functioning and operational parliamentary system and to ensure the seriousness of political parties' electoral intentions.
As regards the proposal to repeal those provisions of the Act on political parties, it does not agree with the view that 'the conditions and the structure of the financing of political parties are essential to the freedom of political competition'. It can certainly be agreed that the funding of political parties is an important and necessary factor in ensuring their activities. However, ensuring the freedom of political competition cannot be limited to the financing of political parties. This freedom consists and is guaranteed by other equally important conditions, such as fundamental democratic principles, the same legal status of political parties and the legal regulation of all political rights and freedoms, which must enable and protect the free competition of political parties.
The free and free competition of political forces is mainly based on the fact that all political entities follow the same predefined rules. This ensures the law, while preventing the emergence of new parties or their penetration into Parliament. Only voters can stop them, but that is the essence of democracy. The free and free competition of political parties is therefore not undermined by new legislation. The parties and movements can be created completely free, they can enter political competition, they can seek the support of voters and communicate with the public. On the other hand, there is the freedom of the electorate to choose from more political alternatives represented by more political parties and more candidates. None of these criteria is affected and violated by the new legislation. In his view, the argument on the need to ensure the real possibility of parliamentary representation of small or emerging parties does not fall within the area of electoral law. Rather, it relates to the freedom to establish parties, their agenda and the freedom of the press and the exchange of information. Only if a party receives wider public support from its programme and strategy is its real representation in Parliament under rules that apply equally to all. Therefore, "Novest 'or" small-scale' of a political party cannot, in its view, be a reason to favour it.
It also does not agree with the view that, by supplementing Article 20 (4) of the Act on political parties (withdrawal of the contribution following the "unsuccessful 'elections), there has been a significant deterioration of the economic position of the parties and, consequently, a deterioration of their future electoral prospects, particularly in the parties to the emerging (non-parliamentary). It believes that further funding by parties who have failed to obtain the necessary support for voters in the subsequent elections, even after several years of providing a permanent contribution, is not justified and should therefore be limited. These parties are not sufficiently representative and are not directly involved in the activities of the legislature or other state institutions. The argument that these parties need time to gain a stake in State power, and therefore to represent their constituents in fact, generally beyond the immediate subsequent term, is not justified. This is mainly about how far these parties will be able to reach out to voters during the parliamentary term and in the election to vote for them.
On the issue of increasing the contribution to the mandate of a Member or Senator from CZK 500 000 to CZK 1 000 000 000, he points out that it is entirely within the competence of the legislature to determine its amount. It cannot, of course, be his choice; on the contrary, the amount of this contribution must correspond to the real and reasonable costs of political parties necessary to ensure their activities. However, there is no doubt that the essential precondition for obtaining mandates and thus obtaining that contribution is, however, the support of voters expressed in elections. It therefore does not agree with the view that the increase in this contribution alone could possibly lead to the promotion of state interests within political parties, even because the mandate allowance is paid according to the same criteria to all governmental and non-governmental parliamentary parties. The new legislation does not allow political parties or the movement to perform the functions of, replace or manage the functions of public authorities. In increasing this contribution, it therefore does not see an infringement of Article 20 (4) of the Charter according to which political parties and movements are separated from the State.
Finally, it notes that the current legislation on the financing of political parties and the movement does not prefer any political bodies or increases the differences between parliamentary and non-parliamentary political bodies for the benefit of parliamentary bodies. Enrichment of the existing political spectrum by new ideas - as the President of the Republic states - cannot be combined and made conditional solely on financial security for parties and movements. Such ideas form and are presented outside parliamentary parties, or outside any party and movement, depending primarily on their content, benefits and needs for society. In this context, it stresses that it also does not agree with the view that the rotation of representatives of various state-led ideas could lead in itself to the enrichment of society by new ideas, and thus to further developments in our state.
It also states that in the case of both the Act on Political Parties amended by Act No. 340 / 2000 Coll., and the Election Act amended by Act No. 204 / 2000 Coll. the President of the Republic exercised his right under Article 50 (1) of the Constitution and returned the Act to the Chamber of Deputies, which, however, remained with them by an absolute majority of all Members. Both laws as a result were then published under the above figures in the Collection of Laws.
The President of the Senate of the Parliament of the Czech Republic JUDr. Petr Pithart also submitted his statement on this proposal by letter dated 5 January 2001. He stated that both when discussing the draft amendment to the electoral law and when discussing the draft amendment to the law on political parties, a substantial part of the debate at the Senate was devoted to changes in the state funding of political parties and political movements, most of which was the proposed reduction in the electoral cost contribution under § 85 of the amended electoral act in relation to the proposed increase in the contribution to the mandate of a Member or Senator under § 20 (7) of the amended Act on political parties. As part of the discussion, arguments were made for and against the adoption of the proposed amendments.
The objections raised against the new legislation on state contributions were based on the view that such legislation disproportionately favours parliamentary political parties at the expense of non-parliamentary political parties, in particular emerging parties whose economic status would deteriorate so much that their ability to enforce elections would be reduced to a minimum. It was argued that the proposed legislation thus, in its aftermath, impartially limits the free competition of political parties guaranteed in Article 5 of the Constitution and Article 22 of the Charter.
On the contrary, the arguments supporting the adoption of changes in the State funding of political parties were based on the view that the proposed changes were not such as to go beyond constitutional requirements.
In deciding on the draft amendment to the electoral law, the Senate opted for arguments supporting the adoption of the proposed amendments and approved the draft amendment to the electoral law as referred to it by the Chamber of Deputies. It did so by its Resolution No 396 of 23 June 2000, with 79 senators voting against the proposal.
On the other hand, the Senate has not adopted a resolution on the draft amendment to the Political Party Act. During the debate held on 28 and 29 June 2000, a proposal tabled by the draft law was gradually put forward not to deal with it, a proposal to approve the draft law and a proposal to reject it. Neither of the proposals submitted was accepted by the Senate. Since the Senate did not comment on the draft amendment to the Act on Political Parties within the prescribed 30-day period, the amendment was adopted by the expiry of that constitutional deadline, in accordance with Article 46 (3) of the Constitution, on 6 July 2000.
It therefore ended with the Constitutional Court considering the case and deciding on the proposal of the President of the Republic.
At the invitation of the Constitutional Court to propose the President of the Republic, the Government of the Czech Republic expressed itself by letter dated 9 January 2001.
The Government of the Czech Republic stated that Article 22 of the Charter provides that the legal regulation of all political rights and freedoms and its interpretation and application must allow and protect the free competition of political forces in democratic society. In doing so, the President of the Republic pointed to a significant deterioration in the economic position and, therefore, future electoral prospects, in particular emerging (i.e. non-parliamentary) political parties, which have become conscious of voters, as evidenced by a qualified share of the number of votes cast. In addition, the President of the Republic sees the strengthening of the dependence of political parties on State aid which goes beyond the scope of Article 20 (4) of the Charter according to which political parties are separated from the State.
The Government also pointed out that both Article 5 of the Constitution and Article 22 of the Charter refer to equal conditions of free competition between political parties. The free competition of political parties means the prohibition of discrimination or the prioritisation of certain political parties, the prohibition of any leading role of any of them, or the imposition of barriers to their formation or operation. The government has stated that both the electoral law and the law on political parties maintain this equality of conditions; the free competition of political parties is not threatened by those laws. Any legal entity which fulfils the conditions laid down by these laws shall acquire certain rights under those laws, which are generally equal to all entities.
The legal conditions for the acquisition of rights by legal entities, in this case the acquisition by political parties of financial contributions (i.e. state and electoral costs), are not unusual in the democratic countries of Europe. This is also noted by the Constitutional Court, published under No 243 / 1999 Coll., which speaks of the legal regulation of the conditions for the acquisition of financial contributions by political parties in relation to Germany, France, Italy, Denmark, Belgium or Spain. This finding also mentions the fact that in the UK, Ireland, the Netherlands or Portugal, the funding of political parties is not enacted by the State at all. Therefore, the Government considers that the legal regulation of this issue in the Czech Republic falls entirely within the European average.
It also considers that the provision of financial contributions by the State is a discrimination against non-parliamentary political parties and that this limits their chances of election success to be misleading. This is also demonstrated by the results of the first regional elections held on 12 November 2000 and the success of non-parliamentary political parties in them. Another example is the election success of the Union of Freedom, a political party established on 22 January 1998, at a time when it already seemed difficult to penetrate the parliamentary party as a new political entity.
The difficulties associated with the promotion of new players on the political scene are more related to the social climate than to the state's financial contributions. The fact is that the success of political entities is not decided by the financial contributions of the state, but by the votes of voters. The idea that there is no political dynamics in the Czech Republic is wrong. No party is condemned to be "small" permanently, but no party is judged to remain "big."
The government also states that free competition of political forces is a pluralistic political system; the legal regulation of political rights and freedoms is to be in line with this. Accordingly, these rights and freedoms must be interpreted and used to allow free competition for political forces. A pluralistic political system exists in the Czech Republic and the laws discussed allow free competition for political forces. The purpose of the electoral contribution is not to restrict the freedom of competition, but to ensure its seriousness. The establishment of conditions for its acquisition is intended to avoid the creation of entities that would primarily seek State resources by self-purpose repetitive activities. The limited scope of state contributions is then spoken against by all political parties participating in the elections.
As regards Article 20 of the Charter, according to the Government, the existing finding of the Constitutional Court declared under No 296 / 1995 Coll., which states that the separation of the State from the parties does not imply that the parties are private associations. Our Constitution, like most European institutions, assumes that political parties and political movements are not public bodies and are not public bodies, but, on the other hand, they perform, in accordance with the Constitution, certain tasks of public interest necessary for the life of a state based on representative democracy. In particular, the democratic state (Article 1 of the Constitution) must also be legitimised in a democratic way, i.e. in elections based on the competition of political parties. This general interest also implies a right for the State to allow and support the necessary tasks for the State. This is also the case with the arrangements for the financing of political parties by the State, which are aimed at partially paying their costs for an activity in the public interest. However, the Constitutional Court, in its view, rejected the notion that state contributions should become a primary source of political party revenue.
Taking into account these reasons, the Government then proposed that the proposal by the President of the Republic to repeal part of the Act on political parties and part of the electoral law be rejected.
The Constitutional Court, after summarising the arguments of all the participants, as they emerged from their submission, concluded that it was necessary to analyse the proposals for repealing certain provisions of the Act on political parties and electoral law, in particular in the light of the principles enshrined in the Constitution and the Charter.
The rationale of this chosen procedure will best result from an analysis concerning Article 20 (7) of the Political Party Act, where it concerns direct state funding of political parties. The proposal itself omits the relevant provision as though the contribution to the mandate of a Member or Senator should not be granted at all, but it follows from the argument in this connection that the objection is directed primarily against the amount of the contribution, which after the amendment amounts to CZK 1 000 000 per year. The determination of the contribution and its amount are without doubt legislative. It is its responsibility to assess the adequacy of these funds in the light of the principles laid down by the Constitution. If the opinion of the Chamber of Deputies of the Parliament of the Czech Republic expressly admits that it cannot be an arbitrary one, it cannot also disregard other constitutional criteria.
When assessing the constitutionality of the contested provision, that is to say the part of it which provided for a contribution to the mandate of a Member or Senator of CZK 1 million per year, it cannot be disregarded that the financing of political parties is partly regulated by the electoral law. Although the Constitutional Court annulled the provision of the third sentence of Paragraph 85 of the Election Act governing the contribution for the vote cast, it stated clearly in its statement that this contribution cannot restrict free competition. It is, however, a comprehensive view and a comparison of the amount of the contribution for the vote in question with other forms of financing of political parties, namely, in this case, the present contribution to the mandate of a Member or Senator, as well as the amount of the contribution to the mandate of regional representatives (which is not disputed in the present case but cannot be abstract), which supports the view of the Constitutional Court that there is a clear tendency against the free competition of all political forces, as the increase in support of parliamentary parties is accompanied by the current restrictions on the parties of less successful. This gives rise to contradictory disagreements with the purpose and objective of financing political parties from public funds, i.e. by allowing them to compete freely.
The uneven distribution of budgetary resources to political parties can be demonstrated in a situation where one political party receives 2% of the votes cast (assuming 100 000 votes) and the other party receives 6% (300 000 votes) in the elections to the Chamber of Deputies. While the first of the parties will receive only a contribution for the votes cast by the State for the entire subsequent term (according to previous arrangements, i.e. CZK 3 million), the second party, with triple success, will receive approximately CZK 77 million in the same period (a contribution for the votes of CZK 9 million, a permanent annual contribution of CZK 5 million, a total of CZK 20 million, and a permanent contribution to mandates, which, with the likely number of twelve seats, represents CZK 12 million per year, a total of CZK 48 million). Thus, a triple-successful party in the election will receive roughly 25 times the sum from the Treasury compared to its less successful competitor.
The justification for increasing the contribution to the mandate from CZK 500,000 to CZK 1 000 000 in the Chamber of Deputies contradicts the meaning of the State financial contribution to political parties. The parties are to be anchored in society, not in the state. That is why the State contribution is merely intended to facilitate the role for the parties that the State plays in the elections, as a democratic state is founded on the political will of free electoral competition. According to Article 22 of the Charter, any legal regulation of all political rights and freedoms must enable and protect the free competition of political forces in democratic society. The "free competition of political forces" is the focus on precisely that phase of the process of political competition, which is preceded by the establishment of parties in the positions achieved, namely, the emphasis on the free entry of political forces into electoral competition. The free competition of political parties is thus undoubtedly a value that must be preferred by the legal arrangements for funding political parties by the State and which is protected by the Constitution and the Charter.
The consideration of the Chamber of Deputies, however, is going in the opposite direction. On the question of increasing the contribution to the mandate of a Member or Senator from 500 000 CZK to 1 000 000 000 CZK, although it generally recognises that it cannot be a legislator's choice, it argues, however, that "the amount of this contribution must correspond to the real and reasonable costs of political parties required to ensure their activities'. In fact, however, the opposite is supposed to apply: the amount of this contribution must not correspond fully to the real and reasonable costs of political parties, because the real and reasonable costs of political parties must not be financially covered by the State, but must have a basis for supporting the member and electoral base.
The reduction of the electoral contribution, i.e. the vote-giving allowance, from CZK 90 to CZK 30 in the amendment to the electoral law, which undermined the basic criterion of the political parties' state support, namely the degree of their electoral success, was accompanied by an increase in the contribution to the mandate, by which the positions in the state achieved and occupied and indirectly strengthened disproportion in the basic criterion were assessed.
By cancelling the electoral contribution by the Constitutional Court's finding, sp. zn. Pl. ÚS 42 / 2000 of 24 January 2001, published under No 64 / 2001 Coll. on 16 February 2001, a situation arose in which leaving a contribution of CZK 1 million for each mandate of a Member or Senator would increase the existing disproportion. Therefore, by cancelling the mandate allowance of CZK 1 million, the Constitutional Court also creates Parliament's space to apply an overall new approach to the financing of political parties by the State, so that the proportions between the grants of positions achieved and the grants of success in the election competition will change significantly in favour of the evaluation of the number of votes obtained in the elections.
The increase to the mandate of CZK 1 000 000 was part of a series of measures, which mostly aimed at financial support for large and already established parties in Parliament at the expense of small parties. The concentration of State financial assistance for the parties represented in Parliament alone limits the economic equal participation of the parties in the electoral competition (Article 5 of the Constitution) and does not respect the principle of Article 20 (4) of the Charter after the separation of the parties from the State. The increase in the limit of the mandate contribution is beyond the basic criterion of State aid, namely the number of votes obtained by the parties, and concentrates, in a constitutionally unacceptable extent, state financial support for parliamentary activity.
With regard to Article 20 (4) of the Act on political parties, a proposal was made to delete the amendment that was made in the last amendment, thereby returning the original text according to which a political party (or movement) was entitled to a permanent contribution if, in one election, the limit reached 3% of the votes cast, i.e. without further conditions. On the other hand, the amendment has brought about the condition that a party that has already been entitled to a permanent contribution but does not exceed the closing clause for entering the Chamber of Deputies laid down by the Election Act will not receive a contribution in the subsequent elections.
By doing so, political parties, which represent a non-negligible fraction of voters, have not achieved a share of state power and cannot represent their rightful voters, are discriminated against by other parties or by movements and a fundamental negative effect on the free competition of political parties, as referred to in Article 5 of the Constitution and Article 22 of the Charter.
The overall concept of amendments to the amendments is based on the fundamental intention to strengthen the role of the large parties, which, after the elections, could more easily create solid coalitions and promote their programmes without taking into account the positions of the other parliamentary parties, which lies under the concept of increasing stability in decision-making both legislative and executive. However, increasing stability may not result in a higher degree of democracy, but also a weakening of its principles and a reduction in its effectiveness. While the Constitutional Court does not assess in detail the effectiveness or appropriateness of the legal arrangements it examines, it deals with those which express the values established by the Constitution. In the absence of respect for the free competition of political parties under balanced conditions, and in the absence of an effort to create different conditions for parties large or larger and thus to shape, directly or indirectly, political parties with a better or worse status, and therefore citizens with different conditions for their movement within the political system, such action cannot be regarded as constitutional. It cannot be forgotten that democratic society is characterised by the free competition of political parties whose public governance activities derive from the free choice made by voters.
Finally, the Constitutional Court also considered it appropriate to recall the report on the financing of political parties, which expresses the ideas of the Venice Commission of the Council of Europe with the participation of more than 30 States, which notes that there are countries where political parties' finances are mainly based on member contributions and this concept is respected. In older democracies, political parties are an enormous machine requiring still large staff, large spaces, increased operating costs that cannot be covered by member, often low, contributions. For example, Germany admits the necessity of public financing for the costs incurred by the election campaign, as well as the costs incurred by the day-to-day activities of the political parties, provided that State aid is indirectly proportional to the financial capacity of each party and is determined by what is necessary to ensure the proper functioning of the public authority.
The report of the Venice Commission of the Council of Europe gives a favourable assessment of countries that weigh the State's financial assistance to the parties for their electoral success and for the revenue from membership contributions. In this sense, the criteria for the allocation of state contributions are also worded. In particular, it is a success achieved by the party in the election of voters, a total of party contributions and, to a limited extent, the extent of the donations received by the party (e.g. Section 18 of the Act on Political Parties in Germany).
The results of the Commission's work are directly related to current legislative issues in the Czech Republic and should not be omitted.
In summary, therefore, the issue at stake is taking over the necessary costs of democracy. In fact, its harmonious performance requires minimising and cutting political parties' spending while maintaining the principle of equality between them, which often appears to be violated in favour of major parties that require public subsidies because they have received the most mandates and the greatest number of votes. However, this requires ensuring transparency in the information required and a very detailed check of the use of the funds adopted.
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found no 98 / 2001 Coll., on the application for annulment of § 20 paragraph 4 sentence 2 and § 20 paragraph 7 of Act No. 424 / 1991 Coll., on association in political parties and political movements, as amended by Act No. 340 / 2000 Coll., and § 85 sentence of the Third Act No. 247 / 1995 Coll., on elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended by Act No. 204 / 2000 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.03.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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