In The Case Of Proposals To Repeal Certain Provisions Of The Law On Elections

Original Language Title: ve věci návrhů na zrušení některých ustanovení zákona o volbách

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51022&nr=64~2F2001~20Sb.&ft=txt

64/2001 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 24. January 2001 in plenary on the proposal of the President of

The United States on the repeal of the provisions of section 27 of the first sentence, § 48 para. 4, §

paragraph 49. 1 (b). b), c) and (d)) and paragraph 2. 3 (b). b), c) and (d)), § 50 para. 1,

2 and 3 and annexes 1 and 2 of Act No. 247/1995 Coll., on elections to Parliament

The Czech Republic and amending and supplementing certain other acts, as amended by

amended, and draft a group of Senators to repeal the provisions of §

31 para. 4 and § 85 of the third sentence of the law



as follows:



The provisions of section 27 of the first sentence, § 31 para. 4, § 48 para. 4, § 50 para. 1,

2, 3, § 85 of the third sentence, and of annexes 1 and 2 of Act No. 247/1995 Coll., on

elections to the Parliament of the Czech Republic and amending and supplementing certain

other laws, as amended, are hereby repealed on the date of its publication in the

the finding in the journal of laws.



Date of publication of this finding in the statute book at the same time shall cease to

the validity of the Decree of the Ministry of Finance No. 268/2000 Coll., which

provides for more specific terms how the composition and return the bail in connection with the

the elections to the Parliament of the United Kingdom, the provisions of sections

regarding the bailouts for elections to the Chamber of Deputies.



The proposal to repeal the provisions of § 49 paragraph 1. 1 (b). b), c) and (d)) and paragraph 2. 3

(a). b), c) and (d)) of Act No. 247/1995 Coll., on elections to the Parliament of the Czech

Republic and amending and supplementing certain other acts, as amended by

amended, is rejected.



Justification



(I).



The Constitutional Court has received 17 May. 7. the proposal of the President of the United States 2000

to cancel the provisions of § 27, § 48 of the first sentence of paragraph 1. 4, § 50 para. 1, 2, and

3 and annexes 1 and 2 of Act No. 247/1995 Coll., on elections to Parliament

The Czech Republic and amending and supplementing certain other acts, as amended by

amended, (hereinafter referred to as "electoral law") for the conflict with the article. 18

paragraph. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), and the abolition of

the provisions of § 49 paragraph 1. 1 (b). b), c) and (d)) and paragraph 2. 3 (b). b), c) and (d))

the electoral law to the conflict with the article. 5 of the Constitution and article. 22 of the Charter of fundamental

rights and freedoms ("the Charter").



The proposal states that the provisions of section 27 of the first sentence, the electoral law,

created for elections to the Chamber of Deputies election districts, 35

compared with the situation before the last amendment of the electoral

Act (8 electoral regions) a considerable increase in their number. Yet

the number of electoral districts is an essential feature of the electoral system

affecting the quality of the projection of the proportions of votes cast

the share of individual political entities on their mandates.

Of a defined number of electoral districts shows the number of mandates

allocated in individual regions, and applies that the more

mandates in a given district divides, the given system "poměrnějším".

As a result of this provision, both the electoral system deflects in the opposite

towards a majority system, and produces, in addition to the statutory

clause "natural" clause, which will be held in

across the County for the candidate body at least over 10% of the valid votes

needed to obtain a mandate. The Rapporteur doubts that such

distortion of proportionality is reasonable and justified in relation to the

the aim, i.e. the creation of a stable government.



To the provisions of § 50 para. 1, 2 and 3 are in the proposal states that it is modified.

the method of conversion received votes on mandates and that the chosen method is

modification of the classical d'Hondt electoral divisor system, from which

vary the initial divisor, instead of the number 1 1.42 number. This leads to

deformation of a system that favours stronger even more political

bodies, now already to a certain extent-favoured. The absence of a

any justification for the introduction of the divisor in the value of the 1.42 disputes

the proportionality of the interference with the proportionality of the electoral system.



According to the claimant, these fundamental changes in the basic characters of the electoral

system in its complexity exceeds reasonable limits, which can be

even deviate from the principles of the system of proportional representation, without losing

its constitutional character. The deformation of the proportionality of the electoral

the petitioner also leads the case-law of the Constitutional Court in matters of

the electoral law. In the context of the examination of the constitutionality of the 5%

clause (finding no. 88/1997 Coll.) and the requirement of 3% threshold

received votes for the allowance to defray election expenses

(find no 243/1999 Coll.) The Constitutional Court has come to the important legal conclusions

and evaluation regarding the balance of the natural principle of differentiation, which

is the custom field system, and the principle of effective integration, that is to be

part of this system only to a limited extent necessary to ensure the

the functionality of the elected body. The rapporteur is convinced that the cited

the provisions of zvýhodňujícími unilaterally powerful political bodies was

the balance of these principles in the context of the electoral system, grossly distorted.

Because of the provisions of the first sentence of section 27 of the electoral law immediately

follow Annex No. 1, containing a list of electoral districts for the elections to the

The Chamber of Deputies with the indication of their settlements, and Appendix 2, in which they are

set the maximum number of candidates on the, it is

designed with their repeal.



To the provisions of § 48 para. 4 election law laying down at least 4

mandates in the electoral region, regardless of the number of participating voters in

the region, the claimant States that, at a minimum voter participation will have

a voter in this region "more powerful" voice than voters in other States,

where the number of elected members will be calculated pursuant to § 48 para. 1 to 3

the electoral law with the use of the mandate, which is in the numbers

contrary to the principle of equal suffrage under article 18, paragraph 2. 1

The Constitution, which requires not only that each voter had the same

the number of votes, but also to each voice had the same weight, i.e.. in order to

one mandate seemed about the same number of votes.



As a result of the provisions of § 49 paragraph 1. 1 (b). b), c), (d)) and paragraph 2. 3 (b). (b)),

c), (d)) the electoral law by the plaintiff occurs to a considerable increase in the

the introduction of the clause of a counting model by number of members

the coalition. This can lead to discouragement of stronger political parties from

Association with weaker coalition partners, fearing that the increased

border for entry into Parliament together shall not exceed, or the effect of changing

may deter voters from the election coalition, especially if a

more numerous. New measures for the entry of coalition of electoral bodies in the

The Chamber of Deputies according to the appellant's constitutionally unacceptable

way limits free competition of political parties as enshrined in article. 5

Of the Constitution and article. 22 of the Charter.



II.



The Chamber of deputies of the Parliament of the United Kingdom in its observations dated

22.8. 2000, Chairman of the Chamber of Deputies, signed by Prof. Ing. Václav Klaus,

CSC., said that the new legislation on the number of electoral districts corresponding to the

the principle of proportional representation, since the mandates of the new legislation is also based on

be allocated on the basis of the list system of political parties, political

movement or their coalitions based on the number of votes. The Constitution leaves

the legislature relatively broad mandate to ensure that in the electoral law

How to determine the number and size of constituencies, electoral, technique

by which votes are transferred to the mandates. So held even

The Constitutional Court finding no. 88/1997 Coll., when he stated that incorporation

certain stimulus to the electoral mechanism integration is permitted there,

where there are serious grounds for doing so. Therefore, the electoral law can limit the

the principle of proportional representation and the so-called positive clauses that

to prevent in the House of Commons there was too large

the number of political parties with a very low number of seats. The current way

the conversion of the votes in the Chamber of Deputies action mandates greatly complicated by and after

for several years, greatly complicates the establishment of a stable majority government.

Increase the number of electoral districts is a modification of the current system, which

However, it does not go beyond the boundary between proportional and majority, in

accordance with article 6(1). 18 paragraph 1. 1 of the Constitution, and that it strengthens the relationship between selector

and a Deputy, is also in line with the requirement that the election of MEPs what

faithfully as possible to show and express the will of their constituents. These arguments

are relevant to annexes 1 and 2 to the electoral law.



To the arguments relating to the conversion of the obtained votes on mandates

using the divisor in the value instead of the number 1 1.42 Chamber of Deputies

stated that the proportionality of the electoral system and there is not, and never

cannot be defined the size of the divisor.



The application for annulment of the provisions of § 48 para. 4 the electoral law because of

contrary to the principle of equal suffrage in the observations that

When 35 electoral regions falls on one electoral region, approximately 6

mandates, thus the comparison between different electoral region

as they will have approximately the same number of voters and mandates.

That provision is an exceptional measure, in case the fuse

would any one electoral region fell to less than 4 seats. On the election


system as a whole, as well as on the overall results of the elections to the Chamber of Deputies

House of such exclusion cannot have a significant impact. The Chamber

the House is convinced that the principle of equality of voting rights under consideration

in terms of voter participation in elections and election results is

retained, as in the counting of all the voices of all the voters as well.

However, as regards equality in the right to be represented when the identical way

the distribution of mandates, certain restrictions is inevitable, since it would hardly be

the political representation of the cleaved into multiple too small

the groups, which would ultimately make it difficult or completely could significantly

prevent performance of the parliamentary system, expressing the will of the majority

voters. Equality of voting rights cannot be equated with equal weight

individual votes. The Chamber of Deputies pointed out that even under the

existing unaudited votes resigned for those political

entities that did not reach the 5% threshold for entry to the Chamber of Deputies,

and on the results of the elections in 1992, when 42% of the vote meant, therefore, 105

52.5%, mandates, demonstrated that even in the absence of existing

the identity of the number of votes and seats.



The shut-off clause for the coalition of political parties and political movements

the entrance to the Chamber of deputies in the observations that criticized

the provision does not interfere with free competition of political forces in the Democratic

the company or free competition of political parties. Parties and movements may

arise very freely, can enter into the political competition and are

free and in the conclusion of the electoral coalitions. However, it is reasonable to

It was the conclusion of a coalition favouring candidates against parties and movements

separately. The argument of the applicant, that the conclusion of coalition of experiencing

sending a signal to voters that the coalition partners have the potential to agree

on a common procedure for the performance of the specific tasks of the newly established

the Chamber of Deputies, is not convincing, since a similar signal can send for example. (I)

post-election cooperation agreement. However, this is in no way a reason for

advantage. It is essential that the conditions were known in advance, and pay

for all the same. It is then only to constituents, how to assess the chances of

the elected body. The House of Commons States that adopted the adjustment in

the provisions of § 49 paragraph 1. 1 (b). b), c), (d)) and paragraph 2. 3 (b). b), c), (d))

knowingly in order to strengthen the stability of the political system. Previous

She knew the law the same procedure that was different from the current only

by the entrance to the Chamber of Deputies has set a lower limit

valid votes obtained. If the previous edit was not

principled objections, there is no reason not to have them now. The increase in the

percentage of borders to enter coalitions to the Chamber of Deputies Chamber of Deputies

not considered a constitutionally impermissible "pumping" the meaning and importance of one of the

legitimate means free competition of political parties, as they claim

the appellant, by contrast, takes the view that the establishment of clear and, in principle,

the same rules for all entities participating in the elections contributes to

to ensure equal status of these bodies in their competition for the acquisition of

mandates.



In conclusion, in the observations that with the draft law no 204/2000 Coll.

that the election law was amended, the Chamber of deputies in favour of

the agreement of 26 July 1995. 5.2000 and the Senate approved it on 23 June. 6.2000. The President of the

the Republic has used its right under article. 50 para. 1Ústavy and 26 June. 6.

2000 returned the law the Chamber of Deputies, that its resolution of 10 June 1999.

7.2000 continued the law by an absolute majority of its component members.

The resolution on the procedure was published in the collection of laws under no.

205/2000 Coll., the law itself was declared on 14 June 2005. 7.2000 No. 204/2000

Coll. Chamber of Deputies expressed the belief that, when discussing the

the law acted in compliance with the valid legal procedure and that the adopted law

It is not in conflict with the Constitution or the Charter.



The proposal also expressed the Senate of the Parliament of the United Kingdom, which in

its observations of 10 February. 8.2000, signed by the President by Libuše, PhD.

Benesova, stated that when discussing the draft amendment to the electoral law

in a large debate was discussed and the contested provisions. Objections

raised against the adoption of the amendment, in particular, of article backed 5 and article. 18 paragraph 1. 1

The Constitution were making essentially similar, as set out in its

President of the Republic proposal. Arguments supporting the adoption of the amendment

the electoral law stemmed from the view that the proposed amendments are

a permissible modification of the system of proportional representation and do not exceed the limits

the constitutionality of a given article. 18 of the Constitution and, in effect, are completely

legitimate objective-increase the likelihood of creating a stable majority

the Government. It was stressed that the proposed changes will lead to the strengthening of the

the larger political parties, on the other hand, however, do not restrict in any way

the right of the smaller political parties to participate in elections and obtained under

the results of their representation in the Chamber of Deputies, which means that the

the principle of free competition of political parties is guaranteed in article. 5 of the Constitution

is maintained. When making its decision, the Senate turned to the arguments

to support the adoption of the proposed amendments and the draft amendment to the electoral law

on 23 December 2005. 6. the 2000 approved as a transferred him to the Chamber of Deputies,

When the present 79 senators voted for the proposal, 40, and 38 were against.



The proposal for the challenge of the Constitutional Court expressed the Ministry of the Interior,

that in its observations of 9 October. 8.2000, signed by JUDr. Václav

Henychem, the Director of the Department of General Administration, stated that the d'Hondt

method is without any doubt the traditionally ranked among the methods of

proportional representation and its application in law cannot therefore be

contrary to the Constitution, which provides for elections to the Chamber of Deputies

the principle of proportional representation. Therefore, it cannot be in conflict with the Constitution or

new regulation of the number of electoral districts, because the distribution of mandates will be

take place according to the principle of proportional representation, or the introduction of initial

divisor 1.42, because it is only a modification d ' method, a fully

However, under the system of proportional representation. Ministry of the Interior is of the

the opinion that the adopted law is not contrary to the principle of free competition

political parties, is not contrary to article. 22 of the Charter and by the contested

the provisions will be effective up to 1. January 2002, all subjects

option in sufficient time to choose the appropriate means and

methods to achieve the desired objective.



III.



On 1 May 2004. 9. in 2000, the Constitutional Court received a proposal from a group of 33 Senators

Senate of the Parliament of the Czech Republic to repeal the provisions of § 27 of the sentence

First, § 48 para. 4, § 50 para. 1, 2, 3 and annexes 1 and 2 of the electoral

the law conflict with the principles arising from article. 1, 2, 5, 6, art. 9

paragraph. 2 of the Constitution and article. 21, art. 1 and 2 and article. 22 of the Charter, article. to in article 25(2). 1

(a). (b)) of the International Covenant on Civil and political rights (hereinafter referred to

"the Covenant") and of the Universal Declaration of human rights (hereinafter referred to as

"The Declaration '), to repeal the provisions of § 31 para. 4 conflict with the article. 5 and

6 of the Constitution, article. 3 (2). 2, article. 4 and 22 of the Charter, article. 2, 25 and 26 of the Covenant and article.

14 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as

"The Convention"), the provisions of § 49 paragraph 1. 1 (b). b), c) and (d)) and paragraph 2. 3 (b).

b), c) and (d)) conflict with the article. 5 and 6 of the Constitution and article. 20, 21 and 22 of the Charter and

the provisions of § 85 of the sentence of a third conflict with the article. 5 of the Constitution, article. 22 of the Charter and

Constitutional Court No. 244/1999 Coll.



The proposal states that the amendment to the electoral law is experiencing a major revision

the electoral law in the Czech Republic, as they substantially change the Organization

the elections, the way the performance of the electoral law, and above all the individual components

the electoral system, to the satisfaction of the political order

two political parties in the Parliament to a close by an absolute

the majority, which might in certain circumstances could be acceptable,

If such a procedure does not touch the Constitution defined principles

the elections, the political system and restrict the subjective right to vote.

The term proportional representation is generally understood as the choice of a relatively

exactly transferred to Parliament such a political division, which corresponds to the

how the voters voted, and the result of such elections is usually

Parliament with several political parties and a coalition Government. Group

the senators, however, is of the opinion that the election law in terms of their

the effective fulfillment of this principle does not match. The election formula,

in particular, the high the first divisor, in combination with a large number of electoral

counties with low number of seats causes disproportionate election results

comparable with the jednokolovým majority electoral system, which is not only in the

contrary to the article. 5 of the Constitution and article. 22 of the Charter, but in its wake and

indirectly by changing the Constitution, the procedure laid down by the scheme are not reflective

amendments to the Constitution, as well as the disruption of the principle of the dvoukomorovosti Parliament, the

as for the Chamber of Deputies is determined the choice of proportional

representation and for the Senate according to the principles of the majority system.



The appellants state that in assessing the constitutionality of the electoral law,

in particular, in relation to the article. 5 of the Constitution and article. 22 of the Charter, it is necessary to be based on the

two conflicting aspects of electoral competition of political parties. The first of the

one is the requirement of a free competition of political parties for election


level playing field providing equal chance in the political parties

electoral competition and leading to such composition of the elected Corps, which corresponds to the

best real differentiation of the political will of the voters. The second requirement

is the ability of the legislature to take decisions on the basis of formation

the political majority, IE. be a legislative body not only nominal but also

functional. If so, it can be some of the integrative interventions of the legislature

be considered a constitutionally legitimate, must take place to the extent strictly

necessary for the formation of the political will of the people needed for adoption of decisions

in the Corps, and if elected these edits on the whole too do not interfere with

a real image of the political will of voters expressed their vote, as

in the confrontation of both these requirements shall enjoy more constitutional protection of right

the principle of free, or free competition of political parties. The appellants

They noted that the Constitutional Court dealt with integration incentives within

three cases. In the report published under no. 88/1997 in the context of

with an assessment of the 5% restriction clause in the distribution of mandates

The Constitutional Court found that certain restrictions of differentiation in the distribution of

mandates, it is permissible, in the case of minimum intervention, allowing the emergence of

House of Commons able to perform their constitutional functions. In finding no 161/1996 Coll.

The Constitutional Court rejected the application for annulment of the election deposits, so this

stimulus integration (with reservations) remained in force. In the report No.

243/1999 Coll., the Constitutional Court held that the binding of the contribution

election expenses to obtain at least three percent of the total number of

valid votes in the elections to the Chamber of Deputies and its scope

in particular, also taking into account the additional restrictions, which are subject to

the political parties that won less than five, or three percent of the votes,

exceeds the minimum necessary to determine the seriousness of the electoral

intentions of the parties and of equality of opportunity extends to political parties in the electoral

competition. The appellants pointed out that if the Constitutional Court found

the 5% restriction clause constitutionally conformal, so at the time, was

When the election law should not produce a high natural restriction clause. In

the preamble of the award, it was stated that increasing the border restriction clause

must not jeopardise the democratic substance of the election and must always be measured,

whether this restriction of the equality of suffrage is the minimum measures

required to make in the House could form a majority needed for

the adoption of the decision and for the formation of a Government. As a result of the new legislation in the

the provisions of section 27 of the first sentence, annexes 1 and 2 and the provisions of § 50

the electoral law will be a natural shut-off clause within the region

for the candidate body at least 10% of valid votes needed to

obtain mandates and according to some calculations in the čtyřmandátových election

the circuits under the provisions of § 48 para. 4 the electoral law to 17.6%.

Such unilateral advantage of strong political subjects

the promoters will find it as a violation of fundamental neodůvodnitelné

the principles of the political system, and in particular the principle of free competition

political parties (article 5 of the Constitution), the principle of free competition of political

forces (article 22 of the Charter), the principle of the inadmissibility of the changes of the essential

the terms democratic rule of law (article 9, paragraph 2, of the Constitution),

the principle of the protection of minorities (article 6 of the Constitution), the principle of the Government at the time (article 21

paragraph. 2 of the Charter, the principle of the prohibition of arbitrariness) of the legislature in the election

resources of regulation behavior of bodies of law and their classification and

prohibition of excessive or unnecessary use of otherwise rational, and not

arbitrarily selected controls (dovoditelné interpretation of article 1,

and (2) of the Constitution). The number of constituencies, the number of seats in each

circuits and distorting the electoral formula are clearly on your summary

and the disruption of the subjective right of every citizen, because he

preventing the free choice (article 21, paragraph 1, of the Charter) under conditions of free

competition of political forces, causing him to unjustified restrictions (Declaration and

The Pact) and is prevented from participating in the election have been properly carried out by [article 25, paragraph 1,

(a). (b)) of the Covenant].



The application for annulment of the provisions of § 31 para. 4 the electoral law in the

the proposal states that the issue of election deposits with the Constitutional Court, albeit in

another context, already dealt with in the report no 161/1996 Coll., the proposal was

rejected, since it obtained the consent of a qualified majority of the judges of the constitutional

the Court. The appellants take the view that, given the change in circumstances (a different

the text of the law, the existence of other restrictions, then making a decision just before the

options, and case insensitivity in bonds for the Chamber of Deputies and Senate),

as well as a change in the political situation it is not a thing once

intent on and it is possible to make it subject to review again. According to the

the contested provisions have even small parties the obligation to lodge to allow

vote in all electoral regions for a total amount of 1 400 000

EUR with risk that it loses, if not in the elections at least five percent of the

votes. According to the plaintiffs, when political conflict naturally there are

inequality and an undeniable influence on the contest has the financial situation

each of the political parties and their supporters, with the right to

cannot always compensate for these inequalities. The legislature, however, such

existing differences on unjustifiably and neúčelně increase. The principle of

equality (article 4 of the Charter) applies already on the edge of making the political

will. In this connection, the appellants have pointed out at the end of the German

The Federal Constitutional Court, according to which a breach of equality is always

occurs "when you can't find a reasonable, resulting from the nature of things, or

otherwise, the venue of the objasnitelný, the reason for the legal resolution when a flat

treatment "and" no overriding reason could

still existing de facto inequality of chances of competing parties

the company ", and different views of some of the judges of the Constitutional Court

published along with finding no 161/1996 Coll., on the basis of what has been

stated, the appellants consider that the provisions of § 31 para. 4 election

the law is in breach of article. 5 and 6 of the Constitution, article. 3 (2). 2, article. 4 and 22

Of the Charter, article. 2, 25, 26 of the Covenant and article. 14 of the Convention.



The shut-off in case of electoral coalitions clause introduced by the

the provisions of § 49 paragraph 1. 1 (b). b), c) and (d)) and paragraph 2. 3 (b). b), c) and (d))

the electoral law in the draft States that in sum with other so-called.

integration leads to significant deformation of the incentives of the electoral outcome in

the benefit of strong and established party. According to the appellants, in accordance

with the principle of the equality of each electoral list should have the same

the position, whether presents one major political party or

political party along with independent candidates or a few

political parties. According to the Constitutional Court in case 5%

restriction clause shall be conditional upon the existence and the amount of serious reasons.

According to the principle of minimizing State intervention in relation to established objectives

You must always be measured against whether the electoral law is equality constraint

the minimum measures necessary to ensure a degree of political integration

representation, which is necessary to ensure that the composition of the legislature

allow the formation of the majority required for the adoption of the decision and for the emergence of

the Government backed a parliamentary confidence. The appellants point out that the

According to past experience, it is evident that the existing four-Coalition

political parties have the capacity to act politically in the sense of more

integrating than in terms of practical political fragmentation

the action. Proposal to repeal this provision is justified by the contradiction with

article. 5 and 6 of the Constitution and article. 20, 21 and 22 of the Charter.



The provisions of § 85 of the contested sentences a third electoral law, according to which the

It will be from the State budget paid $ 30 for each individual voice it

in the election of a body that has gained at least 2 percent of the total number of

valid votes, the appellants argue that it is in breach of article. 5 and 22

Of the Charter and the Constitutional Court No. 244/1999 Coll. draftsmen

the purpose of the election contribution limitations of freedom may not be the electoral competition,

but ensuring its seriousness. For example. The Federal Constitutional Court of GERMANY expressly

He stated that the proportion of 0.5% of the vote as proof of the seriousness of the efforts in the electoral

the fight is sufficient and makes unnecessary validation according to other criteria. The constitutional

the Court of the Czech Republic in its award to the discretion of Parliament whether to retain the

ever be determined a border as proof of the seriousness of the electoral

intentions of the parties, and thus the condition for payment of the allowance to cover

election expenses, and recommended that such a boundary should be 1

% obtained votes. This limit has not been respected, which discriminates

small and poorer political parties and take on the seriousness, in particular in the

the context of other measures, such as the electoral deposit or newly taken

the arrangements for financing of political parties.



IV.



The Senate in its statement of 14 January. 11.2000, signed by the President of the

By Libuše Benešová, PhD., on the proposal for a group of senators in the part in which the

was rejected as inadmissible by the Constitutional Court, said that the amendment

the electoral law, with the contested provisions § 31 para. 4 and section 85,

was discussed on 20. a meeting of the Senate on 23 December 2005. 6. in 2000, when in a debate


range of arguments both for and against the adoption of the amendment. Objections to the

the adoption of the amendment was based on the opinion that the proposed legislation

improperly strengthens většinotvorné elements in the electoral system

prescribed by the Constitution of proportional representation for elections to the

the Chamber of Deputies and that, contrary to article. 5 of the Constitution restricts the free competition

political parties unequivocally by favouring large parties.

In connection with the financing of political parties was mentioned and post

on the reimbursement of election expenses pursuant to section 85 of the Electoral Act, which effectively

financially, favours big political parties and reduces the possibility of

mimoparlamentních political parties to succeed in the elections. When your

the Senate decision to support the adoption of the amendment to the arguments

the electoral law, according to which none of the proposed amendments deviate from

framework of constitutionality, because although ultimately empowering

the larger political parties, it does not restrict the right of smaller political

party to participate in elections and to obtain results according to their representation in the

The Chamber of Deputies.



In the Chamber of deputies from 15 October. 11.2000, signed by the

Chairman: Prof. Ing. Václav Klaus, CSc., to design group

Senators in that part that has not been refused, States that of the obligation to

fold the election deposit for elections to the Chamber of Deputies and the Senate

The Constitutional Court has already ruled. The appellants ' argument that it was in a different

context, the Chamber of Deputies does not share because the basic objection, restrictions

competition of political parties in the elections, was the same as the current

argument, and the new legislation is in principle

no different. Nezpřísňuje conditions, on the contrary, the total amount of deposits in the election

all regions over the previous adjustment reduced by 200 000. According to the

The Chamber of Deputies is to preserve electoral deposits in the public interest.

The electoral body is properly registered, it becomes of a kind

a public institution with the right to the care of the State (print ballot,

the processing of election results, access to the public media and to the public

information resources in communities, protection of the rights of candidates). Entitled to

This care is straight and is not related to electoral support, membership

or matrimonial property regime of the electoral body, so smaller players

endorses the same as the biggest ones which can without any

regulativu lead to more expansion of the political spectrum, than how

It follows the natural structure of public opinion and interest. The composition of the

the electoral deposit helps to fixing the standard model structure

political forces in the Czech Republic, as it may prevent the participation of

political parties with a minimum of representativity and to contribute to the

highlight the functioning of political bodies as representatives of real

political currents. In terms of representativeness, this must correlate with the

reasonable degree of stability and flexibility and agility

the political system. The new law does not affect the principle of

equal and direct right to vote, to ensure basic

"nepodkročitelnou" the degree of representativity. On the appropriateness of the ratio

the combination of these folders can have different opinions, the controversy about them, however,

It does not concern the constitutionality. Adequate consideration to other features, the options Institute

than the representativeness, cannot therefore be regarded as a limitation of political

competition. The only criteria remains the aid intensity of the electorate, no category

subjects not forward an advantage or disadvantaged. Due to the fact that

design of a group of MPs on the cancellation of the election, the Constitutional Court rejected bail bonds

finding no. 161/1996 Coll., on the same grounds, which now lists

the appellants, their proposal is inadmissible pursuant to the provisions of § 35 para. 1

Act No. 182/1993 Coll., on the Constitutional Court.



The application for annulment of the provisions of section 85 of the third sentence of the electoral law for the

conflict with the article. 5 of the Constitution and article. 22 in the draft of the Charter states that the

the provision expresses the relationship between the requirement of free and undistorted competition

political parties leading to such composition of the legislature, that

faithfully conforms to the will of the voters, and the need for a standard structure

political parties, allowing the formation of a functional political majority in the

the legislature. This integration helps to differentiate the stimulus

political forces and the number of political parties in the legislature, and thus to

ensure the functionality and capacity of the parliamentary system. It is necessary to

take into account the fact that the abolition of an entire sentence third paragraph 85 (and not

only two percent of the words relating to the boundaries of the obtained votes) would have been

affected by all political subjects, without distinction, as a contribution to the

reimbursement of election expenses could not be paid. This, however, would easily

the meaning of the whole of section 85. In conclusion, their representation of the Chamber of Deputies said,

that, when making its decision on the new wording of this provision to take account of

Constitutional Court No. 244/1999 Coll., on which the Constitutional Court

recommended border around 1% of the votes received for the payment of the electoral

contribution, as well as the requirements to ensure a functional and akceschopného

the parliamentary system and the seriousness of the electoral intentions of political parties, and

for these reasons, considers that the contested provision must be preserved.



In the.



The Constitutional Court pursuant to the provisions of § 68 para. 2 Act No. 182/1993 Coll.

examine whether law no 204/2000 Coll., which was changed to the electoral law,

Act No. 99/1963 Coll., the civil procedure code, as amended

regulations, and Act No. 2/1969 Coll., on establishment of ministries and other

Central Government authorities of the Czech Republic, as amended

regulations, by which, inter alia, amendments to the election law in the contested

the provisions adopted within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



From the observations of both houses of Parliament, reports from the těsnopiseckých 25. a meeting of the

The Chamber of Deputies, 3. the electoral period, held on 26 April. 5.2000, and 20.

a meeting of the Chamber, 2. the term, held on 23 December 2005. 6. in 2000, it is clear that

Act No. 207/2000 Coll., has proposed to the Government of the United States. The law was adopted

The Chamber of Deputies on 26 April. 5. in 2000, when the present 163 members

voted for the proposal, against 117 was 45. On 23 December 2005. 6.2000 for design in

the text of the Chamber of Deputies voted a transferred from the present 79

the Senators 40, against was 38. President of the Republic took advantage of their right to

given to him by the Constitution in article. 50 para. 1 and 26 June. 6.2000 returned the law

The Chamber of Deputies stating their reservations. For remaining on the law

voted on 26. a meeting of 10 March 2006. 7. the 2000 of 129 MPs 124,

4 were against. Resolution on the persisting on the law was published in the collection of

laws under no. 209/2000 Coll., the Act was promulgated under no. 209/2000 Coll.

the amount of 63 sent out on 14. 7.2000.



The Constitutional Court concluded that the law was enacted and issued within the limits of the Constitution

set out competences and constitutionally prescribed way.



Vi.



Because the proposal of the President of the Republic was preceded by the proposal of the Group of senators,

The Constitutional Court of the senators in the proposal, which coincides with the design

President of the Republic, by order of 19 December 2003. 9.2000 REF. Pl. ÚS

42/2000-39, as amended by an amending resolution of 23 February 2005. 10.2000 REF. Pl. ÚS

42/2000-47, under the provisions of § 43 para. 2 (a). (b)) and the provisions of § 43

paragraph. 1 (b). e) Act No. 182/1993 Coll. as amended by Act No. 77/1998

Coll., he refused due to pendens, that a group of Senators

has the right to participate in the proceedings for the earlier filed design as a side

participant (article 35, paragraph 2, the second sentence after the semicolon to Act No. 182/1993

SB.). In its proposal the rest, IE. regarding the provisions of § 31 para. 4 and § 85

the third sentence of the electoral law, the Constitutional Court in its resolution of 19 November 2002. 9.2000

REF. PL. ÚS 42/2000-34, in the interest of economy of proceedings pursuant to section 63 of Act No.

182/1993 Coll. and section 112 of the judicial code joined to a common

control.



1.



The provisions of section 27 of the first sentence, the provisions of § 48 para. 4, the provisions of § 49

paragraph. 1 (b). b), c), (d)), para. 3 (b). b), c), (d)), the provisions of § 50

paragraph. 1, 2 and 3 of the electoral law



section 27 of the first sentence:



For elections to the Chamber of deputies in the territory of the Czech Republic produces 35

electoral districts, the electoral region are set out in Appendix 1 to this

the law.



§ 48 para. 4:



The smallest number of seats in the electoral region is 4. Go to the electoral

the County less than 4 seats, shall be assigned a number of missing seats gradually

of electoral districts, which show the smallest remnants of the Division. When the equality

residues shall be decided by lot.



§ 49 paragraph 1. 1 (b). b), c) and (d)), para. 3 (b). b), c) and (d)):



section 49:



paragraph. 1:



On the basis of the outcome of the election in the regions of the Czech Statistical Office

detects how many valid votes were cast in total for each

political party, any political movement and each coalition and further,



(a). (b)):



that coalition, consisting of 2 political parties. political movements,

have gained less than 10 percent



(a). (c)):



that coalition, made up of three political parties. political movements,

received less than 15 percent



(a). (d)):



that coalition, composed of at least 4 or more political parties.

political movements, won less than 20 percent of the total number of

valid votes.



paragraph. 3:



If it finds the Czech Statistical Office, the election threshold is not progressing at least to 2


the coalition and the coalition or 1 1 political party or political movement, or

2 political parties or political movements, will reduce the



(a). (b)):



the Coalition referred to in paragraph 1 (b). b) 10% on the boundary of the border 6

percent of



(a). (c))



the Coalition referred to in paragraph 1 (b). (c)) on the border of the 15 per cent 8

percent of



(a). (d))



the Coalition referred to in paragraph 1 (b). (d)) the border 20 percent on the border 10

percent.



§ 50 para. 1, 2 and 3:



Paragraph. 1:



The number of valid votes cast for each of the political parties, political movements

and coalitions, which advanced to the election threshold, within each electoral

the region has gradually divided numbers 1.42; 2; 3 and also always a number that is one higher.

So many shares shall be calculated, how many candidates are shown on the voting

leaf, however, candidates after nominations

Register lists gave up or were removed from Office under section 36.

The value of shares shall be calculated and shall be expressed to two decimal places,

rounding up.



Paragraph. 2:



All of the shares calculated in accordance with paragraph 1 are sorted in descending order by

size and enter the list of so many shares, how much of the electoral mandates

the region fell under section 48. In the event of a tie of 2 and more shares in this

the series is for his order of a decisive number of votes for a political party,

political movement or coalition in the electoral region, and if this is the same as,

decide on the order of the proportion of los. At the same time with the size of the share shall indicate the

designation of political party, political movement or coalition that this

the share has reached.



Paragraph. 3:



For each share that is contained in the list referred to in paragraph 2, the political side,

political movement or coalition shall order 1 mandate.



According to the article. 18 paragraph 1. 1 of the Constitution, elections are held

by secret ballot on the basis of universal, equal and direct electoral

the law, according to the principles of proportional representation. As stated in the article. 18 paragraph 1.

2 of the Constitution, the elections to the Senate are held by secret ballot on the basis of

universal, equal and direct suffrage, by a majority of the policy

the system. Therefore, from the above it follows that our Constitution draws a distinction between

"proportional representation" and "majority". However, in the article. 20 of the Constitution

provides that the other conditions for the exercise of the electoral law, the Organization of elections

and the scope of judicial review provided for by law, is beyond any doubt,

that can only happen within the limits and boundaries of the two institutes.

For greater clarity, the Constitutional Court considers necessary to

noted that the proportional and majority principle represent two different

understanding of political representation aimed at finding solutions to age-old

the problem of democratic systems resulting from the tension between pretendovanou

the Government of all the people and the need to ensure the optimal funkcionování of this

the system. While the benefits of majority representation belongs to, inter alia, that the

prevents the fragmentation of parties and encourages their concentration,

the creation of a stable Government, allowing voters directly decide which

a political party should form the Government, instead, to let this

decision on coalition negotiations after the election, belongs to the benefits

proportional representation, among other things, that allows the maximum representation of the

all opinions and interests in Parliament, prevents excessive political

většinám, supports the creation of a majority on the basis of negotiations and compromise.

These effects ascribed to them the two basic electoral systems produce

only under certain social and political conditions, and therefore, even when

evaluation of these effects must be taken into account the specific social and

political conditions existing in the different countries.



Already in this introductory section should also be pointed out that each social

the concept is that its social nature should be subjected to the process of

differentiation. So up to the present. Previews for what ever can be understood by the term

democracy, differ in a number of cases in such a degree that they are totally

divergent. Even the term ' proportional representation ' therefore cannot associate with

such attributes as an absolute certainty, the only definability, but

on the contrary, must be understood and interpreted in conjunction with the inevitability of

the process of constant change, with oscilováním on different members of smooth

continuum, and therefore with the mere possibility of rapprochement with this or that polaritní

position. If later referred to the mere possibility of approximation to the ideal

the typical model of proportional representation, we will include in the process

differentiation and integration, then it seems to be evident, what

He said the Constitutional Court has already, in its award of 2. 4.1997, SP. zn. Pl. ÚS

25/96 (No. 88/1997.) A collection of findings and resolutions of the Constitutional Court, the volume

7, pp. 251 et seq., namely, that certain restrictions when differentiation

the distribution of mandates, it is inevitable and therefore admissible. The purpose of the

the vote is without a doubt the differentiation of electoral ward. The objective of the elections, however,

It is not only the expression of the political will of individual voters and the acquisition just

the differentiated mirror image of opinions and political

attitudes of voters. Because it is people also bailiff of State power-

primarily through the Czech Parliament-and because the performance

State power assumes an ability to take decisions, you must have options and

the electoral system in mind and ability of such decisions on the basis of the will of the

most receive. For one thing, the image of consistent results

the vote in the Chamber of Deputies could rise to mix political representation

cleaved into multiple small groups with diverse interests, which would

most significantly impeded the creation or completely prevented. At that stage,

the electoral process, in which the distribution of seats, thus facing

with the principle of differentiation, integration, since the principle of elections has come

such a House, which in its composition allows the emergence of a political majority

able to create a Government, and carry out legislative activity which

According to her Constitution. Therefore, from the standpoint of the principle of representative

democracy permissible electoral mechanism built into the very exact

integration incentives where there are serious grounds for doing so, especially

provided that the proportional system to an unlimited

fragmentation of votes among a large number of political parties to the bezbřehému

"overgrowth" of political parties, and thus compromise the functionality and

operational capability, as well as the continuity of the parliamentary system. In this fact

is the admissibility of the existence of a restrictive clause, however, in podmiňované

each case, only serious reasons, and in the phase of rising border

justifiable only particularly intense seriousness. Increasing border

restriction clause cannot be unlimited, so eg. the 10% clause can be used

no longer considered such action to the proportional system, which

threatens its democratic substance.



The above finding in the present case, the Constitutional Court adds that it is

well aware of the complexity of the social and political events in which

the structuring of the company is provokováno by the action of centrifugal,

induction of social forces, however, in the social nepředstavujících

the process of his only konstituantu, but only in the recordable

antinomickém position against all the "dostředivým" the integration discourse.

As well as these "centripetal" integrative elements have become if only

factor of social development, should its pressure in the direction of projevovaným

integration and cooperation of finally abolish all social structures, and

so human society would have led to the shape of a fixed, monolithic,

also, on the contrary, disproportionate dominance of the "centrifugal" forces would be differentiated,

human events turned into a whirl of negative manifestations of any communication

unfit or hint of structural composition. Also in the

the base of the structural principle is therefore contained polaritně and korelativně

insightful substrate to prevent, on the one hand, disproportionate to the diffusion

structures, on the other hand, however, the achievement of the already disproportionate to the degree of

integration. The process of differentiation so it can fulfil its essential function

the driving force and creative element of historical development and progress only if the

It conducts to the soil continuum between the extreme tendencies, whose

function excludes the taking extreme positions. Also in the political

the practice used by the model of the "proportional representation", and can therefore,

do a variety of concessions, the principle of integration, however, can happen only

on a particular section of the continuum, when to my ideal type of remains

"přivrácen", in other words, when is this type of tendency in his

essential aspects of at least. In the opinion of the Constitutional Court

However, in the present case, therefore, in the present case, the increase in the number of

electoral districts to 35 (section 27 of the first sentence), the determination of the lowest number of

mandates in the region of 4 (section 48 (4)) and the method of calculation of the shares and

commanding mandate using a modified d ' Hondtovy formula (section 50, paragraph 1,

2, 3) represents such a concentration on your total integration of elements

that, in effect, has already led to the abandonment of the continuum yet eligible

record at least "přivrácení" to the model of proportional representation.



The Constitutional Court concludes naturally does not have any of the

resources measurement and examination of the singing, often typical for natural

Science, and is therefore, as well as for social concepts and phenomena at all, is referred

more on such devices, such as comparison, classification,


reviews, etc. Such resources can, however, have a reliable

explanatory power, especially because in these cases, it is not about

capture a static point, but the overall momentum on a particular

continuum with exerting, tendencies. In this respect, on the basis of the report

The Czech Statistical Office of 28 October. 11.2000 REF. 1694/2000, can be

by comparing the results of the elections to the Chamber of deputies in 1998 with the results

calculated according to the amendment to the electoral law inferred that the election

the total number of 35 regions there would be a significant increase in the input

the threshold allowing to obtain at least 1 mandate. To the smallest increase in this

natural clause would have occurred in the electoral region of Liberec (10.49

%), Brno-město (10.78%), while its largest increase in

Ostrava-city electoral regions (17.67%), Ústí nad Labem (18.74%),

Teplice (18.87%). On average, in respect of each electoral region, is

so this natural closing clause expressed in amount 14.69%. All of this

the Constitutional Court leads to the conclusion that the amendment of the electoral law by the provisions of §

27 the first sentence, § 50 para. 1, 2, 3, relating to the number of electoral districts

and electoral divisor, as well as the provisions of § 48 para. 4, misleading

the smallest number of seats in the electoral region of 4-which is inconsistent with the

the principle of equality enshrined in article of the electoral law. 18 paragraph 1. 1 of the Constitution-

States with regard to proportional representation in the election process on

elections to the Chamber of Deputies rather than the elements of proportional representation

elements representing in total already a hybrid; with such a

a hybrid, however, the Constitution does not count, as it only distinguishes proportional representation

and a majority system. If the system of proportional representation is becoming

irrelevant will voters in the range moving in individual regions

from 10.49% to 18.87%, on average, in the range 14.69%, then by

the opinion of the Constitutional Court, this fact already clearly telling us about

challenging the will of the sovereign itself. If the decision is ústavodárce, if

as for the elections to the Chamber of Deputies, for the application of the proportional representation,

then, even while respecting the integration of stimulus and the emphasis that we place on

the functionality of the democratic political system should be monitored at the same time

the need to reflect the will of the highest number of voters as possible. However

Therefore, the Czech Statistical Office collected data in this way, certainly in the

many may seem moot, for example. because the election in

1998 could reflect the effects selector would be different, according to the law

the opinion of the Constitutional Court, despite this fact can be diskutability in its

Basically, they are completely obvious testimony to the existence of an already established

the underlying tendency to dysfunctional and inadmissible hypertrophy integration

elements in the system of proportional representation, evident testimonies not only because

that any elections cannot be ruled out, at least similar situations

but also due to the fact that the integration tendencies are greatly heightened by the i

the modified d ' Hondtovým system, as expressed in the present case the electoral

divisor 1.42. Defining moment on the system of proportional representation is

It is the size of constituencies, so as, on the one hand, the greater the

the circuit is, the more it approaches the principle of election result

of proportionality, on the other hand, the smaller the constituency, the

more significantly the result of this principle is already slipping away. Moreover, it is

also readily apparent that article. 18 of the Constitution had in mind the just global

the effect of proportional representation models, namely the choice of Deputies

According to the principles of proportional representation as a whole. If the legislature had

referring to a different article would have to effect. 18 the Constitution to formulate not

globally ("elections to the Chamber of Deputies shall be held ... According to the principles

proportional representation. "), but he would have to expressly provide for this intention,

up to the present. as the Spanish Constitution in article. 63 the formulation that the elections are carried out in

each (individual) constituency in accordance with system of proportional

representation. In this way, the Spanish Constitution clearly expressed

partikularizaci the effect of proportional representation for the purpose of combination

the proportional and majority of the elements in the distribution of seats in the

Each circuit, such a solution, however, our Constitution does not.



Just for comparison it should be additionally noted that similarly thought

the Bavarian Constitutional Court in its decision of 24 April 2001. 4. the 1992 REF. VF

5-V-92, in which, inter alia, stated that the Basic Law of electoral equality

is not contrary to, if it is done in the Division of seats

per electoral district according to the article. 23 para. 1 second sentence and LWG

now divided into 7 constituencies. Such a provision on the allocation of

must focus on the higher principle as nejidentičtější

the value of the success of each parliamentary voice in order to bring on the composition of the

The State elections, according to the proportional distribution of seats across the country.

If they are available for the distribution of seats in the constituency

different conversion methods, the legislature must decide on a method,

that is as close as possible to this goal. A separate application

(d) ' method the highest number of shares in the distribution of compulsory

seats may result in individual constituencies to handicaps

small parties across the country and to a result that is not compatible with the

the Basic Law of electoral equality. The distribution of seats must

reflect as accurately as possible the balance of power of the parties represented in the

diet according to the number of votes cast for them in the country, with no

the parties should therefore not lead to a deviation of more than 1. To do this,

The Constitutional Court in the present case, adding that the electoral divisor beginning

According to the provisions of § 50 para. 1 election law number 1.42 multiplies

This derogation, so that for each of the Parties shall be a multiple of

said one of the Chair.



Of all the reasons given in point 1 are therefore referred to the provisions of section 27 of the

the first sentence, § 48 para. 4, § 50 para. 1, 2, 3, and building upon it

Annexes 1 and 2 of the electoral law in breach of article. 1, of the Constitution and article 5. 22

Of the Charter, article. 9. 2 of the Constitution, as well as the article. 18 paragraph 1. 1 of the Constitution.



Then, however, as regards the contested provisions of § 49 paragraph 1. 1 (b). b), c) and (d))

(a). 3 (b). b), c) and (d)), it should be stressed that the formation of a coalition

The Constitution does not contain any express provision, it only regulates the electoral

the law. The Constitution in article. 5 enshrines the principle of free competition of political

the parties to the Charter in article 6(2). 22 uses the concept of "political forces". The legislature

in determining the amount of the clause for the coalition of political parties,

button is clicked. political movements essentially applies the method of the sum of 5 percent

attributable to each political party or political

the movement, which leaves only in the case of a coalition of more than 4 political

the parties, respectively. political movements, since clause 4 and more

These parties or movements make up 20 percent of the total number of

valid votes. In the opinion of the Constitutional Court cannot be ruled out

the possibility of expedience of this provision, as the legislature, if at all

provides for the possibility to conclude the electoral coalition, as a rule, at the same time had

aim to create the conditions for easing the boundaries of parties 5%

able to enter into a coalition with the other-so in this direction seems to be

admission of electoral coalition in the amendment to the electoral law without current

alleviation of conditions for their participation in the distribution of mandates, as

-the existence of this inoperative any expedience zákonodárcova intent

hardly, however, may lead to the conclusion of its unconstitutionality. So up to the present.

The Federal Republic of Germany in paragraph 27 of its electoral law

(Bundeswahlgesetz-20 version of the BWG. 4.1998) does not allow for the possibility of

the formation of electoral coalition, since the parties can take part in elections only

individually. Also in the electoral law of 1992 (Nationalrats

Wahlordnung Nr 471/1992) is required to display the distinctive name of the Party (§

43), and of the law shows that in practice it means the political

party. Deputies coalitions is not specifically regulated in this law.

The electoral coalition are not modified or in the Republic of Hungary and

The Netherlands, where lists submitted by political parties. In

Estonia, where political parties use the opportunity to create a coalition for

overcoming the 5 per cent clause for the next round of allocation

seats in the Parliament and immediately divided and formed a separate

parliamentary factions, this has led to the amendment of the law on elections

and to the prohibition of electoral coalitions. In contrast to the present. in the Republic of Poland

can submit lists and electoral coalition, when there is no

at all restrictions for the number of entities associated in the coalition. Shut-off

the clause is in the electoral coalition of 8 percent. In the Slovak Republic was

Amendment No 223/1999 Coll. introduced the closing clause 10 percent for 4

and more parties.



Referred to, albeit brief, overview of legislation the electoral coalition in

other States indicates that these States reflect this or differently

the page expedience problem, in other words, that its solution

leaves it up to the legislature, which is naturally bound by at least the amount of the

clause for one political party. Because of the common ground

the existence of heterogenie these purposes, monitored individual


the political forces, therefore, in the opinion of the Constitutional Court, this

the contested provision is hardly regarded as unconstitutional.



2.



The provisions of § 31 para. 4 election law



Political party, political movement or coalition joins the list

the Charter of confirmation of a deposit of 40 000 CZK. The deposit consists in all the

electoral regions, in which the political party, political movement or

Coalition candidates, and served it in a special account, which

no later than 72 days before elections for the Czech National Bank will establish District

Office in the headquarters of the region. District Office at the headquarters of the County returns within 1 month after

announcement of the results of the election to a political party, political movement or

Coalition of the deposit, if the political party, political movement or

the Coalition advanced to the election threshold (para. 49). Interest on deposits and amounts

they are not returning, the State budget revenue.



The question of election deposits in the context of the then existing provision of §

35 electoral law dealt with the Constitutional Court has already, in its award of 15. 5.

1996, SP. zn. PL. ÚS 3/96, published under no. 164/1996 Coll., a collection of findings

and the resolution of the Constitutional Court, volume 5, pp. 315 et seq.. Referred to find

its adoption was the way the border, taking in such

that reflect the divergence of opinions, the cases can be considered as completely

natural and from the scope of the constitutionality in no way nevymykající the phenomenon where, after

more than 4.5 year thing may appear in a slightly different light,

in particular, if during this time period, e.g., to social change.

characterised by strong pressure in the direction of integration of stimulus. The constitutional

the Court is at present seems relevant just what was stated in the

different opinions, several judges have already been noted by its award. It comes

all about basic view that this provision is contrary to the Constitution and

The Charter, as it is the duty of the State to the parties, which were legal

in a way, allowed the participation of registered on elections to the Parliament and the

to ensure the full implementation of the article. 5 of the Constitution. Determination of the bond introduces a priori

discrimination by some of the parties makes it impossible for the introduction of the property

(financial) conditions, to participate in the elections, which are crucial and

the most watched contest scene of political parties, and the degree of

the favor of the voters. The conditions for registration of political entities are given by

by law, and at the time before the election cannot be from a legal aspect to construct

Reflections on the representativeness of the parties. The eligibility of parties fully to

to participate in the contest of political forces should be examined only in the context of

the registration process according to Act No. 424/1991 Coll., on the Association in

political parties and political movements as amended

regulations. The degree of representativity is then expressed in the election, and just

their results. Effective integration incentives are proportional

representation based on the so-called. restrictive clauses that have the

prefer that do not limit the principle of free competition of political parties in the

elections and apply only at the stage of distribution of seats, that is, after it has been

discontinued free competition and the results of the voting were detected. Election deposit

by contrast, preventive and apriorním measure that limits "and

at the outset of "free competition and the financial levers that in the options

It does not belong. The meaning and function of the electoral deposit to your specific

the differences in the system of proportional representation that applies to elections to

The Chamber of Deputies, and the other in connection with the majority system in place

for elections to the Senate. These specific features are linked to different

characteristics of the two electoral systems, the first of which is based

primarily on the principle of selection and differentiation and on the basic value

the criterion of proportionality of the representation of the political forces against a number of them

gained votes, while the other emphasizes the importance of the election of differentiation

as a starting point for political integration for the benefit of the majority expressed.

Whereas the foreign experience of the countries which are applying the system

proportional representation and which are based on the 5% restriction

clause, do not support the introduction of the electoral deposit even any sign of. As

for example, States such as Belgium, Denmark, Germany, Switzerland,

Sweden, Norway, Finland, Spain, Portugal and others that the election

the security deposit. This lack of a bond election in the systems of proportional

representation is no ingenuity, but it is the logical consequence of the total

the function of this type of mechanism in the system of the parliamentary representative

democracy.



The law prescribed the cash amount is also in contradiction with the General chápaným

meaning, as well as an established term correctly referred to as a security deposit,

Although in the present case in respect of a political party-state clearly the

bail is not. Significant aspects of the deposit belongs primarily

(as a rule, contractual) legal relationship on the one hand, and sufficiently

clearly expressed the obligation (liability) on the other hand, with the

side zavázaného there must be objective and the real possibility of a commitment from

contract (like him) the legal relationship arising to meet so as to

up to the present. in the area of public law (exercise of public authority), the State (Office)

"saving deposits neusnadňoval its task at expense of citizens". Or one of the

These fundamental conditions "deposit"-stored does not comply with the electoral law.

First, in the studied the link between a political party (Coalition), and

the State isn't a legal relationship (the less contractual), as-assessed

constitutional aspects of the-belongs to the primary obligations of the State, that when

our selection of political representation created by competing political

Parties to such conditions to enable them to achieve the constitutionally

of the intended target. By contrast, the-by the Constitution-is a political

Parties, in principle, the only obligation imposed, namely, that in its efforts to

acquisition of a share in the State to be able to respect the "basic democratic

principles and resisted the violence as a means of furthering their objectives "

(article 5 of the Constitution). In other words, if the political system States based

(among other things) on the free competition of political parties which respect the

democratic disposition, then there is no other constitutionally

obstacles that could (should) political parties to participate in the election

the rivalry to defend, and even more, if these parties already have gone through the

filter by the Act on Association in political parties and in

political movements (Act No. 424/1991 Coll.).



In the opinion of the Constitutional Court is, therefore, the provisions of § 31 para. 4 election

act contrary to the constitutional order of the Czech Republic, with art. 5

Of the Constitution and article. 22 of the Charter.



3.



The provisions of § 85 of the third sentence of the electoral law



Political party, political movement or coalition in elections

She received at least 2 percent of the total number of valid votes will be deemed the

each individual voice from the State budget paid 30 CZK. Also in this

the case is similar to that of things dealt with the Constitutional Court in the award of 13. 10.1999

SP. zn. PL. ÚS 30/98, published under no. 244/1999 Coll., a collection of awards and

the resolution of the Constitutional Court, volume 16, pp. 27 et seq. The Constitutional Court

The Decider because if the current wording of section 85, according to which the

the political party or coalition that won at least three

a percentage of the total number of valid votes will be for each individual voice

from the State budget paid $ 90. No longer just a cursory comparison of the previously

valid and revised version of the shows above all that there has been

significant decrease in this context provided by the State contribution.

The Constitutional Court is aware that, on the constitutionality of this provision was

decided in a situation where in the Electoral Act were consolidated election

the deposit, which in the present case, however, were cancelled. In that finding,

However, it was alleged, what can be considered relevant, although in

European Union countries there are electoral deposit, is itself the boundaries for

the allowance to defray election expenses assessed critically.

So for example. in Germany the level of 2.5% of the obtained votes found by the Federal

the Constitutional Court unconstitutional and new adjustment to section 18 of the law on political

sides was reduced to 0.5% for federal and 1% of the votes for the provincial

options. The Federal Constitutional Court in its decision (Entscheidungen, sv.

24, p. 300, 339 n.) He said that although the legislature may payment

the electoral post make odvislou from getting a certain minimum

the number of votes, but the boundary of the 2.5% declared unconstitutional because it is in the

contrary to the principle of equal electoral chances of political parties. The principle of the

free competition of political parties includes the obligation of the State, by

respect the equality of chances these parties from the perspective of law

the terms of this competition and editing entitlements for its participants, as it is in

the essence of the application of the general principle of equality guaranteed as constitutional,

such international instruments. The percentage limitation for the payment of the allowance for

reimbursement of the election expenses of political parties must not be the product of arbitrariness

or fitness to be assessed only in terms of the interests of the established parties. (I)

for the Czech Republic, therefore, that the legislator must apply when editing in

the creation of a political will to respect him in this field

set out a particularly narrow limits and that he denied any differentiated

treatment of parties whose base is not a reason for the extraordinary severity.


The purpose of the election contribution limitations of freedom may not be the electoral competition,

but ensuring its seriousness. It is not a tool for more integration, but

simply about determining whether the proposals and programmes submitted to the choice are

seriously meant that focus exclusively on electoral success, and not on the

other targets. The Federal Constitutional Court of GERMANY for example. expressly stated that the

percentage of 0.5% of the vote as proof of the seriousness of the efforts in the electoral battle and it is sufficient to

authentication is unnecessary according to the other criteria. Because of these and

other circumstances considered by the Constitutional Court in the previous findings, concluded that the

binding post to cover election expenses to obtain at least three

percent of the total number of valid votes in the elections to the Chamber of Deputies

the Chamber of deputies of the Parliament of the United Kingdom of its scope and, in particular, also with

taking into account the additional restrictions, which are subject to political

Parties that received less than five, or three percent of the votes, exceeds

the necessary amount needed to determine the seriousness of the intentions of the parties and the election

interferes with the equality of opportunity of political parties in the electoral contest. In

This summary of financial penalties for certain of them becomes a participation in

election nefinancovatelným luxury. At the conclusion of the Constitutional Court pointed out that the

It is for consideration to the Parliament of the Czech Republic, whether for elections

The Chamber of Deputies when the existence of electoral deposits left also and

a certain boundaries, e.g.. around 1% of the votes obtained as evidence of the seriousness of the

the voting intentions of the parties, and thus the condition for payment of the allowance for

reimbursement of election expenses.



When taking into account in particular the fact, therefore, that the contested provisions of the

the amount of remuneration for each individual voice is reduced from 90 € to 30 €, has

The Constitutional Court considered that neither the boundaries of three percent reduction on two

percent can't in the context of all the relevant circumstances change anything on the

justification the conclusion in the previous award of the Constitutional Court

namely, that that provision is (even after its amendment) in contradiction with the

article. 5 of the Constitution and article. 22 of the Charter, which clearly was not the legislator award

respected.



Of all these reasons, the Constitutional Court of the provisions of section 27 of the first sentence, section 48

paragraph. 4, § 50 para. 1, 2 and 3 and annexes 1 and 2 to the electoral law for the

their conflict with the article. 1, of the Constitution, article 5. 22 of the Charter, article. 9. 2 and article. 18

paragraph. 1 of the Constitution, the provisions of § 31 para. 4 of the Act for his

conflict with the article. 5 of the Constitution and article. 22 of the Charter, § 85 of the third sentence of the electoral

law for his conflict with the article. 5 of the Constitution and article. 22 of the Charter annulled on the day

publication of the finding in the journal of laws, while otherwise as regards the

the provisions of § 49 paragraph 1. 1 (b). b), c) and (d)), para. 3 (b). b), c) and (d))

the electoral law, rejected the proposal. Due to the fact that this finding was

repealed the provisions of § 31 para. 4 of the electoral law regarding the composition of the

bond election, the Constitutional Court decided under the provisions of section 70 para. 3

Act No. 182/1993 Coll., that the announcement of the award in the statute book at the same time

ceases to be valid and the Ministry of finance Decree No. 269/2000 Coll.

laying down the detailed conditions for the way the composition and return security deposit in

the context of the elections to the Parliament of the Czech Republic, in the

parts of the provisions relating to deposits for elections to the

the Chamber of Deputies.



The Constitutional Court is aware that, with regard to the derogation and made

also taking into account the fact that some of the provisions of the amendment should take

efficiency of up to 1. in January 2002, a situation arises that, if it does not occur to

difficult interpretative disputes, requires an active action of the legislators,

Therefore, in the spirit of the Constitutional Court the adoption of the electoral

the law, which will allow the implementation of elections without problems.



This finding is enforceable on the day of its publication in the journal of laws.



The President of the Constitutional Court:



JUDr. Kessler v. r.



Under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, took different

the opinion of the



1. judge JUDr. Jiří Malenovský to justify design decisions on

repeal of section 27 of the first sentence, § 48 para. 4, § 50 para. 1, 2 and 3 and annexes to the No.

1 and 2 of the electoral law,



2. the judges of JUDr. Ivana Janů, JUDr. Antonín Procházka, JUDr. Vlastimil

Sevcik and JUDr. Pavel param V to decision on the proposal to repeal section 49

paragraph. 1 (b). b), c) and (d)) and paragraph 2. 3 (b). b), c) and (d)), the electoral law,



3. the judges of JUDr. Turgut Guttler, JUDr. Miloš Holeček, JUDr. Zdeněk

Kessler, JUDr. Vlastimil Sevcik and JUDr. Pavel param V to decision

on the proposal to repeal section 85 of the third sentence of the electoral law.