The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided on 10. January 1, 1996 in the matter of the plenary
the design of j. j., administered along with constitutional complaints, for annulment of the provisions of the
§ 200 l of paragraph 1. 2 of the Act No. 99/1963 Coll., the code of civil procedure, as amended by
Act No. 152/1994 Coll., with the participation of the Chamber of deputies of the Czech Parliament
of the Republic of
On 1 January 2004. July 1996 repeals the provisions of § 200 l of paragraph 1. 2 of law No.
99/1963 Coll., the code of civil procedure as amended by Act No. 152/1994 Coll.
the elections to the Councils in the municipalities and amending and supplementing certain
On 19 December. 1. in 1995, the Constitutional Court of the Czech Republic received the constitutional complaint
the complainant, j. j., which was further complemented by submission of 24 June. 2.1995.
The constitutional complaint is directed against the resolution of the Municipal Council of Říčany
of 22 March. 12.1994 no. 11/94-VI/4 and 11/94-VI/5 in connection with
by order of the District Court in Prague from 29 April. 11.1994 no. 21 C
69/94-8. The constitutional complaint was associated with the proposal for the review of
the constitutionality of the provisions of § 200 l of paragraph 1. 2 of the code of civil procedure, as amended by
Act No. 152/1994 Coll.
After the removal of the defects of the power of Attorney of the legal representative of the complainant reached II.
Chamber of the Constitutional Court concluded that the applicant satisfies the conditions
the provisions of § and § 64 paragraph 74. 1 (b). d) Act No. 182/1993 Coll., on the
The Constitutional Court, and the order of 4. October 1995 No. II. ÚS 15/95-37
proceedings and the application for annulment of the provision advanced
the plenum of the Constitutional Court for a decision under art. 87 para. 1 (b). and) of the Constitution
The Czech Republic (hereinafter referred to as "the Constitution").
The complainant as a candidate on the ticket of LSNS and independent candidates
He participated in the elections to the Moscow City Council in November 1994. On
this ballot was elected a member of the Municipal Council, and 30. 11.1994
the Municipal Council of his choice to verify. In the meantime, however, the complaint was lodged
against the issue of the complainant's election at the regional court in Prague.
A regional court in Prague this complaint resolution of 29 January 2004. 11.1994
No. 21 C 69/94-8 agreed and expressed in the dictum that a certificate issued by J.
J. is invalid.
Reason for filing a constitutional complaint was the above resolution of the city
the Municipal Council of London of 22 April 12.1994 no. 11/94-VI/4, which
"The Town Council revokuje resolution on elections no. 10/94-IV/4 and
takes note of the resolution of the regional court No. 21 c 69/94-8 about the invalidity of the
issued a certificate of election p. J. J., 3. 12.8. 1949 flat n. v.
356/6, Říčany, Říčany City Council Member "and the resolutions of the same
Council No. 11/94-VI/5, which acknowledges and validates
Ing options. Arch. D. h., who took the freed space as
substitute the complainant.
In his timely filed the proposal submitted to the post on 18 July 2005. 1.1995
He attacked the complainant the above resolution of the Municipal Council of Říčany
as a measure of a public authority which violated his right to
access to an elected member of the Municipal Council and the right to participate in such
Member of the Council on the management of public affairs, which belong under
article. 21, art. 1 and 4, of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"). The breach was in his opinion, linked with the application of the
the provisions of § 200 l CCP, as amended by Act No. 152/1994 Coll., and therefore in the
the remedies of your design outside the cancellation of these two resolutions proposed to cancel and
the provisions of the CCP
On the challenge to eliminate the defects of the draft its initial proposal, the complainant stated
the remedies in the constitutional complaint, the application for annulment of the resolutions of the regional
Court of 29 June. 11.1994 no. 21 C 69/94-8. In the original
the complaint was the proposal contained in the preamble, indirectly but not in
the remedies of the proposal. This part of the draft justifies the complainant by the
resolution of the regional court in its effects had violated his basic rights:
--According to art. 21, art. 1 and 4, of the Charter, which has been infringed the right
the complainant elected to have access to the function and the right to participate in as the selected
Member of the Municipal Council on the management of public affairs,
--According to art. 2 (2). 2 of the Charter, according to which you can apply the power of the State
only in the cases, the limits and in the manner laid down by law,
--According to art. paragraph 36. 1 and 2 and article. 38 para. 2 of the Charter, according to which the
every right to seek their rights before an independent and impartial tribunal,
While the authority of the Court to review the decision may not be excluded
relating to the fundamental rights and freedoms, and where everyone has the right to his
the case was discussed in his presence and to comment on all
--According to art. 4 of the Charter, under which the limitations on these rights by law may not
violate the essence and sense cited by rights.
In the opinion of the complainant, without prejudice to its rights was clearly in
as a result of the application of § 200 l of paragraph 1. 2 CCP, as amended by Act No. 152/1994
Coll., which excluded participation of the citizen, whose election a member of the
the Municipal Council of the management of leads, it is impossible for him to comment on the
evidence, it is impossible for him to know about it at all, and with
What result are conducted judicial proceedings and it is impossible for him to appeal against the
the decision of the constitutional complaint, since it is not a party to the proceedings. This
the last conclusion in the refinement of its design has changed, and it no longer does not object.
Under the provisions of section 69 of Act No. 182/1993 Coll. posted by the Chairman of the
the Chamber of deputies of the Parliament of the day 17. 11. the 1995 opinion on a proposal by j. j. in his
the opinion states that, according to the explanatory memorandum to § 200 l CCP
the proposed modification provides for the necessary changes and additions to this
procedural provision governing the procedure of the courts and the parties,
to deal with and the specifics of the electoral proceedings by allowing
to seek a judicial review of the election, both during and
following their termination. The electoral acts, which may be reviewed
the Court shall fix the election law exhaustively defining circuit
bodies empowered to seek the Court's decision, as well as the jurisdiction of the
the Court and the time limits within which these permissions apply. Furthermore, the President of the
The Chamber of Deputies stated that "in this context, it should be
take into account the fact that the activities of the Court provided for in § 200 l has the nature of CCP
the so-called. undisputed control. The specificity and diversity of this proceeding.
control of the contested manifests itself in a number of significant deviations. One of the
one is even a court proposal without negotiations with the parties, and
in cases justified by the general interest of the rapid and effective protection
their rights. " With this in mind, considers that that provision
is a necessary and most necessary part of CCP legislature acted
in the belief that the provision of section 200 l CCP is in accordance with the Constitution and
the constitutional order. It is up to the Constitutional Court to assess the constitutionality of it. In
this context, the Constitutional Court pointed out that the constitutionality of the provisions
§ 200 l CCP already voiced in connection with another case.
Finally, the President of the Chamber of deputies confirmed that the law was approved the day
22.6. 1994 the necessary majority vote, signed by the respective constitutional
agents and properly declared.
Act No. 152/1994 Coll., on elections to the Councils in the municipalities and amending and
to certain other laws, has brought to the judicial review of election
things a number of changes. Instead of a Chamber of the President and two judges
dealt with a complaint on the issue of the election of only a single judge.
Instead of a reasonable application of the provisions of the CCP examination decision
other authorities is now this adjustment included in the specific provisions of the
the head of the fifth part of the third, and it is so separated from the provisions of part five of the
the administrative judiciary. There are already provisions on the obligation of the Court to send the
resolution of the competent Council, which it is expressly made subject to
It has been hitherto in the provisions of § 89 paragraph 1. 5 of the Act of the Czech National Council.
298/1992 Coll., on elections to the Councils in the municipalities and the local
the referendum. Management is now a non-public, and the Court is referred to a draft
The provisions of § 200 l CCP, as amended by Act No. 152/1994 Coll., reads as follows:
"§ 200 l
(1) on the complaint against the issue of the election of a member of the Municipal Council
in the village of ^ 34 c) by order of the Court without a hearing, and within seven days.
(2) the applicant is a party to the proceedings.
(3) against the decision of the Court of appeals are not acceptable.
This provision implies that the applicant is the only party to the proceedings,
that is, however, within the meaning of article 59 of Act No. 152/1994 Coll. only
"citizen, registered in the list of voters in the constituency, where he was a member of the
the Municipal Council as a candidate, as well as any electoral party who brought the
candidates for election to this Council, "in no
the case of a person whose rights and obligations to be in control
of the branch.
Because of the control on a design cannot be solely here to apply the provisions of §
94, according to which the CCP are in proceedings that may be initiated even without a
the proposal, participants and those whose rights or obligations should be in
the management of the branch, and if one of those whose rights or
responsibilities should be in control of the branch, shall participate in the proceedings from his
begin, the Court shall, as soon as it becomes aware of the resolution, which it picked up the slack
in the proceedings of the participant.
The provision of section 59 of the Act No. 152/1994 Coll. rightly protects the interest of the electorate to
the correct implementation of the elections and the election of those who meet the prerequisites
set out the constitutional and statutory provisions. The legislature, however, in its
procedural guarantee this democratic rights overlooks that in elections
to the municipal councils is not just about the rights of voters and electoral party,
but also about the rights of candidates to members of the Council and of the rights of the elected
candidates resulting from the right to compete on equal terms on the
elected Office and, if elected, to perform these functions without hindrance.
The Constitutional Court thus found that the amendment of the CCP in the form of Act No. 152/1994
SB. It violates constitutional provisions in several ways. First of all it is
the provisions of § 200 l of paragraph 1. 2 conflict with the article. 38 para. 2 of the Charter when
the expression "his thing" is to be interpreted as meaning that the Charter requires that every
about the rights and responsibilities is to be heard in court proceedings, had
the opportunity to participate in this proceeding, and comment on all carried out by the
evidence and that the Court about "his stuff" acted in his presence and public,
If the law within the meaning of the provisions of article. paragraph 96. the Constitution does not provide for
the exception, which is, however, possible only with the principles of oral deposition, and the public.
Furthermore, this provision is inconsistent with the provisions of article 8(1). 14. 1
The International Covenant on Civil and political rights (No. 120/1976
SB.), from which it follows that everyone has exactly the same right to be
fair and public hearing by an impartial and independent tribunal,
"decide on his rights and obligations". (In the determination ... of
his rights and obligations in a suit at law. .. everyone shall be
entitled it and fair and public hearing ...). A similar right of each
the individual is also clear from the provisions of article. 6 (1). 1 of the Convention on the protection of
human rights and fundamental freedoms (No. 209/1992 Coll.).
The legislature has therefore further adjust these provisions to ensure that
everyone whose rights and obligations are before an authority of the type
It had the option to apply this constitutionally guaranteed rights (within the meaning of
the provisions of § 148 paragraph. 2 Act No. 182/1993 Coll.). The construction of the so-called.
undisputed control with its peculiarities cannot lead to such a
the fundamental rights have not been respected in civil proceedings.
The provision allows you to be a basic political right
citizen participation in governance, without being able to all,
This applies to participate in judicial proceedings, and even about him at all
learn. It is not only a member of the Municipal Council, but also about other possible
stakeholders, such as, where appropriate, the electoral party, for which the
City Council candidate, and the local election Commission as a body whose
the decision is subject to judicial review. Such adjustment is therefore
its consequences in contravention with article. 1 of the Constitution, which declares the Czech
Republic of law based on respect for the rights and freedoms of man and the
citizen. Finally, the CCP nor does the regional courts to
the decision to effect the relevant zastupitelstvům and electoral commissions,
which issued it, despite the fact that the subject of the election of the
the review should be the validity of the elections as a process leading to the
the election of the members of the Council in accordance with the constitutional and legal rules
and not issue the certificate of election, which just declares the specific
After this discovery, the Constitutional Court has not addressed the other objections
the complainant, however, in particular the relationship due to constitutional complaints
in the next procedure. Recalls, however, that the fact that someone has not been
party to the proceedings, in which the final decision about his rights,
does not result in the impossibility to obtain rights in a court, including the
a constitutional complaint. Such a final decision, however, in relation to the
represents "another intervention by a public authority" within the meaning of article 87(1). 87 para. 1
(a). (d)) of the Constitution and the protection of his fundamental right is so this way
In this context, it should be noted that the Chamber of Deputies when the
the adoption of Act No. 247/1995 Coll., on elections to the Parliament of the Czech
Republic and amending and supplementing certain other laws, this
lack of judicial review of the issue of certificates of election to the
The Chamber of Deputies and the Senate. The provisions of section 88 of the Act.
gives standing to petition again citizen that was written
in the list of voters in a precinct, where he was a Deputy or Senator elected by, and
the political party or coalition that filed the candidates or
the application for registration. However, the corresponding procedural rules in the form of
the amendment to the provision of section 200n CCP provides that the party to the proceedings is
In addition the applicant also "Deputy or Senator, whose certificate of
the election is being challenged in the complaints "and the electoral authority. This
provisions no longer removes the doubts as to the constitutionality of the proceedings for the election
the complaints. In addition, this provision should be seen in the context of the
with the adjustment options as follows of the members or defense of a Senator in
a special procedure before the Constitutional Court pursuant to the provisions of § 85-91
Act No. 182/1993 Coll.
In terms of the enforcement of the award is to be noted that the repeal of the provisions
§ 200 l of paragraph 1. 2 CCP, as amended by Act No. 152/1994 Coll., would
complicate the court reviewing the election results to municipal
Councils. These options are practically still in the form of so-called.
new options as a result of the decline in members of the Councils. Therefore, it is necessary to
allow the House of representatives, to carry out a simple remedy
pre-existing condition, since neústavního after the cancellation neústavního provisions
§ 200 l of paragraph 1. 2 CCP, as amended by Act No. 152/1994 Coll., will not be able
remedied by the application of the constitutionally guaranteed fundamental rights adopted
candidates other than new by modifying the CCP
The President of the Constitutional Court of the Czech Republic:
in the z.. Haboob in r.
Different opinion of judge JUDr. Vladimir Paula
The complainant's proposal called for repeal of the provisions of § 200 l of paragraph 1. 2
Act No. 99/1963 Coll., as amended, in the context of its
constitutional complaints. As is apparent from the operative part of the award of the Constitutional Court, it was
decided that the contested provisions of the code of civil procedure is cancelled.
Pursuant to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, in proceedings relating to
repeal of laws, the Constitutional Court shall examine when deciding the content of the law of
with regard to its compliance with the constitutional laws and international treaties
According to the article. 10 of the Constitution. Whereas at the same time, the Constitutional Court had to drain
in § 200 l of paragraph 1. 1 the words "no negotiations", because at the same time valid
provisions in the text of "on the complaint against the issue of a certificate of election
a member of the Municipal Council in the village by order of the Court without a hearing, and it
within seven days, "is in breach of article. 14. 1 of the International Covenant on
Civil and political rights (No. 120/1976 Coll.), as well as with the article. 6
paragraph. 1 of the Convention for the protection of human rights and fundamental freedoms (No. 209/1992
SB.). Referred to the Covenant lays down explicitly that each must be properly and publicly
heard by a competent, independent and impartial court, established by
the law, when it comes to making any accusations, or as regards the
the determination of his rights and obligations imposed by its action. Compliance with the
the relevant provisions of both agreements is neither possible nor in the other instance,
because the paragraph. 3 § 200 l expressly provides that the decision of the Court
not permissible remedies.
In conclusion, it must be held that the use of the principle of "not eat iudex ultra
petitum "is not in any proceedings before the Constitutional Court, because the
The Constitutional Court is outweighed by its basic task to be the judicial body protection
the constitutionality of article 23(2). 84 of the Constitution of the CZECH REPUBLIC.
34 c) of section 59 of the Act No. 152/1994 Coll. ".