31/1996 Coll.



FIND



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



as follows:



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

other laws.



Justification



(I).



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

the evidence,



--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.



II.



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 petitioner.



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

legal status.



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

guaranteed.



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.



Vice Chairman



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. ".