Repeal Of Certain Provisions Of The Law On Political Parties

Original Language Title: Zrušení některých ustanovení zákona o politických stranách

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=43370&nr=296~2F1995~20Sb.&ft=txt

296/1995 Sb.



FIND



The Constitutional Court of the Czech Republic on behalf of the United States



The Constitutional Court of the Czech Republic held on 18 July 2005. October 1995 in plenary on

the design of a group of 44 members of Parliament of the Czech Republic to repeal section 17

paragraph. 2 and 3, § 18 para. 2, 3, 4 and 5, and the words "and the Supreme inspection

the Office "in section 18 para. 1 of Act No. 424/1991 Coll., on the Association in

political parties and political movements as amended by Act No.

117/1994 Coll. and section 3 (2). 4 Act No. 166/1993 Coll., on the highest

Audit Office, as amended by Act No 117/1994 Coll.



as follows:



1. the date of publication of the finding in the journal of laws of the Czech Republic are deleted

the provisions of § 18 para. 2, 3, 4 and 5 of Act No. 424/1991 Coll., on the Association

in political parties and political movements as amended by Act No.

117/1994 Coll. on the same date are deleted in § 18 para. 1 of the same Act:

"and the Supreme Audit Office".



2. the date of publication of the finding in the journal of laws of the Czech Republic are deleted

the provisions of § 3 para. 4 Act No. 166/1993 Coll. on the Supreme Audit

the Office, as amended by Act No. 116/1994 Coll.



3. the provisions of section 17 para. 2 and 3 of Act No. 424/1991 Coll., on the Association in

political parties and political movements as amended by Act No.

117/1994 Coll., shall be repealed on 1 January 2000. 1.1997.



Justification



(I).



On 1 May 2004. November 1994, turned a group of 44 members of the Czech Parliament

the Republic to the Constitutional Court with a proposal to repeal certain provisions of the

the above laws. Their objections against the laws of the appellants

justify by pointing out that the provisions of section 17 para. 2 prohibiting

the parties to engage in any business activity, and the provisions of the

the scope of the Supreme Audit Office to control the management of the parties and

the movement [section 18 of Act No. 424/1991 Coll. on Association in political parties

and in political movements, as amended by Act No. 116/1994 Coll. (the full text of

No 118/1994 Coll.)], as well as section 3, paragraph 3. 4 Act No. 166/1993 Coll., on the

Supreme Audit Office, as amended by Act No. 116/1994 Coll., has been

violated the Constitution of the Czech Republic (hereinafter the "Constitution") in the article. 5, art. 9

paragraph. 2 and 4(1). paragraph 97. 1 and the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter") in the provisions contained in the article. 4, art. Article 17(1). 1, 2, 4 and in

article. 20 and 22.



The promoters pronounced the view that amendments to the law on associations has been

financial management of parties and movements made subject to the control of the Supreme Audit

the Office, which contradicts the article. paragraph 97. 1 of the Constitution, according to which is the highest

the EFTA Surveillance Authority shall be entitled to exercise control exclusively the management of

State property and the performance of the State budget. In this sense, it was also

the scope of that authority is expressed in the provisions of § 3 of the law No.

166/1993 Coll., which was considered by the plaintiffs--from a purpose built

reasons, followed by the Act No. 117/1994 Coll. of the fourth paragraph in the sense

the management of a political party and political movement with contributions from

the State budget of the Czech Republic for the purposes of the Act on the Supreme

Audit Office of State property management.



According to § 18 para. 1 of Act No. 424/1991 Coll., as amended by Act No. 116/1994

Coll., are parties and movements are required to submit to the Supreme inspection

the Office each year, annual financial reports, which include not only

contributions from the State budget [section 17 paragraph 3 (a)), b) of the Act], but

also all other income, including donations from individuals and non-State

legal persons, as well as the annual financial statements, i.e.. a statement of the assets and

liabilities and the statement of revenue and expenditure (article 18, paragraph 1, of the Act). How

the appellants argue, the Supreme Audit Office is entitled to review the

the timeliness, completeness and truthfulness of all information contained in the report and on the

shortcomings even give rise to a proposal for the dissolution of the

or suspension of the activities of the party or movement (section 18, paragraph 4, and section 15

of the Act). This in section 18 of Act No. 424/1991 Coll., as amended by Act No.

117/1994 Coll., defined the scope of the Supreme Audit Office

by the appellants to be unconstitutional and also consider to be unconstitutional

extension of the scope of the Supreme Audit Office under section 3 (1). 4

Act No. 166/1993 Coll. as amended by Act No. 114/1994 Coll.



A group of 44 MPs concludes that the scope of the Supreme Audit Office

should not be covered, nor on the management of government posts. Or State

posts are not assigned, the provision does not arise between the

State budget and the budget of the party or movement and no financial relationship

payment of the Ministry of Finance shall pass into the ownership of contributions

party or movement.



The plaintiffs are challenging as unconstitutional the possibility to dissolve the party or

the movement because of deficiencies in their management, recorded the highest

Audit Office under the new wording of section 18 para. 4 of the Act. Your opinion

based on the article. 20 (2). 3 of the Charter stipulating, in which cases can

be the exercise of fundamental civil rights, including rights related to the right,

limited.



Finally, the proposal of a group of MPs challenging the provisions of § 17 para. 2

Act No. 424/1991 Coll., as amended by Act No. 114/1994 Coll., which

prohibits the parties or on its own behalf can pursue any movement

business activities, constitute the legal entity that

the business operated or participated as partners

or members of such legal person. The appellants argue that

the current editing admit that political parties and movements operated radio

and television stations, publishing, publishing houses and printers, as well as

publications and promotional activities. A new provision, that this

makes it impossible to radically limit the opportunities of the political action of all

political parties and movements to promote its own resources

own goal. Under the proposal, a group of MPs is so threatened by the free

competition of political parties, whose condition is whether or not the material basis

(printers, etc.), equal opportunity to achieve the objectives of the programme and

equal access to public media.



The appellants rely on the amendment of Act No. 424/1991 Coll., as amended by

amended, law No 117//1994 Coll. has changed

the essential formalities democratic rule of law (article 9, paragraph 2,

The Constitution), and therefore the proposal to have the Constitutional Court annul the contested

the provisions of Act No. 424/1991 Coll., as amended by Act No. 114/1994 Coll.

Due to the fact that the proposal contained inaccuracies that might be different

way interpreted, asked members of the Group of the judge-rapporteur

a clear specification of the design, which happened by letter of 2. 3.1995. A proposal from the

the finding of the Constitutional Court formulates the group members as follows: "1. On 1 January 2004.

October 1995 shall be repealed the provisions of § 17 para. 2 and 3 of Act No. 424/1991

Coll. on Association in political parties and political movements, in

amended by Act No. 114/1994 Coll.; 2. the date of publication of the finding in the journal of laws

in section 18 of the Act are deleted (deleted) the words "and the Supreme

surveillance authority "in paragraph 1 and the provisions of paragraphs 2, 3, 4 and 5; 3.

On the date of publication of the finding in the journal of laws shall be repealed the provisions of § 3 para.

4 Act No. 166/1993 Coll. on the Supreme Audit Office, as amended by law

No 117/1994 Sb. "



In the opinion of the appellants are the provisions in question in breach of article. 5, art.

9. 2 and article. paragraph 97. 1 of the Constitution and the provisions of article. 4, art. Article 17(1).

1, 2 and 4, article. 20 and article. 22 of the Charter.



The Constitutional Court, when verifying that the 44 members of the group design meets the

the necessary formalities and conditions of article 87 paragraph 1. 1 (b). and)

Of the Constitution and Act No. 182/1993 Coll., on the Constitutional Court, called on the

The Parliament of the Czech Republic to under section 69 of Act No. 182/1993

Coll. on the proposal in writing.



To this challenge, said on 12 April. 12.1994 the President of the Chamber of Deputies

Parliament's opinion on the proposal for members. In this representation it is stated that

the Government Bill, that has been the basis of negotiations the Chamber of Deputies,

provisions to the applicant attacked did not contain. It was

raised as amendments in a parliamentary debate, and then became

included in the joint report (832) committees of the Chamber of Deputies. Also from

těsnopisecké report on the deliberations of the House shows that those

substantial changes in the Government's proposal made, in particular, the Committee on Budgets. In

during the parliamentary debate, the Government expressed to such an amendment

proposals of the skeptical or expressed disagreement with them directly; so it was

in the proposal that the political parties could be dissolved for reasons identified

deficiencies in their management.



Representation of the Chamber of deputies to ensure that the purpose of the amendments

the proposals was the creation of the preconditions for it to political parties and

political movements could dedicate its mission, IE. to exercise the right to

law realized they actually served to citizens

their participation in the political life of the society and the political parties and

political movements could emancipate themselves from activities that burden and

pay from their mission. The opinion further expresses the opinion that the

by adopting these amendments, political parties and political

the movement for the conditions laid down by law provide posts of the State

the budget, and yet often necessary hassle of the need for their participation in the


business activities in a variety of forms that citizens very

sensitively and critically assessed. The necessity to use the contributions from the

the State budget is monitored by the Supreme Audit Office, then logically

It follows, according to the Chamber of Deputies, from the fact that it is a property

the State and the citizens have the inalienable right to State to ensure

the necessary degree of control of the management of such assets. Separation of

accounting for management of contributions from the State budget

ensures the protection of the rights of political parties and political movements and their

legal certainty. Representation of the Chamber of Deputies has furthermore of the opinion that

the emergence of certain rights on the implementation of the State budget is accompanied by an

certain obligations to the State budget, to the State and to society,

which justifies the right to State control and management of these

resources. In conclusion then opinion adds that the law was approved by the

required majority of members of Parliament, signed by the

respective constitutional factors and properly declared.



II.



The Constitutional Court is next, dealt with the material content of the design group

members of Parliament. On the basis of the proposal of the group members can be challenged 44

the provisions of substantive law to divide into three groups:



1. the Existence and the extent of the financial control of political parties and political

movements State (State authorities).



2. Admissibility of the dissolution or suspension of activities of political parties.

or political movement for reasons of failure or shortcomings of their

the annual financial report.



3. Admissibility of the participation of political parties and political movements in the

business activities.



1. the Existence and the extent of the financial control of political parties and political

movements State (State authorities)



For the assessment of this question, it is essential to determine what is the constitutional

the position of the political parties and political movements, and in what relation are

to the State.



Political parties as an Association of individuals are identified in section 3, paragraph 3.

1 of Act No. 424/1991 Coll. for legal entities and therefore correspond to the concept of

legal persons within the meaning of § 18 para. 2 (a). and) of the civil code.



Political parties and political movements are corporations in the private

basis, in which membership is not the result of an act of a public authority, but free

the decision of individuals do not have a public status, and therefore, shall enjoy

protection of fundamental rights and freedoms, in so far as it can be

fundamental rights and freedoms applied to legal persons.



Political parties are not public authorities or institutions are not

in a position of superiority or subordination to them, but are partners of the

State and under section 5 of Act No. 424/1991 Coll., as amended by Act No. 116/1994

Coll., are:



and) separated from the State,



(b)) shall not carry out the functions of State bodies or these bodies replace,



(c)) shall not drive the State authorities nor impose obligations to persons who

are not their members.



However, even against its members the parties can enforce only those

the duties, which were taken in the manner and to the extent that the State legally

recognizes as binding. The party's commitments or obligations, which is outside the

this sphere, they are not legally enforceable.



In this concept, our law coincides with the editing in other European

States, which are based on a strict separation of public powers and

political parties. For example. French Constitution formulates the independence

the activities of political parties in the State in the article. 4, then in Germany, the Federal

the Constitutional Court has repeatedly marked the separation of the party from the State for "basic

the principle of "(Grundsatz der Staatsfreiheit) of the constitutional provision.



However, the constitutional status of political parties cannot be

defined only as plain result to a finding that the parties do not have the status of

public authority and as a result, are nothing more than private

Sorority. The following simple statement of their position at the present time it is not. After

World War II overcame a number of pre-war Institute constitutional prudérii

and adjust the status and role of political parties also expressly in the constitutional

the establishment. For example, the French Constitution. stresses the role and participation of the parties in the

elections (article 4), the German participation in the formation of the parties then the political will of the people

(article 21, paragraph 1, of the law of GERMANY Base.).



This constitutional "Revelations" public tasks of political parties and efforts after

their "zveřejnoprávnění" was released in some Western European countries

towards the recognition of a status of public, IE. the role that the parties have

in the State and to the State, without, however, were themselves state (State, should

public nature). From this ambivalent nature of political parties

It follows a series of problems related to the interpretation of their position, the function

and in relation to the State.



European rule in individual countries, mostly from the recognition that the

political parties in accordance with the Constitution of a particular public tasks necessary to

for the life of a State based on representative democracy. Public

the nature of the interest of the company undoubtedly has to state that it is from

the Constitution of the democratic rule of law, he was also a democratic way

i.e.. in the elections based on political parties, open to competition. From

This general interest follows a claim even to State compliance with these

for the function of the State of the prerequisite tasks enabled and supported. This also corresponds to

the current arrangements for financing of political parties, democratic State, which

is guided by a desire to contribute to the activities of political parties, as well as the effort to

After a partial reimbursement of their election expenses.



The Constitution is based on the principle of representative democracy and the primacy of the citizen

before the State which found expression in the article. 2 (2). 1, 3 and 4 of the Constitution and in article.

1 and article. 2 (2). 2 and 3 of the Charter and, in principle, that the State has to be just so much,

how much is it necessary.



Also, the Czech Republic belongs to the States, which recognise the constitutional role of the

political parties and contribute to its implementation. The political system

It is based on "free competition of political parties which respect the basic

democratic principles "(article 5 of the Constitution), and the parties acting as

the intermediary between the citizens and the State; used to their participation in the

the political life of society, in particular on the shaping of the legislatures

and organs of self-government (section 1 of Act No. 424/1991 Coll., as amended by Act No.

117/1994 Coll.). In this essential function of political parties precede the

formation of the State authorities its role in the formation of political will in the State.

To democratic public authorities at all has been incurred, must be preceded by

free contest of autonomous, independent political party in the State, as

It was only in the results of this competition are forming political contours and

the proportions of the State. Political parties in that its basic function range

somehow, in the field of law and intervention of the State authorities, whose composition is

the product of this process, the process itself are, therefore,

side, if the progress party politically affect free competition,

for example. and the fact that the behavior of certain parties to be "wasteful" or

"inexpedient". The State Government decisions and the authority of the gifted

entering your authoritative opinion actively into the sphere of competition

political parties is in principle the potential risk for democracy

at all.



In the Constitution nor in the Charter or in international treaties under article. 10

The Constitution could not find support for the principled refusal of financial support

political parties by the State. However, this does not mean that financing of political

the parties and political movements by the State does not have a border. Political parties and

political movements are konstituovanými based on the institutions and within the

the constitutional State, whose policies and rules as the parties undertake, as well as

State. These include the free and voluntary formation of and free competition

political parties (article 5 of the Constitution), article. 2 (2). 3 of the Constitution, according to the

which "the State power is used for all citizens", article. 20 of the Charter, which guarantees the

the right to associate and form political parties and political

movement and provides that political parties and political movements are separated from

State (paragraph 4). On these principles follows section 5 of Act No. 424/1991

Coll., as amended by Act No. 114/1994 Coll., which stipulates the separation of the parties, and

movement from the State, and § 3 of the same law prohibiting the public authorities to intervene

the status and activities of political parties and political movements. The constitutional

the State is obliged to protect individuals in the exercise of their right to

the law not only in front of others, but also from himself.



The role of parties and movements in the performance of their constitutional and legal

functions could easily stop to meet state of financial support

political parties and political movements have made their impact on the resource

their activity or even a tool for their handling. Therefore,

financial support for political parties and movements may not exceed the level of

respecting the generelní border of the article. 20 (2). 4 of the Charter, according to which the

political parties and political movements separated from the State. Of the European

experience confirms that the presumption formulated in the opinion

Parliament, according to which the increase in State subsidies to political parties

These parties unnecessary to take additional financial resources

business and other activities, is wrong. Partial support

political parties is undoubtedly acceptable given the need to


partial balancing their chances. Generally speaking, however,

assume that the more political parties are subsidized by the State, by

less feels the need to find resources and support their activities in civil

the structure of the company. Contribution to the activities of political parties should not

Therefore, to weaken the efforts of political parties on the political and material

support from their constituents and supporters. Political parties cannot

perform his duties, if they are left to the mercy of the State, or to support the

the State relied more than on the support of citizens.



However, not only the financial support by the State party, but also their financial

control by a State must respect the autonomy of political parties and

political movements and their management of financial resources.



The great majority of European countries considered, therefore, as an essential resource

control of funding of political parties in particular the obligation to publish

annual financial reports of political parties in the official sheets or

publications. The purpose of this measure is to increase the transparency of political

the parties, which is particularly important to the general public of the country. This

the resource is generally regarded as more important than any kind of

the inventory of assets of political parties by the State, whose efficiency is

It is estimated no more than 50%. The obligation of public financial reports

political parties prescribed by the majority of countries of the European Union, but also

neighboring Hungary and Poland.



Mandatory publication of the Czech Republic accounting reports of political parties and

political movements still not implemented. In the Czech Republic

control instances of annual financial reports of parties and movements, the Parliament and

pursuant to Act No. 424/1991 Coll., as amended by Act No. 114/1994 Coll., also

The Supreme Audit Office. Or group members with debt forgiveness proposal

public annual financial reports of parties and movements, but only

the removal of the Supreme Audit Office of the control system referred to in section

18 of the Act. The appellants argue that the scope is unconstitutional

The Supreme Audit Office, that is section 18 of law when entrusted with a feeling.

check the annual financial reports of political parties and political

movement, and that in the first place, therefore, that these reports include not only contributions from the

the State budget, but also all other revenue, as well as the annual financial

statements of assets and liabilities and a statement of revenue and expenditure of the political

the parties and political movements.



In this connection, the appellants also argue the unconstitutionality of the newly

established by paragraph 4 of section 3 of the Act No. 166/1993 Coll., according to which

management of a political party and political movement with government posts

shall be deemed for the purposes of Act No. 166/1993 Coll. for the management of State

the property.



By contrast, the opinion of the Chamber of Deputies stated that the State's contribution

political parties and political movements is the discharge from the State budget,

and therefore the necessity of defending ", to use the contributions from the State budget

check the Supreme Audit Office ", because this" logically

stemmed from the fact that it is the property of the State and citizens have inalienable

the right to State to ensure the necessary level of control

such property ".



The legislature itself, however, was apparently convinced of the State nor the nature of the

the assets of political parties, which the parties obtain from the State when

sheepishly stated that sovereign parties management posts considered

the management of State property of the kind "for the purposes of Act No. 166/1993

Coll. ". Much rather tried to extend the competences of the structures

The Supreme Audit institution of constitutional framework article. 97 of the Constitution.



Unlike our adjustments in the countries of the European Community is not the opposite

This permitted to authorities comparable to our highest

supervisory authority (the highest accounting yards) to carry out control of financial

the management pages. The opposition deputies can be recognised at most

the power to check whether the allocation and distribution of State contributions

political parties and political movements was legitimate and factually

fair manner, which, in effect, cannot mean anything

than State control, which moves inside the organisational framework of the State and

determined by přezkoumatelnost the Ministry of finance in the allocation procedure

State contributions on the basis of § 20 and 20a of Act No. 424/1991 Coll., on

amended by Act No. 117/1994 Coll., this also corresponds to the total concept

The Supreme Audit institution in the Act No. 166/1993 Coll., that according to the

section 4, paragraph 4. 1 of this Act, the Supreme Audit Office examines and also

assesses whether the controlled activities are "effective and efficient", is

This check should be excluded parties with state management posts,

because the assessment of the effectiveness and efficiency of the use of these resources

the perspective of the parties is the internal affairs of these bodies.



In assessing this question, the Constitutional Court came to the conclusion that the determining

torque is the definition of the activities of the Supreme Audit Office in the article. 97

Of the Constitution, according to which the Supreme Audit Office does not carry out nothing less and nothing

more than "the control of the management of State assets and the performance of the State

the budget ". This unique constitutional definition cannot be changed otherwise than

the Constitutional Act, and therefore no longer of constitutionally is the change process

made by § 3 (1). 4 Act No. 166/1993 Coll. unconstitutional. From the material

the constitutional point of view, however, this change also is not acceptable, because the

"postátnění" control of political parties and political movements

It would be intervention, which threatens the principle of the separation of the political parties and

political movements from the State.



The Constitutional Court is of the opinion that after the posts of the State were

political parties and political movements are allocated, it cannot be a

"the management of State property" within the meaning of article 87(1). 97 of the Constitution, but that

the use of these contributions is no longer an internal matter for those persons to whom the

have been granted. Therefore, the control of the management of State assets may

apply only to that phase, which was preceded by the allocation of such

contributions. the process that within the State (in particular in the framework of the

The Ministry of Finance) was preceded by a Government decision on their

the allocation.



The Constitutional Court therefore considers it reasonable of the appellants ' objection that the State

posts are not assigned and that their provision does not arise between the

State budget and the budget of the party or movement and no financial relationship

After payment of the public contribution by the Ministry of finance is

the property of a party or a movement. It does not change the registration management

leads with him separately. Speak to in the Act on payment of the electoral

costs and contributions to the mandate and the activities of the parties, by State

first of all, why and for what reason it supports political parties. The purpose of the

These provisions cannot be the definition of the role of the State as the overseer, which

prescribed by the parties, what is and what is not economical or efficient.



For completeness, it should be added that control the scope of the Supreme

surveillance authority cannot be ruled out and it is necessary to accept where

in the monitoring of financial management in and within a State, even if it is

This management in direct connection with the activities of political parties. So

for example, as regards the conduct of the proceedings at the Ministry of finance,

the aim is to establish the State contributions to individual political

Parties, or in relation to the amounts they receive individual clubs

political parties from Parliament's budget, because these institutions shall be

certain tasks and having certain rights and obligations within the State

the structure, in this case within the highest legislature. Here

the financial contribution of the State to ensure that the parliamentary factions (clubs)

party could materially secure its participation in the parliamentary process.

Financial control in this sphere moves already constituted

can because clubs are component of Parliament and by State. Political

the parties, however, as such are neither State nor its components.



2. Admissibility of the dissolution or suspension of activities of political parties.

or political movement for reasons of failure or shortcomings of their

annual financial reports



Other members of the group claim is directed against the admissibility of dissolution,

or suspension of the activities of a political party or political movement,

If these did not submit their annual financial reports, or their

messages contain deficiencies (section 18, paragraph 4 of Act No. 424/1991 Coll., on

amended by Act No. 114/1994 Coll.).



The plaintiffs are challenging not only the participation of the Supreme Audit Office in

the process of financial control of political parties and political movements under section

18. the law, but also the right of the Supreme Audit Office to initiate

to the proposal under section 15 of this Act (dissolution or suspension of activities

Parties), provided that this Office does not consider the obligations of political parties and

the movement associated with the presentation of the annual financial reports for the met.



The appellants ' objections with reference to the article. 20 (2). 3 of the Charter are aimed, however,

even further, and not at all against the newly introduced options that

dissolved party or movement, or suspended their activities (§ 15

the Act), for reasons of lack of in their management discovered the highest


Audit Office under the new wording of section 18 para. 4 of the Act. According to their

opinion are not shortcomings of the financial management of parties and movements listed among the reasons

for that, it would be permissible to restrict the exercise of the right to associate in

political parties and movements, let alone a party or based

for this reason, the movement to dissolve or suspend their activities. By law

fundamental rights and freedoms may be limited only under the conditions laid down

By the Charter (article 4 (2)).



The Constitutional Court is based on when considering these objections of the constitutional position

political parties and movements. Czech Republic as a modern State

representative democracy watches over to political parties to

to fulfil its role in the constitutional provision. Therefore, to protect the autonomy of the parties before the

State intervention to the general principle of the separation of parties and movements from the State, as well as

a direct prohibition of interference by State authorities into the status and activities of

political parties and movements outside the explicit authorization of the law and its limits.



This position of the State is expressed in the "sui generis" privilege of the political

the parties and political movements, which, in accordance with the presumption of their constitutional

uniformity provides increased protection to them and their

rozpustitelnost in comparison with other organizations.



For the possibility of the dissolution of a political party or political movement applies

First, the General limits, resulting from the constitutional entrenchment of the job

political parties and political movements. It is mainly the definition of the nature of the

representative democracy, assuming a free and voluntary formation of

and free competition of political parties which respect the fundamental democratic

principles and marveling at the violence as a means of furthering their

interests (article 5 of the Constitution). From there it follows that political parties, which

do not respect basic democratic principles and do not reject violence as a

a means to promote their interests, do not meet the necessary conceptual,

the formalities laid down in the Constitution. In Act No. 424/1991 Coll., as amended by

amended, specifies the conditions of section 4 and the activities of the

political parties and movements later in the sense that they cannot engage in any activity

such: and) that violate the Constitution and laws or whose aim is to

the removal of the democratic foundations of the State, (b)) that do not have a democratic

the statutes or do not have a democratically elected bodies, c) purporting to

gripping and holding power in a way preventing other parties and movements to compete

constitutional power or resources that lead to the Suppression of

equality of citizens, (d)) whose programme or activities threaten the

morality, public order or the rights and freedom of citizens.



From this enumeration can be concluded that in all of the above reasons for

the dissolution of political parties is given in the final instance, and the relationship to

the constitutional requirement that political parties respect the basic

democratic principles. Each of these reasons its specific way

expresses a not insignificant risk level of the essential

the terms democratic State, the protected article. 9 of the Constitution.



For these reasons, it is in the section 18 of Act No. 424/1991 Coll., as amended by Act No.

117/1994 Coll., connected and the reason for the new, because according to § 18 para. 4 If the

the Supreme Audit Office of the shortcomings found in the annual financial

report of a political party or political movement were not within the time limit

within the time limit laid down by law or with the consent of the Supreme Audit

the Office of extended removed, the Supreme Audit Office is obliged to do without

further delay to tell the House of representatives, the President of the Republic and

the Government, and this communication is an incentive to file an application under section 15, i.e.,.

a proposal for the dissolution or suspension of the activities of the party or movement.



The wording of section 18 para. 4 of the Act is more moderate, and in their

the consequences of does not mean that the Chamber of Deputies, the President of the Republic, or

the Government proposal for the dissolution or suspension of the activities of political parties

or political movement on the initiative of the Supreme Audit institution to submit

must. No legal obligation in this regard is not apparent.



On the other hand, however, and the fact that, on the basis of this provision

the proposal could be submitted to the Constitutional Court to consider whether the

a proposal for the dissolution or suspension of the activities of the party or movement from

the reasons for discrepancies in their management identified in the inspection

their annual report is constitutionally admissible and relevant. Defects in the

annual financial report can hardly be described as the shortcomings of the

contravention of the principles referred to in article. 5 and 9 of the Constitution. With regard to the

unallowable activities of political parties and political movements in terms of

the shortcomings referred to in section 4 of Act No. 424/1991 Coll., as amended by Act No.

117/1994 Coll. (violations of the Constitution and laws), is the Constitutional Court, however,

the opinion that the wording of paragraph 4 (a)) activity that affects

also affects the democratic foundations of the State; that is why they can't work

develop political parties and movements, which not only violated (a) law, but

those that violate the law. In this formulation is represented by the element

perpetuálního behavior of the persistence of a political party or political

This is a movement that the repeated violations of the laws of the acts

a manner which jeopardises the democratic foundations of the State.



After comparing the reasons on the basis of failure to submit a financial report

or deficiencies in the financial report of these bodies shall entitle the incentive to

filing for the dissolution or suspension of the activities of political parties

or a political movement, we find that the reasons that are

new and different in nature from those that admits the Constitution in article. 5 and the law

No. 424/1991 Coll., as amended, section 4. Construction

the law defined initiative, i.e.. recommendations for submission to the

the dissolution or suspension of operations, it is protismyslná, because it is a

the proposal is based on the grounds that the Constitution nor the law did not allow the articles.



Shortcomings, the Supreme Audit Office are nowhere

specified, and may be the gayest character and often even completely

inferior importance. Act No. 424/1991 Coll., as amended

regulations, specifies in § 18 para. 2 potential shortcomings, which may

lead to suspension of the activities of, or for the dissolution of political parties as follows:



and the annual financial report) was not submitted within the time allowed or



(b)) was incomplete or



(c)) was false.



It follows that section 18 para. 2 of the Act gives to the hands of a government agency,

that is "an independent control authority" (section 2 of the Act No. 166/1993 Coll.)

authority--in contrast to the Government--a politically irresponsible Parliament (section

10, paragraph 1. 9 and § 12 para. 9. the law), the power to criticize the political

side of any shortcomings, relating to its annual financial reports

in the vague definition of the sub. a), b), c).



From Act No. 166/1993 Coll. as amended by Act No. 114/1994 Coll., then

Supreme Audit Office assessed that "controlled

activities ... are effective and cost-efficient "(§ 4 para. 1). This formulation

extends the scope defined in section 18 of the amended law up to the realm

arbitrariness, which may for a specific constellation of State zvůlí. The retention of section 18 in

full extent would set up a system built on the head, because much

rather, it is the task of the political parties represented in Parliament to find fault

the State apparatus, what is expedient and economical than vice versa.



In this context, it is not insignificant that the basis for the findings of the

deficiencies, which authorizes a complaint within the meaning of section 15 of the Act, the message is not

the audit of the annual accounts, but solely to determine which

reaches the Supreme Audit Office, which is a public body.

Note that in the European democratic States are checking

annual financial reports of political parties generally committed not

the State, but independent, private organisations and the testing institutes

[in Germany and Austria they perform this task to independent test

the company and the reviewers (Wirtschaftsprfer) on the private

Base].



It could be argued that even in compliance with group members and design

just by leaving only part of the paragraph of the first section 18 of Act No. 424/1991

Coll., as amended by Act No. 114/1994 Coll., the activity of the political parties also

suspend, or even dissolve it, where appropriate, if that party

did not meet the conditions of § 18 para. 1. To do this, however, it should be noted that from the

the first paragraph of section 18 of the Act. There is no other reason for

the suspension of the activities of a political party than the one that the party annual

financial report did not present at all or did not fully

This paragraph provided for. No other lack of annual financial

the message cannot be a reason for suspension of the activities of the party. The penalties for

incomplete or false information in the financial report is set out in section 20

paragraph. 10 so that the payment of the public contribution to the activities of such

the case shall be suspended until the removal of the defect.



It is true that, on the basis of § 18 para. 1 it can be dissolved

political parties. From § 14 para. 2 shows, however, that the review of the draft

on the dissolution of the parties would have logically occurred only in time, if the page or in the

the next year, did not submit annual financial report or removing the

its shortcomings, which is the fact that contains a repeated

violations of the legal obligations that would be, as the case may be


qualified as interfering with the terms of section 4 (b). a) of Act No. 424/1991

Coll., as amended by Act No. 114/1994 Coll.



The purpose of the contribution from the State budget is primarily a partial payment

election expenses already incurred by the parties. This corresponds to how the overall

the concept of the adjustment in European countries, as well as the wording of § 20 para. 4 and 6, as well as

(I) paragraph 7 of Act No. 424/1991 Coll., as amended by Act No. 114/1994 Coll.

The contribution is tied to the election results in previous elections has already obtained by the

(number of votes, the number of seats). Nothing changes, that payment is

post split time for the electoral period. Indeed, from section

Article 17(1). 3 (b). and binding on electoral costs). Post on

activity according to § 17 para. 3 (b). (b)) is in section 20 (2). 2 identified as

"permanent contribution" and "contribution to the mandate" and in paragraphs 6 and 7 are both

posts again tied to the election results. Therefore, it is apparent from the nature of things,

the purpose of these contributions should not be the subject of free considerations, the Supreme

the inspection authority, but is given directly by the law, after all, as

partial reimbursement of the costs already incurred. Is intended for activities

the political party that is in the Constitution and in the act characterized by

above all, as participation in elections.



Equally important is that the financial resources of the parties resulting from the

the State budget and all other political parties are the source for

the performance of the control functions of the Supreme Audit Office in section 18 of Act

mixed in one. The legislature tried to change article 3 of Act No. 166/1993

SB. make successful career shifts--and only for the purposes of this Act--

financial management of political parties, with contributions from the State budget to a

"the management of State property". The opposition of the Supreme Audit

However, under the law, the Office shall be subject to all aspects of the annual financial

reports of political parties, regardless of the origin of their financial resources.

Proponents of this adjustment dilemma lies in the fact that they want to allow control of the

management of the parties with funds from the State budget, while the

the law goes much further and allows you to control the management of the State party in the

its entirety and also in terms of effectiveness and efficiency, which interferes with

while avoiding the exercise of ownership rights, since according to the article. 11 (1) 1

Of the Charter "the right of ownership of all owners has the same statutory content and

the protection of ".



But even if it were granted control of the Supreme Audit Office

only those parties that sources come from the State budget, was

the practical effect is zero. It is obvious that the political parties they

kritizovatelné expenditure had been classified into bins, non-State of provenance.



For all these reasons, the Constitutional Court also considered the proposal of the Group of members at

cancel editing the dissolution or suspension of the activities of political parties

or political movement in relation to the deficiencies identified in its

annual financial report (section 18, paragraph 4 of Act No. 424/1991 Coll., as amended by

Act No. 114/1994 Coll.) is well founded.



3. Admissibility of the participation of political parties and political movements in the

business activities



Members of the group design challenges on cancellation of the admissibility of the participation

political parties and political movements in business activities, which

the amendment was made to section 17 para. 2 of Act No. 424/1991 Coll.

The previous edit, that party or movement may not own

on behalf of the carry on business that can, however, participate in the

establishment of legal entities or participate as shareholders or members

the legal person is already based. According to the scheme, which was preceded by a

the amendment could also themselves legal person to establish or to become

the only shareholders of the legal person, unless a special law of a single

the founder or sole partner admits. According to the new adjustment to section 17

paragraph. 2 of the Act party and the movement must not operate on its own behalf

business activities and shall not establish any legal entity that

the business operates, or to participate as shareholders or

members of such legal person.



From the wording of section 17 of the amendment cannot draw the conclusion that the occurring law in

the new text does not prohibit political parties participating in the equity

companies. Such an opinion could be based on the grammatical interpretation of the article.

17, according to which a party may not participate as "companions" or

"the members of" legal persons engaged in a business activity. Even if u

joint-stock companies is not about "companions", but of "stakeholders", IE.

"shareholders", it cannot be considered that this creates free space for this

form of business participation of political parties. The Constitutional Court is

considers that such an interpretation not only distorts the intent of the legislature, but

is not materially legal situation; § 17 puts emphasis on the generally

a ban on participation in the business-oriented legal entity and not to the

definition of the forms of such participation. "Companion" and "the" are therefore not covered by the

exclusively for certain types of companies, for example. s. r. o.,

limited partnership or cooperative. Within the meaning of the law, and

shareholders or shareholders in the wider meaning of "companions", who with his

way to participate in the business activities of a legal person. This

Access supports (i) paragraph 1, section 17 of the amendment which speaks generally of

any "legal person engaged in a business activity", without

joint-stock company from this concept.



Proponents see the amendment to section 17 of Act No. 424/1991 Coll., infringement of article 81(1). 17

paragraph. 2 and article. 22 of the Charter, and by restrictions on the freedom of expression and information,

as well as the free competition of political forces. Next, the plaintiffs associate

request the participation of political parties and political movements on the business

activities, in particular with the need to ensure that their activity material

basis (printers, etc.), with equal opportunities to the public the formulation

objectives of the programme, with equal access to the public media

etc.



Against this argument is the opinion of the Chamber of Deputies, which

points out that national contributions to parties and movements precisely

breaking away from activities that burden and distract them from their mission, and

as a result of State contributions also eliminates yet often necessary

the need for their participation in business activities that citizens

often critically assessed. Practice of European countries, however, confirms that it is

the illusory idea of a State contribution for the political party of the economically

ensure and induced to looking for financial resources elsewhere.



After considering this issue, the Constitutional Court came to the conclusion that the prohibition of

any involvement of political parties and political movements on the business

activity does not have in the Constitution nor in the Charter or in international treaties

According to the article. 10 the Constitution of sufficient support. An idea formulated in

the opinion of the Chamber of Deputies, the national contributions will be the parties

deprived of needed access to more resources and participation in the business

the activities of the Constitutional Court, considers a unilateral. In the issue

the funding of political parties in Europe, it is confirmed that the growing

the needs of political parties maintained by individual parties to a sustained effort to

get next to State contributions and using the donations and participation in the

business activity, new sources of their financing.



The structure of the financial resources of the various political parties is different and

some draw upon their resources to more of the regular contributions of their

Members, other more from gifts and also a permanent annual and national posts and

contributions to the mandate is quite different. Also the idea that the political

Parties prohibit any activity, even publishing and promotional activities

based on the business principle, and thus their equal

"starting positions" and "mravnějšího" behavior in the political competition,

contrary to its de facto equal access to formally the uneven bodies

the principle of equality itself, since the nature of the various political parties

and diverse means of financing their legal costs.

This issue cannot be provided by the State relentlessly, referring to posts.



Therefore, the Constitutional Court considers the generelní cancellation of participation of political parties and

political movements on business for the intervention that is contrary to the principle of

the adequacy of the law in the rule of law in the sense that it is not even

appropriate or necessary in order to achieve the objectives of that legislature

from this measure promises.



On the other hand, however, neither generelní the release of any business

the activities of political parties and political movements without restriction, which would be

the result of the event. the cancellation of the entire point 24 article. (I) Act No. 117/1994 Coll.

does not reflect the Prime Directive of the Constitution and the law on associations in the

political parties and political movements, relating the meaning and

role of political parties in a democratic society, nor the provisions of the article.

4 (4). 4 of the Charter, admitting the limitation of fundamental rights provided

(and) that is preserved the essence and the meaning of. Unlimited participation

Party on business would conclude the formation of political parties, which would be

dealt with more business than its constitutional mission.



The appellants, in its proposal for the repeal of section 17 para. 2 and 3 of the Act.

They allege the former provisions of section 17(2). 4 of Act No. 424/1991 Coll.,


that said parties and movements right to participate only in this range: and)

the operation of radio and television stations, publishing

publishers and printers, b) publishing and promotional activities, (c))

Lottery and raffle, d) manufacture and sale of articles promoting the program and

the activities of the relevant parties and movements, e) organisation of cultural,

social, sporting, recreational, educational, and political

actions. This adjustment, which existed prior to the amendment,

the appellants are reasonable. It also relied on the Government's proposal of the amendment

the amended later in the joint report of the committees of the Parliament. In connection with the

the claim that the provisions of section 17 para. 2 and 3 was cancelled at a later

the term in order to "allow the Parliament of the United Kingdom, so that in the meantime

newly edited by management of political parties and movements ".



Also in this respect, the Constitutional Court considers the proposal of the Group of members for the

is well founded. The immediate lifting of the prohibition of business activities should

would be contrary to the principle of proportionality in the material law, because

the benefits accruing from this decision could be overshadowed by the side

consequences of absolute relaxation of the business activities of political parties

and movement. Therefore, the Constitutional Court decided to defer the effectiveness of repeal of section 17(2).

2 and 3 of Act No. 424/1991 Coll., as amended by Act No. 116/1994 Coll., on the

sufficiently long time, namely the period of about 14 months from its publication in the

This finding, the Parliament of the United Kingdom in order to provide time for adequate

modify the scope and limits of the business activities of political parties and

political movements. The current absolute prohibition of business activities

still on for 14 months, it appears to the Constitutional Court as more acceptable than

the immediate release area for business, without any restriction.



Therefore, after the completion of the proceedings, the Constitutional Court decided to cancel the decision

the provisions of § 17 para. 2 and 3 of Act No. 424/1991 Coll., as amended by Act No.

117/1994 Coll., to date 1. January 1, 1997.



The provisions of § 17 para. 2, and 3 of Act No. 424/1991 Coll. as amended by Act No.

117/1994 Coll., conflict with the provisions of article 8(1). 5 of the Constitution

guaranteeing free competition of political parties. 4 (4). 4 of the Charter,

According to which when using the provisions on limits of fundamental rights and freedoms

must be preserved, the nature and the meaning of, and conflict with the article. 20 (2).

3 and 4 of the Charter, according to which the exercise of the right to justice by

political parties and political movements can be limited, only if it is in

a democratic society is essential for national security, the protection of public

Security and public order, prevention of crime, or for the

protection of the rights and freedoms of others. The provisions of § 17 para. 2 and 3 of the Act.

--In addition--is not even a reasonable or appropriate to facilitate and

the protection of free competition of political forces, which committed to the legislature

article. 22 of the Charter.



As regards section 18 para. 4, the right of initiative to the dissolution or

the suspension of the activities of a political party or political movement in

contrary to the requirement of legal stability and certainty in the material legal

State entrusts the Supreme Audit Office for the filing of the

the reasons that the law itself in paragraph 4 does not allow.



The provisions of § 18 para. 1 expressed in words "and Supreme control

the authority "and § 18 para. 2, 3, 4 and 5 of the same section of the Act No. 424/1991

Coll., as amended by Act No. 114/1994 Coll., shall be abolished on the date of publication of this

the finding in the journal of laws of the Czech Republic for the conflict with the constitutional principle

Department of political parties and political movements from the State (article 20, paragraph 4,

Of the Charter), further conflict with the article. paragraph 97. 1 of the Constitution, according to which the

the constitutional task of the Supreme Audit Office management only

State property and the performance of the State budget, and finally, for contradiction

with the provisions of article 8(1). 11 (1) 1 of the Charter, providing the same protection in all

owners.



On the date of publication of the finding in the journal of laws of the Czech Republic is deleted also

the provisions of § 3 para. 4 Act No. 166/1993 Coll. on the Supreme Audit

the Office, as amended by Act No. 116/1994 Coll., conflict with the article. paragraph 97. 1 and 3

and article. 9. 1 of the Constitution. Authorization to the contrary to the General

understanding for the purpose of feeling for the State assets act considered

the assets of political parties and movements could only be granted by the amendment

or by supplementing of the Constitution the way the Constitutional Act.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.