The Appeal Provided For In Article. Paragraph 87. 1 (A). (E)) Of The Constitution Of The Czech Republic

Original Language Title: o opravném prostředku podle čl. 87 odst. 1 písm. e) Ústavy ČR

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=59976&nr=140~2F2005~20Sb.&ft=txt

140/2005 Sb.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled June 26. January 2005 in plenary in the composition of JUDr. PhDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský,

JUDr. Miloslav Výborný, JUDr. Elisabeth Wagner and JUDr. Michael

Židlická of appeal pursuant to article. paragraph 87. 1 (a). (e)) of the Constitution

The Czech Republic submitted a civil democratic party



as follows:



Jan F N was in the elections to the Senate of the Parliament held in 5 days.

and 6. November 2004 and in 12 days. and 13. November 2004, in the electoral

circuit No. 19, Prague 11, validly elected Senator.



Justification



(I).



Proceedings before the Supreme Administrative Court



The Supreme Administrative Court resolution of 3.12.2004 no j. Vol 10/2004-24

decided to draft Ing. And, that the elections to the Senate of the Parliament of the Czech

the Republic held in constituency No. 19, Prague 11, 5. and

6.11.2004 and 12 and 13 December. and 13.11.2004 are invalid. Further decided to

refund the costs so that none of the participants had no right to them.



In the proceedings before the Supreme Administrative Court the appellant Ing. And argued from.

that the electoral campaign in the constituency No. 19 did not honestly and fairly

Therefore, in the local press were repeatedly published false

the data. So in the Uhříněveském Newsletter No 10/2004, the newsletter of the urban

parts ("DISTRICT") of Prague 22-Uhrineves in 3000 copies of the cargo, which

was distributed to approximately 3000 households in this CITY DISTRICT, its Mayor M.

(C). stated, inter alia, that the property "is not the claimant knowingly lie to strangers".

In addition to that appealed to 8. side of the same material, where no

any other comments published the full text of the anonymous

Letter from the year 2001, addressed to the then Chairman of KDU-CSL JUDr.

Cyril Svoboda. Anonymous had yet to contain a number of false

očerňujících information of the petitioner. Specifically, he was accused that he

committed the fraud with a subsequent illegal enrichment by made

refined multiple shift the State of the apartment, and that maybe

committed fraud in the order also million by transferring to the civil

Association of OPTIM-ECO, and thus de facto at each other, the land in the land register

the territory of Prague-Šeberov includes that he participated in under strange circumstances to remove

under construction "Křeslické sewage drains", and that he participated in the

"throwing millions". In the anonymu was falsely stated that the

He was elected in 1998 on the "deputies to the Senate" and that he cheated on

the indication on the ballot voters delusive. At the end of anonymu it is mentioned that

pisatelům is primarily about it, that the claimant failed to obtain

by immunity and so escape the investigation. As the authors of this

the letter lists the members of the Municipal Council of the CITY DISTRICT Prague-Petrovice. The author of the

the article, however, has made no attempt to determine the truth of this anonymu,

Although the then Mayor of the CITY DISTRICT Prague-Petrovice, Msc. M. L., in a letter dated

14.10.2001 confirmed that the letter in question was drawn up by members

Councillor.



Another false article should be published in the appellant

Petrovickém newsletter, the newsletter of the CITY DISTRICT Prague-Petrovice, which came out the day

3.11.2004 in Special Edition in a total cargo of 50 000 copies, while

a normal load shall be 2 700 copies. It was on page 8-10 reprints

interview a member of the editorial staff and at the same time a member of the Council of the CITY DISTRICT Prague-Petrovice Ing. P.

L. with JUDr. M. no this conversation he had in his opinion completely assigned and

falsely give the impression that he has in his campaign for Senate elections

threatening citizens by building communication route JVK (short version

the South-East of the motorway ring road). Specifically, he quoted a sentence from the response

Dr. No, which stated that "Mr. z. encourages citizens ' concerns

the South-East of Prague, to their concerns about the health of their own children

earned tens of millions of Crowns. The project would only benefit the JVK today.

The applicant stated that since the beginning of the fights against the implementation of the

communication, so vice versa JVK any gain associated with its construction, from the

early disclaims. The claimant further stated that at the conclusion of published

the interview made editor of Ing. P. r. summary, in which literally says:

"Your words, that completely capture his character for the title of Mr., probably early

a lot of people, people who believed in him this time and constantly stressed,

that highway is fighting selflessly for the good of us all. Unfortunately, when

find information on Highway and in other places we have found similar

information about the ... human nature. Disenchantment is even for me.

I had no idea, that can be a problem for fear of people and JVK do custom

electoral program, care about their money and still have the problem of artificially

feed-to survive best after several electoral period. The disappointment is that

for me the more that I was (until today), a member of the civic association

OPTIM-ECO, which Ing. From. created and leads. Once there really danger

communication in close proximity to our homes, and I was like

other members and supporters believed that the spending money, time and

energy only for good cause, and not for anyone's personal benefit. We wish you,

in the end everything turned out well for the people of the South-East of Prague. From

This conclusion, the applicant concludes that Ing. Row for Petrovický

the rapporteur and for the petrovickou Town Hall aligned with statements by JUDr. No,

to them, and thus gave his words considerable seriousness and

the importance of.



The applicant in the proceedings before the Supreme Administrative Court argued that these

spread was violated law No. 247/1995 Coll., on elections to Parliament

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

amended, (hereinafter also the "electoral law"), which in section 16. 2

the election campaign was carried out fairly and honestly. He stated that

has not passed into the second round of the Senate elections just 325 votes. Cast

3. place with 13.07% of the votes cast, while the second

the candidate, Ing. P. j., received 14.33% of the votes cast. In the electoral

circuit No. 19 was registered voters, and 102 236 if the special number

Petrovického newsletter was delivered to 50 000 households and in each of the

they registered at least one voter, in his opinion, is highly

likely that influenced voters originally decided to vote the petitioner

in their decision to elect or in the selection of candidates. If you would

so, only 1% of polled voters amounts to at least 500 persons. On

the basis of this reflection is the conclusion above.



The Supreme Administrative Court has requested the opinion of the State Election Commission,

that referred to his observations in reply to the submission of Ing. From.,

the wording of section 16 which underlined the electoral law, including questions of honor and

honest leadership election campaign. In the opinion of the National Electoral Commission is

This should be understood as a moral appeal to the individual

candidate bodies, with the violation of the law on elections to the associate

Parliament any specific penalty. The State Electoral Commission appellant

on learning about the possibilities of redress by way of civil or

criminal law, and in terms of the elections and their results on the way

Administrative Justice proposal pursuant to § 87 electoral law.



The Supreme Administrative Court of the taking of evidence Uhříněveským the rapporteur no.

10/2004 and Petrovickým the Rapporteur of the special numbers of 21.10.2004.

He found that Uhříněveský the Office publishes a newsletter for the CITY DISTRICT Prague 22 and that is

registered by the Ministry of culture, Department of mass media

resources. For content and factual accuracy corresponds to the author. As regards the

Petrovický newsletter, found that based on 5 x per year and is a registered

The Ministry of culture. The Publisher is the CITY DISTRICT Prague-Petrovice and editor

Ing. P. l. Special Edition of October 2004 respectively, should the closing

the press was given and in 22.10.2004 3.11.2004 cargo of 50 000 copies.



The Supreme Administrative Court also made the proof copies of the letter to the Mayor of the CITY DISTRICT

Prague-Petrovice, Msc. M. L., 1.10.2001 no 245/2001/Star, in

which tells the then Chairman of KDU-CSL, by telephone on the

material (anonymous design to the exclusion of the appellant from KDU-ČSL)

She spoke with members of the City Council, and on this basis is authorized

noted that the members of the Municipal Council of the CITY DISTRICT Prague-Petrovice are not the authors of the

This material. The same opinion of the editorial staff of the journal announced the lightning

This anonymous letter.



The Supreme Administrative Court of the standing list of electors for the CITY DISTRICT Prague-Kreslice

Verify that the list is registered under number 318. Of.

Note that the may vote. Further proof copies made of the outcome of

elections to the Senate of the Parliament in the constituency No. 19, Prague 11, held

in the days of 5. 6.11.2004, and in the first round of the election out of a total

the number of valid votes for all 25 726 candidates won in the first order

J. n. 10 201 votes, which represents a 39.65%, the second P. J. 3 689 votes,

which represents 14.33% and third and 3 364 votes from., which represents

13.07%. Candidates for the other places get a smaller number of votes. To

the second round of the elections therefore they J. N., and p. j.



The Supreme Administrative Court a proposal for revocation of the election. He sat back

a collection of its case-law (see the decision of the NSS No. 10.2004, R
354) that compliance with the requests for proposal 1. outlawry, that is.

violation of some provisions of the electoral law, 2. the relationship between this

protizákonností and selecting the candidate whose election is challenged the electoral

complaints, and 3. a major effort of this protizákonnosti, which in their

the consequences must at the very least significantly question the choice of the

the candidate. Deduced that section 16 of the electoral law does not regulate the electoral campaign

exhaustively, but applies only to the last

the final of the so-called. the "hot" phase. The electoral campaign is one of the forms of the exercise of

fundamental rights, such as freedom of expression, in particular the right to

information, the right to associate, Association, etc. The provisions of section 16 of the

the electoral law is the instantiations of these fundamental rights and constitutional

principles, especially the principle of free competition of political forces in the

democratic society and the principle of equality of voting rights if necessary. (I)

When section 16. 1 the electoral law mentions only the use of the area for

hang up electoral posters, is in the opinion of the Supreme Administrative Court

without any reasonable doubt clear, with regard to the said

the constitutional principles, that it is only an example of a demonstrativního factor

in General, a valid approach to communication options available

the municipality. Shows that, in the use of all means of communication in the

the possession of the municipality must be respected the principle of the equality of the candidate

bodies. In the present case, however, in the opinion of the Supreme Court of the

the principle has not been respected. Its violation has occurred the release

Uhříněveského Newsletter No 10/2004 and the special number Petrovického

the rapporteur immediately before the first round of Senate elections.

Information published in these publications were by their nature

opinion of the Supreme Court of the petitioner eligible Ing. And significantly from.

damage in the eyes of his potential voters. The particular circumstances

the case, namely the release of reporters just before the elections, the apparent

the one-sidedness of the present opinion, the method of distribution, significantly higher

cargo release Petrovického bonus newsletters, etc. convincingly

show that this intention on the part of the Publisher of the said periodicals

being monitored has been.



The Supreme Administrative Court also concludes that the nature of the information

published in the said bulletin is out and the requirements of fairness

the election campaign, in section 16, paragraph zformulovaným. 2 the electoral law, which has

specifically referring to anonymous letter appeared from the year 2001, in particular when

He was without any comments published in a letter to the MUNICIPAL Councillors

Prague-Petrovice, without the authorship of these members was verified. The highest

the Administrative Court also ruled the relationship between violation of the electoral law and the

choosing J. N. Appealed to the Constitutional Court, SP. zn. I. ÚS

526/98, from which it follows that, when assessing the violations of the electoral law

It's not about whether the violation has occurred, but objectively or subjectively that

each case must be assessed individually and with the material,

taking into account all the particular circumstances. Therefore, it is not decisive whether

the chosen candidate for the violation of the electoral law was involved in any way, whether

directly or indirectly. The important thing is that, in the present case the appellant ended up in

Senate election in third place with 325 votes from the candidate,

that ranked second. Tight votes by which the difference

the appellant did not advance to the second round, could be in the opinion of

The Supreme Administrative Court is actually caused by the circumstances in which the

The Supreme Administrative Court sees the violation of electoral law. If you would to

This protizákonnosti there, could the appellant realistically advance to

2. round of the elections, in which cannot be ruled out the chances of his election;

between the breach of the electoral law and the election of a candidate because "between the

"there is a relationship.



Finally, the Supreme Administrative Court dealt with the question of the assessment of the intensity and

protizákonnosti. He stated that, when the appellant did not get into

the second round of Senate elections for the relatively tight distinction of missing

the votes, is the intensity of the protizákonnosti necessary for a finding of invalidity

election naturally lower than in the case of a significant difference in votes.



II.



The content of the appeal



The Constitutional Court was delivered to the filing of the civil day 13.12.2004

the Democratic Party (hereinafter "the appellant") marked "appeal

resource in case the verification options, the Senator referred to in article. paragraph 87. 1 (a). (e))

The Constitution of the Czech Republic and article 85 et seq. Act No. 182/1993 Coll., on the

The Constitutional Court, in its up-to-date version ". This submission was then followed by the submission of the

the employer, identified as "20.12.2004 and Tween appeal on

the new reality ". In it, the appellant States that the date of 14.12.2004

the mandate and immunity Committee, the Senate adopted a resolution in which the in point (II).

He stated that he could not verify the mandate for constituency No. 19, Prague 11

with regard to the fact that the Supreme Administrative Court decided his

resolution No. j. Vol 10/2004-24 that the election in this circuit are invalid.



The appellant in the appeal challenged all starting points,

that against its decision to the Supreme Administrative Court. As regards the

outlawry, primarily rails against the extensive interpretation of § 16

paragraph. 1 the electoral law, as it was conceived the highest administrative court.

The election law in § 16. 1 mentions only the area for putting up

election posters. While the law is not clear from the text that it was

demonstrative and exemplary enumeration. Therefore, the conclusion that this provision

applies to any communication options available to the community,

have no basis in statutory text. These provisions should be

interpreted in the light of the principles enshrined in article. 2 (2). 4 of the Constitution of the Czech

Republic (hereinafter referred to as "the Constitution") and article. 2 (2). 2 (right to be article 2

paragraph. 3) of the Charter of fundamental rights and freedoms (the "Charter"), i.e., that

everyone can do what the law and no one shall be forced to

do what the law does not, and the principle enshrined in article. 2 (2). 3 of the Constitution

and the article. 2 (2). 4 of the Charter (right to be article 2, paragraph 2, of the Charter), i.e., that

State power can be exercised only in cases and in a manner

laying down the law. Therefore, in its view, cannot be cited

the provisions of the land so that it fell on a periodical issued by the municipalities.



Disagree with the conclusion or the Supreme Administrative Court, that there was a

violation of section 16. 2 the electoral law, according to which the electoral campaign

must be carried out honestly, with integrity and in particular shall not be published false

information on the bodies of the election. In its opinion, is the criterion of fairness and

honesty to a certain extent subjective, and should therefore be considered

in relation to the body. Do not agree with the conclusion the Supreme Administrative Court,

It is not decisive whether the selected candidate on the infringement of the

the electoral law (albeit indirectly) involved. From the cited ruling

the Court, SP. zn. And 526/98 in its view shows the opposite

conclusion. Essential, however, considers that paragraph from section 16. 2 the electoral law

that goes for the dishonest and unfair acts can be considered the only marketing

false information about candidates and political parties. If in the proceedings

has not been demonstrated truthfulness or falsity of the information reported, it could not

the Court concluded the hypothesis of legal standards contained in § 16

paragraph. 2 the electoral law. Furthermore, the appellant with reference to the above finding

The Constitutional Court emphasises the freedom of speech and the right to information,

guaranteed in article. 17 of the Charter. It pointed out that the election law was amended

and in section 16, paragraph. 5 was canceled a ban on electioneering last 48 hours

before the election, thereby leading to the further liberalization of the electoral struggle in

the benefit of freedom of expression. In its opinion, must otherwise be vague and

unclear provisions of section 16. 2 the electoral law be interpreted as significantly

restrictively. Another interpretation of Constitution violation of freedom of expression and the right to

information, violation of a subjective right of a candidate to be elected and the right to

voters in the city choir represent them elected candidate.



From the standpoint of comparative appellant pointed to the issue of

violations of the electoral law in the Ukrainian presidential elections in

November 2004 and on the decision of the Federal Constitutional Court (BVerfGE, vol.

103, 111n. from 8.2.2001), in which this Court dealt with the compliance of article.

paragraph 78. 2 the Constitution of Hesse, with the Basic Law of the Federal Republic of

In this context, Germany and handed the restrictive interpretation of the term "negotiations

against morality "that affect the election result.



The appellant further argues that the decision of the Supreme Administrative Court is

completely nepřezkoumatelné in the part where it assesses the relationship between her hardened

protizákonností and choosing J. N. In its opinion, the progress and results

elections in the constituency No. 19 leads to the conclusion that it is excluded that the

There was a relationship between the violation of the electoral law and tempered the result

the election. The Supreme Administrative Court only based from anything unsourced

the assumption that the difference of the vote could be tight, really driven by the specified

protizákonností, but not neargumentuje whether it actually was caused by.

The appellant concludes that under the electoral campaigns should be understood period of 16

days before the date of the election, rather than for example. the whole electoral period or a year before
the election. Yet the problem, about which it is debated for several years, and it

a very sharp tone, from which fairly even questionable materials. Therefore,

is the probability of their influence on the behavior and views of the voters.

Also from the results of the elections cannot be inferred, whether another conclusion by comparing the

the results of the 1. and 2. round of elections in the District No. 19 or the comparison of the results of the

KDU-CSL in other Senate districts of Prague, as well as in municipal

the elections of 2002. In this context, the appellant, in addition to the legal

in fact, the argument even when arguing calls into question the meaning of the

texts in these newsletters. In particular, stresses that both the periodical,

whose content could n.e.c. did not affect, responding to the first edition

the first numbers of the South-East of Prague, the Courier published by the CITY DISTRICT Prague-Kreslice,

which is Ing. And from. Mayor. The first number was issued, 29.9.2004

in the cargo of 50 000 copies, and now on the first page of an article with the headline

"What the mayors of C, N and n are silent?". Articles published in Uhříněveském

the rapporteur and the rapporteur Petrovickém are the only response to these and other

information that Ing. A. Z.. To do this, then proposes to proof

to listen to the Mayor of the CITY DISTRICT and Uhříněves Petrovic. Further notes that the October

the number of the Petrovického newsletter directly with the election. The Declaration

mayors only explains some of the facts, and stresses that

Ing. From. in one of its leaflets with the date of though 2.10.2004 (should be in accordance with

the appellant correctly November 2), entitled "the Ruthlessness of attacks against

me stronger ", States that the Declaration of mayors like joined.

While it is clear that it is a subjective opinion of mayors, not

objective information. High load was agreed upon by all of the Mayor,

While the number of 50 000 corresponds to the number of households in municipalities (evidently has

be CITY DISTRICT), whose mayors have signed the Declaration. The material on 8-

10 Petrovického the rapporteur proposed plaintiff evidence

have demonstrated the truth of the allegations in an interview with Ing. P. l. with JUDr. M. No.

pointed out that Ing. From., who was in the second issue of the Courier

the South-East of Prague (also in the cargo of 50 000 copies) clearly calls

citizens, to give him their vote. Therefore, if there was a violation of the law, so

on both sides, and in accordance with the principle of nemo turpitudinem suam allegare

potest (nobody can invoke his own dishonesty) should not be

decision on the invalidity of elections.



The appellant also challenges the criterion of the intensity of the protizákonnosti,

applied by the Supreme Administrative Court to justify its decision,

because the deduced that the intensity of the protizákonnosti necessary for a finding of

the invalidity of elections is naturally lower where there is a tight election result,

than in the case of a significant difference in votes. In its opinion, this

the criterion does not provide any fixed scale and, above all, in any case

It does not follow from the law. In addition, the Supreme Administrative Court proceeded in

contrary to this criterion, which has established itself, if it is defined as,

the intensity of the protizákonnosti it is necessary to refer to a person of the candidate

who was elected, but it itself refers to the person Ing. And, therefore,

an unelected candidate.



The appellant also complains that the Supreme Administrative Court, that its procedure

made it impossible to j. n. participation. Proposal for a decision concerning the invalidity of the

the elections along with a challenge to express has been addressed to the Senate of the Czech Parliament

of the Republic. So it happened that the n.e.c. was a proposal for the annulment

the election delivered to 7.12.2004, i.e., after the Court has already decided.

It was therefore not able to comment. In follow-up to this circumstance

the appellant in the Tween appeal still points to a completely

a different procedure in the management of the Supreme Administrative Court, which is challenged by

This remedy, and in proceedings where decisions about design

The Communist Party of Bohemia and Moravia on the invalidation of the election held on December 12. and

November 13, 2004 in the constituency No 31 (Ústí nad Labem). The main

irregularity in that it sees here were conducted by the Supreme Administrative Court

extensive evidence, while in the case of j. n. gave him nor the opportunity to

the draft on the invalidation of the election.



III.



Proceedings before the Constitutional Court



The Constitutional Court requested the observations of participants and intervention

the proceedings, which for this type of procedure defines the special provisions of section 88

Act No. 182/1993 Coll., on the Constitutional Court (hereinafter referred to as "the law of Constitutional

the Court ").



The Senate of the Parliament of the Czech Republic to a proposal by the Chairman

Mudr. Přemysl Sobotka. In the representation of the State of affairs and briefly summarises the

the contents of the appeal, which is directed against the resolution of the Supreme

Administrative Court of 3.12.2004, whereby it was decided that elections to the

Senate of the Parliament of the Czech Republic held in constituency No. 19 in

days 5. and in the days of 6.11.2004 and 12. and 13.11.2004 are invalid.

Describes the progress of the negotiations on the verification of the disputed election to the Senate. He stated that the

the constituent meeting of the fifth term within the section "message

the mandate and immunity Committee of the outcome of the examination of whether they were

individual senators elected, "the Senate took note of 54 votes

of all the senators present mandate and immunity Committee resolution No.

11 dated 14.12.2004 to this issue. By fully respects the decision of the

The Supreme Administrative Court.



For the Supreme Administrative Court expressed his Senate chairwoman of JUDr. (D).

N. to the procedural page stated that the proposal was filed prematurely, and should therefore

should be rejected under section 43, paragraph. 1 (a). (e) the Act on the Constitutional Court)

as inadmissible. This deficiency in its opinion has not been removed

by supplementing the submission of 20 April 2004. December 2004, because it's not about the extension

justification the original proposal, but a completely new proposal, which must be

decided individually. However, it is within the competence of the Constitutional Court, as it will be in the

This point. This is reflected in its final proposal, where

already the refusal does not last.



Further clarify the reasons why the delivery of the proposal on the annulment of the election

selected Senator J. N. to address the Senate. Stated that the highest

the Administrative Court was based on previous experience with similar delivery

cases, when this method proved effective. From his official activities

It was known that the election of senators in the Senate from objects

announcement of the results of the elections office. At the oral proceedings the highest

the Administrative Court said that the mandate of the senátorský shall select and is only

hard to imagine that the elected official began to carry out their

function considerably later. In each case, however, this fact alone

itself cannot be the reason to comply with the appeal, and with the

regard to the nature of the appeal proceedings before the Constitutional Court.



The Supreme Administrative Court does not agree with the appellant's assertion that the

the law deduced that the provisions of section 16. 1 the electoral law

applies not only to the election posters, but also on other communication

the options in the possession of the village. It is a constitutionally Conformal interpretation,

based on the principle of political pluralism, as enshrined in article. 21. 4

and the article. 22 of the Charter, and respecting the hierarchical organization and internal

souladnost the rule of law, according to which the law only instantiates the constitutional

understanding. The interpretation of the statutory provisions, as filed

the appellant, absurd and unconstitutional.



In its comments, which added the delivery at the hearing, the main

the emphasis on the neutrality of the State in the election, although in the grounds of his

the decision to this question at all. Considers it crucial that the

This is about public funds financed from public resources, and in them is

necessary to take on the objectivity of the news and allow all candidate

bodies to comment. A different approach would mean a violation of the constitutional

the principle of political neutrality of the State (article 2, paragraph 1, of the Charter). As far as

of section 16. 2 the electoral law shall be considered in the interpretation of this

provision by the appellant for an indirect denial of rights to the Electoral Court

to evaluate the correctness of the election, which is in contravention with article. 3.3 (a). (d)) of the code of

good practice, adopted by the Venice Commission at the Council

Europe. The view that the application of this provision as the reason of the invalidity of the

elections can jeopardise the principle of free competition of political forces, considers the

for improper. This conclusion by the appellant cited the decision of the

The Federal Constitutional Court of the Federal Republic of Germany (see above), as well as

another German case-law in this respect, on the contrary, be deemed to confirm

the legal grounds on which its decision is based. The Federal

the Constitutional Court of the Federal Republic of Germany in its decision, and it

with reference to the earlier German case law in this matter, he said in

constitutionally the way prescience did to the Electoral Court had permission to declare the nullity of

the elections due to "irregularities in the election process and the criminal act or

the negotiations to the detriment of good customs (manners) that affect the election

result. ". The German case-law, that the process of creating a will

the people must take place independently of the State and of the principle of freedom of choice and of the

the rights of political parties on the equality of opportunity implies a ban on influencing

the electoral fight of public works of the Government. Otherwise, it is threatened by

the validity of the elections.



As regards the plea of nepřezkoumatelnosti to the contested decision, JUDr. N.
said that in the Senate election, it is necessary to consider separately the two wheels

the election. The election law distinguishes between the proposal for annulment of the election and

the proposal on the invalidation of the election of the candidate. In the present case was judged

the nullity of a primarily first round of elections and their potential impact on the

the results of the second round. The invalidation of the elections was not, therefore, be assessed in the

respect to the person of the chosen candidate, but violations of the electoral process

in a way that could affect the overall results of the election. Any violation of the

the electoral law of Ing. And when from. the election campaign on the matter cannot have

no effect whatsoever.



Finally, at the end of dealing with the caveat of a different procedure in this matter

against the procedure in the matter of the proposal of the COMMUNIST PARTY on the invalidation of the elections in the electoral

circuit No. 31 in Ústí nad Labem. In that control was checked

the alleged violation of the electoral law of the Electoral Act, which

It was not possible to examine the interrogation of persons other than this Act.

In this case, it was therefore appropriate for the abandonment of the principle of nenařizování

negotiations under section 90 of the paragraph. 3 of the judicial code (hereinafter referred to as "the administrative with the line.

s.").



Finally, it proposed that the Constitutional Court rejected the appeal.



The stuff is also expressed through its representative side

participant of j. n. to associate himself with the appellant's proposal and stressed that the

not on the publication of printed materials (newsletters, and Uhříněveského

Petrovického newsletter), which in the opinion of the Supreme Administrative Court

could have an effect on the outcome of the elections. The opinion cited the authorization in the

the finding of the Constitutional Court SP. zn. I-526/98, that peace cannot be determined

violation of the electoral law a candidate whose election was declared

an invalid.



The appeal was also Ing. And, both myself and

on the one hand, through its legal representative. Due to the fact that

the circle of participants of this special procedure is in the Act on the Constitutional Court

exhaustively defined (see sub), could not be with him as a participant in the

the management of the branch.



IV.



The taking of evidence before the Constitutional Court



The Constitutional Court of the Supreme Administrative Court evidence file sp.

Zn. Vol 10/2004, which are part of the documentary evidence referred to in

the resolution of this Court of 3.12.2004 no j. Vol 10/2004-24. From

the documentary evidence submitted in the proceedings before the Supreme Administrative

the Court then beyond the findings listed under point I of this award

He said the contents of the leaflet called "an a. of.: Against Defamation

I must defend! ", which Ing. From. responded to the articles of the October numbers

Uhříněveského newsletter and flyer from 2.10.2004 named "and from:

Ruthlessness is intensifying attacks against me! ", which Ing. Responded to from the.

articles special numbers Petrovického newsletter.



From the resolution of the mandate and immunity Committee of the Senate of the eleventh meeting of the

14.12.2004 June the Constitutional Court found that the mandate for the election has not been authenticated

circuit No. 19, Prague 11, having regard to the fact that the Supreme Administrative

the Court ruled its resolution No. j. Vol 10/2004-24 that the election in this

circuit are invalid. This resolution passed Senator J. H. a report on the

the first meeting of the Senate 5. term of Office held and 15.12.2004

The Senate report was the mandate and immunity Committee on the results of the verification

the validity of the election of Senators take note. From the transcript of the stenografického

the hearing record 1. meeting 5. term of Office, the Senate held

15.12.2004 it was found that for the resolution to the vote of all 54

Senators present.



Submitted by the appellant from the letter envelopes and delivery reports

located in a file the Constitutional Court, the Supreme Administrative Court

He found that the challenge of the Supreme Administrative Court for an opinion on the proposal on

the decision on the invalidity of elections into the Senate held in constituency No.

19 in 5 days. and in the days of 6.11.2004 and 12. and j. 13.11.2004 was N.

delivered by registered post sent to his own hands on

"the Senate of the Parliament address, Attn p. S. N., Wallenstein. 7/4, 118

01 Prague 1 ". This consignment was taken over by the Office of the Senate, Mrs. officer

With the date of 23.11.2004. The resolution of the Supreme Court of the correct

No 3.12.2004. j. Vol 10/2004-24 was delivered by j. n. postal item

by registered mail to the address of "j. n., Senate of the Parliament, was the us. 7/4,

118 01 Prague 1 ". The shipment was for addressee's nezastižení saved the day

6.12.2004 and j. n. this consignment took 9.12.2004.



From No. 1 year 1 September 2004 and from No. 2 grade 1, November 2004

periodicals named Courier Southeast of Prague, it was found that is released

city quarter Prague-Kreslice, both in the cargo of 50 000 copies. Both

periodicals are always on three sides of the four engaged in various articles

the South-East around Prague. In no. 1 is an editorial by Ing. And z. and

It signed the article "Warning: the project continues", article JVK "what

the mayors of C, N and n are silent? "signed" the members of the Municipal Council of the town

part of Prague-Kreslice ", the article" How the management of the Prague City Hall keeps

the Prague Mayor in obedience ", signed by Mark-am-, the article" how to

the Prague City Council meeting took place on the crossroads ", signed

the brand name VK, article "What we sacrifice for hypermarkets in Šeberově",

signed J. P., and the article "chain against the citizens", signed

"citizen Petrovic". At no. 2 is an editorial by Ing. And, unsigned

a study of the development of the Southeast, "articles", "for information about the communication in

JVK route "and the" Bürgermeister promises, what fails! ", the article" Ing. AND FROM:

"If I'm a Senator, my vote for the rescue of the South-East of Prague, will be

much more to hear ", signed A. M., article" Senator must be scared "

signed P. P., and the article "Remain the Valley and Pitkovického Creek Botiče

publicly accessible? ", signed" the members of the Municipal Council of the CITY DISTRICT

Prague-Kreslice: Ing. F. P., CSc., k., k. s., m. k., T. P. H. M. "

which inter alia deals with the purchase of land. No, that are in the

the property of the State and on which the city of Prague-Kreslice plan

the planting of the forest. In the introduction, this number is also a message about that no. 1

periodical Editor's information was not given to all readers. In the bottom

part of the first party is also the information that the Council districts

Prague-Kreslice approved the issuance of Kurýru Southeast of Prague for

provided that the costs will be met by donations or advertising, in

during the summer, brought together the necessary resources from the special sponsor

donation.



Of the Charter entitled "Record of the meeting of mayors held 19 June. October

2004 ", it was found that the negotiations held the Mayor of the city of

Prague-Petrovice doc and it was discussed and the question of informing the

people on the Highway heading from the Mayor of the city of

Prague-Kreslice Ing. From the first issue of the periodical via Courier

the South-East of Prague. It was agreed that on the issue of costs

special numbers of the periodical newsletter, Petrovický should be

in response to a long-term campaign, led by the Mayor, with all

represented by the municipality will be involved according to the number of copies, which shall be issued by

in his district. The record was written by Ing. And with the Secretary of the Office of the municipal

part of Prague-Petrovice, and there are three illegible signatures.



Asking the Ministry of culture's Constitutional Court verified that the Publisher

Uhříněveského newsletter is a local Office of Prague 10-Uhříněves, Publisher

Petrovického newsletter is part of Prague-Petrovice, and Publisher

Courier is part of the South-East of Prague, Prague-Kreslice.



Ministry of the Interior were also requested from the results of the elections to the Senate,

that took place on the territory of Prague 5. and 6.11.2004 and 12. and

13.11.2004, as well as the results of the elections to the Municipal Council of the city of

The city of Prague and to the Councils of the parts belonging to the electoral

circuit No. 19 for the Senate election held on days 1. and 2.11.2002.



From the annex to the resolution of the State Election Commission of 8.11.2004 No 41 of the constitutional

the Court found that in the days of 5. and 6.11.2004 (that is, in the first round of the election)

on the territory of Prague held elections to the Senate in the districts No. 19-Prague 11, no.

22-Prague 10, and no. 25-Prague 6, with the following results:

+---------------+------------------+-----------------------------+----------------+

| Constituency | The number of registered | Number of cast official | The number of valid |

| č. | voters | envelopes | votes |

+---------------+------------------+-----------------------------+----------------+

| 19 | 102.236 | 25.880 | 25.726 |

+---------------+------------------+-----------------------------+----------------+



+-------------------------+---------------------+-----------+------------+

| Candidate | Logged on the election | Votes | V % |

| | party | | |

+-------------------------+---------------------+-----------+------------+

| J. N. | ODS | 10.201 | 39.65 |

+-------------------------+---------------------+-----------+------------+

| Ing. P. J. | SNK Association | 3.689 | 14.33 |

| | independent | | |

+-------------------------+---------------------+-----------+------------+

| Ing. A. OF. | KDU-CSL | 3.364 | 13.07 |

+-------------------------+---------------------+-----------+------------+

| J. D. | KSČM | 3.085 | 11.99 |

+-------------------------+---------------------+-----------+------------+
| Msc. D. K. | The path of change | 3.011 | 11.70 |

+-------------------------+---------------------+-----------+------------+

| Mudr. I. D., CSc. | The SOCIAL DEMOCRATS | 2.131 | 8.28 |

+-------------------------+---------------------+-----------+------------+

| Ing. P. H. | INDEPENDENT | 245 | 0.95 |

+-------------------------+---------------------+-----------+------------+



+-----------------+-------------------+----------------------------+----------------+

| Constituency No. | The number of registered | Number of cast official | The number of valid |

| | voters | envelopes | votes |

+-----------------+-------------------+----------------------------+----------------+

| 22 | 95.177 | 29.048 | 28.890 |

+-----------------+-------------------+----------------------------+----------------+



+---------------------------------+-----------------------------+--------+----------+

| Candidate | Logged on the electoral party | Votes | V% |

+---------------------------------+-----------------------------+--------+----------+

| Ing. J. M., CSc. | ODS | 10.068 | 38.84 |

+---------------------------------+-----------------------------+--------+----------+

| J. W. | The Green Party | 7.137 | 24.70 |

+---------------------------------+-----------------------------+--------+----------+

| Mudr. M., CSc. | The SOCIAL DEMOCRATS | 3.425 | 11.85 |

+---------------------------------+-----------------------------+--------+----------+

| Rsdr. K. H. | KSČM | 2.864 | 9.91 |

+---------------------------------+-----------------------------+--------+----------+

| Mudr. M. K. | European Democrats | 2.383 | 8.24 |

+---------------------------------+-----------------------------+--------+----------+

| Prof. Ing. L. M., CSc. | KDU-CSL | 1.811 | 6.26 |

+---------------------------------+-----------------------------+--------+----------+

| Bc. B. M. | ODA | 538 | 1.86 |

+---------------------------------+-----------------------------+--------+----------+

| J. (B). | Balbinova poetic party | 429 | 1.48 |

+---------------------------------+-----------------------------+--------+----------+

| Msc. (G). | INDEPENDENT | 191 | 0.66 |

+---------------------------------+-----------------------------+--------+----------+

| Msc. J. S. | The Czech national movement | 44 | 0.15 |

| | Unity | | |

+---------------------------------+-----------------------------+--------+----------+



+--------------+-------------------------+-------------------+----------------------+

| Constituency | The number of registered voters | Number of cast | The number of valid votes |

| č. | | the official envelope | |

+--------------+-------------------------+-------------------+----------------------+

| 25 | 90.499 | 31.945 | 31.763 |

+--------------+-------------------------+-------------------+----------------------+



+-----------------------+---------------------------+---------+-----------+

| Candidate | Logged on the electoral party | Votes | V % |

+-----------------------+---------------------------+---------+-----------+

| K. S. | US-DEU | 10.547 | 33.20 |

+-----------------------+---------------------------+---------+-----------+

| Ing. M. K. | ODS | 10.495 | 33.04 |

+-----------------------+---------------------------+---------+-----------+

| Rndr. E., CSc. | KSČM | 4.691 | 14.76 |

+-----------------------+---------------------------+---------+-----------+

| Doc J. K. | KDU-CSL | 3.455 | 10.87 |

+-----------------------+---------------------------+---------+-----------+

| Ing. J. T. | The SOCIAL DEMOCRATS | 1,935 | 6.02 |

+-----------------------+---------------------------+---------+-----------+

| FROM R. | The party of common sense | 447 | 1.40 |

+-----------------------+---------------------------+---------+-----------+

| J. S. | INDEPENDENT | 214 | 0.67 |

| | | | |

+-----------------------+---------------------------+---------+-----------+



From the annex to the resolution of the State Election Commission of 15.11.2004 No 42

The Constitutional Court found that in the second round of the elections into the Senate held on

the territory of Prague were following the election results.

+-------------+-----------------------+---------------------------+-----------------+

| Constituency | The number of registered voters | Number of cast official | The number of valid |

| č. | | envelopes | votes |

+-------------+-----------------------+---------------------------+-----------------+

| 19 | 102.149 | 19.003 | 18.907 |

| | | | |

+-------------+-----------------------+---------------------------+-----------------+



+-----------------------+--------------------------+----------+-----------+

| Candidate | Logged on the electoral party | Votes | V % |

+-----------------------+--------------------------+----------+-----------+

| J. N. | ODS | 10.407 | 55.04 |

+-----------------------+--------------------------+----------+-----------+

| Ing. P. J. | SNK Association of independent | 8,500 | 44.95 |

+-----------------------+--------------------------+----------+-----------+



+-------------+-----------------------+---------------------------+-----------------+

| Constituency | The number of registered voters | Number of cast official | The number of valid |

| č. | | envelopes | votes |

+-------------+-----------------------+---------------------------+-----------------+

| 22 | 95.189 | 24.105 | 24.031 |

+-------------+-----------------------+---------------------------+-----------------+



+-----------------------+--------------------------+----------+-----------+

| Candidate | Logged on the electoral party | Votes | V % |

+-----------------------+--------------------------+----------+-----------+

| J. W. | The Green Party | 13.296 | 55.32 |

+-----------------------+--------------------------+----------+-----------+

| Ing. J. M., CSc. | ODS | 10.735 | 44.67 |

+-----------------------+--------------------------+----------+-----------+



+-------------+-----------------------+---------------------------+-----------------+

| Constituency | The number of registered voters | Number of cast official | The number of valid |

| č. | | envelopes | votes |

+-------------+-----------------------+---------------------------+-----------------+

| 25 | 90.439 | 26.079 | 25.942 |

+-------------+-----------------------+---------------------------+-----------------+



+-----------------------+--------------------------+----------+-----------+

| Candidate | Logged on the electoral party | Votes | V % |

+-----------------------+--------------------------+----------+-----------+

| K. S. | US-DEU | 15.088 | 58.16 |

+-----------------------+--------------------------+----------+-----------+

| Ing. M. K. | ODS | 10.854 | 41.83 |

+-----------------------+--------------------------+----------+-----------+



From the annex to the resolution of the State Election Commission of 4.11.2002 No 26

The Constitutional Court found that when the elections to the Councils of the municipalities held

on 1 May 2004. and 2.11.2002 were the results of the elections of the Municipal Council of the capital city

The following thresholds:

+-----------------------+--------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+-----------------------+--------------------------+------------------------+

| 70 | 984.932 | 346.723 |

+-----------------------+--------------------------+------------------------+



+-----------------------------+-----------------------+---------------------+

| The electoral party | Of votes% | Representatives |

+-----------------------------+-----------------------+---------------------+

| ODS | 35.54 | 30 |

+-----------------------------+-----------------------+---------------------+

| Association of European Democrats, | 18.37 | 15 |

| nazávislí candidates | | |

+-----------------------------+-----------------------+---------------------+

| The SOCIAL DEMOCRATS | 14.66 | 12 |

+-----------------------------+-----------------------+---------------------+

| KSČM | 10.83 | 8 |

+-----------------------------+-----------------------+---------------------+

| US-DEU | 5.64 | 2 |

+-----------------------------+-----------------------+---------------------+

| A Coalition Of SNK, SZ, SOS | 5.03 | 2 |

+-----------------------------+-----------------------+---------------------+

| KDU-CSL | 4.56 | 1 |

+-----------------------------+-----------------------+---------------------+



The other 13 electoral parties had no mandate.



The results of the elections to the Councils of districts belonging to the

constituency No. 19 for the elections to the Senate were the Constitutional Court

found the following.

City quarter Prague 11



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |
+------------------------+-------------------------+------------------------+

| 45 | 65.505 | 22.155 |

+------------------------+-------------------------+------------------------+



+-------------------------------+---------------------+---------------------+

| The electoral party | Of votes% | Representatives |

+-------------------------------+---------------------+---------------------+

| ODS | 28.72 | 15 |

+-------------------------------+---------------------+---------------------+

| Association of independent | 20.97 | 11 |

+-------------------------------+---------------------+---------------------+

| The SOCIAL DEMOCRATS | 13.68 | 6 |

+-------------------------------+---------------------+---------------------+

| KSČM | 12.95 | 6 |

+-------------------------------+---------------------+---------------------+

| Association Of ED, NK | 11.70 | 6 |

+-------------------------------+---------------------+---------------------+

| The Association of independent candidates | 2.46 | 1 |

| -local Association | | |

+-------------------------------+---------------------+---------------------+

| US-DEU | 5.08 | 0 |

+-------------------------------+---------------------+---------------------+

| KDU-CSL | 4.07 | 0 |

| | | |

+-------------------------------+---------------------+---------------------+



The other two parties have not received no electoral mandate.



City quarter Prague-Benice



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 7 | 315 | 266 |

+------------------------+-------------------------+------------------------+



+-------------------------------+---------------------+---------------------+

| The electoral party | Of votes% | Representatives |

+-------------------------------+---------------------+---------------------+

| ODS | 34.37 | 4 |

+-------------------------------+---------------------+---------------------+

| M. (C). | 10.79 | 1 |

| (independent candidate) | | |

+-------------------------------+---------------------+---------------------+

| TO C. | 9.58 | 1 |

| (independent candidate) | | |

+-------------------------------+---------------------+---------------------+

| J. L. | 9.47 | 1 |

| (independent candidate) | | |

+-------------------------------+---------------------+---------------------+



The other 5 independent candidates did not receive even one mandate.



City quarter Prague-Dolní Měcholupy



+------------------------+------------------------+-------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+------------------------+-------------------------+

| 9 | 943 | 553 |

+------------------------+------------------------+-------------------------+



+----------------------------+-------------------------+--------------------+

| The electoral party | Of votes% | Representatives |

+----------------------------+-------------------------+--------------------+

| ODS | 65.14 | 7 |

+----------------------------+-------------------------+--------------------+

| The SOCIAL DEMOCRATS | 13.42 | 1 |

+----------------------------+-------------------------+--------------------+

| KDU-CSL | 12.38 | 1 |

| | | |

+----------------------------+-------------------------+--------------------+



Another one of the election the party no mandate.



City quarter Prague 15



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 25 | 22.659 | 7.275 |

+------------------------+-------------------------+------------------------+



+----------------------------+-------------------------+--------------------+

| The electoral party | Of votes% | Representatives |

+----------------------------+-------------------------+--------------------+

| ODS | 43.08 | 11 |

+----------------------------+-------------------------+--------------------+

| The Coalition Of The SZ, SNK | 18.12 | 5 |

+----------------------------+-------------------------+--------------------+

| The SOCIAL DEMOCRATS | 17.51 | 5 |

+----------------------------+-------------------------+--------------------+

| KSČM | 9,7 | 2 |

+----------------------------+-------------------------+--------------------+

| US-DEU | 7.76 | 2 |

+----------------------------+-------------------------+--------------------+

| KDU-CSL | 3.83 | 0 |

+----------------------------+-------------------------+--------------------+



City quarter Prague-Kolovraty



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 13 | 1.493 | 900 |

+------------------------+-------------------------+------------------------+



+----------------------------+-------------------------+--------------------+

| The electoral party | Of votes% | Representatives |

+----------------------------+-------------------------+--------------------+

| ODS | 78.43 | 11 |

+----------------------------+-------------------------+--------------------+

| KSČM | 17.63 | 2 |

+----------------------------+-------------------------+--------------------+



One independent candidate gained no mandate.



City quarter Prague-Královice



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 5 | 217 | 115 |

+------------------------+-------------------------+------------------------+



The Association of independent candidates in Prague-Královicích, which

as the only candidate, had won all the seats.



City quarter Prague-Kreslice



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 7 | 279 | 188 |

+------------------------+-------------------------+------------------------+



+----------------------------+-------------------------+--------------------+

| The electoral party | Of votes% | Representatives |

+----------------------------+-------------------------+--------------------+

| Association Of KDU-ČSL, NK | 52.41 | 4 |

+----------------------------+-------------------------+--------------------+

| Association of independent | 22.41 | 2 |

+----------------------------+-------------------------+--------------------+

| Citizens Association Starting | 16.47 | 1 |

| -Association of NK | | |

+----------------------------+-------------------------+--------------------+



Another one of the electoral party and one independent candidate

did not receive any mandate.



City quarter Prague-Nedvezi



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 9 | 196 | 123 |

+------------------------+-------------------------+------------------------+



Candidate prepared – 7 independent candidates, who were all

elected.



City quarter Prague-Petrovice



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |

| Councillor | | |

+------------------------+-------------------------+------------------------+

| 15 | 4.664 | 1.973 |

+------------------------+-------------------------+------------------------+



+-----------------------------+-----------------------+---------------------+

| The electoral party | Of votes% | Representatives |

+-----------------------------+-----------------------+---------------------+
| Citizens Association Petrovic | 19.24 | 3 |

+-----------------------------+-----------------------+---------------------+

| OPTIM-ECO | 18.91 | 3 |

+-----------------------------+-----------------------+---------------------+

| ODS | 16.29 | 3 |

+-----------------------------+-----------------------+---------------------+

| Association of independent | 13.63 | 2 |

+-----------------------------+-----------------------+---------------------+

| The SOCIAL DEMOCRATS | 12.22 | 2 |

+-----------------------------+-----------------------+---------------------+

| Citizens for Abu Dhabi | 7.92 | 1 |

+-----------------------------+-----------------------+---------------------+

| KDU-ČSL and nez. of his/her identity. | 5.54 | 1 |

| Petrovic | | |

| | | |

+-----------------------------+-----------------------+---------------------+



The other two parties have not received even one electoral mandate.



City quarter Prague 22-Uhrineves



+------------------------+-------------------------+------------------------+

| The number of elected members | The number of registered voters | Number of cast envelopes |



| Councillor | | |

+------------------------+-------------------------+------------------------+

| 21 | 3.854 | 1.883 |

+------------------------+-------------------------+------------------------+



+----------------------------+-------------------------+--------------------+

| The electoral party | Of votes% | Representatives |

+----------------------------+-------------------------+--------------------+

| ODS | 70.02 | 15 |

+----------------------------+-------------------------+--------------------+

| The SOCIAL DEMOCRATS | 17.56 | 4 |

+----------------------------+-------------------------+--------------------+

| Association of independent | 9.97 | 2 |

+----------------------------+-------------------------+--------------------+



The other two parties have not received even one electoral mandate.



The proposal on the implementation of the documentary evidence, the applicant marked as

"Annex A-D" was dismissed for redundancy, because in part it was only about

the claim of the petitioner, and partly it was the evidence relevant to the

the present case.



In the.



Assessment of the conditions for the proceedings before the Constitutional Court



First, the Constitutional Court assessed whether the conditions are met, management

which can act and make decisions on the appeal against the decision of the

in the matter of the verification options, members or the Senator under the fourth section

the second part of the Act on the Constitutional Court. The current substantive and

procedural edit is unclear, since it is not clearly specified,

What is an appeal directed. The provisions of the article. paragraph 87. 1

(a). (e)) of the Constitution and section 85 of the Act on the Constitutional Court correspond to the legal

the State at the time when these laws were adopted. By then,

section 47 of the Act in force the CZECH NATIONAL COUNCIL No. 54/1990 Coll., on elections to the Czech national

the Council was the Supreme Court of the Czech Republic on the basis of the electoral

complaints resolution only their opinion, which was obliged to send

The Czech National Council. Its mandate and immunity Committee pursuant to § 40 paragraph. 1

(a). and the CZECH NATIONAL COUNCIL) Act No. 35/1989 Coll., on the Czech National Council's rules of procedure,

even on the basis of this opinion, that individual members of the Czech

the National Council were elected, and then had its proposal pursuant to article.

paragraph 113. 2 the Constitutional Act No. 143/1968 Coll., on Czechoslovak

the Federation, the validity of the election of members to verify the Czech National Council. In this

the legislative situation, it was logical that the appeal should be directed

against the decision of the Czech National Council (read the relevant Chamber

the legislature) on the verification of the elections of the Member.



Currently valid legislation fundamentally strengthen the role

judicial review of the validity of the election, which is now entrusted with the Supreme

Administrative Court. It's not the opinion contained in the resolution, but

the resolution, which is decided on the merits of the invalidity of the elections,

the vote or election of a candidate (section 90 (1) of s. l. s. in connection with section 53

paragraph. 1 of the same Act). The mandate and immunity Committee of the relevant Chamber

Parliament is then based on the registration of the State Election Commission, and, where appropriate,

and the decision of the Supreme Administrative Court of the outcome of the elections also

the obligation to examine the validity of the election. Or the rules of procedure of the Parliament Chambers,

another law or the Constitution itself currently does not address the who, how,

to what extent and under what circumstances, the choice of a Deputy or Senator

validates. This led to the practice of Chambers of Parliament only take

Note the message of their mandátových and immune of the committees. Therefore, in this

this case, as in the case, which was solved by the constitutional

the court below SP. zn. I-526/98, nerozhodoval the Senate so that it does not verify the

the choice of the Senator, but only took note of the report of its

the mandate and immunity Committee, in which he notes that the choice could

be verified with regard to the decision of the Court. While authentication choices purely

formal (i.e., due to the linguistic expression) does not perform its

decision or the Supreme Administrative Court or the National Electoral Commission or other

authority.



For comparison, in the period of the pre-war Czechoslovak Republic was

authentication options and Senator the Chamber completely defined

otherwise than as it has been for the latest legislative adjustments.

Electoral Court has defined validation so that-"verification options

MPS is the nature of your certificate, in the person of the chosen are met

the conditions of eligibility are his, and that is not the reason, which would be of

eligibility is precluded "(a collection of important decisions and resolutions

the Electoral Court. III. part of Prague, 1925, usn. No 119, with. 52). Such

the model should now match the verification of compliance with the terms of the provisions of

article. 19 paragraph. section 57 of the Constitution and the electoral law. Similar to the concept of authentication

the Chamber of the Parliament and the Constitutional Court suggested SP. zn.

I-526/1998. In this case, however, were two different and

legally different decision and as well would vary the legal proceedings,

that preceded them. While in the case of authentication you would

the public certificate of the result of the decision of the people. the voters of the

constituency, which, if proven otherwise (it is possible

the new decision on the basis of the recovery proceedings), in the case of a decision on

the validity of the election of the Supreme Administrative Court of the individual legal

the Act, which applies the principle of rei iudicatae. In the current legislation

These concepts are not sufficiently differentiated, moreover, is problematic and completely

particular, that the decision on this issue is entrusted with even three authorities

(not counting the conclusions of the State Election Commission on the final outcome of the election),

Although usually applied decision making one authority (Parliament or the

the Electoral Court). However, the first two bodies (Parliament, or its

the special authority that verifies only, and only after the Court).



In accordance with the provisions of the law on the Constitutional Court may appeal

submit a resource Member, Senator, or the electoral party, for which the

Member of Parliament or Senator, and ran it against a decision that was not

validly elected, or one whose electoral complaints by the electoral

the law was upheld, against a decision of the competent Chamber of the Parliament

or its authority to verify the validity of the election of a Deputy or Senator.

Not only the appeal against the decision of the competent Chamber of Commerce

Parliament, but also of the appeal against the decision of that Member

or Senator was not validly elected. It can be inferred by the systematic

the interpretation of the whole section, as it is a party to the proceedings under section 88, paragraph. 1

the law on the Constitutional Court and the authority of the invalidity of the election of members

or Senator. Under the current arrangements, is entitled to a decision on the

the invalidity of the election to accept the Supreme Administrative Court. It follows from this that

the appeal is directed against the decision of the Supreme Administrative

of the Court. Indeed, this interpretation can be deduced from a finding sp.. I-526/98

[A collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "Collection

the decision "), Volume 13, finding no 27, p. 203; published under no.

70/1999 Coll., on whose grounds] Constitutional Court refers. The Constitutional Court

Finally concludes that the issue in question must be interpreted so as to

persons entitled to appeal could not as a result of

problematic editing admit legal injury.



The appeal was filed the Civil Democratic Party, which

the next participant signed up to the register, i.e. the body that is

actively legitimován this resource. The Constitutional Court has been delivered

13.12.2004 June. The ambiguity and lack of uniformity of the current legislation is

manifested, inter alia, on the issue of the timeliness of the appeal,

How to do it in his comments and pointed out the Supreme Administrative Court. It is not only

the question of whether this period stems from the resolution of the competent Chamber of Commerce

Since the decision of the Parliament, or the Supreme Administrative Court in the same

things. Of this, that the parties to the proceedings before the Supreme Administrative

the Court is distinct from the circle of persons entitled to appeal
(as will be discussed in more detail about this later). While the proceedings before the

The Supreme Administrative Court are parties to the proceedings the applicant, the competent

the election authority and the one whose election was challenged, persons authorized

appeal are the appellant in the proceedings before the Supreme

the Administrative Court, the one whose election was challenged (also member of,

Senator), and finally the election party, for which he was elected, as is the case in

the present case. Whereas, in that election, the party is not even a participant in the

proceedings before the Supreme Administrative Court or a member of the relevant Chamber

The Parliament, or the Supreme Administrative Court decision or

the decision of the relevant Chamber of Parliament cannot be, formally speaking,

never properly notified. The Constitutional Court thus notes that, even here, the edit

wasn't behind the development of the electoral legislation and can be considered as

unnecessarily complex. Due to the above naznačenému opinion on the necessity of

interpreted unclear legal provisions to the person authorized to submit

the appeal could not make the injury as a result of this confusion, you can

to conclude that, given the date of the decision of the Supreme Administrative

the Court in this case (3.12.2004) is a ten-day period shall be considered as

the last first day of 13.12.2004. The Constitutional Court therefore

notes that the appeal was filed in a timely manner, and in no case

You cannot treat the appeal as premature.



As regards the scope of the review in the framework of the procedure on the appeal,

There was no need to address this question with regard to this, that the appeal

attacks all the essential reasons for the resolution of the Supreme Administrative Court

(closer to the sub II.).



The circuit was also assessed by the participants and the side of the parties. That is the

for this type of control is defined in the provisions of section 87 and section 88 of the Act

of the Constitutional Court. It is a special provision in relation to the General

the provisions of section 28 of the Act on the Constitutional Court. It follows from those provisions,

that party nor intervener proceedings instituted under section

paragraph 85. 1 (a). and the Act on the Constitutional Court) is not the one who filed a proposal for a

The Supreme Administrative Court annulling the elections and its design

It was granted. His participation in the proceedings cannot be inferred from article. paragraph 36. 1

Charter, since it ensures the protection of individual rights. The subject of the

the appeal procedure under section of the fourth law is protection of the

the electoral rights in General, especially the election outcome, which legitimizes

Parliament to exercise its competences in the composition, which reflects the will of the

voters. The Mission of this part of the adjustment of the electoral justice system, therefore, is not in the

Firstly, the provision of the protection of subjective rights of candidates and voters,

but protection of the electoral management or the process as a whole, which corresponds to the

definition of circuit operators actively legitimised to the submission of the proposal

The Supreme Administrative Court (article 90, paragraph 1, s. l. s.). The protection of the

subjective rights in such proceedings is not excluded, but it is only

the main functions of this control reflex. The Mission of this special procedure

is the protection of the electoral process and its outcome, to protect the subjective

rights are intended to protect the rights of other procedural means, how it predicts

for example. the civil code, the press law, the law on radio and television

the broadcast, but also the electoral provisions in the framework of the so-called. opposition proceedings, all

using the principles of vigilantibus non dormientibus, is subveniunt [the right to

helps the watchful, not sleeping (the Codex Iustinianus 7, 40, 1)]. The law in this

the direction is clear, and therefore did not create space or for the procedure according to §

28 paragraph. 3 the law on the Constitutional Court. Yet it was Ing. And the possibility of.

access to the file of the Constitutional Court, in accordance with section 63 of the Act on

The Constitutional Court considered the use of section 44, paragraph. 2 of the code of civil procedure, as

for it was on his side, found a serious reason.



Under section 15, paragraph. 1 of the law on Constitutional Court of appeal decide Constitutional

the Court in the cases referred to in article. paragraph 87. 1 and 2 of the Constitution, which does not belong to

the scope of the plenum. The scope of the plenum is defined in section 11 (1). 1 of the Act,

with the letter k) [to 31.3.2004 letter j)-Note. Red.] This

provision allows, to the plenary of the Constitutional Court's reserved to

decision making and other things than that are in section 11 (1). 1 the law expressly

listed. This authorisation, the plenary of the Constitutional Court have used and their

in its resolution of 18 December 2003. December 2003, published under no. 14/2004 Coll.

among other things, lays down that the reserves decision on appeal

against the decision in the matter of the verification options, members or Senator according to the article.

paragraph 87. 1 (a). (e)) of the Constitution. Because the proposal was attacked at the time of the Constitutional Court

the validity of this order, is competent to decide the plenary

The Constitutional Court.



Plenum of the Constitutional Court therefore concludes that the conditions are met, for

which can act and decide on the proposal. Recalls that only the constitutional

the Court is competent to decide in the range defined by the Constitution and the law on

The Constitutional Court. This procedure, therefore, cannot replace the criminal proceedings,

offence, the civil proceedings or the print rights. As well

so this procedure (e.g. in cases concerning the protection of personality in accordance with § 11 and

subs. Act No. 40/1964 Coll., the civil code, as amended

regulations) cannot serve as a procedural means to contest the validity of the

the election.



VI.



Substantive examination



As already mentioned, the primary function of the appeal procedure

against the decision in the matter of the verification options, members or the Senator is

ensure the proper implementation of the elections. More specifically-options to be

carried out properly or correctly in regular intervals ("genuine

periodic elections... "," d ' elections, honnétes périodiques... "-article. 25

The International Covenant on Civil and political rights, the older edit

She spoke about the purity of the election) on the basis of General, equal,

direct suffrage, secret ballot, while respecting the freedom of

the choice of the citizens. This is a basic international standard of free scale

and democratic elections. The task of the Constitutional Court in this particular

the case is not to assess whether our edit of the electoral justice system corresponds to the

all the requirements of the constitutional order (in particular article 1, paragraph 1, article 2, paragraph 1.

1, article. 5, article. 6, article. 18 paragraph. 2, article. 19 paragraph. 2 and 3 and article. 20 of the Constitution, and

Furthermore, article. 2, article. 17, article. 21. 1, 3 and 4 and article. 22 of the Charter).

the international commitments of the Czech Republic (in particular, article 25 of the international

Covenant on Civil and political rights and article. 3 of the additional protocol

to the Convention on the protection of human rights and fundamental freedoms). The essence of this

management is to ensure the observance of these rules, taking the initiative to bring

control mechanisms can give not only the right to vote in

the subjective meaning of has been infringed, but each of the bodies concerned (section

paragraph 90. 1. l. s.). The subject of the proceedings from the point of view of substantive law then is

the assessment of whether the competent authorities verify the elections. decide on the

their validity, progressed within the limits and according to the rules, which they

lays down the relevant constitutional and statutory provisions. The Constitutional Court may

decide on appeals against the resolutions of the Supreme Administrative

the Court and the Senate, however, this does not mean that it is bound only by the limits of section 87, paragraph.

3 to 5 of the electoral law. In the position of final instance

the electoral justice system remains the protection of constitutionality of judicial authority, and

the basic measure of its decisions are, therefore, the above provisions

the constitutional order and the law on the Constitutional Court.



From the point of view of the Constitutional Court considered the essence of the matter lies in ensuring the

protection of the fundamental provisions of the constitutional order, from which it follows

the principle that is the source of all the people of the State power, and, inter alia, in the

This role contributes to the setting of the path of free and democratic

the election. This also corresponds to the legal adjustment of the electoral justice system and verification

the election. For the procedural arrangements for the election of the judiciary and the procedure in such a

as a result of a rebuttable presumption that the election result corresponds to the

the will of the voters. Provide evidence to refute is the responsibility of

who the electoral misconduct claims. This view is in the course of the 20th century. century

Giuliani has virtually universally. The view of the theory and practice of the election 19.

of the century, according to which any illegality result in invalidation of the

the election, if it is proven otherwise, has already been surpassed. It is therefore not

crucial, whether for review will be elected to the three-step system, how it

the pattern of its pre-war predecessor is the Supreme Administrative Court, or

system one, two or four steps (breaking the law-the causal

link-the gravity of the infringement-effect on the composition of the Parliament), and what

the methods of doing so will be chosen. Our electoral judiciary absolute

defects of the electoral procedure (called absolute messes up the electoral procedure), i.e..

such a violation of the provisions of the electoral code, which would

result in automatic cancellation of the election, the election of a candidate or a vote.

All possible defects and errors in this sense should be considered

the relative and their significance is to be measured by their impact on the outcome of the

elections to the representative body as such or to the outcome of the election

of a particular candidate. the result of the vote, and in accordance with the principle of

of proportionality. The electoral law of possible violations of the election boils down to the defects
the provisions of this law "-in the management of the ústavností of this narrowing of the

There was no need to deal with. This process is based on the constitutional principle of

protection of the decision, which came from the will of the majority, expressed the free

decision-making and respecting rights of minorities (article 6 of the Constitution), as already in the

different context, the Constitutional Court expressed in finding SP. zn. PL. ÚS 5/02

(A collection of decisions, Volume 28, find no 117, p. 25; promulgated under no.

476/2002 Coll.). Edit options, Alternatively, authentication is based

on the assumption of objective causal relationship between the defect and the election

the composition of the representative Council or at least a possible causal link

(understanding potential causality in the Electoral Justice). This possible

the causal link, as it enshrines the § 87 electoral law, however, is

should be interpreted not as a merely abstract possibility. From the article. 21. 4

The instrument can be inferred the right of the selected candidate for the undisturbed exercise of functions

After a set period of time [cf. Constitutional Court SP. zn. Pl. ÚS

30/95 (collection of decisions, volume 5, finding no 3., p. 17; promulgated under the

No. 31/1996 Coll.), which emphasized the right of the candidates, if elected, these

function without barriers to exercise]. It should be inferred that the decision

the voters as the sovereign, the Court of the power to change only in exceptional

cases where defects in the electoral process have caused or might have proven to be

cause the voters decided otherwise and would be elected to the other candidate.

The subject of the proceedings is therefore the invalidation of the election of J. N., not not selecting

Ing. And even from the German case-law., on which the parties

pointed out, is based on the permission of the Court to cancel the election only in the case of

a proven causal link between electoral and defects

the results of the elections.



This is a basic constitutional basis, establishing the Constitutional Court drove while

deciding this matter. In the present case, it was possible to reduce the

constitutionally Conformal interpretation of § 16. 1 and 2 of the electoral law, which led

The Supreme Administrative Court for the annulment of elections in the Senate election

circuit No. 19. These provisions are worded as follows:



"(1) For the electoral campaign, the Mayor may reserve the area for hang up

election posters, and 16 days prior to the date of the election. The possibility of its

use must comply with the principle of the equality of the candidate of the political

Parties and coalitions, or candidates for election to the Senate.



(2) the electoral campaign must be conducted honestly and fairly, in particular on the

candidates and political parties or coalitions, on the

ballots are listed, published false information. "



The electoral campaign is one of the aspects of the evaluation duly carried out by the

free and democratic elections. In terms of its definition, which

happened in the present case, the subject of the dispute, the Constitutional Court of předesílá,

the election campaign is no longer in the electoral law explicitly defined in terms of

their length and content. It is the essential characteristics of our electoral

law, unlike many other States, where it is often a question of, in particular,

means of promotion and election materials, not to mention checking and

restrictions on campaign spending, edited in great detail. Time

the period for the putting up of posters is the only regulatory measures, which

modifies the ratios. the hot phase of the election campaign. The electoral campaign, however,

You can logically and rationally speaking, lead from the normative point of view only

If elections are announced (in terms of subject matter). they are already

registered candidate or candidates (from the point of view of the body). It

Naturally, that does not mean voters does not affect a number of other important

long-term factors from the standpoint of the algorithm-getting information for

the election decision-awareness of own interests-passion

the opinions and assessment-the decision to vote for a particular party or

the candidate. It is a long process of shaping the election's preferences.

The opinion of the appellant, that the election campaign is only the last 16

days before the date of the election, therefore, cannot be accepted.



Our electoral legislation already have left the definition of the electoral campaign as

a certain period of time, as it introduced the eg. § 27. 1 of law No.

54/1990 Coll., on elections to the Czech National Council. This will avoid problems

associated with the election, accusing the party that started the electoral campaign

prematurely, as well as the limitations that there is freedom of speech and

the right to information. With regard to the removal of moratoria for election

agitation has such a definition is not required. As regards local

the media, originally was their use as possible, after

the problematic experience was the amendment of the Act on elections to the Czech

the National Council (Act No. 94/1992 Coll., amending and supplementing Act

The Czech National Council No. 54/1990 Coll., on elections to the Czech National Council, in

the texts of the laws of the Czech National Council No. 221/1990 Coll. and no 435/1991 Sb.)

prohibited the use of local radio to electoral agitation of political

the parties, with the exception of a mere notification of the convening of the electoral Assembly. This

editing took over and Act No. 247/1995 Coll., on elections to the Parliament of the Czech

Republic and amending and supplementing certain other laws. Law No.

204/2000 Coll., amending Act No. 247/1995 Coll., on elections to the

The Parliament of the Czech Republic and amending and supplementing certain other

laws, as amended by Act No. 212/1996 Coll., and the finding of the Constitutional Court

published under the no 243/1999 Coll., Act No. 99/1963 Coll., the code of civil

of procedure, as amended by later regulations, and Act No. 2/1969 Coll., on establishment of the

ministries and other central bodies of State administration of the Czech Republic,

in the wording of later regulations, then the local editing

Radio completely. As well as to respond to the developments in this area, when the municipality

issued by your rapporteur, and in addition to local radio also have their

tv, teletext and websites.



And (vi).



Under section 16(1). 1 can the Mayor to reserve the area for hang up election

posters, and sixteen days prior to the date of the election. The possibility of its use

must conform to the principle of the equality of the candidate of the political parties and

coalitions. candidates for election to the Senate. The Supreme Administrative Court of

This provision of the extensive interpretation deduced that it is only

"an outline of the General non-exhaustive approach to communication

options, with which it has a municipality ". In his opinion, it is clear

the conclusion that the principle of the equality of those bodies must be respected

When the use of all means of communication in the possession of the village.



The Constitutional Court with such approach to the interpretation of section 16. 1

the electoral law completely disliked. In the first place from the legal provisions

It does not follow that the measure is to achieve equal use of the Mayor

reserved area for putting up election posters bodies election. In

the practice will be that these areas must have access to each of the

them. Equality of access is equal opportunities to use these areas,

not really, as were the bodies of the options used. Because of the mere

the fact that some of the vylepily on the specified area less than other posters

or that even some nevylepily posters, no, you cannot, without further

Moreover, they have not retained the use of equal possibilities.

Each paragraph of section 16 of the electoral law must be interpreted in the overall

context. Therefore, it cannot be overlooked that there are exactly defined

the conditions under which you can use in addition to space for putting up election posters

used for election campaign of public media. Printed matter, whose

the publishers are the municipalities, have their nature rather closer to

the public media than to the areas for putting up election posters.

If the legislature wanted to lay down rules for their use in the

during the election, he would have to do so directly in the law, as was the case on the

in the early 1990s. years.



The election law provides that legislation into practical form

performs one of the fundamental political rights, namely the right to vote and to be

as a candidate, expressed in the article. 21 of the Charter. According to the article. 21. 3, last sentence

The Charter lays down the conditions for the exercise of the voting rights act. If the law

does not prohibit the use for election campaign of periodical municipalities, then, is

can be used for the election campaign, while maintaining the equality of electoral access

of the parties. The interpretation Act cannot extend the law where it is not in the

the law, in particular where it is not a performance vrchnostenských

permission of the municipality as a public corporation. The provisions of section 16. 1

the electoral law is clear thus far formulačně that applies only to the

areas for putting up election posters. The purpose of this provision, the

There is no rule in the first place for the conduct of the election campaign, but

the Mayor's mandate in the area of public order and preventive protection

assets prior to the "wild" putting up posters for a long time before

by taking a vote. The obligation to ensure equal access, then it follows from the above

referred to constitutional principles. Meanwhile, in the present case was not about whether

should Ing. From. access to these media, but whether the publication referred

material breach rules of conducting the election campaign, as

provides section 16. 2 the electoral law. On respect for the equality of access

electoral parties to the media, which are issued by public corporations,
not in terms of the article. 5 of the Constitution and article. 22 of the Charter of the dispute.



VI. (b).



The primary issue in the case, therefore, is not a violation of section 16. 1

the electoral law, which could be hypothetically presumed only

extensive commentary, and only in the case that would not be the election of the party

admitted to the media. As a basic premise

its qualified opinion sees the Supreme Administrative Court violation

the principle of fair and honest leadership election campaign, as defined in section

16. 2 the electoral law. It was, in his opinion, when filled

against Ing. From the mentioned articles have been published. "and the Declaration. The highest

administrative court sees the violation of the principle of the equality of those entities

in fact, that in two journals, the publishers are the municipalities, the

came out just before the election, two articles, containing criticism of one of the

the candidates of the election, which is, according to his opinion, incorrect and unfair. Even if the

paid the Supreme Administrative Court concluded that the Constitutional Court

disagree that these prints are the same as the area designated by the Mayor

for putting up posters, no violation of the principle of equality as

It is referring to the provisions of section 16. 1 the electoral law. It's about the right

equal access, not about the obligation of all those options make

particular, for all the same, the number of posters. In this sense, therefore, was

You can talk about inequality only if for example. Ing. Posted by from.

the two periodicals from their shuttered its electoral post, and you should

It refused to print. No such findings, however, the Supreme Administrative Court

has done so.



The provisions of section 16. 2 the electoral law is essentially the result of

the unwillingness of players to enter into the election campaign of the agreement on

the rules of the electoral struggle with determining the "arbitration", which will be assessed,

whether the obligations of such agreement are fulfilled "honestly and fairly". Just

to the rules of this turnover is directed, cannot be inferring meaning

for example. good manners according to § 3 (2). 1 of the civil code. As well as

the election of the legislature itself was willing to handle the electoral code of conduct,

as well as the affidavits concerning the conduct of the election campaign, which must

sign for those who wish to stand as a candidate. It was his stuff that the newly edited

the nature of the electoral authorities. It was, however, that no longer exists

such electoral authority, which would at least oversaw compliance with legal

the legislation on elections and reasoned conclusions of flexibility still in time

the election campaign.



There is no doubt that the media, which have territorial

authorities, even though it's not official journals to which the print

the law does not apply, are subject to the terms of use in the election campaign

the stricter rules, than is the case with the publishers, who are

persons in private law. Does not mean it is their obligation to ensure the

mechanically the same space for each candidate parties and persons, and

Here, however, must apply the rule of equal "access" options. Another

the procedure would be contrary to the rules of free competition of political parties

According to the article. 5 of the Constitution and the free competition of political forces, according to the article. 22

Of the Charter. If you already use such media legislature

does not prohibit, their use must be for the purpose of electioneering as measured

the rules of equality of opportunity and the Publisher or operator of such

the media must consider whether he is able to respect the

such a principle to ensure. You cannot, however, agree with the appellant,

According to that rule article. 2 (2). 3 of the Charter, that what is not prohibited,

is permitted. For these prints in case their disclosure of election

the Parties shall apply the principle of equality of opportunity, which stems from the principle of free

competition of political parties and political forces (article 5 of the Constitution, article 22

Of the Charter), how to correctly deduced the Supreme Administrative Court. A different procedure would

could voters indicate that the municipality as a public corporation prefers

only some electoral parties.



It is not disputed that the printed matter, issued as the municipal newsletters, by

that are in the hands of public authorities, shall preserve the integrity and neutrality.

In the position of the Mayor, the candidate must comply with certain rules, as in the

This is an official position and, therefore, does not, in General, freedom of expression as

the ordinary citizens. In short, it cannot take advantage of their position of Mayor for the

his election campaign or for the electoral campaign of someone else. From

submitted materials, shows that the promotion of mayors against Ing. A. Z.,

whether direct or indirect, was not in accordance with the requirements of fair and

honest leadership election campaign (in particular the abuse of anonymu), how can I

inferred from section 16. 2 the electoral law. In the articles, that

taking into account exclusively the Supreme Administrative Court, it was not about the clash of candidates on

the function of a Senator, but a dispute over the mayors, who have different opinion on

investment actions that affect them to varying degrees in the urban areas,

and who use the vulnerable position of the opponent to a more effective attack on the

his person. At the time of the election campaign, it should be seen as an attempt to

influencing the outcome of the election, even if the Constitutional Court found that as

affair lasting longer, and in this case it was a response to the

another supporter of the performances that ran at the same time to the Senate.



Another issue is the demeanor of the mayors and other municipal officials

authorities in such funds, such as in this case. Here is no longer

on the question of equality of opportunity of the political parties, for which they were elected, but

on the question of their performance as public officials, representing the

the interests of the municipalities and their inhabitants, as it follows from the wording of their promise,

undertaking on my honour and conscience that their function will be

carry out conscientiously, in the interest of the municipality (the city) and its (their) citizens, and

to follow the Constitution and the laws of the Czech Republic [cf. section 69 (2) of law No.

128/2000 Coll., on municipalities (municipal establishment)]. In this case, cannot be

claim that they can stand out by virtue of their function in the electoral campaign in the

benefit of certain parties and challenge as public officials and official

the person (and not as a physical person) the freedom of expression pursuant to article. 17

Of the Charter. However, this does not mean that, as party officials or as

natural persons may not act in the election campaign or even

stand, so nothing but does not forbid that, when this

alighting place for its function. That the Mayor acts in the political

or other dispute policies (rather than as an official person) does not mean that

will not be able to mention the fact that it is the citizens of the village usually notoriously

known. It would be absurd to deny the mayors and other public officials and

the official persons engage in the election campaign. And it would be a violation of the

equality of opportunity these functionaries as candidates and their parties and

violation of the constitutional principle of free competition, which logically requires

the possibility of the participation of the warring parties. A distinguishing criterion, therefore, can be

consider only that the Mayor might as the official person, and factor the municipality from

the title of their functions to use resources that other citizen cannot use

(budget resources, phone, computer, car, official

the Board of the municipal authority, the manifestations of his Office related forms with the official

the banner of the municipality or local authority, supplying its styling hallmark

Nevertheless, etc., which may affect, in particular, older voters). The use of the

such devices are not permitted in the election campaign. This question, however,

The Supreme Administrative Court. In this context, it should also be

point out that the German case-law, cited in this context

The Supreme Administrative Court, as electoral misconduct status, when occurs to

numerous and massive violation of the prohibition of the use of public funds in the

the election campaign, respectively, if the authorities of the State to a significant degree

affect the election of their respective bodies. From this it can be deduced that the cancellation of the elections

can only occur as a result of significant and substantial violations of neutrality

State during the election. The case, however, in the case under consideration is not.



Just as the proceedings were objectively noted the fact that the side

the participant had only in proceedings before the Constitutional Court the opportunity to point out the

other circumstances surrounding the controversy, which was established on the basis of the first issue of the Courier

Southeast of Prague, city parts Prague-Kreslice. These

Although the circumstances puts the articles Uhříněveského and Petrovického newsletters

the rapporteur to the somewhat different context than how it is conceived in the grounds

the decision of the Supreme Administrative Court, it could not, however, affect the

the negative assessment of the fact, that one issue was exploited

anonymous unauthenticated text. At this point, the Constitutional Court concurs with

evaluation of the Supreme Administrative Court, however, is different in that, what conclusions

draw in the sense of the principles laid down in § 87 electoral law.



As regards the contents of the election campaign, is the Constitutional Court, in its

the course are often very emotional electorate and vyostřenou form

presented arguments to influence their voting behavior and

the decision of who to vote for. The purpose of the election campaign in the pluralist

democracy, however, is undoubtedly also have been assessed and you

the most controversial issues of the program for political parties and candidates

in General, as well as their personal qualities and competence play
elective public office. Only in this case, the voters will be able to

to decide in full knowledge of things, and only then can be filled with the constitutional principle,

that is the source of all the people of the State power. If the election law

talking about the request of honourable and fair management of the election campaign, has the

to mean what was previously referred to as the purity of the elections (cf. § 56

paragraph. 1 of law No 75/1919 SB., which issued the order elected in municipalities

of the Czechoslovak Republic). However, these concepts cannot be interpreted in terms of

private law and General morality, as far as their use in

the conditions of the election campaign, which is nothing other than the struggle for votes

voters. Its negative manifestations can be changed, but you cannot by law

exclude.



In this context, the Constitutional Court considered instructive to mention award

The Electoral Court of 23.4.1926 (a collection of important decisions and resolutions

the Electoral Court. IV. part, Prague 1928, no. 183, p. 58), in which this

in a similar context, the Court stated that the required "a serious breach of the

freedom and the purity of the elections is also illegal promotion, zvrhá

in terror, which makes physical and psychological pressure on the free decision of the

the voters, that neither the election not stealth, to free

the decision of the voličovo guarantee. However, if the Nepřestoupila promotion of these

borders, cannot be in it ... to see violations of the freedom and the purity of the elections, even if

I was based from official. ". Although today's legislation and legal

consciousness shifted significantly, yet characterized by a necessary

public way of looking at the question of how to design her Supreme

Administrative Court set out Ing. And from that is inherently more

the problem of civil. The lack of effective protection in this direction

will always be there to try to resolve such disputes by way of electoral complaints.

However, the protection of moral rights in this proceeding may perform auxiliary

role in terms of ensuring compliance with the rules and the proper course of

the election campaign.



Therefore, the Constitutional Court came to the conclusion that it has not been proven nor objective

or potential causal link between the content of the listed publications and

their extension between the voters and the election of j. n. must be emphasized, that

The Supreme Administrative Court only dealt with the question of whether Ing. Could of.

to advance to the 2. round of Senate elections. In terms of the above assumptions

the validity of the outcome of the election, however, has not been shown to populate the factual

the essence of the basic electoral provisions substantively our

the judiciary, i.e., whether within the meaning of section 87, paragraph. 4 the electoral law was

breach of the provisions of this Act in a manner that could affect the

the results of the elections. Although you can't claim, as the applicant seeks,

and from this it substantively the provisions clearly show that the violation was

actually affect the election results. The Supreme Administrative Court is

did question the Constitutional Court considers the material from

terms of fulfillment of section 87, paragraph. 4 of the electoral law, namely whether it can be used with

a high degree of probability, sufficient to say that in the 2. round

would not be as a result of a hypothetical referral Ing. From. to 2. the wheels of the elected

Senator J. N. This question, however, the Supreme Administrative Court, quite candidly,

Although no response on it cannot be concluded that they were affected by the

the results of the elections, as their violations of section 87, paragraph just required. 4

the electoral law. Instead, he concentrated only on the evaluation of the results

the vote in the round, in relation to the candidates by Ing. And z. and p. j.

Violation of section 16. 2 the electoral law itself, without further

evidence cannot lead to the conclusion that it could, Ing. And from. 2. wheels

to advance.



The reason for annulling the election could also be concluded which

better corresponds to section 87, paragraph. 5 electoral law, namely, that in this case

by j. n. with a high degree of probability, was elected Senator. It

However, from the information given above on the results of 1. and 2. round of the elections, from participation in

These elections, from the support of the parties, for which Ing. He ran in the of.

the judge, cannot in any way inferred. Here it is necessary to refer to the election

the results are listed as sub IV. Just here just against consideration of other

possible outcome noted that in all three of the Prague Senate election

get the candidates virtually the same number of votes, the ODS in 1. 2. bike

the election. While in the 2. round of elections has dropped the same votes and participation

the electorate, which is a typical phenomenon in General, not only for the threshold. You cannot, therefore,

hypothetically make the conclusion that would be given to the participation in the 19th century. the constituency of

18.907 votes not received the j. n. just those 10.407 votes as

in fact. There is also no plausible reason to

allow to claim that, in the case of assignment of Ing. And from. 2. the round would

came to approximately 21 thousand voters and among those voters all 10.407

vote for Ing. And from. In essence, this candidate would have to get

all the voices of all the voters who were willing to come out to vote in the 1.

bike for his opponent for the Association of independent candidates, for the COMMUNISTS,

The path changes, and for the SOCIAL DEMOCRATS. Also the vote of voters on the territory of Prague and

related urban areas in the elections in 2002, does not allow you to make

Another conclusion with a greater degree of probability. In the MUNICIPAL elections

Prague-Kreslice while the KDU-CSL received 52% of the votes, while the participation of 188

the electorate (i.e. 67% participation compared to 25% of the participation in the Senate 1 round). As well as

It would be possible to speculate that, in the case of assignment of Ing. And from. 2. wheels

could be the turnout of party profiling in

compared with the candidate for the Association of independent candidates even lower, and

the chance to change the election result also even lower. Of the listed

the data because there is no logically or statistically doložitelný conclusion

that would be the outcome of the election. round using the principle

an absolute majority of something could change with a high degree of probability and

that would be j. n. was elected Senator. The presumption of the validity of the electoral

the decision of the voters, therefore, was not challenged in such a way as to

He could identify with the conclusions of the Constitutional Court, the Supreme Administrative Court, as

the validity of the election of J. N..



If our election of the legislature will not be able to distinguish the peculiarities of the review

elections in the event of their validity in the case of the entire Chamber of Deputies

or one third of the senators in the case of elections in one constituency or region

one Senate constituency (cf.. from the perspective of language interpretation

"results" and "outcome" of the election), such interpretative problems arise

I continue to be. The purpose of the election in the constituency No. 19 was undoubtedly choose

the Senator, not to advance to the 2. round of elections. The result of these elections

Therefore, it can only be elected Senator. Therefore, it appears in this case

the application of section 87, paragraph. 5 as more precise, even if the formulation and

background this provision cannot be remedied. The Supreme Administrative Court

While spelling out the steps the guest the assumption that the second is

the relationship between this protizákonností and selecting a candidate, whose choice is

attacked by the electoral complaints, and thirdly vital the intensity of this

protizákonnosti, which, in effect, shall at least significantly

question the choice of the candidate. In fact, however,

virtually the only dedicated meeting provided sub 1, i.e.. violations of the

the electoral law in both publications, while the question of the substantial

challenging the election of J. N. in this context, in fact, completely bonkers and

He just a reflection of the influence of two problematic printings on

possible process Ing. And from. 2. wheels.



In this way, regardless of the circumstances, the service of the document instituting the

proceedings before the Supreme Administrative Court can not be ignored, that his conclusions

they are not necessarily swayed by the fact that the selected candidate, whether

did not serve or not, its argument that the Court could not say.

You cannot, however, find fault with Supreme Administrative Court that annulled the election as

all (but only in one constituency). Another possibility of his election

the law does not give. This is in contradiction with the principle of

the proportionality of the intervention of a public authority, the subject of this prvoplánovým

However, the type of procedure as well as the protection of subjective rights is neither

a review of the constitutionality of the electoral law.



In the light of the above, it was no longer necessary to address the issue in more detail

the objection of the appellant regarding the inaccuracies and illogicality of the conclusions

The Supreme Administrative Court regarding the so-called. the intensity of the protizákonnosti.

However, the Constitutional Court could not identify with its opinion that the reasoning

The Supreme Administrative Court is at this point completely incorrect and illogical,

though certainly not about the intensity of illegality (law either violated or

It is not), but as to the severity of the impact of this illegality on the composition of the

the representative Council. It is natural that in terms of the election decision

voters are more severe the violation of the rules of the election campaign, which

by the time of this decision, which is for the undecided voters just in

the last days of the election campaign. This conclusion is the Supreme Administrative

the Court stems from a long established case law in the election matters to us

(in the days of free elections) and also abroad. However, it is essential,

that the cancellation of the elections cannot be taken as a penalty for violation of the electoral law,

but as a means to ensure the legitimacy of the elected body.
It is likely to influence the election or the election

tort (section 177 of the criminal code, § 16, paragraphs 5 and 7 of the electoral law) on

the election result in specific elections to specific voters. The mere

abstract perhaps causal link is not sufficient. Another situation would

There was, if it was obviously misleading way of conducting election campaign in

contrary to the requirement of the proper conduct of the elections and the electoral competition, which would

might have with a high degree of likelihood result in the opposite of the result

the elections, than expected, for example, by correctly carried out

polls. It would demonstrate that the high

likely would be without those publications could be the result of the Senate

the options in the circumference of the other, which the above conclusions do not demonstrate.



The Constitutional Court is aware of the complexity of the case and, in particular,

serious shortcomings and gaps of legislation in this field. It is expected

Therefore, that the legislature will consider on the basis of the knowledge questions as

substantive procedures review of the validity of the election and the adjustment

their verification, that the case raises unnecessary problems and was internally

souladná (cf. the analysis in the work of Filip, j., Holländer, P., Prince,

In: the law on the Constitutional Court. Comment. C. h. Beck, Prague 2001, s.

405-411) also need to consider the system of means of protection options

and electoral rights, as well as other subjective rights during the

the election campaign (e.g. summary proceedings about print corrections and

omluvách), in order for the violation of such rules could be

the one who is penalized. The threat of cancellation of the election result as

the only possible consequence in this case is inconsistent with the constitutional

the principle of the proportionality of the intervention of the public authorities. It certainly does not preclude

the candidate who has committed serious electoral tort (e.g., fraud,

bribery), was not disqualified. The Constitutional Court in this connection

forced to conclude that, in comparison with other States, the legislation defects

the electoral process, electoral offences and all the rules of the leadership election

the campaign both very fragmentary, and its roots in the nature inherent in the

the conditions of modifications corresponding to the "election" of the previous regime. The electoral

the legislature will have to consider whether the electoral culture,

candidates and public officials is at such a level, that the treatment of these

issues is unnecessary, or whether it will be the electoral behavior of the Guide way

a predetermined set of rules, which creates the State of legal certainty for operators

the electoral process and that will be at least the premise of election economics.



The Constitutional Court, for the reasons listed above, therefore, concluded that the side

the participant of this proceeding, j. n. was in elections to the Senate of the Parliament of the Czech

the Republic held on 5. and 6. November 2004 and in 12 days. and 13.

November 2004 in the constituency No. 19, Prague 11, validly elected

Senator.



Under section 91, paragraph. 3 the law on the Constitutional Court therefore void

all decisions of the other institutions, which are contrary to this finding.

in particular:



and) the resolution of the Supreme Administrative Court of 3.12.2004, j. Vol

10/2004-24



(b)) the resolution of the mandate and immunity Committee of the Senate of the Parliament of the Czech

No. 11 dated 14.12.2004, which notes that this Committee

could not verify the mandate for constituency No. 19, Prague 11, with regard to the

the fact that the Supreme Administrative Court decided the resolution No j. Vol

10/2004-24, that the elections are invalid in this circuit,



(c)) the resolution of the Senate of the Parliament of the Czech Republic No. 2 from 1. meeting day

15.12.2004, whereby the Senate the "notes" section II. the report of the mandate and

the Committee of the outcome of the immune validation options, Senator,



(d) the decision of the President of the Republic) no 653/2004 Coll., on the publication of

repeated elections to the Senate of the Parliament of the Czech Republic.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum of JUDr.

Francis Skinner, JUDr. Ivana Janů, JUDr. Miloslav Výborný and JUDr.

Elisabeth Wagner.