On The Proposal To Repeal The Constitutional Law No. 195/2009 Coll.

Original Language Title: ve věci návrhu na zrušení ústavního zákona č. 195/2009 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=69273&nr=318~2F2009~20Sb.&ft=txt

318/2009 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided on 10 September 2009 Plenary composed
Stanislav Balik, Frantisek Duchon, Vlasta Formánková, Vojen Güttler, Pavel Holländer
, Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, || | Jan Musil, Jiri Nykodým, Pavel Rychetsky, Miloslav Vyborny, Elizabeth
Wagner and Michael Židlická on the proposal to repeal the MM
constitutional Act no. 195/2009 Coll., on shortening the fifth term of the Chamber of Deputies
, filed pursuant to § 74 of Act no. 182/1993 Coll., on the Constitutional court,
amended,

Follows:

I. Constitutional law no. 195/2009 Coll., On Shortening the Fifth Term
Chamber of Deputies, is annulled as of 10 September 2009.

II. Decision of the President of the Republic no. 207/2009 Coll., On the announcement of elections
Chamber of Deputies of the Parliament of the Czech Republic, countersigned
prime minister, expires simultaneously with the constitutional law no.
195/2009 Coll., On Shortening the fifth term of the Chamber of Deputies.
Reason


I.

Definition matter and recapitulation draft

Constitutional complaint, delivered to the Constitutional Court on 26 August 2009, the complainant
annulment of the decision of the President no. 207/2009
Coll., On the announcement of elections to the Chamber of Deputies of the Parliament of the Czech Republic
, kontrasignovaného Prime Minister. At the same time according to § 74 of Act No.
. 182/1993 Coll., On the Constitutional Court, as amended, together
with the constitutional complaint, submitted a proposal to repeal the Constitutional Act No.
. 195/2009 Coll., On Shortening the Fifth Term
Chamber of Deputies. By that decision, the president feels especially affected
fundamental right arising from Art. 21 par. 4 of the Charter of Fundamental Rights and
Freedoms (the "Charter"), which, according to the case law of the Constitutional Court
[judgment file . Nos. Pl. US 73/04 of 26. 1. 2005 (N 17/36 SbNU 185;
140/2005 Coll.) - Ed. ed .: Collection of Decisions of the Constitutional Court,
volume 36, judgment no. 17, pp. 185, promulgated under no. 140/2005 Coll.]
follows also the right to unimpeded exercise of public functions.
Violation of this fundamental right, then sees not in an unconstitutional manner the application and interpretation
law in the constitutional complaint contested decision
president, but in its legal basis in constitutional law
no. 195/2009 Coll., They consider to be in conflict with Article. 21 paragraph. 2 and 4 and Article.
22 of the Charter and Article. 9 Sec. 2, Art. 16 paragraph. 1 and Art. 17 paragraph. 1 of the Constitution | || Czech Republic (the "Constitution").

Order of 1 September 2009, ref. No. Pl. US 24 / 09-16 (as announced
announcement of the Constitutional Court under no. 312/2009 Coll.) The Constitutional Court
enforceability of the decision of the president no. 207/2009 Coll., On the announcement of elections to the Chamber of Deputies
Parliament of the Czech Republic postponed. Subsequently
order dated September 2, 2009, ref. No. Pl. US 24 / 09-20, the proceedings in the matter
constitutional complaint, the complainant, MM, file. Nos. Pl. US 24/09,
interrupted and the petition to annul constitutional Act no. 195/2009 Coll., On
shortening the fifth term of the Chamber of Deputies, was ceded to
decision pursuant to Art. 87 paragraph. 1 point. a) of the Constitution.

In the reasoning of its petition, the petitioner states that constitutional Act no. 195/2009 Coll
. the law is constitutional only formally, but materially
contrary to the constitutional order, in fact, suspended constitutional order -
ad hoc, just for one term postpones its efficacy over
arbitrary momentary qualified majority of deputies and || | senators, why not in this sense is an act which modifies or
Institute complements (pursuant to Art. 9 Sec. 1 of the Constitution). Contested constitutional law then
considered inconsistent with the constitutional order in the sense that changes
essential requirement of a legal and democratic state, which is under Art. 9
paragraph. 2 of the Constitution unchangeable. This requirement is submission
free competition of political forces and especially the same predetermined rules.

The petitioner further in favor of the Constitutional Court to review the constitutionality of the constitutional
Act makes the following arguments:
considers untenable a literal interpretation of Art. 87 paragraph. 1 point.
A) of the Constitution, which would lead to absurd consequences - the possibility of constitutional law
codify anything, inter institutional control. From this perspective
sees no relevant difference between shortening the election period

President and Members of the House of Commons and, for example, by extending their mandates
life, again ad hoc, only MPs precisely this
election period, the obstacle to this "logic" would not even
Article. 21 paragraph. 1 of the Charter, because any later constitutional
law has the same legal value as the Charter.
Legalistic adherence to qualification under the Act as constitutional law only on the basis
its adoption by qualified majority, according to the petitioner is in conflict with
substantive conception of the rule of law, the fact that the Constitution of the Czech Republic
not value-neutral, is based off of vested
basic human and civil rights also on the assumption that "
basic requirements of a democratic rule of law" are immutable. In this sense, the petitioner
as part of the constitutional order is regarded not only
law, adopted by qualified majority Parliament, but at the same time
"nevzpírající are - unchangeable - basic essentials
democratic and legal state.". Expresses its conviction that the contested
"constitutional" law fulfilling those conditions therefore not part of the constitutional order
. That conclusion follows, according to him from departing from the scope of Article. 9 paragraph.
1 of the Constitution, because the contested "constitutional" law does not alter or supplement the Constitution, but its
certain provisions (of office) for certain electoral
period is suspended, and retroactively. In other words, suspended constitutional
messages will only be replaced for this electoral period
ad hoc rules based on the power of certain political forces agreement.
Takes the view according to which the exclusion, respectively.
postpone the effectiveness of a particular constitutional provision for a period of time is reasonable for exceptional
situation in state history, as a threat to its integrity,
state of war or a natural disaster, and neither such procedures can not be used arbitrarily, but
only on the basis of constitutional authorization. Expresses its conviction that
unwillingness of most political forces meet in a specific election period
constitutional procedures for the establishment of a new government, however, is not such a situation.

The petition also analyzed in detail the meaning and importance of Art. 9 paragraph.
2 of the Constitution, in connection with the guarantees of free competition
democratic political forces. Reference is made to the legal opinion of the Constitutional Court expressed
in its judgment. Nos. Pl. US 53/2000, dated 27. 2. 2001 (N 36/21 SbNU 313
98/2001 Coll.), According to which "free and open competition among political forces
is based primarily on the fact that all -ný political entities governed by the same
pre-established rules, which stem from these basic principles
. ... This can not go on arbitrariness in her
decision, but must respect the constitutional criteria
belonging to the basic principles of the political system, constitutionally guaranteed.
If the risk of arbitrariness has been ruled out and it would be possible even
circumvention of these principles, it would have undoubtedly always
violation of the constitutional order, its purpose and meaning, and would force the intervention of the Constitutional Court
which is in accordance with Article. 83 and Art. 87
judicial body for protection of constitutionality and legality. ". Complainant conceptual property
legal standards, including for the Constitution, for the obvious concept
substantive law, considers its binding in the future, in the same way
at all in the future the situation. The idea that the statutory
rules can be assigned only to a particular case be suspended, according to him, would
mean accepting arbitrariness and violation of the principle of the rule of law.
Links on this site and on the legal opinion of the Constitutional Court, contained in
judgment no. Nos. Pl. US 24/04 of 28 6. 2005 (N 130/37 SbNU 641;
327/2005 Sb.).

Contested constitutional law by the petitioner
violation of the constitutional prohibition on retroactivity, by retroactively modifying the electoral period during
- election period began a four-year (Art. 16 paragraph. 1
Constitution) and back it was adjusted (shortened). Given retroactive effect
petitioner considers true retroactivity, which finds itself in conflict and
with the principle of legitimate expectations, highlighting the fact that
exceptional acceptance of true retroactivity in the period after the Second World War
public law is limited to questions dealing with the totalitarian past
, an example of which is the law of the communist regime or
restitution legislation. Similar reasons warranting

True retroactivity but this matter is not given.

The petitioner underlines the particular importance of the relationship and functioning of the election
democratic rule of law, electoral predetermined period
considers it important for the implementation of the principles of popular sovereignty, equality of opportunity,
open political competition, the right to undisturbed deputy mandate
after a predetermined period of time and especially to ensure the protection of the rights
parliamentary minority. Possible breakthrough in these principles can be, according to him
admitted solely on the basis of the Constitution, the Constitution provided for general
conditions (which are the conditions for the dissolution of the Chamber of Deputies).
Refers in this context to a number of decisions in which the Constitutional Court ruled on
protect those principles [judgment file. Ref. II. US 275/96 of
on 15 10th, 1996 (N 103/6 SbNU 243), Pl. US 24/04, Pl. US 73/04].
Insofar as the Constitutional Court in its judgment. Nos. Pl. US 73/04 limits of possibilities
judicial power to cancel elections for electoral offenses, because of the inadmissibility
change the will of the sovereign decisions of the judiciary, the less
According to the petitioner, it is permissible for the legislative branch.

Argument that the Constitution can codify everything gets
constitutional majority, regardless of the provisions concerning the inviolability
basic requirements of a democratic rule of law, the petitioner refuses.
Expresses its conviction that the following elements must be included even
predictability of the law given its generality, as well as the view that the
hypothesis was already the Constitutional Court in its judgment. Nos. Pl. US 77/06 of
15th 2. 2007 (N 30/44 SbNU 349; 37/2007 Coll.): "The law in the formal sense
not a substantive law of the state understood as a mere carrier
various changes made throughout the legal order. Substantive conception of the rule of law
requires that the law was both in form and in content
predictable, consistent source of law. ". Notes further -
again with reference to the jurisprudence of the Constitutional Court (file no. Nos. Pl. ÚS 73/04) - the
importance of fair conditions of political competition. He stresses the
spot the difference between shortening the term of the Chamber of Deputies
one case a general rule its dissolution. However, is aware
diversity of constitutional models, the dissolution of parliament and call early elections
in democratic countries. Is it possible under the terms of Art. 9
paragraph. 2 of the Constitution to enshrine such a model is a general amendment to the Constitution, but is excluded
invoke the democratic character of the state, proceed
formally in keeping with the Constitution while suspending its essential
material essentials that its democratic and legal character || | guarantee.

Petitioner analyze the purpose of the mechanism of Deputies is dissolved,
linked to the vote of no confidence to the government (resp. Denial
vote of confidence in the government), as enshrined in the Constitution, states that this mechanism makes
fall of the government seriously intentioned decision of the opposition to take
government aims to eliminate demonstrative
unserious attempts to destabilize the government puts responsibility precisely weighted participants
political competition.

Bypassing this process by shortening the term of the Chamber of Deputies
according to him is political competition znerovněna and circuit competitors
preserved longer because of new political parties or movements inevitably find themselves in distress
time, pointing you own engagement in the contest for the election date
regular. States that it is politically neutral, ie in terms
political competition, which held elections to the representative assembly -
case of early elections, only that their term is legitimate, if it follows the Constitution before
procedures described above. For those contested constitutional law
considered an infringement of the principle of equal opportunity in political competition [
which supports the reference to the legal opinion of the Constitutional Court expressed in its judgment
sp. . I. ÚS 53/2000 (ed., ed .: sic - correct sp. Nos. Pl. US 53/2000
- see above)]. Expressly states in this regard: "The modus operandi
constitutional offenders lies in the fact that the Constitution respectively.
its essential terms, rules guaranteeing political competition
for the moment is not canceled, but ignore suspended.
While nothing prevents the momentary constitutional majority to change or amend Constitution - the next time you can
early elections codify any easy manner. It would
established a new constitutional rule henceforth replacing existing, and
it would mean free (equal and open) competition between political forces in

Future, it would conform constitutional order, thus
essential attributes of a democratic legal state. But it does not;
next time again adheres to a rigid procedure, new elections; until
than momentary majority again decides that it is politically advantageous - for her -
again ignore the constitutional procedure and ad hoc law of political competition
moor. ".

From a historical perspective petitioner notes that
contested constitutional law is identical in content to the same, adopted in 1998, and similar are also
its political circumstances. Reasoning process in 1998 based
"constitutional conventions" deemed unacceptable and presents an outline
politico-cultural consequences of breaking the constitutional principles.

Because in his view, constitutional law no. 195/2009 Coll. by changing
rules of free, fair and open political competition, which is among
basic requirements of a democratic rule of law, suspending the Constitution
one case, and it is retroactive to interfere with the sovereignty of the people
is thus in violation of Article. 21 paragraph. 2 and 4 and Art. 22 of the Charter and Article
. 9 Sec. 2, Art. 16 paragraph. 1 and Art. 17 paragraph. 1 of the Constitution. Of all the reasons stated as follows
proposes constitutional law no. 195/2009 Coll., On Shortening the Fifth Term
Chamber of Deputies, cancel.

II.

Recap essential parts of the response of the

According to § 42 para. 4 and § 69 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, the Constitutional Court sent the petition to the Chamber of Deputies
. In his statement, delivered to the Constitutional Court on
fourth September 2009 Chairman of the Chamber of Deputies of the Czech Parliament
Ing. Miloslav Vlcek states that the debate on the proposal under consideration
Constitutional Act was discussed in detail the issue
adoption of a special constitutional law, have been mentioned variants of solving the current political situation
been mentioned and considered the reservations of some experts and politicians
against the proposed substantive solutions and was considered the possibility
general constitutional amendments treatment of Deputies is dissolved.
It emphasized the need to respect the essential requirements of a democratic
law.

With reference to the Constitutional Court to function in a party statement
norm control proceedings [judgment file. Nos. Pl. US 24/07 of 31
1, 2008 (88/2008 Coll.)], Beyond the normal expression of the chamber, chairman of the House of Representatives
says that constitutional Act no. 195/2009 Coll.
was adopted on the basis of broad political consensus, constitutionally prescribed manner
expressed their agreement by both chambers of Parliament, was signed by the appropriate constitutional officials and
duly promulgated. Said constitutional law, according to him
its content is contrary to the essential requisites of the democratic legal order
as shortening the term of the Chamber of Deputies
is associated with the holding of new elections to the Chamber of Deputies.
Shortening the election period, the Chamber of Deputies does not undermine the principle of people's sovereignty, while
leads to the necessity of reckoning former legislators
citizens, which demands democracy nor the rule of law does not.
The present constitutional law does not alter the fact that the legislature
body constituted under duly held and election of its activities
regular citizens in elections is responsible.

The statement is also included personal opinion of the Chairman of the Chamber of Deputies, the Constitutional Court
under the current version of the Constitution shall not assess
"constitutionality" of constitutional law and constitutional law repeal. If you
Constitutional Court adopted either such authority, this would prioritized over
framers. It is the responsibility Constituent Assembly itself to ensure that
adopting constitutional laws did not fall outside of what is defined in Article. 9
paragraph. 2 of the Constitution compatible with democracy and the rule of law.

According to § 42 para. 4 and § 69 of Act no. 182/1993 Coll., As amended
regulations, sent the petition to the Senate of the Parliament of the Czech Republic
. Opening his statement, delivered to the Constitutional Court on 4
September 2009 by its chairman, MD. Premysl Sobotka, summarized the progress
hearing of the constitutional bill in the Senate, especially
summarizes the arguments in favor and against its adoption.

Circle of those early states of the opinion that a one-time constitutional law has
shows signs of inconsistencies, but that defect is not such

Intensity that its adoption could endanger or disrupt
principles of the rule of law. Disposable shortening the election period
Chamber of Deputies is not in our law institute new because
once has been "successfully use 'in the constitutional law no.
69/1998 Coll., On Shortening the term of the Chamber of Deputies and it is therefore apparently
reason to not choose the same path, the Parliament currently
for shortening the fifth term of the Chamber of Deputies, since this
solution is to rapidly pave the way for early parliamentary elections and quit
and a period of political instability.

Circle of critics of the adopted law, the response refers to the opinion
Permanent Commission for the Constitution of the Czech Republic and Parliamentary Procedures,
adopted at its sixth meeting on 27 May 2009 in which the Commission
It concludes that the proposed constitutional act goes against the spirit of the Constitution
a number of general rules known in advance governance, interferes
relations between deputies and citizens, as well within the competence of the Senate, and his acceptance
certainly not the only way to attain
early elections to the Chamber of Deputies.

Conclusion, the Chairman of the Senate states that the Senate discussed the petition
constitutional act within the bounds of constitutionally provided competence and
constitutionally prescribed manner, contested constitutional majority approved the report with
knowing that its content is not contrary to Article . 9 paragraph. 2
Constitution or with other norms that are part of the constitutional order, while
assess the objections raised by the complainant retains full discretion to
Constitutional court.

Because of the extreme urgency of the matter, the Constitutional Court shortened the deadline under §
69 par. 1 of Act no. 182/1993 Coll. that both chambers of the Parliament of the Czech Republic
also pointed to the possibility of immediately after receiving the proposal for
statement to say that this was deemed insufficient.
Participant management procedure of the Constitutional Court accepted a response to the petition sent
within the prescribed period.

III.
Hearings


At the hearing have not presented any proposals to supplement the evidence
performances from the parties and their answers to the questions the judges
no new facts beyond
petition and written responses to it.

IV.

The imperative of the inviolability of the material core of the Constitution of the Czech Republic
(Art. 9 Sec. 2 of the Constitution) and its Impact on Art. 87 paragraph. 1 point. a) Constitution

The Constitutional Court has in its judgment in the first proceedings to review norms regarding
constitutionality of Act no. 198/1993 Coll., On the Lawlessness of the Communist Regime and Resistance
against him under file no. Nos. Pl. US 19/93 [judgment of 21
12th, 1993 (N 1/1 SbNU 1; 14/1994 Coll.)]
Formulated for interpretation and understanding of the imperative of the inviolability of the material core of the Constitution, fundamental theses
"Právněpozitivistická tradition ... revealed ... in
later development times their weaknesses. Constitution designed to
these foundations are value-neutral: they form
institutional and procedural framework, can be filled with very different political content, because the criterion of constitutionality
becomes respecting the jurisdictional and procedural framework of constitutional
institutions and procedures, thus criteria formally rational nature. ...
The awareness that injustice must remain injustice, even if it is wrapped in the cloak
law was reflected in the Constitution and in postwar Germany
currently also in the Constitution of the Czech Republic. Our new Constitution is not
based on neutrality of values, not just a mere demarcation of institutions and processes
, but it incorporates into its text also certain governing ideas,
expressing the fundamental, inviolable values ​​of a democratic society.
... Czech law is not based on the supremacy of law.
Laws superiority lower legal standards mean more of their sovereignty.
Even in terms of the scope of legislative competence within the constitutional
State can not talk about the sovereignty of the law. The concept of a constitutional state
on which is based the Czech Constitution, no law and justice
subject to the free disposition of the legislature and not by the law, because
legislator is bound by certain fundamental values ​​which the Constitution declares
inviolable. The Constitution of the Czech Republic, eg. In Art. 9 paragraph.
2 provides that, change the essential attributes of a democratic legal state
is inadmissible. ' By constitutive principles of a democratic

Company under this Constitution, built over legislative competence and
by ultra vires' of Parliament. With these principles stands or falls
constitutional state. Removal of any of these principles made in any, even
a majority or wholly unanimous decision of Parliament, would
not be interpreted otherwise than as removal of this constitutional
state as such. ".

In its judgment. Nos. Pl. US 36/01 dated 25. 6. 2002 (N 80/26 SbNU 317;
403/2002 Coll.), The Constitutional Court applied the provisions of Art. 9 Sec. 2 of the Constitution
position of the basic rules of interpretation of the Constitution and its change: "From
constitutional maxim in Art. 9 Sec. 2 of the Constitution has consequences not only for
framers of the constitution, but also to the constitutional court. In the inadmissibility of changing
essential requirements for a democratic state of law is also contained
instruction to the Constitutional Court, that no amendment to the Constitution can
interpreted in the sense that it would result in restrictions
already achieved procedural level of protection of fundamental rights and freedoms. ". In this connection, we must mention
judgment file. Nos. Pl. US 11/02 dated 11. 6.
2003 (N 87/30 SbNU 309; 198/2003 Coll.), In which the framework of Art. 9, paragraph. 2
Constitution, the court also included the elimination of arbitrariness in Best
if your own interpretation of the constitutional order, "Unless the constitutional court itself
as a constitutional body, ie. the public authority to act arbitrarily, the ban on which
is also subject to, because the constitutional court, or just he is obliged
respect the constitutional framework of the State in which enforcement is arbitrary authorities
public authorities is strictly forbidden, it must feel bound by its own
decisions that can its case law only under certain conditions
. This postulate can be described as an essential requirement
democratic state (Art. 1, paragraph. 1 in connection with
Art. 9 Sec. 2 of the Constitution). ".

In a number of its decisions the Constitutional Court also outlined the concept
"the essential attributes of a democratic legal state" under Art. 9 paragraph.
2 of the Constitution. In its judgment. Ref. III. US 31/97 of 29. 5. 1997 (N 66/8
SbNU 149) in this regard, said: "The notion of a democratic state under Art.
9, paragraph. 2 of the Constitution is interpreted by the Constitutional Court, as well as doctrine .
In its decision in the matter file. Nos. Pl. US 19/93, the Constitutional Court
under that concept put forth substantive as opposed to formal understanding
rule of law. ". The court further referred to the doctrinal opinions, according to which
essential requirements of a democratic rule of law within the meaning of Article.
Paragraph 9. 2 and 3 of the Constitution includes "particularly popular sovereignty and the principles contained in Article
. 5 and 6 of the Constitution and the natural
provisions of the Charter of Fundamental Rights and Freedoms, which establish a constitutional right to resistance (Art. 23 of the Charter
)" ^ 1), respectively. in other words, are these requirements
"concentrated in several articles of the Constitution and Title I. I and V of
Charter and solemnly declared in the Preamble to the Constitution" ^ 2). In terms of comparative
Constitutional Court also pointed to Art. 79 par. 3 of the Basic Law
Germany, Art. 110, paragraph. 1 of the Constitution of the Hellenic Republic and Art. 288 of the Constitution of the Portuguese Republic
.

Constitutional Court within the framework of the material core of the legal system - in accordance with the opinion of doctrinal
^ 3) - put forth the basic principles of the electoral law
[judgment file. Nos. Pl. US 42/2000 of 6. 2. 2001 (N 16/21 SbNU 113;
64/2001 Coll.)].

Those decisions can draw several general conclusions:
Constitutional Court in its case-law emphatically made clear the need for protection
material core of the constitutional order, suggested
partly abstract and partly a case report by its structure, as well as | || fact that the consequences arising from it not only impact the democratic
legislator, but also to the Constitutional court itself. If it was (sp. Nos. Pl. US 36/01
) confronted with a constitutional act (amending and supplementing Institute)
which the court considered standing conflict with the material focus of the Constitution
(Art. 9 Sec. 2), then proceeded method of interpretation that conforms with
the safeguards arising from Art. 9, paragraph. 2 (ie, analogous to the principle of priority
constitutional interpretation over derogation). On this legal opinion
he remained even in its more case law [judgment file. Nos. Pl. US 44/02 of
on 24. 6. 2003 (N 98/30 SbNU 417; 210/2003 Coll.), And finding sp. . I. ÚS
752/02 dated 15. 4. 2003 (N 54/30 SbNU 65)].

Deviated If the Constitutional Court in its judgment. Nos. Pl. US 21/01 of 12 second
2002 (N 14/25 SbNU 97; 95/2002 Coll.) From the previous constant jurisprudence,

Said legal opinion was not part of the supporting reasons
decision was stated only as obiter dictum.
Democratic constitutionalism in this context agrees opinion, according to which the resolution
meaning the ratio decidendi and obiter dicta for binding
relevant precedent, "written opinion of the court's case is not binding
whole, is binding only reason its decision, the ratio decidendi. "^ 4)

Constitutional Development of the Czech Republic to protect
constitutive principles of a democratic society in conformity with the constitutional development of European democracies
.

The creators of the Basic Law of Germany from 1949 responded to German history
years 1919-1945, among other things, removing the "material core of the Constitution"
of the constitutional framers, in other words, is anchoring "imperative
inviolability ' (Ewigkeitsklausel). According to him, the change
Basic Law concerning the basic principles of federal structure, the basic principles
protection of human rights, the rule of law, sovereignty of the people and
right to civil disobedience is inadmissible (Art. 79 par. 3 of the Basic
Act). The consequence of treatment untouchability "material core" of the Constitution
is according to doctrine and case law of the Federal Constitutional Court procedure in which
context of the conflict "constitutional act" with the material core of the Constitution
decided definitively Federal Constitutional Court, including alternatives
said that this amendment of the Basic law as legally invalid. ^ 5)
doctrinal opinion according to which the Federal constitutional court ruling on the invalidity
constitutional law to amend the Basic law in
contrary to its Article . 79 par. 3, while the enforced immediately after the acquisition
effectiveness of the Basic Law, ^ 6) and was subsequently confirmed by itself
case law of the Federal constitutional court (BVerfGE, 30, 1/24).

Constitution of the Austrian Republic defines procedural limitations framers
region for its material core and also establishes in this context
competence of the Constitutional Court. According to the Austrian constitutionalism "are subject to review
competence of the Constitutional Court
federal and state laws, namely both simple and constitutional laws." ^ 7) circuit
federal constitutional laws is the competence inferred from provisions | || Article. 140 of the Federal Constitution, the founding general competence of the court in the case
control standards, in conjunction with Art. 44 paragraph. 3 of the Federal Constitution, according to which
total revision of the Constitution, possibly even partial revision, asking if the one || | third of the members of the National Council or Federal Council, must be approved by a referendum
. The doctrine of the opinion, according to which the Constitutional Court
assess, even in the form of a posteriori control standards, complying
above procedures from the perspective of changing the constitutional framers to interference
"material core of the Constitution." Among its components to the radio
representative democracy, federal organization, liberal
rule of law and separation of powers. ^ 8) Our opinion is also based on the legal opinion of the Constitutional Court of Austria
expressed in the decisions VfSlg. 11584, 11756, 11827,
11916, 11918, 11927, 11972. Starting from critics legislative practice, which form
adopting constitutional laws in the areas of simple matter
law circumvents the appellate jurisdiction of the Constitutional Court, the court
conclusion according to which such a procedure framers "not directed" to crackers
the fundamental principles of the Federal Constitution.

This decision was confirmed lines and other case law.
In a decision dated November 11, 2001 VfGH 16,327 was assessed
constitutionality of the law, which Parliament has attributed the strength
constitutional provision, § 126a of the Public Procurement Act, under which
"provisions of the provincial laws force on 1 January 2001 concerning
organization and jurisdiction of the institutions which are responsible regarding legal protection
procurement, counts as not to conflict with the Federal Constitution
". The Constitutional Court previously distinguished simple and qualified
constitutional law (ie. The constitutional right of forming the material core of the Constitution according to its
Art. 44 par. 3). He noted that in order to protect "core
existing constitution" simple Constituent Assembly is not allowed to fully suspend
Federal Constitution in its binding to the partial field
legal system (regardless of the importance of this sub-field). The Constitutional Court in this context
did not consider it necessary to examine whether coming into consideration

Management pursuant to Art. 44 Sec. 3 of the Federal Constitution. He said that the suspension
Constitution is in breach of the principles of democracy and the rule of law and
not constitutional framers within the meaning of Article. 44 paragraph. 1
Federal Constitution. ^ 9) On the basis of that argument, and it however according to the literal wording of Article
. 140, paragraph. 1 of the Federal Constitution, the Constitutional court decides "
unconstitutionality of federal and provincial laws" provisions of the Constitutional court
§ 126a of the public Procurement Act, designated by the Constituent Assembly as the provision
constitutional law and procedure adopted pursuant to Art. 44 paragraph. 1
Federal Constitution, abolished.

Development of democratic constitutionalism in democratic countries currently
emphasizes the protection of values ​​identifying the constitutional system of freedom and democracy
including alternatives judicial review of constitutional amendments. ^ 10)

Just as in the case of German Art. 79 par. 3 of the Basic Law
reaction to the undemocratic developments and Nazi persecution in the years before 1945
(and similarly, then Art. 44 Sec. 3 of the Constitution of the Federal Republic of Austria) , is
Art. 9 Sec. 2 of the Constitution of the result of the experience with the decline of legal culture and
trampling of fundamental rights during the forty years of the communist regime in Czechoslovakia
. As a result of this analogy are therefore interpretation of Article.
79 par. 3 of the Basic Law of the Federal Constitutional Court of Germany and similarly
practices in other democratic countries for the Constitutional Court of the Czech Republic
deeply inspiring.

Articulates the Constitutional Court if the need to relate the category of constitutional
acts within the scope of the term "law" in Article. 87 paragraph. 1 point. a)
Constitution from the perspective of a review of their compliance with Art. 9 paragraph. 2 of the Constitution, with
any derogative consequences, it does so in relation to its jurisprudence beginning
key finding sp. Nos. Pl. US 19/93 and makes
in accordance with the values ​​and principles governing the constitutional systems in democratic countries
. Protecting material core of the Constitution, ie.
Imperative of the inviolability of the essential attributes of a democratic legal state
under Art. 9 Sec. 2 of the Constitution, not a mere slogan or proclamation, but
constitutional provision with normative consequences. Alexander Hamilton in Art. 78 of The Federalist
showed that "the mediator between the people and
Legislature to enable the courts, inter alia, to maintain
legislation within its mandate." ^ 11) Without such reflection Art.
9, paragraph. 2 of the Constitution on the interpretation of Article. 87 paragraph. 1 point. a)
Constitution enshrined in it inadmissible changes
essential requirements for a democratic state of law lost its normative nature and remain merely a political
, if necessary. moral challenge.

Only in the alternative, in this context the Constitutional Court notes that the wording
Constitution for cases in which should be excluded from the scope of the term "law"
category of constitutional acts, expressly enshrines this fact [see Art. 50
Sec. 1, Art. 62 point. h) of the Constitution].

V.

Constitutionality of the legislative process

Based on these landed interpretation of Art. 87 paragraph. 1 point. a) of the Constitution, the Constitutional Court
in accordance with § 68 para. 2 of Act no. 182/1993
Coll., as amended, as is the norm control proceedings
rule is in this matter is required to evaluate whether the contested constitutional
act was adopted and issued within the bounds of constitutionally provided competence and
constitutionally prescribed manner.

From the parliamentary publications and stenographic reports and statements
subscriber management, the Parliament of the Czech Republic, it was found that the Chamber
Deputies approved the draft of the law, ie. The constitutional law no. 195/2009 Coll
., on shortening the fifth term of Office of deputies,
in the third reading at its 56th meeting on 13 May 2009 Resolution no. 1207, when the present
189 deputies for the favor of its adoption
172 deputies and 9 were against.

On 28 May 2009 discussed the bill at its 7th session
seventh term of the full Senate and Resolution no. 181 of the bill approved
. In voting no. 4, 56 were from the 71 present senators and senators
design, 8 were against and 7 abstentions.

The present constitutional act was signed by the appropriate constitutional authorities and
was under no. 195/2009 Coll. duly promulgated in Volume 58 Collection of Laws, which
was distributed on June 29, 2009, and pursuant to Art. 3
came into force on its publication, ie. on 29 June 2009.

VI.

Breaking the Constitution, constitutional law ad hoc (constitutional law for

Unique case) and the conflict with the essential requirements of a democratic rule of law


Intentions passing constitutional Act no. 195/2009 Coll.
is expressed in the explanatory memorandum to the draft constitutional Act on Shortening the Fifth Term
period of Deputies, deputies brought by Petr Tluchoř,
Bohuslav Sobotka and Premysl Rabas (Parliamentary Press 796): "With regard to the current
distribution of political forces in the Chamber of Deputies, where
newly appointed government, according to Article. 68 par. 3 of the Constitution apply to
30 days after his appointment as a vote of confidence, and given the fact that the dissolution
Deputies and the announcement of new elections can be up to
case when three consecutive appointed government did not obtain in the Chamber of Deputies confidence
[Art. 35 paragraph. 1 point. a) of the Constitution], there
Czech Republic after protracted instability and political crisis.
Constitutionally legitimate means to address this situation is to hold early elections
in which citizens can express their will and newly of which can come
new Chamber of Deputies able to form the government and the Czech Republic
political support necessary for stabilization constitutional
political and economic conditions. ... The proposed constitutional law and
offers solutions that are already in the 90s of the last century
elected Parliament in order to hold early elections to the Chamber of Deputies in 1998. Also
former political representation (government and both chambers Parliament)
has matched over by calling early elections through a special
constitutional law. ... It is therefore a way to hold new elections to the Chamber of Deputies
which is our constitutional practice already known. Designed
constitutional law was not contrary to the essential requirements of a democratic
law, the change is in accordance with Article. 9 Sec. 2 of the Constitution
inadmissible. Respects in particular Article. 21 paragraph. 2
Charter of Fundamental Rights and Freedoms, according to which the elections must take place at intervals not exceeding
regular electoral terms provided by law. ".

During the parliamentary discussion of the draft Constitutional Act that
subsided and arguments to the detriment of its adoption, the environment
different political parties (see, eg.
Performances Deputy Cyril Svoboda at the 56th meeting of the Chamber of Deputies of the Parliament of the Czech Republic
28 April 2009
[http://www.psp.cz/eknih/2006ps/stenprot/056schuz/s056014.htm]
senators Thomas Töpfer, Petr Pithart and Soni Paukrtová on the 7th
meeting of the Senate of the Czech Republic on 28 May 2009
[http://www.senat.cz/xqw/xervlet/pssenat/hlasovani?action=steno&O=7&IS=
129 & t = 75 # st75] .

Standing Senate Commission on the Constitution of the Czech Republic and parliamentary procedures
at its sixth meeting, held on 27 May 2009, the constitutional Bill
about shortening the fifth term of the Chamber of Deputies (Senate press
75) unanimously adopted an opinion in which it stated: "the proposal
constitutional Act does not change the Constitution in the form of a general wording
rules. constitutional mechanisms no notice - it does not change, add to or interfere
formally only for this one case defines another way
lead to early elections. The dispute is not about early elections, but
on the way to them - and the system conform to the Constitution on the one hand, hence
ad hoc on the other. Therefore, does not appeal to people's right to decide
about who will rule (see the explanatory memorandum to the Chamber of Deputies publication
796), a relevant argument. ... The model draft constitutional law no. 69/1998 Coll
. Compared to him, however, it lacks the element of surprise, because the problem is
known and solutions are proposed. If you should be receiving an ad hoc way
constitutional laws become commonplace, the Constitution will never change, because it will not be necessary
. In this case, however, it is in danger of breaking with the
constitutional and political reality - it gets the character facade '.
At the same time, every political crisis turns into a constitutional crisis, because it will
dealt with constitutional law. ... With the present bill they are associated
doubts about his constitutionality '. The Commission acknowledges the possible existence
unconstitutional constitutional laws', or perhaps rather imaginary, because
outside the competence (ultra vires), the Constituent Assembly adopted the constitutional laws,
if they are in conflict with the essential requirements of a democratic legal
State the amendment of Article. 9 Sec. 2 of the Constitution declares inadmissible.
If it were not, it should not cited any provision

Normative significance. ... The proposed constitutional act goes against the meaning of the Constitution
a number of general rules known in advance governance, interferes
relations between deputies and citizens, as well as to the competence of the Senate.
Its adoption is certainly not the only way to attain
early elections to the Chamber of Deputies, and it will certainly reduce the pressure on any amendment to the Constitution.
Not, however, in favor of its stability, but with the risk of ad hoc circumvention
. ".

The contents of the petition to annul constitutional Act no. 195/2009 Coll., On
statement of the party, as well as opposing arguments
expressed during the parliamentary debate, the Constitutional Court
follow these basic questions: What definitional, conceptual features define
according to the Constitution the category of constitutional law? Without further constitutional law
law, which is thus marked by the Czech Parliament and is accepted
procedure pursuant to Art. 39 Sec. 4 of the Constitution? Or must meet other conditions
: condition of competence (authorization) under Art. 9 Sec. 1 of the Constitution or
according to another express constitutional authorization (Art. 2. 2, Art. 10a para.
2 Art. 11, Art. 100 par. 3), and the material condition, laid down in Article. 9
paragraph. 2 of the Constitution?


VI./a
Generality of the constitutional law as an essential requirement of law

Constitutional practice of the Weimar Republic from 1919 to 1933 was marked by regular
beading constitution through special constitutional laws, and
even for an individual case (which has led to confusion constitution and its
instability). The admissibility of the breaking of the Constitution led a bitter controversy between positivists
(P. Laband, G. Jellinek, G. Anschütz, S. Jaselsohn, W.
Jellinek) and material (in value) of the constitutional oriented (C.
Schmitt, G. Leibholz, Bilfinger C.). In the European constitutional theory
hence breaching the Constitution refers to the following procedure by parliament: "For
not breaking constitutional law provision is amended, but in a unique
case - for the preservation of its general validity for others - made
derogating regulation. ... Such are breaking their nature
measures and not norms, which is why laws are not in právněstátním
sense and consequently also constitutional laws. ...
Legislature as the legislature may only issue laws can not breach it;
Question concerns not law, but of sovereignty. "^ 12)

Basic Law of Germany of 1949 in response to the experience of the Weimar Republic and its outcome
docked treatment, according to which can only be changed by law,
which expressly amends or supplements the text of the Basic Law (Art. 79 par. | || 1, first sentence of the Basic Law). Constitutional provision precludes the possibility of taking
breach of the Basic Law.

Inadmissible breach of the Constitution by the Constitutional Act ad hoc (for an individual case
) is emphasized in other democratic European countries
. ^ 13)

The fact that the laws (ie. Fixed legal norms) to be its own
general character, not the idea of ​​civil law
developed only in the 19th century. This idea accompanies all European legal
history. Located in Sentence great Roman lawyers, lose
in the Middle Ages and comes to life again in the era of Enlightenment rationalism.
Generality of content is ideal, typical, and essential characteristic
Act in relation to judicial rulings, governmental and administrative acts.
The purpose of the division of state powers into legislative, executive and judicial custody is universal and primordial
power control state legislation derived
general power of regulation and decisions on individual cases and manage
nondisclosure decisions on individual cases judiciary.
General requirement of the Act is an important part
principle of the rule of law, and thus also the rule of law. As noted by one of the most prominent theorists
law 20 th century FA Hayek:
"If we start from the premise that if all actions of the state legislature approved
properly, the estate of conservation laws, so it is not | || complete misunderstanding of the importance of the rule of law ... the estate of the Act imposes
limit the scope of legislation: it restricts it to the kind of general rules known as formal
law, and excludes legislation ... directly aimed at certain
people. "^ 14)

Constitutional Court in a number of its decisions repeatedly expressed a requirement
generality legislation. The findings sp. Nos. Pl. US 55/2000 dated

18th 4th 2001 (N 62/22 SbNU 55; 241/2001 Coll.), Pl. US US 24/04
stated the following: "The basic principles of the material law
state belongs the maxim general legal regulation (
requirement of the generality of the Act, respectively. Generality legislation).
Generality of content is ideal, typical, and essential characteristic of the law (resp.
And legal enactments in general), and in relation to judicial rulings, governmental and administrative
acts. The purpose of the separation of powers into legislative, executive and judicial
custody is universal and primordial power state regulation
legislation, implied a general power of regulation and decisions on individual cases
Administration and nondisclosure decisions on individual cases
judiciary. From the above definition of the concept of character definition
Act (resp. Legislation) is then based on the concept
Act (legislation) in a material sense, from which must be distinguished
laws (regulations) in the formal sense. If there are laws within the meaning
formal acts of the Legislature, which this "authorizes or approves
certain specific measures executive bodies (the state budget, state
contracts etc.) ', And' traditional doctrine considers
that lawful authority in such cases can be made - in the form of statutes - administrative acts. '
(F. Weyr, Czechoslovak Constitutional Law, Prague, 1937, p. 37) ... Whatever their form
are sources of law (legislation), its contents are therefore
application of law. ".

Arguments for the generality of the legislation analyzed in
Constitutional Court judgment no. Nos. Pl. US 12/02 of 19. 2. 2003 (N 20/29 SbNU 167;
83/2003 Coll.), In which, among other things. Said: "In this matter, but this must be
aspects relate to the assessment of the law which governs a singular case
which thus departs from one of the fundamental material concept
law, which is generality. Recall that the general requirement of the Act
is an important principle of the rule of law and thereby also
rule of law. ... A special argument against statutes regulating singular
cases is the principle of separation of powers, the separation of the legislative, executive and judicial powers in
democratic rule of law ... Article. I, Section 9 of the US Constitution
in this regard: should not be given any act which would have been content
court judgment. '.'.

Question the exclusion of judicial review in the case of individual legal
regulation dealt with the Constitutional Court in its judgment. Nos. Pl. US 40/02 of
11th 6th 2003 (N 88/30 SbNU 327; 199/2003 Coll.), In which, among other things. Said:
"individual regulation contained in the legislation deprives the addressees
possibility of judicial review of the fulfillment of the general conditions normative framework
for a particular subject, which lacks transparent and acceptable
justification in relation to the possibility of general regulation, must therefore be considered
inconsistent with the principle of the rule of law (Art. 1 of the Constitution), which is immanent
separation of powers and judicial protection rights (Art. 81, Art. 90 of the Constitution). ".

Arguments in favor of generality of law are therefore the separation of powers, equality and the right to
independent judge, and the exclusion of arbitrary (arbitrariness)
in the implementation of public power.

According to Art. 9 Sec. 1 of the Constitution, this may be supplemented or amended only
constitutional laws. Moreover, the Constitution has a number of its provisions expressly
authorizes Parliament to issue constitutional laws governing exactly defined
matter (Art. 2. 2, Art. 10a para. 2, Art. 11, Art. 100
paragraph. 3). To assess the constitutionality of compliance with competence in issuing
constitutional Act no. 195/2009 Coll. must therefore answer the question of whether
be ad hoc constitutional act (for an individual case) come under the framework
permissible constitutional amendments under Art. 9 Sec. 1 of the Constitution.

Ad hoc constitutional act (for an individual case) neither adding nor
amendment to the Constitution. Containing constitutional law for an individual case
can take two forms - either in terms of time-limited suspension of the Constitution or factual,
respectively. personal exception to the general validity of the constitutional framework.

Amendment of the Constitution can be characterized by the fact that in his make-up
constitutional provisions remain unchanged, while the make-up and additional provisions are not contradictory
. The change means the abolition of the Constitution, respectively.
partial annulment of a particular constitutional provision, and possibly (but not necessarily)
provision is new. Breaking the constitution, the constitution does not interfere, with the broken (in

Considered if suspended) provisions and breaking through
(in this case, suspending) are contradictory.

Constitutional Act no. 195/2009 Coll. a constitutional law only in form, but not
content. Content is an individual legal act concerning not
generally defined circle of addressees and situations but specifically designated
entity (Chamber of Deputies of the Czech Parliament elected in 2006
) and specific (the expiration of the term of election day,
which are to be held by 15 October 2009, and shortening deadlines under the Act on
elections to the Parliament of the Czech Republic and under the administrative Procedure
only for this case). This fact is not made explicit in Article
. 1 of the Constitutional Act, but also in Art. 2 (representing direct
amendment to the Act made constitutional law!) Containing at editing
shortening the deadlines mentioned specifically the phrase "in this case."

If forced the Constitutional Court to answer the question if empowers Art. 9 paragraph.
1 of the Constitution, Parliament is also to issue individual legal acts in the form
constitutional acts (eg. To issue criminal judgments against particular || | persons for specific deed, to issue administrative decisions on
expropriation, to shorten the term of a particular
representatives of state authority, etc., etc.), the answer is - no! ^ 15) Material
preview of assessment sources of law, the Constitutional court with absolute clarity
was also stated in its judgment. Nos. Pl. US 24/99 of 23. 5.
2000 (N 73/18 SbNU 135; 167/2000 Sb.): "The concept of the rule of law, which
finds its constitutional framework in Art. 1 of the Constitution, it follows principle, according
that neither the legislature nor the executive can with the forms of law, ie. with
sources of law, dispose arbitrarily, but must abide by the constitutional framers
aspects, as well as other aspects, namely transparency,
accessibility and clarity. ... According to the opinion of the Plenum of the Constitutional Court
classification of the sources of law to be unrolled in the first row of contents
legal norms. ".

An original framers of Art. 9 Sec. 2 of the Constitution with the principles fundamentally
identifying the constitutional system of the Czech Republic stood at the same level
principle of democratic principles and the rule of law.
As follows from the case law of the Constitutional Court, a breach of the principle of universality
law falls within the framework undue disruption of the rule of law.
Any exceptions are either cases of adoption of legislative act as law (eg.
Law on the state budget), as well as cases of express authorization to issue Act
ad hoc (eg. Constitutional laws issued pursuant to Art. 11 and Art. 100 Sec. 3
Constitution) or ad hoc law for the adoption of revealing exceptional
reasons fulfilling the conditions of the proportionality test (eg. "enumerated"
restitution laws).

In the absence of constitutional authorization to issue constitutional acts ad hoc, the constitutional conformity
constitutional law adopted in violation of the Constitution
defined within the competence of Parliament could be based only
protection of the material core under Art. 9, paragraph. 2 Constitution. In other words
expressed, protection of democratic rule of law through the adoption of the Constitutional Act
ad hoc could be accepted as absolutely
exceptional circumstances (such as eg. The circumstances of a state of war or a natural disaster
whose solution does not neither the Constitution nor the constitutional
Act no. 110/1998 Coll., on the security of the Czech Republic, as amended
constitutional Act no. 300/2000 Coll.), such a procedure would have to comply with the terms
posed the principle of proportionality.

As the Constitutional Court has consistently held [see Judgments. Nos. Pl. US 4/94
on 12. 10. 1994 (N 46/2 SbNU 57; 214/1994 Coll.), Pl. US 15/96 of 9
10th 1996 (N 99/6 SbNU 213; 280/1996 Coll.), Pl. US 16/98 of 17. 2.
1999 (N 25/13 SbNU 177; 68/1999 Coll.), Pl. US 41/02 of 28
1, 2004 (N 10/32 SbNU 61; 98/2004 Coll.) And others], the principle of proportionality
is based, among other things, on an analysis of possible normative || | means in relation to the intended aim and their subsidiarity from
terms of limiting constitutionally protected values ​​- a fundamental right or
public good. You can, if the legislature (in this case the Constituent Assembly)
achieving the objective pursued by alternative normative measures, then
constitutionally consistent one, which limits the constitutionally protected value to the smallest extent
.

If it was the purpose of adopting the constitutional Act no. 195/2009 Coll. speed solutions

Government (parliamentary) crisis and quickly dissolve
Deputies and call early elections, according to opinion
Constitutional Court has this effect can be achieved procedure according to Art. 35
paragraph. 1 of the Constitution [specifically, a process according to letter b) of that provision
Constitution]. The adoption of the contested constitutional act was not done
resolve the government crisis, but to shift the date of effect of the Chamber of Deputies
until the election date - in case if it was by
Chamber of Deputies is dissolved, would be held under Art. 17 paragraph. 2 of the Constitution elections
sixty days of its dissolution. Breaking the constitutional rules contained in Article
. 35 of the Constitution except that circumvents the constitutional purpose of the Institute
dissolve the Chamber of Deputies of the Parliament of the Czech Republic, which is constitutional pressure on
connection censure (resp. Refusal to give confidence) government with
awareness of the constitutional consequences if no new parliamentary majority
capable of forming a government. Moreover, it remains only to emphasize that the most important
public interest arising from Art. 9 Sec. 2 of the Constitution
create a legitimate Parliament, based on the unquestioned
constitutionally legal basis of elections.

On these reasons, the Constitutional Court did not find arguments in favor of denouncing
breach framework of the authorization for adopting constitutional laws
as defined in Art. 9 Sec. 1 of the Constitution.

The Constitutional Court has repeatedly stressed that it considers the principle of universality
constitutional law for the component category
essential requirements for the rule of law. It recalls that generality is not an end in itself, its purpose is to ensure
separation of legislative, executive and judicial powers, equality
constitutional framework for analogous situations and thereby excluding the arbitrary application
public authorities and enable guaranteed protection of individual rights
in the form of a right to judicial protection. The meaning and purpose of generality
constitutional law as a conceptual element of the category of law, is protection
freedom.

In favor of the constitutionality of the constitutional Act no. 195/2009 Coll.
argued is the fact that it was without prejudice to Article. 21 paragraph. 2 of the Charter
not therefore be extended, but the abbreviated term of the Chamber of Deputies
, why not to limit the voting rights of citizens not to intervene in
the legitimacy of Parliament. The relevant argument pointing to this argument
resolved already in the parliamentary debate on the draft constitutional law on
shortening the term of the Chamber of Deputies in 1998:
"The danger of the proposed act lies in the fact that it creates a precedent
supreme law of precedent that says that it is possible
momentary, utilitarian, political reasons
change the fundamental law of the country. If possible once it is possible always. For the same reasons
Parliament could suspend the powers of the Constitutional Court if the decision of the Constitutional Court
contradict the current political will for the same reasons
could suspend the powers of the president if they conflict with
current political will, for the same reasons could suspend
Charter of fundamental rights and freedoms if it
obstacle to achieving political goals. Putting fundamental legal certainties
political reasons puts democracy in doubt and creates the potential danger
authoritarianism and totalitarianism. And there is nothing valid that the authors of this
precedent did not and do not, I believe, nothing like that in mind,
and its proposal only want to arrange early elections.
Political logic disregards the intentions and those who will go next time path that
this precedent opens may have different intentions and much darker.
Precisely because of the Constitution in Art. 9, paragraph. 2 explicitly says that change the basic essentials
legal democratic state is unacceptable. "^ 16) Similarly,
as it was in 1998, and the adoption process
constitutional law on shortening the term of the Chamber of Deputies elected in 2006 to the
expressed that argument in its favor subsided relevant
counterarguments, especially in the extensive citation opinion
Standing Senate Commission on the Constitution of the Czech Republic and parliamentary procedure.

Besides the principle of inadmissibility to hold elections within the time limits beyond
term Art. 21 paragraph. 2 of the Charter also enshrines the principle of regularity
election period (the regularity of exercise of voting rights). Constitutional law
ad hoc shortening the election period is a constitutional imperative

Regularity of the electoral period in the conflict, only one case, and not generally
for the future, down from Article. 16 paragraph. 1
Constitution exception.

The Constitutional Court concluded: Neither the constitutional framers can not declare constitutional law
standard that the nature of the law, let alone constitutional lacks.
Reverse procedure is unconstitutional arbitrariness. Exclude a review of such acts by the Constitutional Court would
its role as the protector of constitutionality (Art. 83 of the Constitution) is completely eliminated.


VI./b
Prohibition of retroactivity Constitutional Act 'essential rule of law


Constitutional Court in judgment Pl. US 21/96 of 4. 2. 1997 (N 13/7 SbNU
87; 63/1997 Coll.) Set the basic terms of assessing the constitutionality
retroactive legislation [that legal opinion was then confirmed in
a number of other decisions, see judgment. Nos. Pl. US 35/08 of 7. 4.
2009 (151/2009 Coll.), Plenum opinion sp. Nos. Pl. US-st 27/09 dated
28th 4. 2009 (136/2009 Coll.) And others]. He stated that "
to basic principles defining the category of law are
principle of protecting citizens' confidence in the law and the related principle of non-retroactivity of legal norms
. ... For true retroactivity, therefore, the lex posterior
canceled (recognizes) the legal effect during the term of legis
prioris, or causes or brings together the rights and obligations of entities with
elements such that during the term of legis prioris not
nature of legal facts. ".

There is a fundamental difference in the adjustment shortening the election period
Czech National Council Constitutional Act no. 64/1990 Coll., On election period
Czech National Council, on the one hand, and shortening the term of the Chamber of Deputies
Parliament of the Czech Republic's constitutional law no. 69/1998 Coll. and
No. 195/2009 Coll. on the other side. The first of the three constitutional laws
was adopted before the elections, and the creation of a representative council,
two others after its constitution. These were, therefore, have retroactive effect
set conditions for the application of the electoral law (both active and passive
). Retroactively been changed assumptions based on knowledge
which was decided by voters in elections to the Chamber of Deputies
. ^ 17)

Democratic constitution, which is a fiction of the social contract, in its most general form
expresses the scope of human freedom compatible with the freedom of others
set of constitutive values, and finally the basic structure
institutions, public authorities and procedures, which take legitimacy .
The purpose of these institutions is to guarantee the constitutional framework of freedom, guarantee
inner peace, as well as other constitutionally foreseen public good.
Constitution is therefore fundamental document that provides binding and uncrossable
rules, limits and bounds for the creation of the supreme constitutional bodies of state power
exercising state power in the substantive and procedural,
and the sound and abnormal termination their mandate.

In this case, the Constitutional Court finds that the very early termination
term of the Chamber of Deputies of the Czech Parliament is constitutionally foreseen and
certificated Institute (see adaptation
dissolve the Chamber of Deputies and call early elections enshrined in Article.
35 of the Constitution). Constitution for its application, however, provides both cumulatively
material conditions and the applicable procedure, without the possibility to deviate from them
. Contested constitutional law in this case both are completely ignored
Article 35 of the temporarily suspended ad hoc and beyond the constitutionally prescribed procedure
provides for the only case of a completely different procedure outside one
that the Constitution provides and stores, and it without such a procedure
aprobovatelný so special purposes, which in previous interpretation on the question of public interest
Constitutional court included as examples circumstances
state of war or a natural disaster. ^ 18)

Such circumvention of fundamental constitutional principles, the Constitutional Court
incompatible with the principle of non-retroactivity in connection with the principles
protect the legitimate expectations of citizens in the law and the right to freely choose, ie. -
Among other things - the right to vote knowledge of the conditions for creating election
arising democratic public authorities, including knowledge of their
term. Infringement of the above constitutional principles arising from Article
. 1. 1 of the Constitution, the Constitutional Court considers as interference with the essential requirements
democratic rule of law, enshrined in Art. 9, paragraph. 2
Constitution.


VI./c

The supporting reasons for derogation of the constitutional law no. 195/2009 Coll.

The thus starting a basis for admission
answers to questions formulated above, regarding the character of a constitutional laws,
to whether they must comply with the procedural conditions except pursuant to Art. 39
paragraph. 4 of the Constitution and the condition of competence (authorization) under Art. 9 paragraph. 1
according to the Constitution or another express constitutional authorization (Art. 2. 2
Art. 10a para. 2, Art. 11, Art. 100 par. 3), and the material condition, laid down in Article
. 9 Sec. 2 of the Constitution. The Constitutional Court stands on the opinion
according to which the validity of the constitutional law given to the fulfillment of the three conditions listed
: procedural terms, conditions competency
(enabling) and physical conditions (compliance with the unchangeable principles of the democratic rule of law
). In the adjudicated matter to conclude that
constitutionally impermissible retroactive nature of the individual and Constitutional Act No.
. 195/2009 Coll., There was a breach of Article. 9 Sec. 1 of the Constitution, Art. 21 paragraph.
2 of the Charter in conjunction with Article. 16 paragraph. 1 of the Constitution and Art. 1, paragraph. 1 of the Constitution
founding intensity intervention in Art. 9 Sec. 2 of the Constitution.

Based on the above reasons, the Constitutional Court concluded that constitutional Act no.
195/2009 Coll., On Shortening the Fifth Term of Office of Deputies,
is incompatible with the essential requirements of a democratic rule of law in accordance with Article
. 9 Sec. 2 of the Constitution, wherefore it from 10 September 2009, ie.
the date of this judgment, set aside.

VII.

Derogation under § 70 par. 3 of Act no. 182/1993 Coll.

According to § 70 par. 3 of Act no. 182/1993 Coll. If the law, which
Constitutional Court canceled were issued implementing regulations, the Constitutional Court in its judgment
simultaneously released that implementing regulations cease simultaneously
validity of the law.

In a resolution dated September 1, 2009, ref. No. Pl. US 24 / 09-16 on delay
enforceability of the President no. 207/2009 Coll., On
announcement of elections to the Chamber of Deputies of the Parliament of the Czech Republic,
Constitutional Court stated that the decision is mixed in nature:
contains elements of a legislative act and at the same time it should be regarded as an act
application of this constitutional law. For those
Constitutional Court concluded, according to which elements of the normative legal act (and implementing
) that are contained in that decision
President of the Republic, establish the legitimacy of the process according to the cited provisions of § 70 paragraph
. 3 of Act no. 182/1993 Coll.

VIII.
Obiter dictum


Annulment of the constitutional Act no. 195/2009 Coll., On Shortening the Fifth Term
period of Deputies, the Constitutional Court did not limit in any way the right
citizens to exercise their right to vote, because the only result of this step
( if Parliament adopts another constitutionally conforming solution) is
fact that the current democratically established
Chamber of Deputies of the Czech Parliament will exercise his office until the end of his regular term of office
.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took the decision of the plenum judges
Vladimir Kurka and Jan Musil.

1) V. Pavlíček, J. Hřebejk, constitution and the constitutional order of the Czech Republic, Vol. I
., Constitution of the Czech Republic. Prague 1994, p. 55.

2) A. Gerloch, J. Hřebejk, V. Zoubek, constitutional system of the Czech Republic.
Constitutional Law, 2nd ed., Prague 1996, p. 84.

3) J. Filip, shortening the election period. Parliamentary Bulletin, no. 12,
1997-1998, p. 132: "the issue of the election season is communis opinio
doctorum essential requirements of a democratic system of government."

4) S. Sajama, Rules for the Use of Precedents. In: Proceedings of the 21st
IVR Word Congress. Part II: Law and Practice. Ed. S. Eng,
Stuttgart 2005, p. 163. See also N. Duxbury, The Nature and Authority of Precedent
. Cambridge 2008, p. 113.

5) T. Maunz, G. Dürig, et alii, Grundgesetz. Kommentar. München 1997
Art. 79, p. 14.

6) O. Bachof, Verfassungswidrige Verfassungsnormen? Tübingen 1951, p.
35, 47 et seq.

7) H. Mayer, Das Österreichische Bundes-Verfassungsrecht.
Kurzkommentar. Wien, 1994, p. 336.

8) Ibid, p. 156. That opinion is shared by other leaders
Austrian konstitucionalistky: P. Pernthaler, Der Verfassungskern.
Gesamtänderung Durchbrechung und der Verfassung im Lichte der Theorie,
Rechtsprechung und Europäischen Verfassungskultur. Wien 1998, pp. 46 and

Ff, 80 ff .; L. Adamovich, B.-C. Funk, G. Holzinger
Österreichisches Staatsrecht. Band 1, Vienna-New York 1997, p. 128 and ff
.

9) According to that provision, 'The National Council may approve a constitutional
laws or constitutional provisions contained in ordinary laws, only
presence of at least half of the members, and a majority of two thirds of the votes cast
".

10) See eg. K. Gözler: Judicial review of Constitutional Amendments.
A comparative study. Bursa 2008.

11) A. Hamilton, Madison J., J. Jay, The Federalist Papers. Feeling.
according to Czech translation: A. Hamilton, Madison J., J. Jay, The Federalist.
Olomouc 1994, p. 416.

12) C. Schmitt, Verfassungslehre. (1928) 8. Aufl., Berlin 1993, p.
103-105, 109-110.

13) See P. Pernthaler, Der Verfassungskern.
Durchbrechung Gesamtänderung und der Verfassung im Lichte der Theorie, Rechtssprechung und
Europäischen Verfassungskultur. Vienna 1998, p. 78 et seq.

14) FA Hayek, The Road to Serfdom. London, 1944. Feeling under the Czech
translation: The Road to Serfdom. Prague 1990, p. 73-75.

15) The Czech constitutional theory is that view already appears in
1997 in the theoretical reflection of the then parliamentary crisis: J. Philip
, shortening the election period. Parliamentary Bulletin, no. 12,
1997-1998, p. 133.

16) See performances Michael Žantovský March 15, 1998:
http: //www.senat.cz/xqw/webdav/pssenat/original/28682/24578 (preview of
3 January 2005 )

17) The complaint retroactivity of Constitutional Law no. 69/1998 Coll. see also
doctrinal opinion (J. Filip, shortening the election period.
Parliamentary Bulletin, no. 12, 1997-1998, p. 133).

18) From the perspective that equates see, by analogy findings of the Federal Constitutional Court of Germany
BVerfGE 14, 288, 296 et seq .; BVerfGE 45, 142, 178 et seq.