Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60272&nr=283~2F2005~20Sb.&ft=txt
On behalf of the Czech Republic
The Constitutional Court decided on 22 June 2005 Plenum, composed of Stanislav Balik, Frantisek Duchon
, Vojen Güttler, Pavel Holländer, Dagmar Lastovecká,
Jiri Mucha, Jan Musil, Jiri Nykodým, Pavel Rychetsky, Miloslav Vyborny,
Elizabeth Wagner and Michael Židlická of the group of senators
Czech Parliament to repeal the Act no. 96/2005 Coll., which
amends Act no. 238/1992 Coll., on some measures related to | || protection of the public interest and incompatibility of certain functions (
law on conflict of interest), as amended,
Law no. 96/2005 Coll., Amending Act no. 238/1992 Coll., On some
measures related to protection of the public interest and incompatibility
certain functions (Conflict of Interest Act), in as amended, is hereby repealed
day this judgment.
Constitutional Court received on 14 March 2005 from a group of 53 senators (hereinafter
"petitioner") to annul Act no. 96/2005 Coll., Amending Act No.
. 238/1992 Coll., On some measures related to the protection
public interest and incompatibility of certain functions (law on conflict of interests
), as amended, arguing that the adoption of the law in
conflict with the constitutionally prescribed procedure was a violation of Art. 40 of the Constitution
Czech Republic (hereinafter "Constitution").
The petitioner states that the bill was debated in the Chamber of Deputies
and approved in the third reading at its 38th meeting held on 24 November 2004.
On December 6, 2004 the bill was submitted to the Senate, which rejected it on January 28, 2005
rejected. The Act was nevertheless 28.1.2005
delivered to the President of the Republic for signature, but he exercised his right under Art. 50 of the Constitution and
10.2.2005 returned it to the Chamber of Deputies. President
considered controversial interpretation of the provisions of Art. 40 of the Constitution, and whether the concept
"election law" used in that provision also includes the law on elections to municipal councils
respectively. counties, or whether it concerns only
law on elections to the Parliament of the Czech Republic. Chamber of Deputies maintained
its position that the Senate did not discuss the bill provided by the Constitution
within 30 days and that the passing of the deadline should be act under Art. 46
paragraph. 3 of the Constitution, and on February 22, 2005 approved the act again
112 votes of 120 deputies present. The Act was published on 28 February 2005
in the Collection of Laws under no. 96/2005 Coll. with the exception of item 16 [§ 8 par. 2
point. b)] came into force on 1 March 2005.
The petitioner refers to Art. 40 of the Constitution, according to which the adoption
Electoral Act and the principles of conduct and relations between both Chambers
themselves and the law on the Senate Rules of Procedure need to be | || approved by both chambers. In the case of these laws require the express consent
both Houses, the situation foreseen by Art. 46 para. 3
Constitution, according to which, the bill is adopted, if the Senate does not discuss
within a specified period of thirty days .
Problem of interpretation in this matter, according to the petitioner, two questions.
One is the interpretation of the electoral law in the sense of Art. 40 of the Constitution, but also it
whether the contested act is an election law because
primarily amends Act no. 238/1992 Coll. and only added to paragraph 43 of Law no. 238/1992 Coll
. Part Three, which concerns the amendment of the Act no. 491/2001 Coll., on elections to municipal councils
and amending certain laws, as amended
regulations, and Part Four, which amends Act no. 130/2000 Coll.
elections to regional councils and amending certain acts, as amended
The petitioner believes that despite the unusual legislative and technical
method (instead of directly supplementing Act no. 491/2001 Coll., And Act no. 130/2000
. Supplementing Law no. 238 / 1992 Coll. of new parts and then
amended by the cited laws) can be considered the contested act under
its content for election, because every amendment of existing laws governing elections
, albeit to a small extent, it is possible to change the basic | || parameters of the electoral system. In this sense, it refers to the Constitutional Court
sp. Nos. Pl. US 21/01 [Collection of Decisions of the Constitutional Court
(hereinafter the "Collection"), volume 25, judgment no. 14; promulgated under no.
95/2002 Coll.], applicable by analogy in the present case, in which
Constitutional Court material, that is content-based review and related categorization of statues
Asked whether the contested act is an election act under Art. 40 of the Constitution
petitioner answers in the affirmative, and argues language,
systematic and teleological interpretation. It states that the mere
fact that the Constitution uses the phrase election law in the singular
does not mean that it should (must) be a single act, and such references.
To the provisions of Article. 11 Art. 52, Art. 63, paragraph. 2 or Art. 105 of the Constitution of
which it appears that there may be more laws that govern
particular issue, not just a single law. It follows that
formulation used in Art. 40 of the Constitution does not lead to the conclusion that it should only go
the law on elections to the Parliament of the Czech Republic, on the contrary, we can assume that
terms of any law containing electoral materia. It is therefore a framework
designation, while in the other two cases involve determining the name of the law.
According to the petitioner, linguistic interpretation must be supplemented systematic interpretation.
This method of interpretation leads to the conclusion that if the legislature had intended to limit the scope of the expression
electoral law used in Art. 40 of the Constitution only
law on elections to the Parliament of the Czech Republic, they would contents of this
electoral law refines eg., as it did in Art. 107 of the Constitution,
ever used the term "law on elections to the Senate." Using
teleological interpretation, the petitioner also argues that Art. 40 of the Constitution provides
stricter regime for the adoption of certain laws.
Stricter legislative procedure is evident in the need for both chambers to approve the bill.
While in the case law on the principles of conduct and relations between both Chambers
themselves and the law on the Senate Rules of Procedure
such a requirement is justified undoubtedly need the consent of both the Chamber of Deputies
, but Senate law, which affects the status and functioning of
, the electoral law is a decisive reason
crucial elections for the functioning of a democratic society.
Role of the Senate as legislative and democratic check in the legislative process can be implemented precisely
setting the parameters of electoral systems do not
Legislature, but to all representative assemblies.
To reject the restrictive interpretation of the concept of electoral law testifies
according to the petitioner and other supporting arguments. The first is the fact that the current
individual electoral laws, even if they are formally separate, together
are interrelated and refer to each other as regards certain
polling institutes, eg. Electoral districts, permanent lists voters, the State election Commission
etc. it is therefore evident that amending one of the other
election acts can change, indirectly amend the Act
on elections to the Parliament of the Czech Republic, which is an argument for stricter || | legislative procedure as regards all acts containing electoral
materia. The second argument is the possibility of regulating elections to all representative bodies
one act,. The electoral code which already
Ministry of Interior prepared, suggesting that
central administrative office in election matters considers the issue so
interconnected that can be adjusted in one statute. In conclusion
petitioner also pointed out the historical aspect, the background report
to the Constitution stated that "Art. 40 defines the circuit where it is necessary
approval of both chambers, otherwise the law is not adopted," from which it can assume that
intention was to introduce such legislative procedure rules for
a limited circle of laws that ensure equal status
Senate in relation to the Chamber of Deputies.
In terms of broader petitioner referring to the judgment file. Nos. Pl.
US 14/01 (Collection of Decisions, volume 22, judgment no. 91; promulgated under no.
285/2001 Coll.) Considers that the procedure of Deputies
when adopting the contested act was not correct either because he did not follow established
practice, which could already be considered a constitutional convention.
Pointed to progress in the discussion of the law on elections to the European Parliament, which
Deputies passed the Senate on December 6, 2002, the Senate
discussed on 9 January 2003 (ie after the thirty-day deadline) and on 15 January 2003 it
returned to the Chamber of Deputies with proposed amendments. Deputies
again voted on the proposal and adopted it with the Senate amendments
proposals. If it had proceeded as was the case under the law,
Would have to consider the law on elections for the European Parliament adopted
expiry of the thirty day period.
With a proposal to annul the Act petitioner also joined
proposal for priority review under § 39 of Act no. 182/1993 Coll., On
Constitutional Court, as amended (hereinafter the "Act on
Constitutional court ") on the grounds that tightening the rules on conflict of functions
has an immediate impact on a number of people under the contested law requires
Czech Senate, in its response to the petition dated
April 14, 2005, signed by its chairman Premysl Sobotka, said
contested amendment to the law on conflict of interest was referred to the Senate on December 6, 2004
. The Senate had from the beginning of negotiations no doubt that
bill containing amendments to electoral laws to be discussed in the legislative regime
"equivalence" of both Houses, and that its adoption was
must be approved by both chambers. The correctness of this procedural regime
confirmed by the conduct of the proposers of the draft, deputies assigned
Deputies to justify the amendment in the Senate bodies,
who participated in the meetings of Senate committees and the full Senate held after
5.1.2005, which would be the deadline for consideration of an ordinary statute
Senate. The Senate began consideration of the draft amendment at its 3rd
meeting on January 28, 2005 and upon the recommendation of the Constitutional Law Committee, Committee
Education, Science, Culture, Human Rights and Petitions, Committee for Regional Development
Public Administration and environment and the Mandate and immunity Committee
to reject the draft and after discussion and vote took
resolution no. 55, which the draft amendment to the Law on conflict of interest dismissed. In
During discussions in the Senate has been informed that the Chairman of the Chamber of Deputies
laid out with the support of the organizing committee of the House
Art. 40 of the Constitution and the law on elections to local councils and
Law on Regional Elections are electoral law
under this provision and that the chairman of the House was, on 28 January 2005 Law
amending the Law on Conflict interests, the President for further
constitutional measures. The Senate objected against this step, no
procedural motion but did not pass. By letter dated 1 February 2005
chairman of the Senate informed the President that the procedure followed in this matter
chairman of the Chamber of Deputies is absolutely differs
with the legislative procedure raised in the Senate and expressed reasonable doubts about the constitutional
conformity procedure, chairman of the Chamber of Deputies.
Substance Senate pointed out that the concept of electoral law in Art. 40 of the Constitution
long settled approach in terms of its literal interpretation
to include all acts containing rules for constituting constitutionally defined
representative bodies, which are created by choice, and similarly
complements of national representative bodies in
delegated authority under Art. 10a of the Constitution. The Senate is
based on the argument that the electoral laws are in addition to normative acts
constitutional order of most important source of constitutional law and their primary purpose is
content to fill the skeleton of our constitutional system.
Electoral laws are for their creative function, included in the constitutions of a number of European states between
so. Organic laws, which serve to implement
important constitutional authorizations for the construction of the state and local
organization of the country, and in these constitutional
systems they are subject to a qualified process of adoption. Appeal pointed out that the explanatory memorandum
Art. 40 of the Constitution the notion of electoral law is silent, but it is known that during
negotiations on the draft Constitution the nature of the acts subject
regime of this provision, and there was a trend
to strengthen the position of the Senate. Government also does not Art. 40 of the Constitution the "protection
one chamber over the other," as evidenced by the statement of the Prime Minister while presenting
law on elections to the European Parliament in the Chamber of Deputies
, the statement of the Minister of Justice when the vote || | House of the President's veto of the amendment to the law on conflict of interest, or
government bill to amend the Constitution (Parliamentary print no. 349 of the IV.
election period, r. 2003) with the new wording of Art. 40 containing an exhaustive list | || laws whose adoption need to be approved by both chambers
Parliament; the list also includes the Law on Elections to
municipalities and regions.
Senate emphasized that its majority agrees that
interpretation of the term "election act" is dynamic. Besides elections to representative bodies
newly classifies this concept of the law on elections to the European Parliament and
if the introduction of direct elections of the president also
implementing the law on the election of the head of state. It appears to be inevitable that the process
Senate's activity to interpret a number of concepts and relationships governed
Constitution of the controlling and stabilizing function of the Senate, which is
emphasized and affirmed only with its actual commencement of the action
1996. the Senate pointed to the relatively sparse expert legal commentaries
Art. 40 of the Constitution, the concept of election law, according to some
includes laws on elections to both chambers of the Czech Parliament, and laws on elections to bodies
government (Pavlicek, V. - Hřebejk, J.,
Constitution and the constitutional order of the Czech Republic, Commentary, Volume 1, Linde, Prague 1998)
by others, then it is only the legislation on elections to the Parliament of Czech | || Republic, when the same (protective) the meaning of this term is used in Article.
33 paragraph. 2 of the Constitution (Hendrych, D., Svoboda, C., et al., Constitution of the Czech Republic
, Commentary, CH Beck, Prague 1997). The Senate also mentioned the content
veto the president addressed the Chamber of Deputies on the amendment of
conflict of interest.
In the conclusion of his statement, the Senate said that its long-term
attitude to this matter are generally in agreement with the arguments of the petitioner
excluding consideration of an established constitutional conventions. Over the period of its existence
Senate has discussed many times laws, respectively.
amendments to the laws on elections to municipal councils, regions or the European Parliament, but always
either spontaneously came to their legislative decisions on these laws
within thirty days, or the present law also contained
Act amendment elections to the Parliament of the Czech Republic, respectively.
another concourse of circumstances for which it did not use the procedure under Art. 40 of the Constitution was obvious
or opinions of the Chamber of Deputies indisputable. Only decisions
Senate amendment to the Act on Conflict of Interest, with attached amendments
laws on elections to local councils and regions that make more than 30
days (53 days) from its assignment and at the same time without having
would subject his decision was also a law on elections to the Parliament of the Czech Republic
, in this respect it is a matter of precedent.
The Senate concluded that discussed the amendment in the law on conflict of interests and
passed to it in the majority opinion that they do so within the bounds
provided jurisdiction and in a constitutionally prescribed manner and that its decision to reject
this law means lack thereof.
Therefore leaves to the Constitutional Court to assess constitutionality of the contested Act, and in the case
Chamber of Deputies of the Parliament of the Czech Republic in response to the petition of
18.4.2005, signed by its chairman Lubomir Zaoralek,
briefly recapitulated the legislative process, begun
receipt of the draft amendment, submitted by a group of deputies of the day December 18, 2003.
To justify its method of Deputies pointed
explanatory report on the draft Constitution (print 152 VII. Term CNR), according to a
Art. 40 of the Constitution to "ensure that both Houses can coexist ,
without endangering the legislative process. Meetings of both chambers in
mutual relations must be functional. both chambers can act completely independently and without
interconnectivity. ". According to the Chamber of Deputies
strengthening of the Senate, respectively. the Senate's position on equal footing
Chamber of Deputies of this article is to ensure his position against
Deputies, and not the fact that the Senate created
guard of all election processes in the Czech Republic, even though it directly | || and affect its position in the bicameral structure does not threaten
. Regarding the elections to the Senate, respectively. Chamber of Deputies, has
be strengthening the current limitations of the Senate and Chamber of Deputies achieved
particular, that the Chamber of Deputies can not unilaterally modify the terms
elections and the formation of the Senate, respectively. Deputies and
against his will. This approach also corresponds to other standards referred to in Art. 40 of the Constitution
ie. The Act on the Senate Rules of Procedure and called. Abutting law.
It is the norm, where the dominance of the Chamber of Deputies could weaken the position
Senate in the relationship of both chambers, respectively. lead in the extreme case
the Senate superfluous. This relationship, as well as the potential impact on
position of the Senate in relation to the Chamber of Deputies, do not exist in the case
elections to regional and municipal councils;
these laws do not affect the position of the Senate, and both chambers do not disadvantage one another.
Chamber of Deputies pointed out that the law does not concern itself
election content, does not alter the course of elections, the rules for determining election results
or the opportunity to participate in the elections. According to the Chamber of Deputies
petitioner has completely omitted the context in which the concept of electoral law in
Art. 40 of the Constitution. These context that the Chamber of Deputies
found in the interconnectedness of Art. 40 with Art. 33 paragraph. 2 of the Constitution, according to which an election
law also means the law on elections to the chambers of the Czech Parliament
, not laws concerning elections to
other bodies, including regional councils and municipalities (
purpose of these provisions is to prevent the Senate at a time when the Chamber of Deputies is dissolved
, changed the method of its creation, and not to prevent
Senate shall adopt legal measures regarding the elections to local councils
regions and municipalities).
Deputies also argued systematic breakdown of the Constitution
where Art. 40 is included in Chapter Two of the Constitution, which regulates power
legislative, and is directly related to Art. 18 of the Constitution, which regulates the principles
suffrage both houses of the Parliament of the Czech Republic
and principles of the electoral system, and also with Art. 20 of the Constitution, which provides
other conditions for the exercise of voting rights by law.
According to the Chamber of Deputies, one can conclude that the framers had in Art. 40 of the Constitution
mind the electoral law governing only elections to the Parliament of the Czech Republic
, not elections to regional councils and municipalities, which are governed by
Chapter Seven, Art. 102 of the Constitution. Unlike the petitioner
Deputies considers that any verbal explanation of the concept
electoral law in Art. 40 of the Constitution would be superfluous. In Art. 107 of the Constitution
such clarification was necessary ( "Law on Elections to the Senate") to
no doubt that this is only the electoral law in the sense of Art. 40 of the Constitution, because this relationship
without closer definition would not obvious nor on the basis
marking the eighth head of the Constitution or of the related provisions of this
head. The Chamber of Deputies rejected the view that if the legislature had intended
framers apply Art. 40 of the Constitution only to the Act on elections to the Parliament of the Czech Republic
, it would undoubtedly reference to Article. 20 of the Constitution.
Deputies considers, however, that internal links can be used only
when the internal connections are not fully clear, and not
possible to infer from the internal system of law and the interconnectedness of its
individual provisions. The use of the term election act in the issue
Deputies argued completely contrary to the petitioner, his
argument derived from literal linguistic interpretation and refused
emphasized that each provision of the Constitution must be evaluated individually and in mutual
context with other provisions.
Impermissibly generalizing approach can not be accepted in this case.
Deputies also objected to the petitioner's allegation that
previously acted differently in similar cases. It said that the law on
elections to the European Parliament (Act no. 62/2003 Coll., On elections to the European Parliament
amending certain Acts) was subjected to the approval
under Art. 40 of the Constitution because it contained in the second part of § 71
direct amendment of Act no. 247/1995 Coll., on elections to the Parliament of the Czech Republic
and amending and supplementing certain other laws, as amended
. Regarding the case that the president used as an argument for
its previous different approach Deputies
explained that it was the Law on Local Elections (II.
Term Chamber of Deputies, 383 ), which the Senate on June 11, 1998
within the thirty day period dismissed. In the opinion of the President of the Republic
Deputies then recognized the opinion that the law requires
consent of the Senate, because of the bill's rejection at its last meeting before the end of the parliamentary term
On June 18, 1998 did not vote again.
Deputies consider this opinion for the corresponding relevant
legislation by Law no. 90/1995 Coll., On the Rules of Procedure of the Chamber
Commons. The law could be submitted to the Chamber of Deputies to re
vote after a ten-day period (§ 97 par. 3 of
Act), which was the earliest on June 22, 1998. On 19 and 20 June 1998 were held
elections to the Chamber of Deputies and in accordance with § 121 par. 1 of the cited Act
was not possible in the new term of Deputies
discuss proposals that have not been discussed and decided in
last term. In the present case, this is not the procedure of the House
different from the previous ones, but it is the first case in which the Chamber of Deputies and the Senate
difference of opinion arises in solving the case.
Chamber of Deputies pointed out that it made every effort to ensure that
evaluate the matter and verify it in all possible contexts, including
detect whether a similar case in the past
occurred and whether it was some way solved. It was, however Senate
which unilaterally and without any consultation with the Chamber of Deputies
told the Chairman sent a letter dated January 6, 2005, that a bill
under Art. 40 of the Constitution, because it contains amendments to electoral laws and for this reason it
Senate did not discuss within the thirty day period.
In the conclusion of his statement Deputies expressed the belief that
procedure for the adoption of the contested act was consistent with the Constitution,
constitutional order and laws of the Czech Republic.
Left it to the Constitutional Court to evaluate and decide, but it opened up the question whether the petitioner had
with regard to legal certainty and minimize interference
claimed only annulment of those parts of the Act that relate
laws on elections to local councils and regions; Other parts of the law on conflict of interests
, is undoubtedly mode Art. 40 of the Constitution and subject
their annulment should be sought in a separate proposal.
Chamber of Deputies attached to its observations a letter from its Chairman
dated February 2, 2005, addressed to the President, in which
Chairman of the Chamber of Deputies responded to the president's doubts about the correctness
process of Deputies in approving and
promulgation of the Act, which amends the law on conflict of interests.
Chairman of the House expressed confidence that this case
Art. 40 of the Constitution does not apply, because, with reference to the explanatory
message to the Constitution, the purpose of this article is to ensure that both chambers
could coexist without endangering the legislative process.
It is therefore proper functioning of both chambers of the bicameral system
predominance of Deputies, the Senate's empowerment lies in
ensuring its position in relation to the House, not the guardian
all electoral processes State. According to the Chamber of Deputies chairman
this position also corresponds to other norms provided in Art. 40 of the Constitution, which
during their preparation, the dominance of Deputies could weaken the position of the Senate
in their relationship. However, such a character
laws on elections to municipal and regional councils have their
potential influence on the position of the Senate in relation to the Chamber of Deputies is not
noticeable. The amendment in the law on conflict of interests of elections
matter does not affect the legal opinion of the Senate therefore has a purely formal character.
At the conclusion of his letter to House Speaker expressed the opinion that
Senate's opinion in this matter was not correct. If
to the given bill the Senate did not within 30 days, it was necessary to proceed in accordance with the provisions of Article
. 46 para. 3 of the Constitution, according to which, the law was passed by the Senate
Informed the Constitutional Court petition from a group of senators to annul Act no. 96/2005 Coll
. President Vaclav Klaus and left it to his discretion
whether to deliver the petition opinion. President
letter dated 31 March 2005 the Constitutional Court that the contested act
contains an amendment to Act no. 491/2001 Coll., On elections to municipal
, as well as an amendment to Act no. 130/2000 Coll., on elections to regional councils
which electoral laws, and therefore it was necessary that
within the meaning of Art. 40 of the Constitution approved by the Chamber of Deputies and the Senate
. However, the contested statute was approved only by the Chamber of Deputies,
Senate expressly rejected, and therefore he did not consider the law that was validly adopted
. The President maintained its position as
told the Chamber of Deputies and the text for the purposes of proceedings before
Constitutional Court put.
Letter dated 10 February 2005 addressed to the Chairman of the Chamber of Deputies
President returned to the Chamber of Deputies a law amending
Act no. 238/1992 Coll., On some measures related to the protection of the public interest and
incompatibility of certain features (the law on conflict of interests
), arguing that the law contains a direct amendment to the law on elections to municipal councils
a direct amendment to the law on elections to regional councils
, with the adoption of the electoral law is necessary ,
passed by both Houses under Art. 40 of the Constitution. In this case
law was rejected by the Senate. The President said that the
statement from the Chamber of Deputies and the Senate chairman suggests that
Deputies considers the election law, only law on elections to the Parliament of the Czech Republic
while the Senate considers the election law, each
elections Act from municipal elections to elections to the European Parliament
. The Chamber of Deputies is therefore of the opinion that the law was adopted
deadline for Senate discussion, ie on
January 6, 2005, the Senate insists that the act was not passed. In order to prevent
disputes about whether the act was or was not validly adopted, the President of the Republic
decided to amend the law on conflict of interest and allow the return
Chamber of Deputies to vote on the law again.
Contradiction between the two chambers lies in the interpretation of the words "election act" in Art. 40 of the Constitution
. Both approaches can be by the President of the Republic to defend.
Chamber of Deputies approach is a strict interpretation; the Senate
based on the logical interpretation that Articles 40 and 33 of the Constitution are in fact
not only to protect the position of one of the Houses of Parliament
against other House but in order to change all
voting rights in the Czech Republic we have always needed the cooperation of both chambers
. The president pointed out that the Chamber of Deputies
restrictive interpretation in the past, did not hold, and on June 18, 1998
not vote on the amendment to the municipal elections, which the Senate on June 11, 1998
within the thirty day period dismissed.
The President also considered it significant that representatives of the Chamber of Deputies attended
debate on the amendment to the Act on Conflict of Interest in Senate bodies even after
January 6, 2005, ie after the law should have been upheld. The current interpretation of Deputies
therefore be a totally new, and taken
just in relation to this amendment. Also this fact was for him a reason for returning
On 29 March 2005 the Constitutional Court received a petition from a group of senators
53 (goes by a different petitioner, thirteen senators in this diverse group
) to annul § 1 par. 1 in the words "a | || members of regional councils, municipal councils with extended powers
and city of Prague, which exercise municipal
with extended powers (hereinafter "the regional assembly and the city"), "§ 2
paragraph. 1 point. b) § 2 para. 6 and 7, § 4, the words "or regional or municipal
" § 5 para. 1 first sentence the words "and a member of the council
region or town," § 5. 1, last sentence the words "and a member of the council
region or town," § 5 para. 3 in the words "and
member of a regional council or city council Audit Committee
same region or town," § 6. 1 the words "except
unreleased member of a regional council or town," § 6. 3 the words "or
region or town," § 6 par. 4 point. c) § 7 para. 2 point. c) § 8. 1
words "monitoring committee of regional council or town," § 11 para. 1
the words "or three members of a regional council or town," § 11 par. 2
fifth sentence, § 11 par. 2, fourth sentence the words "or
members of regional councils and towns," § 11 para. 6 the words "
governor or mayor," § 11 para. 8 in the first sentence the words " governor or mayor "and
the words" or regional council or town "and the last sentence in
words" governor or mayor, "and the words" or deputy governor or deputy
"§ 11 para. 10 and the provisions of part Three and part Four of the Act
no. 238/1992 Coll., on some measures related to the protection
public interest and incompatibility of certain functions (
law on conflict of interest), as amended by law no. 287 / 1995 Coll., Act no. 228/1997 Coll.
Act no. 15/2002 Coll. and Act no. 96/2005 Coll., ie. the provisions
been incorporated into law by Act no. 96/2005 Coll. The proposal included a substantive
Argument with the assertion of the contested provisions conflict with Art. 1 of the Constitution and Article
. 1. Art. 3, Art. 10 paragraph. 2 and 3, Art. 21 par. 4 and Art. 26
Charter of Fundamental Rights and Freedoms (the "Charter").
The Constitutional Court found that the date of commencement of proceedings in this Logged
under sp. Nos. Pl. US 19/05, ie. The date of 29 March 2005, the Constitutional Court of
proposal to annul these provisions, in the matter under
sp. Nos. Pl. US 13/05. According to § 35 para. 2 of the Constitutional Court
is inadmissible if the Constitutional Court has the same case
it while handing when it authorized petitioner has the right to participate
negotiations on the previously filed petition as an intervener. The Constitutional Court therefore
order dated April 14, 2005, ref. No. Pl. US 19 / 05-13, a proposal rejected
petitioner [§ 35 para. 2 in connection with § 43 para. 1 point. e) and
§ 43 paragraph. 2 point. b) the Constitutional Court Act] with the fact that this group
Senators of the Parliament of the Czech Republic belongs in the case file. Nos. Pl. US
5.13 an intervener.
Document dated 21 April 2005, the intervener took advantage of the fact that he
proceedings under file. Nos. Pl. US 13/05 the same rights and obligations as
parties (§ 32 of the Constitutional Court Act), and in the event that the Constitutional Court did not
petition to annul Act no. 96/2005 Coll., Proposed abolishing || | provisions of the Act no. 238/1992 Coll. In the scope stated in its petition under file
. Nos. Pl. US 19/05. He pointed out that the amendment to the law on conflict of interests
imposed on members of councils of local governments
considerable obligations that have to be fulfilled in a short period of time, thereby
them basically changed during the election period conditions | || exercise of public functions. This fact, together with the circumstances under which
Act no. 96/2005 Coll. passed, it violates the principle
legitimate expectation and the principle of trust in law, which are the regulatory
expression of the value of legal certainty stemming from the concept of the rule of law in accordance with Article
. 1 of the Constitution.
Substantive objections to the provisions proposed to repeal
The secondary party to justify the violation of the principle of equality and non-discrimination
(Art. 1 and Art. 3 of the Charter), as compared to the current situation, the amendment
law on conflict of interest expanded the obligations imposed by law [
obligation to submit an affidavit on personal assets, on activities, on income
and gifts and real estate, and the obligation to refrain from conduct under § 2 paragraph
. 1 point. b)] to members of the councils in the districts in the capital
Prague, municipalities with extended powers and municipal districts of Prague which
exercise the jurisdiction of municipalities with extended powers. This definition of personal
covered by the intervener is unconstitutional because it establishes
unjustified inequality between the members of regional councils and municipalities with extended powers
on one side (including the capital city of Prague and
boroughs Prague with expanded jurisdiction ) and other municipalities
other hand, for which there is no legitimate and rational reason. This
inequality in providing a certain number of advantages to some at the expense of other
then establishes between members of representative local government units
inequality in relation to Art. 10 paragraph. 2 and 3 of the Charter (right to protection of privacy
), because the law imposes one group of councilors
obligation to publish information about their assets (§ 3, 4, 6, and 7) and
certain activities (§ 5), which obligation affects
husband or wife. The law prohibits members of representative
act in certain commercial matters to the local government unit in
whose representative is a member. This partial waiver of the right to
business and other economic activities, respectively.
right to obtain the means for their life needs work is in conflict with Art. 26 paragraph. 1 and 3
Charter. The intervener considers that the increased level of citizen
over the conduct of their elected representatives is basically positive for
decisive and ultimately unacceptable, however
considers changing the rules during the election period. If
statutory obligations to the members of council from the first elections
held after the effective date of the Act, objections would lose the secondary
party foundation. The intervener also contends that the adoption
Act on Conflict of Interest also violated Art. 21 par. 4
Charter, which guarantees citizens the right to access to elected (and other
public) office under equal conditions, which he believed
includes not only the right to access functions in the strict sense, but also the right
on their performance. With reference to the jurisprudence of the Constitutional Court and
European Court of Human Rights on the necessity determination
reasonable and objective reasons justifying the different position of the addressees of legal norms
then intervened repeatedly pointed out the absence of such
reasons in this matter.
The provisions of § 2 para. 6 and 7 of the Law on Conflict of Interest distinguished between
released and unreleased members of representative counties or municipalities with extended powers
(including specifics of Prague and its
boroughs) of terms of the right to payment for performance
member of the management, supervisory or controlling body of a legal person
whose founder is the county or city, or in which the region or city
majority ownership or majority voting | || rights, the intervener states that this provision creates an impermissible inequality
among the council members.
The provisions of § 2 para. 6 of the Act deprives released members of councils
right to remuneration for the function performed, the right to obtain
means for their life needs work (Art. 26 Sec. 3 of the Charter) which || | is discriminatory in relation to unreleased members of representative bodies.
This also violates the right to a public office under equal conditions (Art. 21
The secondary party against the third and fourth parts of the law on conflict of interests
is largely similar to the objections set forth above. These parts
Act supplement the law on elections to local councils and
law on elections to regional councils as it provides for other cases of incompatibility of functions
member council with certain activities.
Such action by the legislature, according to the intervener
contrary to the principle of legitimate expectation and confidence in the law.
Supplemented provisions of both the electoral law, it will lead to the disqualification of members
municipal and regional assemblies, which will also violates the right of the
representatives to exercise public office to which they were properly and in accordance with the law
elected. The effectiveness of these provisions should be postponed until
elections to local councils of local governments, which could
each candidate consider whether, in such circumstances, the performance of the mandate
he intends to run.
Senate of the Parliament of the Czech Republic in response to the petition sub
party dated 16 May 2005, signed by its chairman Premysl Sobotka
, summarized the chronology of the discussion of the bill
no. 96/2005 Coll. and the outcome of the vote, which the Senate
draft amendment to the Act on Conflict of Interest rejected. In general, the existing regulation
conflicts of interest and expected expansion in local government, the majority of the Senate
skeptical about its effectiveness since the diversity
relations in conducting municipal government appeared to most senators
as a substance, which simply subordinating to the regulation
parliamentary context of conflicts of interest can hardly handle so
led to a successful outcome. Appeal pointed out that the proposed amendment shifts
regulation of conflicts of interest from political accountability to type it
criminal liability without the deal with the essence
existing long-term problem, which is that representatives, deputies
senators and entrepreneurs in the bodies of legal entities.
Senate's specific criticisms directed at a number
legislative and legal issues, such as. Violation of the equality representatives in their
status (ie. Released and unreleased representatives), division of representatives
terms of remuneration rights for the function in the legal entity
which represent the municipality, or expanding the circle of functions with which the office of a representative
incompatible. Was viewed negatively punitive treatment
offense and sharp criticism of the fact that the extension
incompatibility took effect in the middle of the parliamentary term
councils, so the number of representatives were practically forced to
resign before their mandate, which in a sense
corrects the results of the elections.
In the conclusion of his statement, the Senate proposal intervener '
Concurred with that is up to the Constitutional Court to assess constitutionality
the contested provisions of the law on conflict of interests and ruled on the case.
Chamber of Deputies of the Parliament of the Czech Republic in response to the petition in intervention
dated May 17, 2005, signed by its Chairman
Lubomir Zaoralek, summarized the objections presented in three groups.
The first concerns those provisions of the law on conflict of interests which,
briefly, expand the personal scope of the law on conflict of interests for members of councils
certain local government units.
According to the Chamber of Deputies was criticized by the speed of the amendment to the law on conflict of interests
without a transitional period caused by the increasing public
pressure to prevent the possibility of corruption in public administration, which
does not mean that it has retroactive effect. Likewise, distinguish
public administration bodies does not create discrimination and violation of the principle of equality
. Public administration can not be based on the absolute equality of all
entities concerned. Municipalities will differ from each other mainly by
different material base, budget, and scope and
powers, whether in the exercise of state government or local government.
Legislature was the designation of bodies of public administration, which expanded
personal scope of the law on conflict of interest, guided by the consideration that with increasing
scope of the responsibilities of public administration may increase the possibility
corruption and vice versa. The conflict concerned the provisions of the
conflict with the constitutional principle of the right to privacy
Chamber of Deputies rejected referring to the law on personal data protection.
The second area of objections criticizing the differing treatment of status
released or unreleased member of a local government council
whole Deputies said that if released
council member may be a higher probability of corruption than in
unreleased member. The legislature adopted a regularization
tried to prevent such conduct.
Third area of objections is aimed at changing the laws on elections
municipal and regional assemblies, which provided
incompatibility of certain functions with the function of the council members. The argument
changing conditions during their term of Deputies stated that it
not aware of the violation of the constitutional order of the Czech Republic.
The final statement reiterated its belief that the legislature
acted in accordance with the Constitution, constitutional order and the rule of law.
Observations submitted to the Chamber of Deputies and the Senate on the proposal
participant was both parliamentary chambers communicated to any replicas.
Chairman of the Chamber of Deputies, by letter dated June 21, 2005 added to things that
in his opinion the petition is incorrectly aimed only at Act no.
96/2005 Coll., And not properly against individual and already effective | || provisions of the Act on conflict of interest. The Senate did not.
Constitutional Court as the basis for its decision, obtained a number
stenographic records, resolutions and parliamentary publications freely available in the Joint
Czech-Slovak Digital Parliamentary Library on www.psp.cz.
The hearing of the case, the Constitutional Court ordered a hearing.
Petitioner and intervener in the context referred to their suggestions and arguments in
contained therein; Opinion Chamber of Deputies chairman expressed his
reply of 21 June 2005 rejected as incorrect and inconsistent with
existing case law of the Constitutional Court.
The Senate, as a party, represented in oral proceedings
its chairman Premysl Sobotka, recalled the statements it submitted to
Deputies letter dated June 21, 2005, signed by its
chairman Lubomir Zaoralek, told the Constitutional Court that none
's representative to the Constitutional Court for the ongoing meeting of the Chamber of Deputies
to an oral hearing and can not attend He asked for an apology, which
the Constitutional court accepted.
Constitutional Court, under § 68 para. 2 of the Constitutional Court
first examined whether Act no. 96/2005 Coll., Amending Act no.
238/1992 Coll., On some measures related to the protection of public
interest and incompatibility of certain functions (conflict of interest Act), in
Amended, was adopted within the bounds set by
competence and in a constitutionally prescribed manner.
The statements of both chambers of Parliament, attachments and documents
available electronically (stenographic protocol from a meeting of the Senate
28.1.2005, recording a 44th vote 3rd meeting of the Senate on January 28, 2005,
Senate resolution no. 55 of the third meeting held on 28.1.2005, stenographic protocols from relevant meetings
Deputies and records of the 122nd voting
38th meeting of the Chamber of Deputies on 24 November 2004 and 41 442 votes
. meeting of the Chamber of deputies on February 22, 2005)
the Constitutional court found that the contested draft Act was submitted to the Chamber of deputies
group of MPs (Parliamentary print no. 550/0). After the submission of the bill
Government of the Czech Republic went through three readings in the Chamber of Deputies
(first reading on 31 March 2004 at the 30th meeting IV. Electoral period
second reading on 12 October 2004 at the 36th meeting and third reading on 24 November 2004 at the 38th meeting
), which agreed with it on November 24, 2004, when the
present, 169 deputies voted for the Bill 113 were against it
36 20 votes abstentions.
On December 6, 2004 the bill was submitted to the Senate (Senate publication 465/0)
which rejected it on 28 January 2005 at its 3rd meeting of the 5th term rejected 52 votes
senators out of 72 present , 14 were against and 6 abstentions
Act was delivered to the President, who used his right of him
Constitutional in Art. 50 par. 1 and returned 10.2.2005 Law Chamber of Deputies
stating their objections. To remain in the bill voted on
41st meeting on February 22, 2005 out of 120 deputies present, 112 (with a quorum
101 votes), 2 were against it. The Act was promulgated under no. 96/2005 Coll. in the amount of 29
distributed on February 28, 2005. The Act came into effect on March 1, 2005, with the exception
paragraph 16 [§ 8 par. 2 point. b)], which is due to take effect on January 1, 2006.
Contested Act amended the law on conflict of interests
(no. 238/1992 Coll., As amended) and the provisions of the laws
municipal elections (no. 491/2001 Coll., As amended
later regulations) and regional elections (no. 130/2000 Coll., as amended
). Whereas with. "Ordinary" laws can
opposition of the Senate to overcome a new vote in the Chamber of Deputies, with
electoral law it is not possible. In the present matter, it is obvious that
fundamental issue for the decision of the Constitutional Court's interpretation of the concept
"election act" in Art. 40 of the Constitution. While the petitioner
Senate and the president deemed the election law under the cited article
Constitution, every law, which will govern the elections to all representative bodies
, the Chamber of Deputies believe that such a law must be understood
only the law on parliamentary elections.
In terms of jurisprudence was published several opinions, even opposite (cf..
Example. Pavlicek, V.- Hřebejk, J .: The Constitution and the constitutional order of the Czech Republic,
Volume I: The Constitution of the Czech Republic, Linde Praha, 1994 Hendrych, D.-
Svoboda, C. et al: the Constitution of the Czech Republic, Commentary, Prague, CH Beck
1997, Kysela, J .: the interpretation of the concept of electoral law in the legislative || | practice of the Senate, Parliament's rapporteur, vintage 2001, no. 2, Filip J .:
procedure for approval "election law" under Art. 40 of the Czech Constitution,
Journal for legal Science and practice, year 2005, no. 1).
The legislative process concerning the contested act
shows that while accepting the legal opinion of the Chamber of Deputies would not be
constitutional procedure preceding the adoption of the contested act criticized
nothing; acceptance of the petitioner's opinion would in turn necessarily led to the conclusion that the contested Act
a constitutional process was not accepted (for its
Senate rejected the draft), so that, if despite that, after
override the president's veto of Deputies for its publication it should be brought
intervention of the Constitutional court to cancel. In addressing the issue thus posed
Constitutional Court on the following considerations.
Separation of powers between the Chamber of Deputies and the Senate during the legislative
activity governed by the Constitution in Article. 39 paragraph. 4, Art. 40, Art. 42 para. 1 and Art. 45 to 48.
constitutional framer they founded for different laws of three different
First Adoption of the draft law on state budget (Art. 42 para. 1 of the Constitution)
framers entrusted to the exclusive jurisdiction of the Chamber of Deputies. Meaning
This constitutional rule is obvious. The state budget, passed in
statute (only a formal, not a material sense)
constitutes a basic tool and framework for implementation of government policy. Given that the government is
terms of its creation and existence tied to the majority will only
Chamber of Deputies, would be for the functioning of not only governments, but also the state Senate
input into the process of approving the state budget bill
dysfunctional moment, especially in not only theoretically predictable
situation entirely different political composition of both chambers of Parliament.
The purpose of the Senate is not immediately affect either the creation or government action;
its mission lies in other influences (explanatory memorandum to the draft Constitution that
the brief sentence, "The Senate has a review and stabilizing function.").
Second Most laws are subject to the legislative procedure described in Art. 45 to 48
Constitution. In this procedure, the Senate
to enter the legislative process may, but need not, then it is bound
deadline by which a bill must be required to act, and finally, it's
position compared to the position of Parliamentary Deputies considerably weaker.
Opinion of the Senate may not be of Deputies accepted a bill
may be (an absolute majority of all deputies) in the wording
which was passed to the Senate. The reason for weakening the Senate can
as in the previous case finds the need to ensure that political
decisions based on the will of the majority, expressed by free vote
(cf. Art. 6 of the Constitution) can not be accepted. In other words, in order
opinion of the House is not directly related to the government can not block
legislative process, and although it would be compared to the will
Chamber of Deputies minority position.
Third Of the laws discussed by the Senate framers divided by their
other subgroups in Article. 39 paragraph. 4 and Art. 40 of the Constitution. Here prescribed
strictest form of the legislative process is characterized mainly
requirement of consent of both chambers of Parliament, where they are struggling to
influence on the final text of the statute equal footing.
Senate in this type of legislative (and constitution) procedure, the proposal must discuss,
but is not bound by any deadline, which the Constitution does not expressly, but
which is stabilized in traditional parliamentary practice and, therefore, already
existing constitutional custom, which, from a constitutional viewpoint
no grounds to object. The conclusion that this procedure
Senate is not bound by a deadline for consideration of a bill, based on a constitutional
interpretation under which Art. 39 paragraph. 4 and Art. 40 of the Constitution finish
Laws subject to the approval process rigidnějšímu framers
divided the one hand by regulations (mandatory consent
Chamber of Deputies and the Senate, with all constitutional laws), and secondly - in terms of laws
simple - treated by their subject matter.
Article 40 of the Constitution set a stricter process exhaustively for these laws
- Election law
- Law on the principles of conduct and relations between both Chambers and
- Act on the Senate Rules of Procedure.
While the purpose of the legislative procedure described in 1 and d 2 is quite
easily recognizable, are reasons for the obligatory consent of both Houses of Parliament
with all constitutional acts and enumerated ordinary laws are considerably more difficult to interpret
, already because it regards the reasons
with different and hardly comparable.
In relation to constitutional law is sufficient in this context to refer to
fairly widely accepted opinion, according to which it is desirable that the Constituent
procedure subject rigidnějšímu mode other than the normal legislative activity
due to the need to change the basic laws of the State if possible, not only often
and achieving wider than the current consensus.
Revealing the reasons which led the framers of the constitution to assign the enumerated
ordinary laws to the stricter legislative procedure is
Is easiest to answer the question why was the enumeration of laws in Article
. 40 of the Constitution includes the Law on the Senate Rules of Procedure.
Unconditionally accepted that this is a certain "legislative" as it
would not be right to make rules governing the internal relations of one of
chambers of Parliament be this House against the will its most
Forced into a second chamber. Constitutione de lata is then redundant
to analyze the fact that this legislative decorum
decency remained only partial, because there are other laws than
rules of procedure, which can also internal relationships of the Senate and senators ratios
The reason is stricter regime Art. 40 of the Constitution subject to the Act on
principles of conduct and relations between both Chambers and externally, is
similar to the Act on the Senate Rules of Procedure, with this, however,
that's not the only reason. This so-called. Abutting Act (not yet enacted) in terms of constitutional
may in fact be in their content
formulated not only relatively brief, so that would limit it to adjust the parliamentary -
parliamentary contacts, but also a way wider; it could be
regulate not only the internal workings of Parliament, but also the handling
fundamental issues related to the obligations of membership
Czech Republic in an international organization or institution referred to in Article.
10a para. 1 of the Constitution; The Constitution envisages the possibility that the contact law
entrusted performance of the chambers to comment on pending decisions
that international organization through a joint body of the Chambers
(cf. Art. 10b of the Constitution). Thus, while the sole reason for the inclusion
Act on the Senate Rules of Procedure in Art. 40 of the Constitution by the Constituent Assembly
perceived need to regulate operation of the rules of the Senate oktrojovaným
decision of the Chamber of Deputies, with the law on the principles of contacts of both chambers
between themselves and externally accesses this reason -
similar to a constitutional acts - maybe
need to subject it to a stricter approval process due to its importance in relation to the commitments
Czech Republic to an international organization (institution), in
which were transferred some powers of Czech authorities.
Election Act referred to in Art. 40 of the Constitution in the first place there is
exhaustively enumerated the reason for that is the last place here
discovered the law of the Senate Rules of Procedure, unless it was concluded that
Art. 40 of the Constitution lists exclusively those laws which concern the activities
(and creation) of the Senate. Then it would be necessary for election law within the meaning
cited article of the Constitution to be only the Act on Elections to the Senate, and
not the act governing elections to the Chamber of Deputies.
Such a conclusion would conflict as to what was stated in relation to the Act
the contacting as well as stable constitutional conventions, according to which regard the two chambers of Parliament
Law on Elections to Parliament without doubt for election
law under Art. 40 of the Constitution. Turnover "law on elections to the Senate"
knows Moreover, the Constitution (art. 107 par. 1), so if the framers of the constitution meant
election act under Art. 40 of the Constitution precisely and only law governing
Senate elections, He would have no rational reason to vote in various articles of the Constitution
different terms for the same thing.
Term "election act" under Art. 40 of the Constitution can be interpreted in completely different ways
- interpretation from a strictly narrow interpretation
widely expansive. For the reasons explained above, it is necessary
most narrow interpretation refuse. In seeking an answer to the question, what is the purpose of inclusion
"election law" under stricter discussion regime and which
electoral laws to the discussion procedure laid down in Art. 40
Constitution, the Constitutional Court concluded that the interpretation of the language
nor systematic answer can not be.
Purely linguistic (in terms of interpretive principles, although basic, however
roughest) interpretation of Art. 40 of the Constitution allows is to interpret the above provision
manner leading to conclusions until the absurd (eg. That this provision
framers prescribed duty
create a single electoral code - but again no answer to the question that the elections would such a code should provide for
), respectively. the conclusions podřazujícím under the concept of election law
any law (resp. part), which is edited electoral procedure
regardless of whether this procedure is creating a corps of power
legislative and local government, or which they are elected in the Czech Republic
its representatives in the European Parliament (which would eventually be elected
- as noted in its statement, the Senate constitutione de et de lege ferenda
- President of the Republic), but also the legislative bodies and
autonomous churches so they would then have laws become completely
Inconsistently by the Act on the Rules of Procedure of the Chamber of Deputies, the law on
Regions and Municipalities Act, or even the mere linguistic interpretation
could be inferred that it also laws governing elections to other bodies of public authority
even to professional bodies governing corporations or bodies
to private entities. Scales in favor of weakening the argument
language interpretation is the fact that none of the laws governing
elections to the Houses of the National Assembly during the First Republic, as well
to the Federal Assembly, if necessary. Czech National Council
after the year 1990 used the legislative abbreviation "election law" so even
terms of linguistic usage can not be argued that the legal context
automatically connected that expression with the adjustment of the elections to the Houses of Parliament.
In addition, use of the singular rather than the plural wherever possible,
completely usual legislative technique and the legal theory is not in dispute
that described in the singular notion - there Electoral Act - does not preclude the possibility of modifications
thus expressed by several laws.
Systematic interpretation in this matter also does not provide a reasonable basis
. As evident from the petition, the petitioner hereby
interpretation - among others - in favor of its conclusions, whereas
Chamber of Deputies, in its statement, also systematic interpretation
- other than the petitioner - to support its legal opinion,
which is contrary to the opinion of the petitioner (and the Senate and the president)
quite the opposite. However, if two contrary systematic interpretation
legal norms, it follows from this conclusion, finding that the mere systematic interpretation
for a constitutional interpretation can not be sufficient.
In the Constitutional Court is to assess the part of Art.
40 of the Constitution must come from a wider perspective, from the perspective of containing one hand
reflection on the values attributed to the Constituent Assembly, the Senate throughout the system
governing the exercise of state power, and secondly,
reflection of the relevance of laws governing the electoral subject matter for the security foundations of the Czech Republic
declaring the Constitution in a democratic rule of law.
As previously mentioned, the explanatory memorandum to the draft Constitution
describes the Senate as a parliamentary chamber with the control and
stabilizing functions. These functions of the Senate in the creation of the Constitution compared
government draft Constitution significantly strengthened; in relation to the president
, the power to bring proceedings for high treason moved from
Deputies to the Senate, and in relation to the Constitutional court of
original outline, anticipating the appointment of six judges of the Constitutional Court
such a decision by the Prime Minister) and six Constitutional court judges by the Senate
was shifted power to appoint exclusively to the president,
however, subject to the consent of the Senate with the appointment of judges of the Constitutional court
. Already in the Constitution itself the position of the Senate is postulated
not insignificant level; The Senate is not only a representative
parliamentary chamber. In fact, the position of the Senate in the system
highest organ of state power precisely in terms of the role of restraint, preventing excesses
threatening the very foundations of democratic law,
naturally except for the possibility that the framers of the Constitution (newly) decided | || inclined toward the previously considered but not accepted concept unikameralismu, where
however, the restraints, balances, and individual state
powers would have to be set completely differently than in the existing Constitution.
In the past, the Constitutional Court expressed the view that "in a situation where the
entities applying the Constitution there is a dispute about the interpretation of certain provisions
, that dispute must be resolved in favor of the possibility of applying
constitutional powers which that provision concerns, or
terms of the meaning and purpose of the constitutional institution. "(cf. decision Ref. Nos. Pl.
US 33/97, Collection of decisions, volume 9, judgment no. 163, promulgated under No. .
30/1998 Coll.). Even in this case, there is no reason to conclude from this
deviate. Efforts of the Chamber of Deputies unilateral policy
reduce the role of the Senate, which is required along with other constitutional institutions
guarding the foundations of statehood (not limited to the Senate
powers in the field of constitutional and legislative) and the Constitutional Court had rejected.
The Constitutional Court relies not only on the described subjective interpretation of the intent
framers of the constitution in relation to the position of the Senate in its not
Only legislative activities, but also considerations presented below.
A constitutional interpretation of the words "election law" contained in Article
. 40 of the Constitution can not overlook the context enshrined in
fundamental provisions of the Constitution, in chapter seven of the Constitution and in Art. 21 of the Charter
Local Government of local government units is constitutionally guaranteed
one of the fundamental provisions of the Constitution (Art. 8). The citizens' right to self
other words, the independent management of municipalities and regions through
councils whose members are elected by secret ballot
basis of universal, equal and direct suffrage
constitutionally secured and defined in Chapter Seven Constitution, which is in the plane
elaborated constitutional right of citizens to participate
choice of their representatives in the administration of public affairs (art. 21 paragraph. 1 of the Charter), respectively.
Participate in this administration as members of councils, because of the choice
gained membership in them have the right to compete under equal conditions (Art. 21
Free elections are the sine qua non of a democratic state. When
governance, this condition can not be limited only to creation of legislative power
, that the election of deputies and senators, but it must also be
applied to the election of members of local councils, which govern public affairs at
level of local government. If the Senate
fulfill its stabilizing role, there is no rational reason why when
creation of election rules should fulfill this role only in relation to
parliamentary elections, and not the creation of laws governing elections to || | those bodies which are independently managed by municipalities and counties. For
stability, democracy is not only important because of how they are elected chamber
Parliament, but also how citizens elect their representatives at the level of local government
; You can not conclude, on a constitutional level, that - despite the different
extent of the powers of Parliament and local governments - to maintain and develop democracy
that parliamentary elections are more important than elections to
governing councils of municipalities and counties. Democracy has to be
true government of the sovereign people, by the people and for the people can not be, even indirectly
, distributed from the Parliament down, but must rather
grow as the product of civil society from the bottom up to the highest authorities
state power, legislative power and the constitution-framing naturally counting.
If it is desirable that the election rules for parliamentary elections
not subject to constant changes and even through difficult procedure for their adoption, if possible
stabilized, it is equally desirable that such
stabilization with the help stricter legislative regime
rules for elections to regional councils and municipalities. This is all the more significant
, if one takes into account that unlike elections to the Senate and Chamber of Deputies
for which the electoral system is constitutionally prescribed are
election of council members by law subject only the constitutional regulation
which includes Article 102 para. 1 of the Constitution; electoral system for these
elections not constitutionally regulated.
For the development of democracy, in which a vital component of the Constitutional Court considers
local government (cf. Judgment file. Nos. Pl. ÚS 1/96, Collection
decision, Volume 6, judgment no. 120, promulgated under no. 294/1996 Coll.)
it would be totally inappropriate to permit changing the election procedure whereby
basis of the representative bodies of local government units created, and even
eg. the major system components always dependent
at guaranteeing a majority in the Chamber of Deputies, while the majority of government, but most
which can be usually minimal, and may not be
usually exists in both Houses of Parliament. Should it be accepted
opinion of the Chamber of Deputies, under which even if
discussing laws regulating elections to regional councils and municipalities
position is entirely subordinate to a majority of the Senate even if only 101 deputies
(according to Art. 47 paragraph. 1, second sentence of the Constitution), nothing would have prevented the
Deputies against the will of the stabilizing chamber of Parliament
set quite different election rules for all local and regional elections
based on the current beliefs of even a slight
governing majority, which new election rules would suit the most
. No reason why it should be a council of municipalities and counties
elected according to rules which suit the governing majority does not exist.
If both parliamentary chambers are equal partners in the activities
constitution, can the reasons given by interpretation e ratione legis
come to the conclusion that for the determination of election procedures under which people choose their representatives
in the assemblies of local corporations is a
practical, appropriate and necessary to establish procedures more stringent than the laws
on the basis bodies representing the will of the citizens of the municipality or county
not created. The manner of electing members of regional assemblies and municipal
stands in the foundations of a democratic state.
From the foregoing also (as was already said) that they
electoral laws within the meaning of Art. 40 of the Constitution can not be
all laws governing the electoral subject matter. In particular, these are the rules - even
by statute - which create various other public
authorities or bodies of professional self, even if the legislature
(not the framers of the constitution, that right of local government units | || to manage enshrined in the Constitution), transferred performance of state administration, the
less then the laws governing elections authorities
Houses of parliament and local councils or other bodies of private legal entities.
It also follows from the fact that elections to local government councils, Chamber of Deputies and the Senate
generally governed by the Constitution itself as a primary and
prerequisite exercise of state power by the people (cf. Art. 2. 1 || | Constitution).
Based on the foregoing reasons, the Constitutional Court concluded that the law
governing elections to municipal councils or regions must be considered
election act under Art. 40 of the Constitution, so that the adoption of this law
it was necessary that was approved by the Chamber of Deputies and the Senate,
while the Senate was not in discussing the draft is bound within 30 days
under Article. 46 paragraph. 1 of the Constitution. From this conclusion, then followed that procedure
Chamber of Deputies before publication of the contested act were
conflict with the constitutionally prescribed procedure, without the defect
fulfillment to the adoption of the law can not. The Constitutional Court therefore upheld the petitioner's proposal
and the contested act under the provisions of § 70 para. 1
Law on the Constitutional Court.
As an obiter dictum, the Constitutional Court agrees with the arguments of the petitioner and
Senate, under which the electoral law under Art. 40 of the Constitution and the law on
European Parliament elections, mainly because based on this
act the people elect representatives to a body which participates in the
creation of European law, and thus the law of the Czech Republic.
From everything stated above, it follows also that the Senate is entitled, under Art.
33 paragraph. 2 of the Constitution to take legal action in the case
electoral laws governing elections to both Houses of Parliament, municipal and || | regions and the European Parliament.
Law no. 96/2005 Coll. was abolished in all its provisions, and not only
in the third and fourth, which was a complicated journey
amendment to the Law on Conflict of Interest, amended certain provisions of the Law on Elections
to local councils and the Law on Regional Elections .
Is not possible, for a variety of single law applied
different constitutional procedures necessary for its proper acceptance. In other words:
law must be subject to a uniform regime for discussion, which can not be simultaneously
as impeccable as unconstitutional; if the draft Law of
requiring different procedures for approval, should be required for constitutional
enactment of that law demanding procedure.
Repeal of Act no. 96/2005 Coll. because of a faulty procedure
Chamber of Deputies at its adoption has eliminated the basis
review the constitutionality of those provisions of the law on conflict of interest, the revocation of their
substantive unconstitutionality secondary party sought
formulated in eventum in case the original proposal was not successful.
Although the reasons already stated quite sufficient for the Constitutional Court
grant the petition, the Constitutional Court considers it useful to respond to the terminals
petitioner basing its request to annul the Act on
it claims constitutional convention. The petitioner has also pointed
to the legislative process for the adoption of the law on elections to the European Parliament
. In this regard, the Constitutional Court states that
petitioner's arguments are imprecise; point to the statements
Deputies and the Senate, as well as to the discussion preceding
Chamber of Deputies vote on the Senate returned the draft said
law, which indicates that the problem is now being addressed did not arise,
because the discussed draft law on elections to the European Parliament
also included direct amendment to the law on elections to the Parliament of the Czech Republic
so the dispute after the theoretical presentations by speakers was closed
that precisely because of that direct amendment, the Senate elected
defective procedure. According to the Constitutional Court would
in this regard to point to discussing the parliamentary press
1160 of the third legislative term (1998-2002), the Chamber of Deputies.
This publication contained a government draft law on amendments and
repeal certain acts in connection with the termination of district offices
while in the course of discussing the Chamber of Deputies on the proposal
its constitutional law committee of the government draft launched
of fifty-three, sixty-one and sixty-seven, ie. direct
amendment to the law on elections to the Parliament of the Czech Republic, the Law on elections to regional councils
and the Law on Local elections, which
it was justified by the 47th meeting of the Chamber of Deputies on the fact that
election laws are subject to a different constitutional regime for discussion.
Contents of these parts were Chamber of Deputies publication no. 1022 (
Senate draft bill amending Act no. 247/95 Coll., On elections to the Parliament of the Czech Republic
), which was discussed separately by both
chambers of Parliament and subsequently including the added amendments to the law on elections to regional councils and
elections Act municipal councils
signed by the President and published under no. 230/2002 Coll. Thus, although
petitioner's arguments in that direction is not right, neither is
allegations of Deputies, which said in its statement that the
case "can not ... be a completely new interpretation of the Lower
Deputies ... ".
Regarding the petitioner's proposal for priority discussion of the matter, the Constitutional Court
thought it necessary to separate resolution issued by
§ 39 of the Law on the Constitutional Court, that the thing which the petition
concerns is urgent . The Constitutional Court, however, even without such a formal resolution
matter priority; oral hearing (to waive
which expressed disapproval of Deputies in response to the petition) has ordered
May 11, 2005, at a situation where the unexpired period within which to
Deputies and the Senate the right to express themselves on the intervener
participant. The reason for the proposal was discussed by the Constitutional Court in
quickest possible time, the Constitutional Court found primarily in the need
prolong the state of insecurity, whether as a result of differing interpretations
one of the constitutional concepts Art. 40 of the Constitution did or did not the defective
legislative procedure, under which was adopted
generally binding normative act. His foundation also had the petitioner's arguments
out the direct effects of the act on a number of persons.
According to § 58 par. 1 of the Constitutional Court, judgments
which the Constitutional Court decided on a petition to repeal the law or other
legal regulation or individual provisions under Art. 87
paragraph. 1 point. a) and b) of the Constitution, enforceable on the date of their publication in the Official Gazette
if the Constitutional Court decides otherwise.
In the present case, the Constitutional Court decided that the judgment comes into force on its publication
because it took into account the reasons which led to preferential
discuss the proposal. The same conclusion may add that it would be contrary to
principles of democratic rule of law, if in the period from the announcement to
publication of a judgment (and even the executive power of the state -
Director of the Regional Office, respectively. Interior Minister) applied the provisions of § 55
law on elections to municipal councils, respectively. to § 48 of the
elections to regional councils, the termination of the mandate of a member of
municipality or region.
Chairman of the Constitutional Court:
JUDr. own hand
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