88/1997.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 2 February 2005. April 1997 in the plenary on the proposal

the political party democratic Union filed complaints with the constitutional

repeal of § 49 paragraph 1. 2, 3 and 4, section § 50 para. 1 and section § 51 para. 2

Act No. 247/1995 Coll., on elections to the Parliament of the Czech Republic and the

amendments to certain other laws, and section § 200n para. 1

Act No. 99/1963 Coll., the civil procedure code, as amended

regulations,



as follows:



The proposal is rejected.



Justification



(I).



On 18 July 2005. July 1996 lodged a constitutional political party democratic Union

the complaint against the resolution of the Central Electoral Commission of 3 June 2003.

June 1996, by which the Commission approved the Registration of processing of the results

elections to the Chamber of deputies of the Parliament of the United Kingdom, and against

the resolution of the Supreme Court of the Czech Republic No. 5/96, Sg/Happy-24 from 12.

June 1996, by which the Court dismissed the complaint against the issue of the

the election of a member of the Democratic Union, have been filed against 12 members

The Chamber of deputies of the Parliament of the United Kingdom who have obtained a mandate in

the so-called. the second skrutiniu.



Part of the constitutional complaint was a proposal for the repeal of § 49 paragraph 1. 2, 3 and 4,

section § 50 para. 1 and section § 51 para. 2 Act No. 247/1995 Coll., on

elections to the Parliament of the Czech Republic and amending and supplementing certain

other laws, (hereinafter referred to as "electoral law"). Chamber of the Constitutional Court, therefore,

its resolution of 9. October 1996 proceedings and forwarded the proposal to

the cancellation provisions of the Act to the decision of the plenum of the Constitutional Court.



In the proposal to the competent constitutional court explained the Democratic Union

your request as follows:



and § 49 paragraph 1) to cancel. 2, 3 and 4 of the electoral law,



(b)) § 50 para. 1 cancel the words: ". .. that have advanced to the first

the election threshold,... "



(c) section 51 para.) 2 cancel, except for the last sentence of the section so that this

section was: "candidates for the second skrutinium builds

The Central Election Commission by preference votes for individual

the candidates of the political party or coalition. "



The requesting party considers that the contested electoral law contrary to the standards

article. 18 and 19 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and that are also

interference to the constitutionally guaranteed fundamental rights contained in the article. 21, art.

4 and article. 21, art. 1 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"). Article. 18 of the Constitution enshrines the principles of universal, equal and

direct suffrage in a secret ballot and on the basis of proportional

representation. Article. 19 of the Constitution guarantees equality in the right to be elected for

all citizens of the Czech Republic who have reached the age of 21 years and have

the active right to vote. According to the article. 21, art. 4 of the Charter, citizens for

equal conditions of access to elected and other public functions and the

the basis of the article. 21, art. 1 of the Charter have the right to participate in the management of

public affairs directly or the free choice of their representatives.



Part of the constitutional complaint is also a proposal for the adjustment of the proceedings on the complaint

against issuance of a certificate of election to has been deleted, the words "without

negotiations by the resolution "in § 200n para. 1 of Act No 99/1963 Coll., the civil

the rules of court, as amended, on the ground that the decision of the Court of

without negotiations contradicted article. 38 para. 2 of the Charter, which States that everyone has the

the right to make his case was discussed publicly without undue delay and in

his presence, and to be able to comment on all evidence.



In the grounds of a constitutional complaint States that a political party

The Democratic Union was not in the last elections to the Chamber of Deputies

granted no mandate, even though she received 169 796 votes and in accordance with the principle of

proportional representation should be represented by five MEPs, because the

one occupied on average fell 30 296 mandate cast valid

votes. Mandates that were not Democratic Union allocated were used to

the administrative allocation of the other candidates, which the citizens of the United

the Republic in the elections did not. This led to the intervention in fundamental rights

candidates of the Democratic Union, who met the conditions prescribed in the Constitution,

and yet was not consummated their passive electoral rights pursuant to art. 21

Of the Charter. Just as there have also been interference with active suffrage 169

796 of citizens-voters of the Democratic Union, who are not in the Chamber

House of Commons represented by freely elected representatives.



Democratic Union argues, further, that a direct election was actually replaced by

administrative appointment, the Central Election Commission, which tolerate

the results of the elections, but only confirmed the will of the Presidents of several

political parties.



Referred to violations of the fundamental rights of the Union as a result of Democrat understands

the special mechanism of the 5% restriction clause that violates

the principle of equal suffrage as guaranteed by article. 18 of the Constitution. As a result of

the same number of valid votes for some citizens account

to the creation of the mandate, and some do not. Clearly, therefore, there has been a breach of the

equal conditions of access to elected functions. In such defined

elections-infers a democratic Union-only decided by the number of votes

but the nature of the lists, for which the respective number of votes

achieved.



The Constitutional Court must first ascertain whether the formal requirements are met, and

the conditions laid down for the submission of the application for revocation provisions of the Act.

Found that the proposal has all the formal requirements and meets the conditions of §

74 of law No. 182/1993 Coll., on the Constitutional Court, according to which, together with the

the constitutional complaint may be filed the proposal to repeal the law or other

legislation or their individual provisions, which

application of the occurrence of the event which is the subject of a constitutional complaint,

If according to the complainant's allegations are inconsistent with the constitutional law

or international agreement under article. 10 of the Constitution, where appropriate, by the law,

in the case of other legislation.



The fact that democratic Union in the last elections to the Chamber of Deputies

the Chamber has not received no mandate, although it received nearly 170 000 votes,

You can undoubtedly be attributed to the direct effect of provisions of the electoral law on the

5 closing clause, as a result of which shall be disqualified

representation of candidates the list system, which they have not acquired a total of

at least five percent of the vote. Because neither the Central Election Commission nor the

The Supreme Court could not act in conflict with the provisions of the electoral law on the

5 percent clause, she turned the Democratic Union with the objection

the unconstitutionality of the relevant provisions of the Act on the Constitutional Court according to § 64

paragraph. 1 (b). d) Act No. 182/1993 Coll.



When the Constitutional Court found that the constitutional complaint complies with the law

the conditions laid down, he asked for a written opinion of the Chamber of Deputies

Parliament of the Czech Republic. In the opinion of the Chamber of deputies out of 5.

December 1996, signed by its Chairman Ing. Miloš Zeman, States

that the electoral law was approved by the required majority of members, signed

respective constitutional factors and properly declared in the belief that it is in

accordance with the constitutional order of the Czech Republic. Content representation

The Chamber of deputies of the Democratic Union rejects the proposal, in particular with reference

to these arguments:



The Constitution in the first place-according to the opinion of the Chamber of Deputies-closer does not specify

the form of the proportional system in elections to the Chamber of Deputies and leaves

the legislature relatively broad mandate to ensure that in the electoral law

How to determine the number and size of constituencies and electoral, technique

the count of votes is transferred to the distribution of mandates. Therefore,

the election law due to the breadth of the mandate may limit the principle of proportional

representation. the closing of the clauses, which is intended to prevent the

the presence of many political parties with a very low number of mandates in the

The Chamber of Deputies, which would considerably complicate its operations and complicate

the creation of a stable government. According to the Chamber of Deputies is not policy

equal suffrage in doing so violated, for it consists in the fact that

each voter has one vote in the election, and he has the same weight as the voice

another voter. Mandates shall be allocated to the electoral regions, depending on the

the number of votes cast in each of them. The closing of the clauses is not

violated the constitutional right of citizens not to participate in the management of public affairs

the free choice of their representatives. From this it does not claim the rights of the citizen

that was elected the candidate who has just been selected by him. Also

The Constitution guaranteed citizens ' access to the elected functions under equal conditions

It is not disturbed, because this right does not guarantee everyone the right to election.

To the election may occur if only all the conditions laid down

the electoral law, which include the obligation to obtain a certain number of votes.

According to the opinion of the Chamber of Deputies does not violate the election law or the principle

direct electoral law, which means that the citizen elects its representative

directly, and not through any other person. Voter decides on

file candidates listed on the ballot, whose order

determine the political parties or their coalition. In this system, a voter must

therefore reckon with the fact that his choice will be counted as well as other candidates,

than he himself chose, in accordance with the order, which he is known in advance. If


as to the objections to the procedure when making a decision on the complaint to the Court against the

the issue of the election of a Deputy or a Senator, the Chamber

the Chamber of Deputies for the fact that it is an exception from the principle of an oral and public hearing

before the Court, which is justified by the need to keep Deputy or Senator could

properly implement its mandate. A hearing on the complaint by the whole

the management of extended and thus unreasonable for a longer time, challenged the validity of the

the mandate of the Deputy or Senator.



II.



From the design of the Democratic Union, shows that the Constitutional Court, in order to

assess in particular the constitutionality of so-called. 5 clause. As proof of the

her unconstitutionality compares the Democratic Union at the end of its constitutional

the complaint as amended by the provisions of § 8 of the Constitution of 1920 with the article. 18 of the Constitution

the present. Both provisions contain matching text, namely that the elections to the

The Chamber of Deputies shall be held in accordance with the principle of proportional representation, and both

do not specify any other specification. If the current electoral law

introduced into the system of the proportional restrictive clause, it does so-according to the

the opinion of the Democratic Union-without support in the Constitution, as the Constitution in accordance with the

the Constitution of the first Czechoslovak Republic enshrined the proportional system

representation without any restriction.



There is no doubt that the electoral system for the Chamber of Deputies first

the Republic was based on a pure proportional system, and indeed

It did not contain any significant restrictions with the exception of a slight deformation

This principle, as a result of the necessity of the second election threshold; Crystal

NET proportionality in representation is virtually never possible because

mandates are indivisible.



Due to this, the formulation of a constitutional complaint, the Constitutional Court is forced to

to ask the first question, whether the constitutional principle of proportional formulations

representation that does not contain any restrictions on this principle, a means for

detailed electoral law commitment not admitting of any modification that would

proportional representation by one way or another. With regard to the Constitution of the

in 1920, the text can be inferred from its barely binding consequences for

the concept of the electoral law, which was issued on the basis of the Constitution of the

1993. After the first world war there was indeed the winning time campaign

proportional representation across Europe, and the European States only later

gain experience with the characteristics and functions of proportional representation. In that

time did not allow restriction clause nor theoretically conceived or virtually

being implemented. Therefore, the wording of the Constitution of 1920 on the proportional representation is

from this perspective, neutral and does not contain "per definition" a priori

Neither restriction clause, but neither its ban.



Only the experience of the European parliaments before the second world war and the

After her contributed to the search for ways in which you can limit excessive

the fragmentation of the political spectrum in Parliament. It was not the only

the experience of the Reichstag of the Weimar Republic or the first Czechoslovak

States, but also, in particular, the experience of the French, which particularly

significantly in the Fourth Republic (1946-1958) have confirmed that excessive

diversification in the composition of the Chamber of Deputies and unlimited proportional representation is

can become an instrument of political destabilization and the element of destruction

constitutional State.



Theoretical rethinking the principle of proportional representation and political change

the practice of representative democracy in the present States corresponds to fully

the prevailing opinion that the introduction of certain serious reasons of conditional

restrictive measures to the principle of proportional representation is not in conflict with

characteristics of the electoral system in the Constitution or the electoral law as

proportional representation, if and provided that such measures do not restrict the relative

representation to a significant degree. Democratic States have implemented gradually

the system of proportional representation provided with 5%, 3%, respectively.

clauses, without consider the principle of proportional representation for the

scrapped.



In this respect, the Constitution is not attached to the Constitution of 1920, but on

theoretical basis of contemporary democratic and institutional solutions

States that practise proportional representation usually in one way or another

limited form. Therefore, a simple comparison of the two texts also Institute

says nothing about the specific edit of proportional representation. Of the two

the same constitutional texts, which, however, were in force in the different historical

eras, when not completely adequate concepts of representative

democracy and, indeed, in two different States, it cannot be inferred

the necessity of completely identical instantiations of legislative adjustment of the electoral

the system.



Democratic Union further argues that the administrative allocation of seats

candidates who have gained as a result of the 5% is a clause at the expense of

those parties who have been denied representation, is the intervention into the active and

passive electoral rights and to the principle of directness of the electoral law (article.

18 of the Constitution), as well as the violation of the article. 19 para. 3 of the Constitution, according to which the mandate of the

Select arises. Democratic Union concludes that in the present case the mandates

have been avoided by choosing, but the administrative allocation, taking due

restriction clause the situations arose, as if part of the electorate was deprived of

the active and potential candidates, and the passive suffrage.



The directness of the election was considered by the Democratic Union violated

the administrative allocation of mandate candidates of parties which have not

the number of votes needed to their election. To assess this question is

need to clarify the concept of direct elections. The principle of direct elections has

ensure the immediate relationship between the voters and the resulting vote

a cast of the mandate, relationship, from which it is excluded subsequent instance that

would members were selected according to their reasoning. Such instances could be

for example. volitelé, which voters elected for this purpose, so that the electoral college

determine who is to be elected the function occupied.



The principle of direct elections, to the circuit chosen was directly and

capable of designed those voices that voters in the elections for them

cast. Therefore, the electoral process must be designed so that each

resigned voice could be attributed to certain persons. The principle of direct elections

However, that does not prevent the choice of one candidate was depends on spoluvolby

other candidates, IE. does not prevent the election based on the bulk of candidate

documents, on which the various political parties, in a particular order are candidates

a number of people at the same time. Listinová option satisfies the conditions of direct elections,

because the candidates for future elections, while another instance collected

(political party), however this is happening even before the election.

The decision of the parties on the report placed so the election precedes and

they can be thought of as-sui generis-offer to voters. If then it is a

custom vote of the electorate, it is sufficient for the straightness of choice, if the

set the order of the candidates voters known in advance, and if each

resigned voice could be credited to specific and clearly identifiable

to those who are elected themselves to run for election. This condition is

satisfied, even if on the basis of a five percent clause a party gets

entitled to an additional mandate or mandates beyond the konsekventního of proportional

representation. Even in this case must, however, go on to fill the next mandate

such candidates who were on the list of the party properly listed and for

which they could assume the voters already in their vote, they can

possibly get a mandate, if the side, which have stood for election, are entitled to

the allocation of the next mandate as a result of the fact that the other party

five percent did not meet the condition. This method of allocation of mandate cannot be

mark for the administrative law, because it is not a product of free and

the decision of a particular authority, but a direct result of selection that made the

voters in certain situations referred to in the terms and clauses in the note

foreseeable consequences of the electoral system prescribed by law.



The common denominator of the opposition Democratic Union, and at the same time

the most important subject is the infringement of article 81(1). 21, art. 4 of the Charter,

According to which citizens have equal access to elected and other

public duties, and the infringement of article 81(1). 18 paragraph 1. 1 of the Constitution, according to which

elections are held on the basis of the principle of equality

the electoral law.



Principle of equality of voting rights can be assessed from two basic

aspects. The first aspect consists in the comparison of the numerical weight of each

votes. Assessing the scale of individual votes in the Census and in the result

the vote. Equality of suffrage requires that all census

voices apply as well, IE. have the same numerical (quantitative scale

equality) and the same severity, and to enable an accurate census of the numerical

differentiation of electoral ward, i.e.. the exact numerical "identification"

voter support each candidate documents.



The second aspect of equality of suffrage captures the equality of the votes of the

point of view of democratic principle, i.e.. from the point of view of the right votes

the cast for the various lists, to such a degree of electoral

success that is adequate to measurement values which these instruments in the

the elections have reached. Therefore entitled to such reviews the outcome of the

the vote, which is based on equal access to the assessment of the claim

the success of the candidate pages, and thus the right to proportional, i.e.

the proportion of the votes cast, the number of seats.




The Constitutional Court understands the weight of the arguments of the Democratic Union and is aware that

her objections are factually justified to claim that in the last

elections to the Chamber of Deputies has not received no mandate, although it has received

169 796 valid votes, which is based in terms of proportional representation

entitled to five seats, because, on average, enough for parties that are in the

The Chamber of Deputies represented, to get a single mandate 30 296 votes.

As to the true distortion, which is not in itself a fair and that

contrary to an exact equality of suffrage.



Because this disproportion is a product of the 5% restriction clause

affecting the small political parties, there is the question of whether and to what extent is

5 clause constitutionally justified, and whether, or to what extent is

consistent with the general principle of equality of voting rights.



The assessment of this question is more complex than in the case of the first aspect

equality of suffrage. There quite clearly applies, that the equality of the votes

when their addition and detection capacity outcome of the election must be

absolutely, and that any consequent differentiation in numerical strength assessment

of the votes cast is illegal and unconstitutional.



However, as regards equality in the right to be reasonable

(proportionally) as taken into account in the allocation of mandates, it is

certain restrictions of differentiation in the distribution of mandates, and

Therefore, permissible. It is especially the restrictions resulting from the practical

the inability to adequately express the exact proportion, eg. Therefore, that the

the technique of electoral representation does not allow "adequate" the fracturing of the mandates.



For the equality constraint can, however, be other compelling reasons that

derive from the purpose and function of the elections in a democratic society. The purpose of the

the vote is without a doubt the differentiation of electoral ward. The objective of the elections, however,

It is not only the expression of the political will of individual voters and the acquisition just

the differentiated mirror image of opinions and political

attitudes of voters. Because it is people also bailiff of State power-

primarily through the Parliament-and because the exercise of State power

assumes the ability to take decisions, you must have elections and voting

system in mind and ability of such decisions on the basis of the will of the majority

receive. Consistent image of the results of voting in the proportional

the composition of the Chamber of Deputies could incur political representation of double

to a larger number of small groups with diverse interests, which would create

most greatly complicate or even prevent altogether.



At that stage of the electoral process, in which the distribution of mandates,

facing with the principle of differentiation, integration, since the principle of elections has

produce such a House of its composition, which allows the formation of political

most capable to create a Government, and carry out legislative

activity, which according to the Constitution.



Therefore, from the standpoint of the principle of representative democracy permissible

built into the electoral mechanism very specific integration incentives there,

where there are serious grounds for doing so, in particular, provided that

Unlimited proportional system fragmentation occurs votes between

a large number of political parties, to bezbřehému the "overgrowth" of political

Parties, and thus compromise the functionality and responsiveness, as well as the continuity of the

the parliamentary system.



After bad experiences with the songs from the excessive fragmentation of the parliamentary

joined the European States in the application of proportional representation generally

also the introduction of integration incentives, in particular the restriction clause

that is most commonly a five percent. In General, recognizes the right of the legislature

Edit the votes to successfully claim differentiation to representation in the relative

the choice and thus to deal with the political parties in a different way, if it is

It's necessary to ensure the integration of the nature of the election in the making

the political will of the people, for the sake of the unity of the entire electoral system and to

ensure the objectives of the státněpolitických parliamentary elections.



The existence of a restrictive clause is necessary in any case subject only

serious reasons, while increasing border restriction clause is

justifiable especially intense seriousness. It should be noted at all,

that increasing border restriction clause cannot be unlimited, so

for example. the 10% clause can no longer be considered such action to

a proportional system that threatens its democratic substance.

It is therefore always necessary to measure whether this equality constraint of the electoral

the law is the minimum measures necessary to ensure such a degree

integration of political representation, which is required to ensure that the composition of the

the legislature has allowed the formation of a majority or majorities required for

the adoption of the decision, and for the formation of the Government backed a parliamentary confidence. Even for the

restriction clause applies the principle of minimizing State intervention in

proportion to the intended target. It is therefore to be interpreted as well as the need for electoral

restrictions restrictively.



From this point the boundary of the limiting clause cannot have absolute

value, but is relative and always depend from a particular balance of power in the

country and from the structure of their differentiation. In Germany for example. Some authors

They state that because of the stability that the country has achieved over time, is entitled to

smaller, especially new parties to obtain seats in the diet of vulnerable

to the extent that clause has already lost the nature of necessity. Proponents of the

the clause, which is the majority, however, by contrast, argue that the risk of

fragmentation is still very current, because the current stabilised

party system is not least also a product of the clause, and cannot be

to anticipate the consequences that would occur, for example. by reducing the border restriction

of the five percent clause, for example. at three percent.



In favor of the restriction clause in the talks as well as its comparison with

a majority of one. The majority electoral system is constitutional, the courts understood

unconditionally as a democratic, even if political views a large part

voters are not represented in Parliament at all, or are not represented

in proportion to its strength. In fact, follows directly from the nature of the majority

the electoral system a restrictive clause of its kind, which is far

higher than usual for a proportional system. It follows that the

only the votes for the winning candidate, are a factor of success, while the

other voices "lapse". In the final effect options in the composition of the elected

the choir is this marked difference only more or less offset by

diversification results in individual districts so that the inequalities in

some inequalities in netted in different circuits. U

the majority of the system is fully preserved although the equality of votes to

their numerical weight, however, claim the individual votes of success is closely

should be differentiated; voices for the successful candidate are concentrated 100%

share in the success, other voices, then a null share.



From what has been mentioned, it can be concluded that the 5% restriction

clause cannot be "ab initio" rejected as unconstitutional restrictions of equal

the electoral law. Because the assessment of the issues facing the principle

with the principle of differentiation, integration, it remains to consider whether, in the case of the United

the Republic is one of at least five percent clause necessary measures,

which is required for the creation of the Chamber of Deputies, capable to act,

to take its decisions and to carry out its legislative functions, as well as to establish

the majority, by which the Government could politically, and that the level of intervention in the

the principle of proportionality is not high enough to endanger democratic

the nature of the election.



Political spectrum, the United States is-as is well known-the result

the relatively short development and is not yet clearly structured or

clearly stabilised. A characteristic feature of the past

the parliamentary elections at all, but even in the first elections to the Chamber of Deputies

the Chamber of deputies of the Parliament of the United Kingdom in 1996 significant fragmentation of the

political forces into a large number of political parties

bid on obtaining a mandate in the House. Even though in the last elections to the

The Chamber of Deputies has dropped the number of competing parties and movements to 20, from

election results show that while fully respecting of proportionality

the representation would be to build a coalition Government that would represent even

weakness of most of the electorate, had the three coalition parties

proceed at least three other political parties. However, neither Coalition another

the composition and the colour would not have been built before the minor issues. Experience

with similar coalitions, in particular in the fourth French Republic,

warrant concern and skepticism. Therefore, if there is no distortion

proportionality of political representation as a result of the 5%

clause in its summary of the problem, which would have justified doubts as to the

the democratic nature of the political representation of the Constitutional Court, before

the opposition Democratic Union rejected. In addition to objections to the throttling

the clause proposed by the Democratic Union also abolition of the words "without a hearing

the resolution "in § 200n para. 1 of Act No 99/1963 Coll., as amended by Act No.

247/1995 Coll., so that this paragraph was: "on the complaint against release

the certificate of election as a Deputy or Senator decides to court within 10

days ".



The Constitutional Court considered carefully the arguments for and against the abolition of the words "without


resolution of the negotiations ". There is no doubt that the Court decision has

meaning the principle that everyone has the right to make his case was

discussed publicly and for his participation and to comment on all

evidence (article 38, paragraph 2, of the Charter). The importance of this principle is

undeniable, even if it is true "cum grano salis", since according to the article. paragraph 96. 2

The Constitution, the law may provide for exemptions from it.



The Constitutional Court also comes from the fact that the hearing of the complaint against release

certificate of election of a Deputy or Senator may be considered "his thing"

within the meaning of article 87(1). 38 of the Charter. In this respect, it refers to the reasoning of the award

The Constitutional Court from 10. January 1996 declared in the collection of laws under no.

31/1996, which was canceled in the second paragraph of section 200 l of the

procedure (hereinafter referred to as "the row"). Experience so far with complaints of this

the species also suggests that these complaints in a considerable extent

rather, personal conduct, actions or properties of the chosen people before

disorders in the organizational design choices, which supports the claim

infected persons to enable them to also express objections at an oral

the negotiations.



On the other hand, the Constitutional Court then considered whether or not the arguments that speak for

leaving the existing o. s. l. The finding of the Constitutional Court

in the matter of section 200 l of the row also contains elements that are not

the cancellation of the words "without a hearing by the resolution" in § 200n o. s. l. Constitutional Court

then set aside the only paragraph 2 of § 20 l. o. s. l., which provided that

party to the proceedings the petitioner is, therefore, only the person who filed the complaint.

Referred to the provisions of § 200n o. s. l., according to which in a similar

the procedure is also challenged by the participant person (Deputy or Senator).

The current section 20 l. o. s. l. leaving decision-making to regional

the Court of appeal without oral proceedings by order, to the exclusion of

remedies.



In the case of § 200n o. s. l., this is from the constitutional point of view about thing

different. The Constitution stated the procedure for verification of the choice of a Deputy or

the Senator, the Constitutional Court and its entry in the article understands. 87 para. 1 (b). (e))

The Constitution and the law on the Constitutional Court as in § 85--as deciding on the

appeal against a decision in the matter of authentication options members

or Senator. The appeal is entitled to Member of Parliament, Senator,

Alternatively, the electoral party, for which the Deputy or Senator ran, and it

against a decision that was not validly elected, and one whose electoral

the complaint according to the electoral law was upheld, against a decision

the Chambers of Parliament or its authority to verify the validity of

the choice of a Deputy or Senator. As a matter which concerns verification options

Members can be considered in terms of the Constitution and Supreme Court decisions

on the complaint against the issue of the election of a Deputy. According to section 86 of the Act

No. 182/1993 Coll., on this appeal takes place before the constitutional

the Court always hearing. The principle of personal involvement, the public and oral

consideration of the case is so guaranteed for proceedings before the Constitutional Court, which

as the appeal proceedings cannot be separated from the disputed stuff and that

meets the constitutional guarantees of article. paragraph 96. 2 of the Constitution (oral deposition, and the public),

as obligatory. As a result, it may be considered that for this kind of judicial

the procedure is the principle of oral deposition and the public retained in all cases in

which one of the parties felt the lack thereof in dealing with

The Supreme Court as prejudicial.



If it was introduced the oral public hearing before the Supreme Court,

It can be assumed that the proceedings only significantly slowed. A proposal from the

The Democratic Union for the Supreme Court deadline of 10 days for

decision on the complaint. This period appears to be the Constitutional Court when

the proposed solution as untenable. Proposing Democratic Union evidently

to gauge the time required for each disposition tasks connected with

the hearing. The impossibility of complying with this deadline would bring an element of legal

uncertainty in its own proceedings in a note that "ultra vires nemo posse

tenetur ". In addition, with a probability bordering on certainty

assume that the deputies and Senators whose election complaint

in the Supreme Court to succeed, would undoubtedly turn to the Constitutional Court.

All this justifies the view that the whole procedure unreasonably prolonged.

By a kind of "trojinstanční," how to: validate the mandate of Deputies,

proceedings before the Supreme Court with the whole procedure of an oral hearing, and then

Similarly, the hearing before the Constitutional Court. In comparable European

States with a parliamentary system and the existence of the Constitutional Court, as

It is for example. Germany and Austria, it is a matter of House of Commons mandate validation

and the complaint is admissible only to one of the Court-and that the Constitutional Court. In

Germany even in these cases the Constitutional Court may not even always

in the hearing.



After a comparison of the arguments for and against the Constitutional Court appears so far

Edit as more appropriate. Because the Constitutional Court found that contradicts the article.

96 of the Constitution nor article. 38 para. 2 of the Charter nor the Convention on the protection of human rights

and fundamental freedoms (article 6 (1)), they do not see a reason to change § 200n

paragraph. 1 of Act No 99/1963 Coll., as amended. Therefore, even this proposal

The Democratic Union has rejected.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.