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
The proposal is rejected.
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
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
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.
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
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
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
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
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
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
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
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.