161/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided on 15. in the plenary session in May 1996

draft of the Group of members of Parliament of the Czech

Republic on abolition of the provisions of section 35, 65 and article 92, paragraph. 2 of law No.

247/1995 Coll., on elections to the Parliament of the Czech Republic and amending and

various other laws,



as follows:



The proposal is rejected.



Justification



(I).



On 12 June 2006. in February 1996, the Constitutional Court was delivered, equipped with 42

the signatures of the members of Parliament of the Czech Republic, whose subject is

a request to cancel the above mentioned provisions of Act No. 247/1995 Coll.

The Constitutional Court must first verify the formal requirements of the proposal and found out from

the attached signature sheet for members that, in one case, the

duplicate signature. Even if the number of members dropped to 41, are met

legal conditions of § 64 paragraph. 1 (a). (b)) of the Act No. 182/1993 Coll., on the

The Constitutional Court.



The Constitutional Court further verification of the formal admissibility of the proposal

a group of MPs in its content, and found that the application for annulment

the provisions of § 35, 65 and article 92, paragraph. 2 Act No. 247/1995 Coll. is permissible

in terms of the article. paragraph 87. 1 (a). and the Constitution of the Czech Republic) (hereinafter referred to as

"The Constitution"). In contrast, the proposal from the Group of MPs, to the Constitutional Court

decided on the abolition of the said provisions of the law referred to in article. paragraph 87. 1

(a). (b)) of the Constitution, contradicts the Constitution, because the one in the article. paragraph 87. 1 under the

(b)) other (lower) than the legislation

laws. The cancellation provisions of the Act on the basis of the article. paragraph 87. 1 (a). (b))

The Constitution is therefore not possible.



With the above caveats, however, the constitutional complaint meets the formal

assumptions. Factually challenges the group members the provisions of Act No.

247/1995 Coll., concerning the introduction of the so-called. the election deposits. As regards the

Chamber of Deputies, the legislation stipulates that a political party or

the Coalition, whose candidature has been in the electoral region

to be registered within three days after the notification of the registration deposit 200 000

CZK, while the composition of the deposit is a condition of start printing voting

the petals of the relevant political party or coalition. If the deposit is not

composed, the ballots are not printed. Deposit returns regional election

the Commission, political party or coalition on condition that the party or

the Coalition she progressed to the first skrutinia, it means that it has at least

5% of the valid votes cast in a national scale. The amount, which is

do not return, the income of the State budget.



In addition to bailouts for elections to the Chamber of Deputies attacks the group members

also the deposit for the elections to the Senate (section 65 of the Act). The legal adjustment

Here comes from the fact that individual candidates are obliged to after notification of

their registration deposit 20 USD and notify the district election

to the Commission. A security deposit is a condition for the start of the printing of voting

the petals. When the deposit is penalized by the ballots do not print. Also in this

the event is the return of the deposit, who composed it, subject to the condition of a certain

degree of electoral success; the amount is returned if the candidate gets in the

the constituency of at least 6% of the total cast in force

votes. Also in this case, the amounts are not refundable, tv

the State budget.



Group members in its proposal is based on the concept of bail as synonyms

security or guarantees. Note that the Czech law was deposit so far

Institute of civil and commercial law, and that it uses the

also in the civil proceedings in tax (administrative) proceedings and in

the criminal procedural law, the deposit is primarily used to ensure

private undertaking or to back up the statutory tax obligations,

and they point out that such bail under any circumstances she in

the benefit of the State. Only in criminal proceedings and in special cases

the deposit is also the nature of the sanctions. The appellants point out that the bail imposed by

Act No. 247/1995 Coll. (in the text of the proposal is apparently mistakenly stated no.

247/1992 Sb.) by its very nature does not correspond to the usual notion of the deposit and is

in fact, the sanctions "sui generis" reminiscent of the State of organised

gambling game.



A group of members of Parliament in their next argument turns to edit Active

and passive electoral rights as constitutional law Institute.

Pushing the view that the contested law in the provisions of § 35 and 65 violates the

constitutional limits to the exercise of the electoral rights in two essential issues:

introduces the obligation of the entities of the electoral rights of the deposit as a condition of

to print the ballots, and further introduces the Institute "leak

deposit "and deposit classified leaks between the incomes of the State budget.



As regards the first question, argue that the regular implementation of the elections,

their organization and financial security is mezinárodněprávně taken

and the constitutionally established State obligations. No constitutional standard does not allow,

to become a podmiňoval the fulfilment of their legal obligations start printing

the ballots, and deposit to the composition of the political parties and the citizens of the

was obliged to print finance or guarantee

bailouts.



Also the forfeiture of the deposit in favor of the State budget is considered by the Group

for contrary to the constitutional provisions, as well as mezinárodněprávním

the obligations of the Czech Republic. The appellants argue that the forfeiture of the deposit in the

to the State is entirely independent of the will and the behavior of the subject and that

is not invoked his unlawful behaviour. About whether a candidate gets

at least 6% of the total number of valid votes, the voters decide exclusively.

The inner contradiction to the electoral law, sees that the electoral deposit

contrary to § 84 electoral law, according to which all expenditure of the institutions

the State administration to municipalities and electoral commissions, associated with the elections to the

Parliament, shall be borne by the State budget. The provisions of the law on forfeiture of

bond in favor of the State considered the financial sanction against the

registered political parties and candidates for elections

they failed, and at the same time for forced an extraordinary contribution of less successful

political parties and candidates in favor of the State.



Finally, a group of members of Parliament against electoral kaucím referring

the fact that nevytištění ballots properly registered and

officially registered electoral lists and candidates due to

candidates deposit is-institutional intervention in the constitutional rights of all

the political parties to participate in the formation of Parliament and the constitutional law

individual citizens apply for voter favor voters and parliamentary

the mandate. Argue that the Constitution implies a political system based on the

free and voluntary formation of and free competition of political parties

which respect the fundamental democratic principles, while the provisions of the

the electoral law, political parties and business coalitions with smaller property

background effective opportunity to participate in the elections with respect. The deposit is

an obstacle to free competition and forcing political parties to be focused on

material or activity page looking for support from other bodies, from

which the revenue regardless of democratic objectives and principles.



In this context, infringement of the principle of equality also argue in the elections

Thus, it is possible to prevent entities to participate in the elections, which do not have

on a national scale 1 600 0000 Czk for some options. This amount may

in terms of other entities seem irrelevant, but for smaller

bodies with small property facilities lead to exclusion from the elections.

The Group considers that members of any amount, regardless of the

the amount, as a condition of performance of passive suffrage favors

entities that are better prepared for competition in the economic field than

the competition on the field of ideas and ideals. Equality is to be understood as the possibility of

to participate in the may legislative restrictions without any securities.

The election law may, however, in fulfillment of the passive electoral rights effectively

prevent registered parties and candidates for the lack of

the asset. At the conclusion of its proposal points out a group of parliamentarians on contradiction

the electoral law, as regards its provisions on kaucích, with the article. 5 and article.

19 paragraph. 1 and 2 of the Constitution and with article. 4 (4). 1, 2 and 4, article. 11. 2, article. 20

paragraph. 4, article. 21. 1 and 4, and article. 22 of the Charter of fundamental rights and freedoms and

It adds that the Czech Republic is bound and in its election law

international treaties, in particular article also. 3 of the additional protocol to the

Convention for the protection of human rights and fundamental freedoms, in which the States

election commitment, under conditions which will ensure the free expression of

the views of the people on the choice of the legislature. In this context, also the

point to the prohibition of discrimination in accordance with article. 14 of the Convention.



The proposal from a group of MPs has sent to the Constitutional Court under section 69 of the Act No.

182/1993 Coll. of the Czech Parliament with a request for written comments

within 30 days from the date of delivery. This challenge has received 22 July. March 1996

The Constitutional Court a written representation of the Chamber of deputies of the Czech Parliament

Republic, signed by its Chairman PhDr. Milan Uhdem, in which the

stating that the election law and in its provisions on the kaucích was approved by the

the prescribed majority and passed through the proper process of approval and publication,

so is the degree of consensus within the Parliament. If
as to the reasons for the introduction of a bond election, citing both the need to limit

the fragmentation of the political forces in the Czech Republic, which could lead to

making functions of the representative body, and in particular, then points to the

the high costs which the State incurs in printing ballots for

provided that the competing political parties and candidates is disproportionately

the high number of. Finally, the Parliament of the Czech Republic refers to the expression of

on the explanatory memorandum to the Government a draft electoral law, in which the General

part of it is stated that "in the Act for the deposit of the candidate

political parties in elections to the Chamber of Deputies and the Senate, and it

on the basis of the experience from abroad, specifically from France ".



II.



Pursuant to section 13 of Act No. 182/1993 Coll., for repeal of the law or its

individual provisions, i.e.. for the decision in accordance with article. paragraph 87. 1 (a).

and, most) of the Constitution requires at least nine judges present. The proposal on the

repeal of the law or its individual provisions is rejected in case

If the law required most, i.e. they do not. even in the

If for rejection by only a minority of judges, most,

voting for repeal, however, comprises less than nine judges (PL. ÚS 36/93,

PL. ÚS 4/95).



In most of the eight things umpired judges called for the repeal of section 35

Act No. 247/1995 Coll. and the rejection of the proposal to repeal section 65 and section 92

paragraph. 2 Act No. 247/1995 Coll., a minority of seven judges for

the rejection of the proposal in its entirety.



The opinion of the relevant minorities, leading to the failure of the law

the required nine votes for the repeal of the law or its individual

provisions is based on the following arguments:



According to the provisions of § 35 paragraph. 2 Act No. 247/1995 Coll., on elections to the

The Chamber of Deputies a political party or coalition shall deposit

200 USD in all electoral regions, in which the candidature

political parties or coalitions registered. In accordance with paragraph 4

the cited provisions of the deposit to a political party or a coalition, returns

If you refer to the first skrutinia, IE. in case, if the

a political party has gained more than 5% of the vote, or in the case of a coalition more

than in § 49 paragraph. 2 and 3 of Act No. 247/1995 Coll., the required number of votes. In

in this context, mention should also be entitled to political parties on the Standing

contribution in the event of getting at least 3% of the votes in the elections to the Chamber of Deputies

the Chamber of Deputies, and this post is at least 3 0000 0000 CZK per year (§ 20

paragraph. 4 and 6 of Act No. 424/1991 Coll. on Association in political parties

and in political movements, as amended).



Similar duty as for elections to the Chamber of Deputies is determined and the

for elections to the Senate, and it's for anyone whose application has been

registered deposit 20 USD (article 65, paragraph 2, of Act No. 247/1995

SB.). In accordance with paragraph 4 of the cited provision of the deposit back to the one who

He won in the constituency at least 6% of the total number of valid votes.



Although the election law combines the anchoring of the electoral deposit to start printing

the ballots, this is not a contribution for the election, but about a special

the legal Institute of forming one of the conditions of eligibility.



Article. 5 of the Constitution and article. 22 of the Charter of fundamental rights and freedoms provided for by

the protection of free competition of political parties, and this purpose

subject to the legal adjustment of all political rights and freedoms, and therefore

the electoral law. According to the article. 19 paragraph. 1 and 2 of the Constitution and article. 21. 1 and 4

The Charter of rights and freedoms applies the universality and equality of the passive

the franchise for elections to the Parliament of the Czech Republic. Article. 14 of the Convention

on the protection of human rights and fundamental freedoms, in conjunction with article. 3

The additional protocol to this Convention enshrines the prohibition of discrimination in the

the legal adjustment of free elections.



In the case under consideration, therefore, must be to answer the question whether the election deposit

in such a legal component of the electoral law, which limits the

the free competition of political parties.



For free can be considered such elections, in which there is freedom

Enter your political alternative to the electoral process (IE.

There is freedom of establishment political parties and freedom of design

candidates for the function of the members in the majority system), freedom of

apply for the support of voters and communicate with the public, as well as the freedom of

voters choose from more political alternatives, represented more

political parties and candidates to feature more members.



The constitutional system of the Czech Republic is based on the principle of representative

Democracy (article 2 of the Constitution), and according to the article. 19 paragraph. 1 and 2 of the Constitution,

elections to the Chamber of deputies are held under proportional representation, and

elections to the Senate according to the principles of a majority system.



The principle of representativeness of primarily contains odvozenost composition

representative Council from the political structure of civil public.

However, the minimum requirement includes the representativeness of the operators

(the political parties) involved in the political contest. His

by projecting the minimum representativeness as the relevance of the proposal to

the registration of a political party under section 6 (1). 2 (a). and Act No.)

424/1991 Coll., as amended. A similar requirement is

expressed even in the case of an independent candidate for election to the Senate in

the condition of his application under section 61, paragraph. 6 of Act No. 247/1995 Coll.



The legal order of the Czech Republic therefore includes not only a posteriori tools

the integration of the political system (which are restrictive clause), but

the a priori.



The purpose of the existence of political parties is the political representation of

public participation in the elections and the effort to get through them

representation in the diplomatic corps, especially in Parliament, or

in other elected public authorities.



In terms of election should be, therefore, first and foremost, freedom of political competition

found in the eligibility conditions of the constitutionality of political parties. When

assessment of the compliance of the contested provisions of the electoral law with the constitutional

the laws and the international conventions referred to in article. 10 of the Constitution is therefore

the key question, whether the law required election deposit can be accommodated

in the framework of the minimum conditions of the representativeness of the parties, respectively.

an independent candidate, and whether the legislature has chosen for this purpose

adequate means (i.e. whether the minimum level of representativeness can be

show only a certain number of signatures of adherents of political parties,

or a certain number of its members, or by other means).



The meaning of the election deposit in the elections to the Chamber of Deputies is in

the direction of limiting participation in elections parties whose representativeness is

less than 3% of the votes cast (otherwise it is guaranteed

State post or return of security deposit). Therefore a certain akcesorium to

restrictive clause pursuant to section 49 of Act No. 247/1995 Coll., the aim of this

akcesoria is to limit the number of political parties and the votes cast for them,

to which in determining the election results and the allocation of mandates under

§ 49 paragraph. 3 of Act No. 247/1995 Coll..



A similar sense of purpose and objective monitors and election deposit in the case of elections to the Senate.



The argument in favor of the suitability of the bonds as a supporting tool

vypovídajícího of minimum representativeness of the parties, as well as tools

minimalizujícího the number of votes to which the electoral

the results may be not taken into account the possible disputes over the authenticity of the signature of documents

or about the circumstances of their acquisition.



When you weigh the possible participation in elections Election bond and

the meaning and the purpose of the electoral deposit is needed in particular to consider the intensity of this

the restriction, i.e.. the fact the extent to which the height of the deposit for the independent

candidates and political parties from the perspective of a minimum

representativeness is a condition of the constitutionally unacceptable.



If the deposit has to fulfil its purpose and meaning, and at the same time not to restrict freedom of

and the free competition of political forces, the calculation of the number of adherents,

fulfilling the condition of minimum representativeness, featuring

a tiny sum, but not even the most common personal expenses. This

the condition is in the election legislation in both chambers of the Czech Parliament

Republic fulfilled, even if the elections to the Chamber of Deputies on the limit

limit.



The reasons lead to the conclusion about accordance of the provisions of § 35, 65 and section 92

paragraph. 2 Act No. 247/1995 Coll. with constitutional laws and international

the contracts referred to in article. 10 of the Constitution, and thus to reject the proposal on the

the cancellation.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



Different views



1.



A different opinion of the judge. Miloš Holeček



For the failure to achieve a qualified majority of 9 judges pursuant to section 13 of the Act No.

182/1993 Coll., on the Constitutional Court, which is required for the adoption of the decision

plenum about the repeal of the law or of the provisions referred to in article. 87

paragraph. 1 (a). and the Constitution of the Czech Republic), was in the matter of Pl-3/96 day

May 15, 1996 in the full extent of the Group's members on the proposal rejected

the repeal of section 35, section, and paragraph 65 of section 92. 2 Act No. 247/1995 Coll., on elections to the

The Parliament of the Czech Republic and amending and supplementing certain other

laws.



This decision pursuant to section 14 of the law I no. 182/1993 Coll. of the different

the opinion, which odůvodňuji as follows:
1. In my view, section 35 should be deleted, since these provisions of the Act

No. 247/1995 Coll. is in conflict with the constitutional order of the Czech Republic,

specifically, with the article. 5 of the Constitution of the Czech Republic and with the article. 4 (4). 4 and article. 22

The Charter of fundamental rights and freedoms.



Article. 5 of the Constitution provides that the political system is based on the free and

a voluntary formation of and free competition of political parties which respect the

the basic democratic principles and unwilling to violence as a means to

the promotion of their interests.



According to the article. 4 (4). 4 of the Charter of fundamental rights and freedoms in the use

the provisions on limits of fundamental rights and freedoms must be investigated their

the essence and meaning of such restrictions must not be abused for other

purposes other than for which it was established.



Article. 22 of the Charter of fundamental rights and freedoms provides that the statutory

all political rights and freedoms and its interpretation and application must

permit and protect free competition of political forces in the Democratic

the company.



2. In the present case as to the assessment of the constitutionality of the bailouts, which

the composition makes under section 35 electoral law printed voting

tickets and thus the participation of political parties and coalitions for elections to the

The Chamber of Deputies. This provision is in my belief in the

inconsistent with the Constitution of the Czech Republic and the Charter of fundamental rights and freedoms.

It is the obligation of the State to the parties, which have been lawfully

registered to participate in the elections to Parliament and ensure full

implementation of the article. 5 of the Constitution. Determination of the bonding facility introduces a priori discrimination

the fact that some parties prevents the introduction of equity (financial)

the conditions to participate in the elections, which are crucial and

the most watched contest scene of political parties, and demonstrated the degree of

the favor of the voters. The conditions for the registration of political entities are given by

by law, and in the time before the election, not from the legal aspect of the construct

consideration about the representativeness of the parties. The eligibility of parties are adequately

to participate in the competition of the political forces should be investigated only in the context of

the registration process in accordance with Act No. 424/1991 Coll. on Association in

political parties and political movements as amended

regulations. The representativeness of the parties is then expressed in the right

the elections and their results.



For these reasons I am of the opinion that section 35 of Act No. 247/1995 Coll. in

contrary to the constitutional order of the Czech Republic, and therefore should be like

unconstitutional under section 70, paragraph. 1 of law No. 182/1993 Coll., cancelled, and it

on the day of the Constitutional Proclamation of the award.



This decision should result in the term deposit in § 92 paragraph. 2

Act No. 247/1995 Coll., even while maintaining his full,

applies only to candidates to the Senate.



2.



A different opinion of the judges. Vladimir Klokočky and JUDr. Vladimir

Paula



1. The Constitution provides in article. 5 as the base, and in article 9 as the untouchable

the principle of free competition of political parties. This means that those organisations

which was granted on the basis of the law the Statute of political parties cannot be in

participation in the elections. Article 22 of the Charter of fundamental rights and freedoms

even the obligation to "provide and protect free competition

political forces ". From every conceivable State interference in the election is the

at least odůvodnitelným just command to report the property as

the election factor, and how the card for payment of 1.6 million. CZK "admission" to the

the electoral arena.



The less you can accept the argument that the provision of a large financial amounts

the party showing their "representativeness". Representativity for

electoral purposes cannot replace a Committee of the bank account.

The representative of the party, which has been duly registered in accordance with

the law on Association in political parties and political movements and

the recognized eligible to "participate in the creation of legislatures" (§ 1

Cust. No. 424/1991 Coll., as amended). Violation of equality of chances

electoral parties deposits is evident. But each party has its willing to

banks and their willing sponsors.



2. The explanatory memorandum to the electoral law and the opinion of the Chamber of Deputies

operating the high costs of printing the ballots. This argument

It is not credible in the State with a balanced budget, in a State that's

at the same time can allow the choice of not one, but two chambers of the Parliament and the

In addition, in the case of elections to the Senate assumes the vote in two rounds, for

which will print the ballots not once, but twice.



3. Also, as measures against the fragmentation of political representation, i.e.,. as

functional integration with the aim of Parliament's stimulus, not election deposit

neither appropriate, nor constitutionally permissible. Effective integration of stimuli are in

systems of proportional representation based on the so-called. restrictive clauses

(us 5%, respectively. 7, 9 and 11%). The restriction clause have the advantage that

do not restrict the principle of free competition of political parties in elections and apply

up in the distribution of mandates, i.e. the stage. then, what has ended free

Contest Parties and the results of the voting were detected. Election deposit are

by contrast, preventive and apriorním measure that limits "and

limine "free competition and the financial levers, which in the options

It does not belong.



4. grounds for the award combines incompatible when indicates overload

the clause "a posteriori integration tool" and the election deposit for

"a priori". In fact, the essential difference between them is of the

with regard to their functions: restriction clause operates to the integration of the political

representation in the composition of the representative Council (after the free competition

the parties have already taken place), while the electoral deposit acts in another direction, namely the

the exclusion or limitation of electoral participation by the parties. Therefore, the election cannot be

deposit characterized as mere akcesorium a restrictive clause, as

This is the reasoning of the award.



5. The extremely serious question that they didn't take note of the petitioners

even their opponents, is the fact that the meaning and function of the electoral deposit has

their specific differences in the system of proportional representation that applies

for elections to the Chamber of Deputies and the other in connection with the majority

system valid for the elections to the Senate. These specific features are linked

with the different characteristics of the two electoral systems, the first of which is the

based primarily on the principle of selection and differentiation and on the basic

the value criterion of proportionality of the representation of the political forces against

the number of votes gained by them, while the other emphasizes the importance of the electoral

differentiation as a basis for political integration for the benefit of

expressed most. About the nediferencovaném approach to issues bonds is

alone in the explanatory memorandum to the electoral law, according to which there was a mooring

the election deposits for elections to the Chamber of Deputies and the Senate, "on the basis of

experience from abroad, specifically from France ". This statement is to be

categorically refuse.



6. When the differentiated point of view on the different meaning in both types of bail bonds

electoral systems, we find that the majority of systems with small

the electoral districts the electoral deposit is often (but not always) introduced. Even the

However, the deposit has only a deterrent and not preventing function. As to the

election fee in the minimum amount, which is generally moves into one

a quarter of the average monthly income (while for us it is 20 000 CZK

elections to the Senate). The reason for these charges is the fact that, in the framework of the

small single-member districts can be hard to face the temptation of individuals and

small groups run also from other than from a serious political

reasons, because the cost to them in this election contest arising,

are relatively low. For this reason, for the elections to the Senate election

the deposit as acceptable in principle, although the amount is relatively

considerably high.



7. Where to apply a system of proportional representation (elections to the

The Chamber of Deputies), avoiding integration incentives directly to deliberately

apriornímu intervention, which would have limited participation in the electoral competition, because

the vote of the electorate has to be credible to the extent possible the image

electoral ward. Z8kroky against the fragmentation of political representation, therefore, in

proportional representation systems are generally up to then, IE. After

free and unlimited voting electorate, and that by using special techniques

in the allocation of seats, as a rule, also when using the 5%

the restriction clause. It is an effective way in compliance with the

Unlimited electoral competition act to ensure that the fragmented political

the composition of the Chamber of Deputies does not jeopardise the efficient activity of the legislative

the choir.



Whereas the foreign experience of the countries which are applying the system

proportional representation and which are based on the 5% restriction

clause, do not support the introduction of the electoral deposit even hint. As

for example, the States such as Belgium, Denmark, Germany, Switzerland,

Sweden, Norway, Finland, Spain, Portugal and others that the election

the bail. This lack of proportional electoral systems in bonds

representation is no ingenuity, but it is the logical consequence of the total

the function of this type of mechanism in the system of the parliamentary representative

democracy.



3.



A different opinion of the judge. Nomsa Ševčík



In the matter of the proposal of the Group of members of the Chamber of deputies of the Parliament of the Czech

Republic on abolition of the provisions of § 35 paragraph. 2 to 5, § and § 65, paragraph 92. 2
Cust. No. 247/1995 Coll. (PL. ÚS 3/96) took to the assumed award

as well as to his reasons, different opinion (section 14 of Act No. 182/1993

Coll.), and essentially for the following reasons:



1.



Procedural page stuff:



The proposal was adopted by the finding of the group members decided to negative

statement (section 70 (2) of Act No. 182/1993 Coll.), in a way, as if

the decision had its basis in the assessment of the merita things (design), and it is

all of the procedural consequences resulting (res iudicata); in

the fact, however, as correctly stating the reasoning adopted by the

the award, for annulment of the contested parts of the law No. 247/1995 Coll.-against

the majority opinion of the plenum of the Constitutional Court-not for lack of to

the necessary votes (§ 13 al. 2 in fine Act No. 182/1993 Coll.). This

the procedural issue is completely the same as the one that occurred earlier in the

draft a group of members of the Chamber of deputies of the Czech Parliament on the

the repeal of article. II. Act. No 216/1993 Coll. (PL. ÚS 36/93, find published

under Act No. 132/1993 Coll. and under no 24 Collections of findings and resolutions of the constitutional

the Court of the Czech Republic. 1, c. h. Beck, Prague, 1994), in which I, from

for the same reason as in this case, took a different view, and so on

previously submitted justification I refer and I now withdraw it for her in this matter.



Negative statement received the award (for the reasons previously discharged) is referred to in

my opinion, contrary to the provisions of § 13, § 68, paragraph. 2, section 70 paragraph. 2

Cust. No. 182/1993 Coll., and therefore, I have considered that, with the appropriate interpretation of the (

otherwise, the mlčícího of the law on the Constitutional Court) proposal for the members of the

the Chamber of deputies should be rejected, since in the case of politically exposed and

constitutionally significant is not the place to create an unfavourable verdict-through

the existing option in the future to deviate from the already adopted legal

opinion (section 13 of Act No. 182/1993 Coll.)-process a significant obstacle to the rei

iudicatae (section 35 of the Act No. 182/1993 Coll.).



In this context, however, not to be overlooked, that the conclusion of recital

received the award, namely, that the rejection of a group of MPs has

for reasons it landed, is in clear conflict with the procedural status

things; rather than these reasons, but failure to comply with formal conditions to

the required number of votes-over opposite the majority opinion in the merit of things-

the fate of the proposal were decisive for the application. It would therefore be against the logic of the

things, if the minority opinion of the plenum of the Constitutional Court should

featuring the relevant legal opinion; I therefore justification

received the award merely for the expression of opinion, those which the minority

judges.



2.



The merita stuff:



2.1 the proposal of a group of MPs challenged part of the law imposing an obligation

(addressed to the political party or coalition) pass within the time limit

as a condition for the printing of the ballots (section 35 (2), (3) Act No.

247/1995 Coll.) the law prescribed sum indicates a conflict with

generally the meaning appears (see. Dictionary of the Czech literary language, Csl.

the Academy of Sciences, Prague, 1960), as well as with the legally established term as

bail, although in the present case in respect of a political party-State

Obviously, it's not about bail; bailouts are both in science and in legal practice

means the preventive means of pointing towards the failure to hedge

(non-observance) of the legal obligations arising from the legal

the relationship, as the sanctions (executions, punishment) can be-in terms of

the creditworthiness of the rule of law-seen as the consequence of the relationships of socially

more or less pathological, which is, of course, a stable legal order-if it

just be-trying to avoid (Hoetzel: in dictionary of public law

Czechoslovak).



Essential requirements, therefore, primarily a security deposit belongs to

(as a rule, contractual) legal relationship on the one hand, and clearly

expressed the obligation (commitment) on the other hand, being-as means

--on the side of the zavázaného there must be objective and fair

the possibility of a contractual commitment (like him) the legal relationship arising

meet so that, for example, in the area of public law (public performance

to be able to) State (Office) "saving bond neusnadňoval the task to the debit of

citizens "(Hoetzel ibid).



Neither one of these fundamental conditions of "deposit" imposed by the contested act

does not meet; Firstly, in the context of the envisaged between the political party

(the Coalition), and the State isn't a legal relationship (the less Contracting) as-

considered the constitutional aspects-belongs to the primary obligations of the State,

so when choosing their political representation created by the competitors

political parties of such conditions, to allow them to achieve

constitutionally envisaged objectives (article 1, 2.1, art. 5. Act No. 1/1993

SB.). By contrast, the Constitution of the Czech Republic-command-is a political

the parties, in principle, the only obligation imposed, namely, that in its efforts to

acquisition of a share in the State to be able to respect the "basic democratic

principles and resisted the violence as a means of promoting their interests "

(article 2 al 2, art. 5. Act No. 1/1993 Coll.).



The very participation of political parties in the elections would hardly be

understood as fulfilment of obligations towards the State, and much less as an obligation to

to achieve them, in a certain predetermined minimum success (section 35

paragraph. 2, 4 of the Act. No. 247/1995 Coll.), which in its final

the result is subject to a variety of factors, on which the political parties-

considered the principles about the relationship of the negotiations to result-hardly can have

It is not difficult to effect.-Apart from relativnosti concepts-

imagine, for example, unsuccessful political party with a good program

and bad tactics, as well as successful with the program, while poor,

but in elections, which prosazenou tactics prove effective; In addition, the

all the contestants, political parties are affected in their efforts to share

the non-participation of the electorate in the election, their varied interests, if not the sentiments

produced by the often targeted the intentions of various media and

Similarly.



All of these factors are uncertain and the previously undetectable, moving

at most, only at the level of estimates, if the smaller parties at all can be

reach, cannot naturally be added in case the electoral failure of the

chargeable to the mishandling of the result of a failed political parties.



I consider, therefore, the contested Law "security deposit" for cash performance

at the expense of the responsibility of a political party (Coalition) for the election result,

which as such is to be subject to reflection, how much and whether it is

compatible with the constitutional order of the Czech Republic; the rule of law, its

clarity and consistency but is sensitive, if from the steady

legal terms (institutes) the following clearly distinct content.



2.2 the political system of the Czech Republic is, according to its Constitution, based outside the

others on the free competition of political parties, which are in their activities

constitutionally limited only by the way already sub 2; the term "free

competition ", however, in my view, cannot be to subject their interpretation

According to the criteria, more or less arbitrary or random. If it can be as

constitutionally recognize closing clause, a conformist is because that goes on

the legal limit for the staggered mandates after the end of the electoral competition, and

therefore a and certainly in terms of functionality, the Chamber of deputies established

According to the rules of proportional representation-reasonable regulation of particular

the election results, which, however, the actual competition of political parties

leaves intact; This is so – how the experience of the preceding

electoral period show-quite sufficient to guarantee that the fragmented

the political spectrum will not be threatened by the activities of the Chamber of deputies of functionally. From

terms as follows, therefore fail the result of verified empirically argument

justifying the fixing of the "deposit" of the effort to prevent undesirable fragmentation

political parties.



In fact, I intended to further the Middle problem in more detail, for

attention would probably cost, whether well-especially in the case of elections to the

Chamber of Deputies-law provided for the above "security deposit" ignorance

the constitutional principle of equality; the amount of 200 000 CZK for the electoral region is for

large or rather influential political parties, due to their securities

background, maybe the financial discharge of negligible and only a fraction of the financial

the funds, which they have, while the political parties without

the current impact on the exercise of State power can represent, and in

the fact is, probably to an insurmountable barrier to

participation in the election contest; the normal daily life and work in the political

the area is without adequate financial security needs and

the obligation to lodge the "bail" with considerable risk of its loss, as in the period

culminating the electoral competition with generally increased costs already above and beyond

their options, and it is virtually of the Constitution anticipated

free competition of political party at the same time limits and voters in the selection of the

possible menu of political programmes, ideas and imagination.



2.3 according to its reasoning in an attempt to find the indicated issues received

in the opinion of the Constitutional Court plenum pertinent minorities to bridge

construction of minimum representativeness of the political parties, in which the law

the prescribed "bail" is supposed to represent-taking into account the principles and the nature of the
representative democracy-specific accessories clause,

completes along with her direct the politically relevant spectrum, and it

approximation of the costs derived from the size of the party's base, or

from the number of their supporters and concludes that-in the case of elections to the

Chamber of Deputies-is the amount of "deposit" to "limit limit" and is

so with the spirit of the Constitution of the Republic.



Even though this construction cannot be on first sight a certain důvtipnost, deny

they become its weaknesses when deeper reflection is as obvious and demonstrate

inconsistent with the characteristics of free elections, as it itself adopted

find, in other parts of the grounds, serves; the financial barrier, therefore,

in a way, constitutionally appropriate extends only a few affected performance, completely

clearly from the position of the parties, at the time of elections already on the exercise of State

to be able to participate in, just to those spheres (both on the part of political parties,

and on the side of voters) for free and democratically organized

the options considered and the minority opinion of the plenum of the Constitutional Court as the law;

restrictions or any other than the Constitution expressly (article 5 mouth. Act No.

1/1993 Coll.) those regulatory alternatives in the competition of political parties

for a share of power in the State-and the Czech Republic from the era of Czechoslovakia in the years

the post-war is already with the electoral regulations has its historical experience-

It is always for a democratic form of the State (article 1 of the mouth. Act No. 1/1993 Coll.)

the potential danger, whether these come from any part of the

the political spectrum. If it is the source of all State power the people (article 2 (2).

1 mouth. Cust. No. 1/1993 Coll.) and if the political system of the Republic is based

(among other things) on the free competition of political parties which respect the

democratic arrangement of the State (article 5 mouth. Act No. 1/1993 Coll.), then here

already constitutionally not other obstacles that could (should) political

the parties in attendance at the electoral rivalry, and this all the more, if

These parties already have passed through the filter before the emergence of the law of

of Association in political parties and political movements (Act No.

424/1991 Coll.).



These completely distinct, unique and bezmezerovitých policy

which is the rivalry parties for power in the State (as well as a range of selection

alternatives for the citizens as voters) cannot constitutionally arranged-at least

in my belief-intervene, for which doktrinálním-

After all already for these aspects-is neither the place nor the reason.



Indeed, it seems that the structure of minimum representativeness set out in

the reasoning adopted by the award is affected by the same defect as infected

the law; as in the case of the law it's not-in my opinion-on bail,

so even in the minority opinion of the award isn't a bail as of

Accessories for closing clause.



Although used the concept of "a akcesorium" is obviously meant as a licence,

cannot be ignored, that the akcesorium (basically a Institute of material

civil law) is as a matter of minor characterised by specific

subordinate status to the main things with which also, just for the

subordination, and regardless of whether it is natural or accessories

artificial, shares her fate and naturally prevents-in question

the case-was "a akcesorium" (as a matter of minor) assigned to the

another system (the electoral competition) which, in which it is applied

clause (staggered mandates); It is therefore about two completely different

Tools, each of which individually regulates the different area of selection

political representation.



Regardless of these differences, I consider it essential that is not in the power of

political parties make a sufficiently clearly and precisely's idea about your

representativeness (for reasons mentioned previously) otherwise than by direct

participation in the elections, which only and usually without any doubt

they will show how its ideas and intentions of citizens perceived or accepted

or rejected; This fact then accesses another aspect,

namely-in particular for the mimoparlamentních of political parties without sufficient

and otherwise-that the necessary experience to your instil in the minds of voters,

and then to get a share of the State may need time, usually

longer than the term itself. The potential loss of a compound "bail"

this case is already a distinct character of the penalties for electoral failure and is

with this affected political party out of public and political

life at all.



Barriers to participation in the electoral competition in the form of a general census suffrage, so in

ultimately, if not impossible, to biasing current

the political spectrum new ideas or streams.



Such a condition is, however, in my belief, in conflict with the Constitution of the Czech

Republic, and both its letter and its spirit.