1996/05/28 - I. ÚS 127/96: Election Coalition

28 May 1996

HEADNOTES
 

Act

no. 247/1995 Coll., on Elections to the Parliament of the Czech

Republic does not govern public law conditions for the creation and

activities of a coalition, and does not set forth the power of any body

to decide that a particular political party or group of political

parties or movements is to be considered a coalition participating in

elections. Thus there is no authorization for a state body or a body

entrusted with exercising public powers to interfere, by its decisions,

in the pre-election activities of political entities, and the

legislature apparently did not intend to interfere via public law in the

creation of (election) coalitions.

We can conclude from the

existing legal situation that only the political subject itself decides

of its own free will whether it wishes to participate in elections as an

independent (election) subject or as an (election) coalition. Given a

lack of other legal regulations the only relevant thing is thus how the

subject registers its candidate list. This is also indicated by the fact

that the cited Act, when enumerating subjects authorized to submit

candidate list for elections, sets forth coalitions as well as political

parties without any further determination or characteristics. The

creation of (election) coalitions is thus subject to agreement of the

parties, which is not in any way regulated or forbidden by public law.

The cited act does not tie any legal consequences for a participating

party to such actions, nor is it stated that only members of a

participating party can be entered in the candidate lists. Creation of a

coalition is ¬¬? under present laws – a voluntary act, i.e., a

manifestation of the will of two or more political parties or movements

to create an election coalition, which is not subject to any further act

of approval or review by state bodies.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT
 

IN THE NAME OF THE CZECH REPUBLIC

 

The

Constitutional Court of the Czech Republic decided, in a Panel, on the

constitutional complaint of the complainant, the political party the

Free Democrats – the National Social Liberal Party (Svobodní demokraté –

Liberální strana národně sociální) (SD – LSNS), against the decision of

the Central Election Commission of 27 April 1996, that the complainant

would be considered a coalition in elections to the Chamber of Deputies

of the Parliament of the Czech Republic, as follows:
 

The

Constitutional Court forbids the Central Election Commission to express

an opinion on the question of whether the complainant’s candidate list

is or is not a candidate list of a coalition, or to pass resolutions

about this.

The

Constitutional Court also orders the Central Election Commission to

renew the status of the complainant in elections to the Chamber of

Deputies of the Parliament of the Czech Republic so as to correspond to

the status before the election commission’s resolution after

registration of the complainant’s candidate list and, when exercising

its powers, not to take into account its resolution, which stated in

point 9 that SD – LSNS is a coalition; further, in connection with the

renewal of the complainant’s status, within 24 hours after delivery of

this judgment, to send to the CTK press agency a declaration that the

complainant’s candidate list will be considered a candidate list of a

single political party in the 1996 parliamentary elections.
 

Concerning the complainant’s other motions, the constitutional complaint is denied.
 

 


REASONING
 

I.
 

In

its constitutional complaint of 3 May 1996, the complainant – the

political party the Free Democrats – the National Social Liberal Party

(Svobodní demokraté - Liberální strana národně sociální) (SD - LSNS),

proposed that the Constitutional Court decide that the Central Election

Commission’s resolution of 27 April 1996, that the political party SD -

LSNS would be considered a coalition in the 1996 parliamentary

elections, interfered in the political party’s constitutionally

guaranteed rights and freedoms and, as a result, also in the

constitutional rights of citizens who associated in that party. The

complainant objects that the decision is in complete conflict with legal

regulations contained in Act no. 247/1995 Coll., on Elections to the

Parliament of the Czech Republic and Amending and Supplementing Certain

Other Acts, as amended by later regulations (the “Election Act”), and

with the purpose of that Act. The issue is that the Central Election

Commission decided that the complainant, heretofore considered a

political party, which needs 5 % of votes to enter the first scrutiny,

would in future be considered a coalition, which needs to receive 7 % of

votes to enter the first scrutiny.11) The complainant states that the

Central Election Commission decided on this condition even though no

provision of the Election Act authorizes it to do so, and decided in its

own discretion. In view of the fact that this commission is composed of

representatives of all political parties, it can in fact be said that

representatives of political parties decided, completely outside the

scope provided by law, to create more difficult conditions for another

political subject to enter the Parliament of the CR.
 

The

complainant emphasizes that it met all conditions provided by law for

registration of candidate lists, and these lists were also registered.

Subsequently the Central Election Commission assigned the complainant,

by lottery, a number to identify its candidate lists for elections to

the Chamber of Deputies of the Parliament of the Czech Republic, and the

complainant, as a political party, paid the appropriate security

deposit under the law. The decision of the Central Election Commission

that is criticized in this constitutional complaint was made only after

all the above-mentioned formalities had been met. This decision, that

the complainant would be considered a coalition in the 1996 elections to

the Parliament of the Czech Republic, was made despite the fact that in

previous meetings of the Central Election Commission it was resolved

that the complainant would not be considered a coalition.

The

complainant sees the steps that were taken concerning it as violation of

the articles of the Charter of Fundamental Rights and Freedoms stated

below. Under Art. 2 par. 3 everyone may do that which is not forbidden

by law and nobody may be compelled to do that which is not imposed upon

him by law. Under Art. 3 par. 1 fundamental rights and freedoms are

guaranteed to everyone without regard to, among other things, political

or other conviction. Under Art. 4 par. 3 statutory restrictions of

fundamental rights and freedoms must apply equally to all cases that

meet the specified conditions. Under Art. 21 par. 4 citizens have access

to elective and other public office under the specified conditions. The

complainant also raised the objection that there was violation of free

competition of political forces in a democratic society under Art. 22 of

the Charter of Fundamental Rights and Freedoms. It agrees that

elections to the Parliament of the CR, although they are a manifestation

of the constitutional right to vote freely, certainly cannot avoid

certain formalities that must be met as a condition for access to

elections. These are quite evidently formalities whose fulfillment

guarantees that a political party which participates in elections has

been duly registered, that the clear identity of candidates will be

ensured, duplication, consisting of a certain candidate running for

election in multiple election districts, will be prevented, that a

candidate’s rank on a candidate list will be clear and it will also be

apparent that the candidate is a citizen of the Czech Republic. In all

these cases decision making about whether these formalities were met or

not is clear, and precludes the possibility of any sort of discretion.

Any actions excluding a political party or a candidate from

participation in elections, whether by decision of a Regional Election

Commission or Central Election Commission, can be appealed to a court,

which is required to decide in a very short time whether or not a

mistake was made in evaluating the above mentioned formalities and the

relevant consequences. Even here, however, the matter is not one of

discretion, but of comparing conditions provided by law with the facts.


The foregoing indicates that the much lesser interference in free

competition of political forces, which the Central Election Commission

conducts when reviewing the formal requirements of candidate lists, is

subject to court review. Thus, the legislature clearly did not even

consider the possibility that the Central Election Commission would be

authorized to interfere in competition in other ways, which would not be

subject to court review. Quite clearly, then, there can be no question

of interference where the decision about whether steps will or will not

be taken is only a question of discretion without any firm rules.


The complainant also points out that the Election Act does not define

what is a coalition, nor does any other law passed in the CR since 1918.

Thus, when defining a coalition it is not possible to rely on analogie

legis or analogie iuris. The legislature clearly did not want to define a

coalition in any way, so as not to create the necessity of deciding

what is a coalition and what is not a coalition. In that state of

affairs, then, a coalition is, de iure, only a subject that identifies

itself as such on its candidate list.
 

II.


The complaint was also reviewed in formal terms, and no reasons were found to reject it.
 

III.
 

The

Constitutional Court began with the filed constitutional complaint and

statements of the parties, and in view of its status as a judicial body

for protection of constitutionality, considered whether the actions of

the Central Election Commission did or did not violate the complainant’s

constitutionally guaranteed fundamental rights and freedoms.


Before the Constitutional Court turned to evaluating the matter itself,

it was necessary to note how the term “coalition” was understood in the

course of actions by the Central Election Commission. Differences of

opinion in that regard undoubtedly led to the filing of this

constitutional complaint. The Constitutional Court states that the term

“coalition” was not defined by the Act on Elections or in other legal

regulations. The term “coalition” is familiar from political practice,

mostly from the co-operation of a so-called “governing coalition,” whose

meaning has been settled for years. Where this is not so, the term

“coalition” may indicate various levels of relationships, from mere

co-operation between various parties through tighter or looser

interconnection up to a degree of co-operation which precedes the merger

of such parties.


No

provision of the Election Act governs public law conditions for the

creation and activities of a coalition, enshrines the authority of any

body to decide that a particular political subject (political party or

declared or undeclared group of political parties or movements)

participating in elections (e.g. as a party) must be seen as a

coalition; there is thus no authorization for a state body or a body

entrusted with exercising public powers to interfere, by its

decision-making, in (pre-) election activities of political subjects.

This is also confirmed by Act no. 424/1991 Coll., on Association in

Political Parties and Political Movements, which explicitly provides

that state bodies may interfere in their status and activities only on

the basis of law and within its bounds. 6) It is apparent that the

legislature did not intend to interfere (via public law) in the creation

of coalitions. If it wanted to influence such questions, it would have

to precisely define an election coalition and also regulate the

mechanism of review (evidently judicial) of whether a political subject

is a party or a coalition. We can conclude from this, in accordance with

Art. 2 par. 2 1) and Art. 3 3) of the Charter of Fundamental Rights and

Freedoms, or Art. 2 par. 3 and Art. 4 of the Constitution of the CR

(particularly with the argument that “everyone may do that which is not

prohibited by law”) that in the existing legal situation only the

political subject itself decides of it own free will whether it wishes

to participate in elections as an independent (election) subject or as

an (election) coalition. Given a lack of other legal regulations the

only relevant thing is thus how the subject registered its candidate

list. The Election Act itself provides some support for such a

conclusion in § 31 par. 1 9) where, when enumerating subjects authorized

to submit candidate lists for elections, it sets forth coalitions

(without further requirements) in addition to political parties. The

creation of (election) coalitions is thus subject to agreement of the

parties, which is not in any way regulated or forbidden by public law.

The Election Act does not tie any legal consequences for a participating

party to such actions. It is not even prescribed that only members of a

party are recorded on its candidate list; any natural person who is

entitled to run for office can be registered. 8) Creation of a coalition

is – under present laws – a voluntary act, i.e., a manifestation of the

will of two or more political parties or movements to create an

election coalition, which is not subject to any further act of approval

or review by state bodies.


A

similar construction, though expressed more precisely, was adopted, for

example, in Act no. 47/1990 Coll., on Elections to the Federal

Assembly, as amended by Act no. 59/1992 Coll., which provided that

“political parties may agree to submit a joint candidate list.

Provisions of this Act applying to a political party shall be applied

commensurately to a coalition thus created .…”12) An identical provision

was also included in Act no. 54/1990 Coll., on Elections to the Czech

National Council, as amended by Act no. 94/1992 Coll. For the sake of

completeness it must be noted that in the first elections to the highest

representative bodies, in 1990, only a minimum threshold was provided

for votes necessary to progress to the first scrutiny, which applied to

political parties and coalitions, and thus it was not necessary to

distinguish between the two political subjects. Differentiated

thresholds were not established until amendments to the election acts in

1992.


The Constitutional

Court also had to clarify for itself what was the position of the

Central Election Commission in resolving the conflict about whether the

candidate list of SD – LSNS is a candidate list of a political party or a

candidate list of a coalition under § 31 of the Election Act.9) The

answer to this is given by the Election Act, which provides that

elections to the Parliament are governed by the Central Election

Commission, whose jurisdiction is elaborated in § 12 par. 6 of the

Election Act,7) under which the Central Election Commission
a) monitors the observance of Acts and other legal regulations on elections,
b)

decides on complaints against procedures taken by regional and district

election commissions and appeals against their decisions; the decision

of the Central Election Commission is binding for all election

commissions,
c) determines and publishes the results of elections,
d)

shall deliver a record of the results of elections to the Parliament of

the Czech Republic  to the appropriate chamber of the Parliament,
e) shall issue a certificate of election to elected candidates,
f) performs other tasks under this Act and other legal regulations.


Other tasks of the Central Election Commission must be understood to

mean, in particular, review of the candidate lists by the Central

Election Commission under § 33, registration of candidate lists under §

34, resolving disputes on rejection of a candidate list under § 32 par. 3

in the period before its registration, or cancellation of registration

if a political party that submitted a candidate list was dissolved or

its activities suspended (§ 31 par. 4).


Thus, in this case, where the Central Election Commission decided that

the already registered candidate list of a political party is a

candidate list of a coalition, it exceeded its powers, because the law

does not give it such authorization. The question of whether in this

case there was a political party or a coalition under the Act on

Elections was related chronologically primarily to submitting and

reviewing candidate lists under §§ 31 to 33 of that Act.


To evaluate this case it must also be stated that the complainant was

already registered as a political party, had been allocated, by lottery,

a number to the Chamber of Deputies by the Central Election Commission,

and it paid the deposit prescribed by law. If no inadequacies in the

candidate list were discovered at this stage of preparations for

elections, the Central Election Commission’s authority to decide in the

matter in question after registration of candidate lists cannot be

derived from the text of the law.


After clarifying the foregoing questions the Constitutional Court of

the CR concluded that the procedures of the Central Election Commission

were interference by a body of public power into the constitutionally

guaranteed fundamental rights and freedoms of a political party, i.e.,

the complainant. The Central Election Commission’s procedures were not

only a violation of the Act on Elections, as was discussed above, but

also a violation of Art. 4 of the Charter of Fundamental Rights and

Freedoms, under par. 14) of which obligations may be imposed only on the

basis of law and within its bounds and only while respecting

fundamental rights and freedoms. This also corresponds to the purpose of

Art. 20 of the Constitution of the CR,5) under which further conditions

for exercise of the right to vote, organization of elections and the

extent of judicial review shall be provided by law.

The cited

provision of the Charter of Fundamental Rights and Freedoms was violated

by the fact that the Central Election Commission’s resolution was not

based on statutory provision or authorization, and, merely on the basis

of discretion, beyond the framework of its authority, required a legal

entity, in this case a political party, to tolerate the fact that,

unlike other parties, its entry to the Parliament of the Czech Republic

will not be subject to the condition of receiving at least 5 % of votes,

but the need to receive at least 7 % of votes under the Act on

Elections.11)Therefore this “resolution,” even though, for example, the

constitutional complaint speaks of it as a “decision,” must be

considered interference by a body of public power in the complainant’s

fundamental rights and freedoms, in the wider sense of the word, under §

72 par. 1 letter a) of Act no. 182/1993 Coll., and the conclusions

which are set forth in verdict of this judgment must be drawn.


While

the Central Election Commission, in oral proceedings, pointed to the

provisions of § 49 par. 1 and 2 of Act no. 247/1995 Coll.,10) 11) and

from it derived its authority to decide whether the complainant is or is

not a coalition, the Constitutional Court believes that this provision

cannot be taken into account in the adjudicated matter. The cited

provision governs only the counting of valid votes cast for political

parties and for election coalitions, and does not give the Central

Election Commission an ex post right, i.e., after voting has been

completed, to subsequently change the status of parties or coalitions

duly registered to participate in elections.

For all these

reasons, the Constitutional Court, applying § 72 par. 1 letter a) and §

82 par. 3 letter b) of Act no. 182/1993 Coll., on the Constitutional

Court, decided as follows: it forbade the Central Election Commission

from continuing to violate the complainant’s rights and freedoms, and

ordered it to renew the situation before the violation. Within this

framework, the Constitutional Court ordered the Central Election

Commission to send the CTK press agency the declaration which is set

forth in the verdict of this judgment. Therefore, to renew that

situation, i.e., for voters to be properly informed, an active step of

the Central Election Commission is necessary, in the form of a

declaration for the CTK press agency.
 

The

Constitutional Court rejected the constitutional complaint only insofar

as the complainant sought to impose an obligation on the respondent to

apologize to the complainant and secure posting of the declaration for

the CTK press agency in front of every election room.
 

 

 


I. US 127/96
Overview of the most important related legal regulations

1.  

 Art. 2 par. 2 of Act no. 2/1993 Coll. which promulgates the Charter of

Fundamental Rights and Freedoms, provides that state power may be

asserted only in cases and within the bounds provided for by law and in

the manner prescribed by law.

2.    Art. 2 par. 3 of Act no.

2/1993 Coll. provides that everyone may do that which is not prohibited

by law, and nobody may be compelled to do that which is not imposed upon

him by law.

3.    Art. 3 par. 1 of Act no. 2/1993 Coll.

provides that fundamental rights and freedoms are guaranteed to everyone

regardless of gender, race, color of skin, language, faith and

religion, political or other conviction, national or social origin,

membership in a national ethnic minority, property, birth, or other

status.

4.    Art. 4 par. 1 of Act no. 2/1993 Coll. provides

that duties may be imposed only on the basis of and within the bounds of

law and only while respecting the fundamental rights and freedoms.

5.  

 Art. 20 of Act no. 2/1993 Coll. provides that the right of free

association is guaranteed and everyone has the right to associate with

others in clubs, societies, and other associations.

6.    § 3

par. 1 of Act no. 424/1991 Coll. on Association in Political Parties and

Political Movements provides that state bodies may interfere in the

status of parties and movements only on the basis of law and within its

bounds.

7.    § 12 par. 6 of Act no. 247/1995 Coll. on Elections

to the Parliament of the CR and Amending and Supplementing Certain

Other Acts provides the obligations of the Central Election Commission

such that it ensures that electoral laws and statutes are observed,

decides on complaints against procedures taken by regional and district

election commissions and appeals against their decisions, ascertains and

publishes total election results, conveys a record of election results

to the Parliament of the CR, issues a certificate of election to elected

candidates and performs other tasks set by law.

8.    § 25 of

Act no. 247/1995 Coll., on Elections to the Parliament of the CR and

Amending and Supplementing Certain Other Acts provides that any voter

who, no later than the second day of the elections, has reached the age

of at least 21 years and is not prohibited from exercising the right to

vote may be elected as a deputy to the Chamber of Deputies.

9.  

 § 31 par. 1 of Act no. 247/1995 Coll. on Elections to the Parliament

of the CR and Amending and Supplementing Certain Other Acts provides

that candidate lists for elections to the Chamber of Deputies may be

submitted by political parties or coalitions through a representative,

no later than 60 days before the day of elections.

10.    § 49

par.1 of Act no. 247/1995 Coll. on Elections to the Parliament of the CR

and Amending and Supplementing Certain Other Acts provides that the

Central Election Commission determines how many total valid votes were

cast.

11.    § 49 par. 2 of Act no. 247/1995 Coll. on Elections

to the Parliament of the CR and Amending and Supplementing Certain Other

Acts provides that for purposes of political parties and coalitions

progressing to the first scrutiny the Central Election Commission shall

determine which political parties received less than 5 % and which

coalitions, composed of two political parties, received less than 7 %,

provided that within further determination of election results and

allocation of mandates these political parties and coalitions are no

longer taken into account.

12.    § 18 par. 10 of Act no.

59/1992 Coll. on Elections to the Federal Assembly, as amended by Act

no. 59/1992 Coll., provides that political parties may agree to submit a

joint candidate list, and that provisions of the Act concerning a

political party shall apply commensurately to a coalition thus created.