1996/10/15 - IV. ÚS 275/96: Senate Elections I

15 October 1996

HEADNOTE:

If the purpose of the Act on Elections is

to bring to life and set down more detailed provisions on the basic

political right to elect and stand for election, then contested

provisions must always be interpreted in a manner that is solicitous of

this right, so as to facilitate, to the extent  possible, the right to

elect and stand for election, and not the contrary.

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 

The

Constitutional Court of the Czech Republic, in the matter of the

constitutional complaint of PhDr. J. Š., against the 7 October 1996

resolution of the Supreme Court of the Czech Republic, action no. Ovs

78/96/Št, in conjunction with the 27 September 1996 decision of the

Central Electoral Commission, action no. ÚVK 281/1996, and the decision

of the District Electoral Commission for District No. 54, headquartered

in Znojmo, all of which rejected his application for registration for

the election to the Senate of the Parliament of the Czech Republic,

decided, thusly:

 The 7 October 1996 resolution of the

Supreme Court of the Czech Republic, action no. Ovs 78/96/Št, the 27

September 1996 decision of the Central Electoral Commission, action no.

ÚVK 281/1996, and the decision of the District Electoral Commission for

District No. 54, headquartered in Znojmo, all of which rejected the

application of PhDr. J. Š for registration to the Senate election, are

hereby annulled.

 


REASONING

 


In his constitutional complaint, delivered to the Constitutional Court

of the Czech Republic on 11 October 1996, the complainant requested the

annulment of the 7 October 1996 resolution of the Supreme Court of the

Czech Republic, action no. Ovs 78/96/Št, which turned down his petition

seeking his registration as a candidate for the election to the Senate

in Electoral District No. 54, after his registration application had

already been rejected by the District Electoral Commission on 18

September 1996, and his appeal to the Central Electoral Commission was

unsuccessful as well.  All of these bodies gave, as the grounds for

rejecting his registration, the fact that his application contained no

document evidencing Czech citizenship, so that it was incomplete.

The complainant states that he is naturally aware of the fact that

Czech citizenship is one of the conditions for candidacy given in Art.

19 para. 2 of the Constitution of the Czech Republic.2)  However, in his

view the Electoral Act does not prescribe the specific manner in which

citizenship should be proven.  Such legal provisions are contained in

Act No. 40/1993 Coll., on the Acquisition and Loss of Citizenship of the

Czech Republic, specifically in § 20,3) which distinguishes a total of

four kinds of documents, all of which are equally valid.  The civil

identity card, which in practice is used most often, comes under letter

a).  The complainant also made use of this document to prove his

citizenship when, on 16 September 1996, he attempted to submit a copy of

it as part of the application he filed with the registrar of the

District Electoral Commission,.  However, the registrar of the

commission refused to accept it.  For this reason, the complainant

obtained, without unnecessary delay (that same day) a certificate of

citizenship from the City Council of Brno, which, together with a

certified copy thereof, he delivered to the registrar of the District

Electoral Commission on the following day, 17 September 1996.  None of

the stated bodies referred to above ever entertained any doubts

concerning the complainant’s citizenship.  What is more, as the

complainant states, § 14 para. 1(c) of Interior Ministry Regulation No.

74/1996 Coll.,4) which lays down detailed provisions for implementing

the Electoral Act, gave the district electoral commissions and the

Central Electoral Commission the authority, without problem, to verify

facts relating to the citizenship by enquiring at authorized offices.

The complainant concurs with the factual findings in the case as they

were stated in the contested Supreme Court resolution; however, he is of

the opinion that the formulation of the legal rule contained in it

infringes his fundamental right to compete under equal conditions for

elected office, which Art. 21 para. 4 of the Charter of Fundamental

Rights and Basic Freedoms5) (hereinafter „Charter“) guarantees him.  He

states that he fulfills all of the statute’s substantive, as well as

formal, requirements, but still he was disqualified from standing as a

candidate on the basis of the legal interpretation that the civil

identity card may not be used as a document evidencing citizenship of

the Czech Republic for the purposes of a candidate’s registration for

election to the Senate.  In his opinion, support for such an

interpretation can be found neither in the Act on Elections to the

Parliament of the Czech Republic nor in the Act on the Acquisition and

Loss of Citizenship of the Czech Republic.

The complainant

further objected that the Supreme Court violated his right guaranteed by

Art. 38 para. 2 of the Charter,6) for the proceeding was conducted in a

manner which did not allow him the opportunity to give his views on the

admitted evidence.  On this point, he also cites the Constitutional

Court judgment which annulled § 250f CCP [Code of Civil Procedure]7).

For

all of the above-given reasons, the complainant seeks the annulment of

the contested Supreme Court resolution and requests that he be granted,

under § 62 of the Act on the Constitutional Court, the reimbursement of

the costs of his legal representation.  In view of the fast approaching

date for the Senate election, he also requests that the Constitutional

Court give priority to deciding his case, as § 39 of the Act on the

Constitutional Court8) empowers it to do.  The Constitutional Court,

therefore, first of all considered the urgency of the matter and, after

consideration of all circumstances, came to the conclusion that the

conditions for invoking § 39 of the Act on the Constitutional Court8)

are met.  
 

In its submission

made on 14 October 1996, the Supreme Court in essence continued to

adhere to the arguments upon which it rested its decision in the

matter.  In particular, it rejected the contention that the declaration

of the registrar of a district electoral commission, who is not

authorized to assess whether a person meets the conditions for

eligibility for election, could be accepted in place of a document

evidencing citizenship.  In addition, as it stated in its submission, in

resolving election disputes, the Supreme Court has dealt with a number

of cases where the registrar came to erroneous conclusions concerning

submitted documents evidencing citizenship.  It can be seen from the

record, that the District Electoral Commission gave the candidate

explicit written notification of the fact that a certificate of

citizenship is the most suitable means of meeting the requirements under

§ 61 para. 4(a) of  the Act on Elections to the Parliament of the Czech

Republic.9)  

In considering the constitutional complaint, the

Constitutional Court first directed its attention to judging the

constitutionality of those provisions of the Act on Elections to the

Parliament of the Czech Republic, the application of which brought on

the state of affairs which form the subject of the constitutional

complaint, in this case, the refusal to register the complainant as a

candidate for the election to the Senate.  

The basic

interpretive principle for any acts which set down more detailed

provisions for the exercise of political rights is without question Art.

22 of the Charter,1) which provides that every body that applies law is

required to interpret and apply the statutory rules in such a way as to

facilitate and protect the free competition among political forces in a

democratic society.  In the view of the Constitutional Court, this

principle requires that all provisions of the Act on Elections, as well

as of other related statutes, the meaning of which are open to dispute,

be interpreted and applied in favor of the purpose and meaning of these

statutes.  At the same time, the purpose and meaning of the law is not

to be sought in the words and clauses of enactments alone.  Legal

enactments do, and must always, include within themselves the principles

recognized as part of a democratic law based state.  In Art. 1 of the

Constitution,10) the Czech Republic declares itself to be just such a

law-based state.  If then the purpose of the Act on Elections is to

bring to life and set down more detailed provisions on the basic

political right to elect and stand for election, then contested

provisions must always be interpreted in a manner that is solicitous of

this right, that is then, so as to facilitate, to the extent possible,

the right to elect and stand for election, and not the contrary.  Apart

from this special interpretive rule for political rights, the

Constitutional Court’s opinion also rests on Art. 4 para. 4 of the

Charter11) which provides that, when employing the provisions concerning

limitations on the fundamental rights and basic freedoms, the essence

and significance of these rights and freedoms must be preserved.

Giving consideration to the above-cited constitutional interpretive

principle, which without a doubt binds the Constitutional Court itself

as well, the Constitutional Court can come to no conclusion other than

that the constitutional complaint is well-founded.

In judging

the case, all participating state bodies considered the decisive issue

to be whether the civil identity card is or is not a document that

adequately evidences that the holder possesses Czech citizenship.  At

the same time, they all reached the conclusion that, for the purposes of

candidate registration for elections to the Senate, the document is

insufficient, even despite the fact that § 20 of Act No. 40/1993 Sb,3)

on the Acquisition and Loss of Citizenship of the Czech Republic, School

Materials Decision explicitly lists this document as one of the

documents that proves Czech citizenship.  The Act on Elections to the

Parliament of the Czech Republic contains no special provision on this

issue.  The arguments made by all bodies, including the Supreme Court of

the Czech Republic, consists in the fact that the civil identity card

is a special document which cannot be submitted in duplicate, and

further that to submit it would be a violation of the duty imposed on

the holder of the identity card by Act No. 75/1957 Coll., on Civil

Identity Cards, that the registrar of a district electoral commission is

not a subject which would be authorized to take away the civil identity

card, and then finally, that it is not possible to certify copies of

the civil identity card (§ 3 para. 3(a) of Act No. 41/1993 Coll., on the

Certification that Copies are Identical with a Document, on the

Certification by Municipal Offices that a Signature is Genuine,12) and

on the Issuance of Acknowledgments by Municipal Bodies and District

Offices).  With such an interpretation, the bodies applying law raise

considerations of convenience and practicality over the law, and above

all over constitutional principles, and they count any inconsistencies

among laws to the detriment of those who are trying to assert their

constitutional rights.  The civil identity card is a public document, so

that a presumption applies that it is accurate; thus, unless the

contrary is shown, it holds that the contents of such a certificate

correspond to the facts.  While it may be possible, even probable, that

it would facilitate the job of the electoral commissions to work with

something that can be copied, certified, and reproduced (for example,

with a certificate on citizenship), this consideration in no way alters

the fact that the means which the complainant chose to prove his

citizenship fulfills all of the statute’s requirements.  In this regard,

one can also refer to the fact that another Supreme Court Panel,

judging in a different case, came to an identical conclusion.

In

the opinion of the Constitutional Court, the grounds described above

are in and of themselves sufficient grounds for granting the

constitutional complaint.  However, the Constitutional Court considers

it appropriate to give its view on an additional issue as well.  The

contested Supreme Court resolution takes no position whatsoever on an

issue to which the complainant raised objections, practically from the

beginning of the entire proceeding.  Specifically, he alludes to the

fact that he immediately submitted the document which the electoral

commission requested and that, from the very beginning, there had not

been, nor could there have been, any doubt as to whether, at the moment

he submitted his application, the complainant met the conditions for

eligibility for election, that is, possession of Czech citizenship.  In

this regard, the Constitutional Court would expect that the Supreme

Court would have adopted a position concerning the character of the

proceeding which took place before it pursuant to § 200m of the CCP,13)

namely whether it is or is not possible in this type of proceeding to

cure any formal deficiencies there might be in the application.  In view

of the systematic placement of § 200m of the CCP,13) there can be no

doubt that it is a special proceeding and that, therefore, it is not

related to the part of the CCP on judicial review of administrative

decisions; if the opposite were the case, the court would be bound by

the determination of the facts of the case made by the administrative

organ (the electoral commission), and it would only be competent to make

a judgment as to whether, at the moment the commission made its

decision, it proceeded in accordance with law.  The proceeding before

the Supreme Court of the Czech Republic is a proceeding which results in

a decision having no formal relation to the Central Electoral

Commission’s decision.  Consequently, with its resolution, the Supreme

Court does not modify the decision of the electoral commission, rather

it decides the matter directly.  For this reason, the Constitutional

Court does not share the Supreme Court’s views concerning the character

of the deadline given under § 61 para. 5 of the Electoral Act.14)  For

the same reasons, neither does it share the opinion of the complainant

to the effect that, the Constitutional Court judgment Pl ÚS 18/96, in

which it declared § 250f of the CCP7) to be unconstitutional, should

constitute a fact that is relevant to consideration of this case.

On the basis of all the above-cited reasons, the Constitutional Court

declares that the contested decisions constitute an infringement of Art.

4 para. 411) and Art. 221) of the Charter and, in consequence thereof,

also an infringement of Art. 21 para. 4 of the Charter5) and Art. 90 of

the Constitution.15)  In order to ensure that this judgment serves its

purpose, the Constitutional Court hereby annuls the decisions of the

Central Electoral Commission and the District Electoral Commission as

well.

Taking into account the fact that this is the first

election to the Senate and, thus, also the first application of a number

of provisions of Act No. 247/1995 Coll., the Constitutional Court

considers this judgment, first and foremost, as a decision which should

assist in the future in interpreting this law in a manner that is

correct from the perspective of constitutional law.  At the same time,

it makes the assumption that the legislature will consider, in the

spirit of this judgment, the possible need for modifications and

clarifications of the text of the Act on Elections to the Parliament of

the Czech Republic.  

 

 



IV. US 275/96
Overview of the most important legal regulations


1.  

 Art. 22 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that statutory provisions relating to political

rights and freedoms, as well as the interpretation and application of

them, shall make possible and protect the free competition among

political forces in a democratic society.

2.    Art. 19 par. 2 of

Act no. 1/1993 Coll., the Constitution of the CR, provides that any

citizen of the Czech Republic who has the right to vote and has attained

the age of forty is eligible for election to the Senate.

3.  

 § 20 par. 1 of Act no. 40/1993 Coll., on Acquiring and Losing

Citizenship of the CR, as amended by later regulations, provides that

citizenship of the CR is proved by a) a citizen ID card, b) a travel

document, c) certification or confirmation of citizenship of the CR, d)

certification of legal capacity to enter into marriage, if this

information is stated in it.

4.    § 14 par. 1 letter c) of

Ministry of the Interior Decree 74/1996 Coll. provides that at the

request of a Regional, District or Central Election Commission, district

offices (or the appropriate city district offices or town halls) shall

disclose facts concerning a candidate’s citizenship.

5.    Art.

21 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that citizens shall have access, on an equal basis,

to any elective and other public office.

6.    Art. 38 par. 2 of

Act no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,

provides that everyone has the right to have his case considered in

public, without unnecessary delay, and in his presence, as well as to

express his views on all of the admitted evidence. The public may be

excluded only in cases specified by law.

7.    § 250 f, of Act

no. 99/1963 Coll., the Civil Procedure Code, provided when a court may

decide by a verdict without conducting proceedings. Note: Constitutional

Court Judgment no. 269/1996 Coll. annulled this provision due to

conflict with Art. 38 par. 2 of the Charter and Art. 6 par. 1 of the

Convention for the Protection of Human Rights and Fundamental freedoms.

8.  

 § 39 of Act no. 182/1993 Coll., on the Constitutional Court, as

amended by later regulations, provides that in processing petitions, the

Constitutional court does not have to be governed by the order in which

it received the petitions, if it decides that the matter which the

petition concerns is urgent.

9.    § 61 par. 4 letter a) of Act

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

Amendments and Supplements to Certain Other Acts, in par. 4 letter a)

regulates the requirements for a registration application, which are:

the candidate’s first name and last name, personal ID number, date of

birth, municipality of permanent residence, occupation and a document on

citizenship,

10.    Art. 1 of Act no. 1/1993 Coll., the

Constitution of the CR, provides that the Czech Republic is a sovereign,

unitary, and democratic state governed by the rule of law, founded on

respect for the rights and freedoms of man and of citizens.

11.  

 Art. 4 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that in employing the provisions

concerning limitations upon the fundamental rights and basic freedoms,

the essence and significance of these rights and freedoms must be

preserved; such limitations are not to be misused for purposes other

than those for which they were laid down.

12.    § 3 par. 3

letter a) of Act no. 41/1993 Coll., on Verification of the Authenticity

of Signatures by Municipal Offices and on the Issuance of Confirmations

by Municipal Bodies and District Offices, provides that an authority

shall not perform verification (i.e. certify that a transcript or copy

corresponds to a document) among other things in the case of a

transcript (copy) of a citizen ID card.

13.    § 200m of Act no.

99/1963 Coll., the Civil Procedure Code, as amended by later

regulations, governs proceedings in the matter of elections.

14.  

 § 61 par. 5 of Act no. 247/1995 Coll., on Elections to the Parliament

of the CR and on Amendments and Supplements to Certain Acts, provides

that, if the registrar of the district election commission determines

that an application does not meet the requirements under the foregoing

paragraphs, he shall notify the deputy or independent candidate. Until

the expiration of the deadline under paragraph 3 (i.e. no later than 60

days before the election day) the deputy or independent candidate can

remove any deficiencies.

15.    Art. 90 of Act no. 1/1993 Coll.,

the Constitution of the CR, provides that courts are called upon above

all to provide protection of rights in the legally prescribed manner.

Only a court may decide upon guilt and determine the punishment for a

criminal offense.