1997/04/02 - Pl. ÚS 25/96: Five Percent Electoral Threshold

02 April 1997

HEADNOTES                               

The

requirement that elections be direct is fulfilled even if, on the basis

of the five-percent clause, a particular party acquires the right to an

additional seat or seats in excess of what strictly proportional

representation would allow.  Even in this case, however, seats must be

filled by those candidates whom their political party duly inscribed on

the list and who the voters could expect when voting might possibly gain

a seat if the party, for which the candidates stood, acquires the right

to an additional seat as a result of other parties' failure to meet the

five-percent requirement.  This manner of allocating seats cannot

rightly be denominated as administrative, as it is not the product of a

body's total discretion and decision, rather the direct result of the

selection made by the voters under certain circumstances, under the

conditions of the said clause, and with knowledge of the foreseeable

results of the legally prescribed electoral system.

As regards a party’s equal claim to be given commensurate

(proportionate) consideration during the allocation of seats, a certain

limitation upon the differentiation during seat allocation is inevitable

and, therefore, permissible.  While the purpose of voting is,

undoubtedly, the differentiation of the voter corps,  the aim of the

elections is not a mere expression of political will by individual

voters and the simple acquisition of a differentiated mirror image of

the voters' political attitudes.

The principle of differentiation and the principle of integration must

come into conflict at the stage of the electoral process where seats are

allocated, if the elections are to result in an Assembly of Deputies

the composition of which enables to attainment of a political majority

capable of forming a government as well as of engaging in legislative

activities, the tasks which the Constitution entrusts to the Assembly. 

Therefore, from the point of view the principle of representative

democracy, it is acceptable to incorporate into the electoral mechanism

itself certain integrative stimuli, where serious reasons for them

exist, in particular, under the supposition that an unrestricted

proportional system would result in the fragmentation of votes among a

large number of political parties, the boundless “over-generation” of

political parties, thereby threatening the parliamentary system’s

capacity to function and to adopt measures, as well as its continuity. 

On the other hand, it is not permitted, by raising the threshold of the

limitation clause, to jeopardize the democratic substance of elections. 

It must always be gauged whether this limitation of the equal right to

vote is the minimum measure necessary in order to muster the majority

needed for the adoption of decisions and the formation of a government. 

The limitation clause is also subject to the principle of the minimum

state interference in proportion to the prescribed goal.

Pursuant

to § 86 of Act No 182/1993 Coll., an oral hearing shall always be held

in a remedial action before the Constitutional Court against a decision

certifying the election of a Deputy or Senator.  The principle of

personal participation, as well as of holding a public and oral hearing

in a case, is guaranteed for a proceeding which, since it is a

proceeding on a remedial action, may not be separated from the contested

matter and which is required to fulfil the constitutional guarantee of

Article 96 para. 2 of the Constitution (proceedings before courts shall

be oral and public).  As a consequence thereof, it can be considered

that the requirement of oral and public proceedings is preserved for

this type of court proceeding in all cases where any of the parties

would feel that the lack thereof in the proceeding before the Supreme

Court is to his detriment.
 

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE PLENUM OF THE CZECH REPUBLIC

 


of the Plenum of the Constitutional Court of 2 April 1997, sp. zn. Pl.

ÚS 25/96, in the matter of the petition of the political party, DU,

submitted in conjunction with its constitutional complaint, proposing

the annulment of § 49 paras. 2, 3 & 4,3) a part of § 50 para. 1,4)

and a part of § 51 para. 25) of Act No. 247/1995 Coll., on Elections to

the Parliament of the Czech Republic and on Amendment of and Supplements

to some other Acts, and of the petition proposing the annulment of a

part of § 200n, para. 16) of Act No. 99/1963 Coll., Civil Procedure

Code, as subsequently amended (the judgment was published as No. 88/1997

Coll.)


 

STATEMENT

 

The petition is rejected on the merits.
 

 

REASONING

1. 

On 18 July 1996, the political party, DU, filed a constitutional

complaint against the resolution of the Central Electoral Commission,

dated 3 June 1996, whereby the Commission approved the Record on the

Tabulation of Results of the Election to the Assembly of Deputies of the

Czech Parliament, and against the ruling of the Supreme Court of the

Czech Republic, ref. no. Ovs 5/96/Št-24, dated 12 June 1996, whereby

that court rejected a complaint against the issuance of a certificate of

election to the Assembly of Deputies, filed by the DU against the

twelve Deputies of the Assembly of Deputies of the Czech Parliament who

acquired seats in the “second scrutinium”.
 

A

petition proposing the annulment of parts of §§ 49,3) 50,4) and 515) of

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

Republic and on Amendment of and Supplement to some other Acts

(hereinafter the "Electoral Act"), was filed in conjunction with the

constitutional complaint.  Therefore, the Panel of the Constitutional

Court, in its ruling of 9 October 1996, suspended the proceeding and

referred the petition to annul the cited provisions of the Electoral Act

to the Constitutional Court Plenum for its decision.
 

In its proposal for an appropriate judgment from the Constitutional Court, the DU specified its request as follows:
to annul § 49 (2), (3), and (4) of the Electoral Act;3)
(b)    to annul the following phrase in § 50 (1)4): ". . . which have qualified for the first scrutinium, . . . ";

(c)    to annul § 51 (2),5) except for part of the last sentence, so

that this section would read:  “The list of candidates for the second

scrutinium shall be drawn up by the Central Electoral Commission

according to preference votes for individual candidates of this

political party or coalition”.
 

The

petitioning party holds the view that the contested norms of the

Electoral Act contravene Articles 187) and 198) of the Czech

Constitution and likewise infringe the constitutionally guaranteed

fundamental rights enshrined in Article 21 para. 4 and Article 21 para. 1

of the Charter of Fundamental Rights and Basic Freedoms.9) Article 187)

incorporates the principle of a universal, equal, and direct right to

vote by secret ballot and on the basis of proportional representation. 

Article 198) guarantees the equal right to stand for election to all

citizens of the Czech Republic who have attained 21 years of age and

have the right to vote. Pursuant to Article 21 para. 4 of the Charter of

Fundamental Rights and Basic Freedoms,9) citizens have, under equal

conditions, access to any elective or other public office and, on the

basis of Article 21 para. 1 of the Charter of Fundamental Rights and

Basic Freedoms, citizens have the right to participate in the

administration of public affairs either directly or through the free

election of their representatives.
 

The

constitutional complaint also includes a petition to amend the

procedure for complaints against the issuance of certificates of

election by deleting the words "without a hearing by resolution" in §

200n para. 1 of Act No. 99/1963 Coll., the Civil Procedure Code,6) as

amended, on the grounds that court decisions without a hearing by

resolution is in contravention of Article 38 para. 2 of  the Charter of

Fundamental Rights and Basic Freedoms,10) pursuant to which everyone has

the right to have her case considered in public, without unnecessary

delay, and in her presence, as well as to express her view on all the

admitted evidence.
 

In the

reasoning of its constitutional complaint, the political party, DU,

states that it was not allotted any seats in the most recent election,

even though it received 169,796 votes and, according to the principle of

proportional representation, it should have been represented by five

deputies because each seat filled corresponded on average to 30,296

validly cast votes.  The seats that were not allotted to DU were given

by administrative allocation to other candidates, candidates for whom

Czech citizens did not cast their votes in the elections.  This impinged

upon the fundamental right of DU candidates who, despite fulfilling the

constitutionally prescribed requirements, were nonetheless not accorded

their right to stand for election pursuant to Article 21 of the Charter

of Fundamental Rights and Basic Freedoms.9)  By the same token, this

system also resulted in an impingement upon the voting rights of 169,796

citizens, DU’s voters, who are not represented in the Assembly of

Deputies by freely elected representatives.
 

DU

further objects that direct election was de facto replaced by the

administrative appointment of the Central Electoral Commission, which

did not take into account the election results but only confirmed the

wishes of the chairpersons of several political parties.
 

It

is the understanding of the DU that the cited violations of fundamental

rights are the result of the peculiar mechanism of the five-percent

limitation clause, which violates the principle of equal voting right as

guaranteed in Article 18 of the Czech Constitution.7) Owing to this

mechanism, a certain number of validly cast votes of some citizens but

not of others was sufficient to obtain a seat.  Clearly the requirement

of equal conditions for access to elective office have been violated. 

In elections defined in this manner, as reasoned by the DU, what

mattered was not the number of votes received but the nature of the list

of candidates in relation to which the relevant number of votes was

attained.
 

The Constitutional

Court first verified whether the formal prerequisites and the

conditions prescribed for petitions to annul provisions of a statute

have been met.  The Court concluded that the petition meets all formal

requirements and fulfils the conditions of § 74 of Act No. 182/1993

Coll., on the Constitutional Court.  Pursuant to this Act a complainant

may submit, together with his constitutional complaint, a petition to

annul a statute or some other enactment, or individual provisions

thereof, the application of which resulted in the situation which is the

subject of the constitutional complaint, if the complainant alleges it

to be inconsistent with a constitutional act or an Article 10 Treaty,11)

or with a statute, if the petition concerns some other enactment.

The

fact that DU did not receive any seat in the Assembly of Deputies in

the most recent election despite receiving 170,000 votes can undoubtedly

be ascribed to the direct effect of the Electoral Act provision

concerning the five-percent closing clause as a result of which the

candidates from the lists of candidates who, having failed to receive at

least five-percent of the overall vote lose the claim to act as a

representative.  Since neither the Central Electoral Commission nor the

Czech Supreme Court could act in contravention of the Electoral Act’s

five-percent clause, the DU turned to the Constitutional Court, pursuant

to § 64 para. 1, lit. d) of Act No. 182/1993 Coll., with its objection

that the relevant provisions of the Electoral Act are unconstitutional.
 

After

the Constitutional Court found that the constitutional complaint met

the conditions prescribed by law, it requested a written statement of

views from the Czech Parliament’s Assembly of Deputies.  The Assembly of

Deputies’ statement, dated 5 December 1996 and signed by its Chairman

ing. M. Z., states that the Electoral Act was approved by the required

majority of Deputies, signed by the appropriate constitutional

officials, and duly promulgated in the conviction that it is in

conformity with the constitutional order of the Czech Republic.  As the

contents of its statement makes clear, the Assembly of Deputies rejects

the DU’s petition with reference, in particular, to the following

arguments:
 

First, in the

Assembly of Deputies’ opinion, the Constitution does not specify the

form of the proportional system for elections to the Assembly of

Deputies and provides the legislature with rather wide authority to

designate in the Electoral Act both the number and size of electoral

districts and the electoral method whereby the votes cast shall be

converted into seats.  Considering this broad authorization, therefore,

it is also permitted, in the Electoral Act, to limit the principle of

proportional representation by a “closing” clause, which should serve to

avoid the presence in the Assembly of Deputies of many political

parties with a very low number of seats, a situation which could

considerably encumber its functioning and complicate the formation of a

stable Government.  Furthermore, in the Assembly of Deputies’ view, the

principle of the equal voting right is not violated, because that right

consists in the fact that in elections every voter has one vote and that

his vote has the same value as the votes of other voters.  Seats are

allocated to the electoral regions in accordance with the number of

votes cast in each one of them.  Neither does the closing clause violate

citizens’ constitutional right to participate in the administration of

public affairs through the free election of their representatives.  This

right does not guarantee citizens that the candidates for whom they

voted will, in fact, be elected.  Nor has the citizens’ right,

guaranteed by the Constitution, to have access under equal conditions to

elective office been breached, since this right does not guarantee

every citizen the right to be elected.  A citizen may be elected only if

she has met all the conditions laid down in the Electoral Act, one of

which is the requirement to gain a certain number of votes.  According

to the opinion of the Assembly of Deputies, the Electoral Act also does

not violate the principle of the direct voting right, which means that a

citizen elects her representatives directly and not through another

person.  The voter chooses the set of candidates included in the

candidates' list, the order of which is determined by the political

parties or coalitions of them.  In this system, the voter must take into

account the possibility that his vote may be credited as well to

candidates other than those he chose, in the order known to the voter in

advance.  As to the objections against the procedure of the court while

deciding on the complaint directed against the issuance of certificates

of election as a Deputy or Senator, the Assembly of Deputies holds the

view that the matter at issue is an exception to the principle that

court hearings should be oral and public, which exception is justified

by the need for a Deputy or Senator duly to perform her duties.  An oral

hearing on such complaints would unduly prolong the whole process, thus

casting doubts on the validity of the Deputy’s or Senator’s election

over an extended period of time.
 

2. 

It is clear from the DU petition that the Constitutional Court is

called upon primarily to assess the constitutionality of the

“five-percent” clause.  As evidence the clause is unconstitutional, in

the conclusion of its constitutional complaint, the DU compares the

wording of § 8 of the Constitution of 1920 with Article 18 of the

current Constitution.7) Both texts are, in fact, identical, in declaring

that elections to the Assembly of Deputies shall be held according to

the principle of proportional representation, and neither contains any

further specification. If the current Electoral Act introduces a

limitation clause to the proportional system, in the view of DU, there

is no support for it in the Constitution because, in harmony with the

Constitution of the Czechoslovak First Republic, it enshrines the system

of proportional representation without any limitations.
 

Undoubtedly, the electoral system to the First Republic’s Assembly of

Deputies was modeled on a purely proportional system which in fact did

not contain any significant limitation besides a minor deformation of

this principle due to the need for a second scrutinium; a system of

representation that attains absolutely pure proportionality is

practically impossible since seats are indivisible.
 

Due

to the manner in which the constitutional complaint is formulated, the

Constitutional Court must first raise the issue as to whether the

constitutional formulation of the proportional representation principle,

which does not contain any language limiting this principle, entails an

obligation that the implementing electoral law not contain any

provisions limiting proportional representation in one way or another. 

As for the 1920 Constitution, one can scarcely deduce from it any

binding consequences for the conception of the Electoral Act, issued on

the basis of the Constitution of 1993.  The period after the World War I

was that of a victorious crusade for proportional representation across

Europe.  Only later did the European states gain experience with the

character and function of proportional representation.  At that time a

limitation clause was neither conceived of in theory nor implemented in

practice.  Therefore the 1920 Constitution's formulation on proportional

representation is, from this point of view, neutral and does not per

definicionem contain a priori either a limitation clause or a

prohibition thereof.
 

It was

only the experience of European parliaments before World War II, and

after it as well, that led to the search for a system that would limit

an excessive splintering of the political spectrum in Parliament.  It

was the experience not only of the Imperial Assembly of the Weimar

Republic or of the Czechoslovak First Republic, but also of France,

quite decidedly in the Fourth Republic (1946-1958), which confirmed that

excessive diversification in the Assembly's composition and

unrestricted proportional representation may become a tool of political

de-stabilization and an element destructive of a constitutional state.
 

The

theoretical re-evaluation of the proportional representation principle

and a change in the political practice of contemporary representative

democracies confirm the overwhelming opinion that, provided there are

serious reasons therefor, the introduction of certain measures limiting

the scope of the proportional representation principle is not in

contradiction with the character of the electoral system, referred to in

the Constitution or the Electoral Act, as one of proportional

representation, if and to the extent that such provisions do not

fundamentally limit proportional representation.  Over time democratic

states have introduced the proportional representation system, furnished

with a five-percent or a three-percent clause, without considering that

they thereby devalued the principle of proportional representation.
 

In

this respect, the Constitution of the Czech Republic does not draw upon

the 1920 Constitution; rather upon the theoretical foundation and

institutional solution of contemporary democratic states which make use

of proportional representation in a more or less limited form. 

Therefore, the mere comparison of the texts of both constitutions does

not testify to the specific rules relating to proportional

representation.  The necessity to have an identical specification of

legal provisions on the electoral system may not be deduced from two

identical constitutional texts that were applicable in two different

historical eras, with varying conceptions of representative democracy,

and, in  fact, in two different states.
 

The

DU further objects that the administrative allocation of seats to

candidates who gained them as a result of the five-percent clause, to

the detriment of parties which were denied representative office,

constitutes an impingement upon the right to vote and to stand for

election and upon the principle of the right to elect directly (Article

18 of the Czech Constitution7)), as well as a violation of Article 19

para. 3 of the Constitution,8) pursuant to which a seat is gained by

election.  The DU draws the conclusion that, in the given case, seats

were not gained by election, rather through administrative allocation;

further, as a consequence of the limitation clause, a situation arose in

which portion of the electorate was deprived of the right to vote and

potential candidates were deprived of the right to stand for election.
 

According

to DU, the requirement of direct election was violated by the

allocation of seats to candidates of parties which did not gain the

number of votes necessary for them to be elected.  To determine this

issue, it is necessary to elucidate the concept, "direct election".  The

principle that elections should be direct is meant to ensure a direct

relation between the votes of the electorate and the resulting filling

of seats, a relation excluding a further decision-maker that would

select a Deputy at its discretion.  An example of just such a

decision-maker would, for example, be electors chosen by voters with the

intention that an electoral college decide who should fill the elective

function.
 

The principle of

direct election ensures that the group of persons elected be directly

and without mediation designated by the votes which the voters cast for

them in the election.  Therefore, the electoral procedure must be

adjusted so that every vote cast may be ascribed to specific persons. 

The principle of direct election does not bar the election of one

candidate dependant upon the co-election of other candidates, that is,

it does not prohibit election on the basis of mass candidate lists on

which the individual parties put forward at one time a number of persons

listed in a certain order. An election employing candidate lists meets

the requirements of direct election because, although the candidates for

the upcoming elections are selected by another decision-making body

(political party), this selection occurs prior to the elections

themselves.  Thus, the decision of political parties on the composition

of candidate lists precedes the elections and can be understood as - sui

generis - a choice offered to the voters.  As far then as actual voting

by the voters is concerned, for an election to be considered direct, it

is sufficient if the stipulated order of candidates is known to the

voters in advance and if each vote cast can be ascribed to specific,

clearly identifiable persons, who are standing as candidates to the

elected office.  This condition is met even if, on the basis of the

five-percent clause, a particular party acquires the right to an

additional seat or seats in excess of what strictly proportional

representation would allow.  Even in this case, however, seats must be

filled by those candidates whom their political party duly inscribed on

the list and who the voters could expect when voting might possibly gain

a seat if the party, for which the candidates stood, acquires the right

to an additional seat as a result of other parties' failure to meet the

five-percent requirement.  This manner of allocating seats cannot

rightly be denominated as administrative, as it is not the product of a

body's total discretion and decision, rather the direct result of the

selection made by the voters under certain circumstances, under the

conditions of the said clause, and with knowledge of the foreseeable

results of the legally-prescribed electoral system.
 

A

common denominator of DU's objections, and at the same time its most

serious objection, is the reference to the violation of Article 21 para.

4 of the Charter of Fundamental Rights and Basic Freedoms,9) pursuant

to which citizens have access, under  equal conditions, to any elective

or other public office, and the reference to the violation of Article 18

para. 1 of the Czech Constitution,7) pursuant to which the elections to

the Assembly of Deputies are held on the basis of the principle of

equality of the voting right.
 

The

principle of the equality of the voting right can be considered from

two basic perspectives:  the first consists in the comparison of the

numerical weight of individual votes, that is, the weight of individual

votes during the count and in voting results. The equality of the voting

right requires that in the count all the votes are of equal value, that

is, of the same numerical weight (quantitative equality) and

consequence, so that the count would enable an exact numerical

differentiation of the electorate, that is, an exact numerical

"identification" of support given to individual candidate lists.
 

The

second perspective on the equality of the voting right conceives of the

equality of votes in light of the democratic principle, that is, from

the perspective of the claim of votes cast in favor of various candidate

lists to such degree of electoral success as is commensurate with the

numerical values which these candidate lists achieved in the election. 

It is a claim to such evaluation of the voting results as is based on an

equal approach to the evaluation of the claim to victory of parties

putting up candidates, thus, a claim to a proportionate number of seats,

that is one corresponding to the proportion of votes cast.
 

The

Constitutional Court grasps the weightiness of DU's arguments and is

aware that DU's objections are substantively well-founded in respect of

DU’s assertion that, in the last elections to the Assembly of Deputies,

it did not obtain any seats despite receiving 169,796 valid votes, which

number, from the perspective of proportional representation, gives rise

to the claim to 5 seats, since on average the parties represented in

the Assembly of Deputies need only 30,296 votes to obtain one seat. 

This is a true disproportion which is not, in and of itself, just and is

inconsistent with the exact equality of the voting right.
 

As

this disproportion results from the five-percent limitation clause,

affecting small political parties, the question remains whether and to

what extent the five-percent clause is constitutionally authorized, or

to what extent it is compatible with the general principle of the

equality of voting rights.
 

It

is a more complicated task to judge this issue than it would be to

judge the first aspect of equality of voting rights, where it is

unequivocally the case that, when counting votes and ascertaining the

numerical election results, the entirely strict equality of votes

applies and that any differentiation in numerical evaluation of votes

cast is impermissible and unconstitutional.
 

As

regards a party’s equal claim to be given commensurate (proportionate)

consideration during the allocation of seats, a certain limitation upon

the differentiation during seat allocation is inevitable and, therefore,

permissible. Such limitation results, above all, from the practical

impossibility of appropriately expressing an exact proportion owing to,

for instance, the fact that the technical aspects of electoral

representation do not allow for an "appropriate" split of seats.
 

Nevertheless,

there may exist other significant grounds for placing restrictions upon

equality which are found in the purpose and function of elections in a

democratic society.  While the purpose of voting is, undoubtedly, to

differentiate the electorate, the objective of elections is not,

however, to obtain a mere expression of political preference by

individual voters and a mere differentiated mirror image of opinion

streams and the voters' political positions.  Since it is the people who

exercise state power, mainly via parliament, and since the exercise of

state power presupposes the capacity to adopt decisions, elections and

the electoral system must have regard to the capacity to adopt such

decisions on the basis of the majority's will.  To base the composition

of the Assembly of Deputies on a strict proportional image of voting

results might give rise to a political representation fragmented into a

large number of small groups promoting diverse interests, which would

make the formation of a majority much more difficult if not entirely

impossible.
 

The principle of

differentiation and the principle of integration must come into

conflict at the stage of the electoral process where seats are

allocated, since the elections are meant to result in an Assembly of

Deputies the composition of which enables to attainment of a political

majority capable of forming a government as well as of engaging in

legislative activities, the tasks which the Constitution entrusts to the

Assembly.
 

Therefore, from

the perspective of the principle of representative democracy, it is

acceptable to incorporate into the electoral mechanism itself certain

integrative stimuli, where serious reasons for them exist, in

particular, under the supposition that an unrestricted proportional

system would result in the fragmentation of votes among a large number

of political parties, the boundless “over-generation” of political

parties, thereby threatening the parliamentary system’s capacity to

function and to adopt measures, as well as its continuity.
 

After

the bad experiences with the excessive fragmentation of parliamentary

composition, the European states, when applying proportional

representation, adopted as well integrative stimuli, in particular, the

limitation clause, which in most cases is five percent.  It is generally

recognized that the legislature has the right to make rules for the

differentiation of the claim of votes to successful representation in a

proportional election and, in this way, to treat political parties in a

disparate manner, if such is absolutely necessary to ensure integration

character of elections in the formation of the people’s political will,

in the interest of the unity of the entire electoral system and so as to

ensure the state's political objectives pursued in the parliamentary

elections.  The existence of the limitation clause must, in any case, be

made conditional on there being serious grounds therefor, while an

increase in the threshold of the limitation clause is justifiable only

if there are especially momentous reasons therefor.  It must be noted

that any increase in the threshold of the limitation clause cannot be

unlimited, so that, for example, a ten-percent clause could already be

considered such an intrusion upon the proportional system as to threaten

its democratic substance.  Therefore, it is always necessary to gauge

whether such limitation of the equality of the voting right is the

minimum measure necessary to ensure such a degree of integration of

political representation as is necessary for the legislative body to

form a majority (or majorities) required for the adoption of decisions

and formation of a government which enjoys the confidence of parliament.

Consequently, the principle of minimal intervention of the state in

proportion to the prescribed objective applies to the limitation clause

too.  For this reason, even the need for electoral limitation must be

construed strictly.
 

From

this perspective, no fixed value may be assigned to the threshold of the

limitation clause, rather it is relative and always must depend on the

specific proportion of forces in the country and on the structure in

which they are differentiated.  In Germany, for instance, some authors

have asserted that, due to stability which the country has reached over

time, the right of smaller, especially new, parties to obtain seats in

the Assembly is threatened by the clause, to the degree that it has

already lost its indispensable character.  In contrast to that, the

proponents of the clause, who are in the majority, object that the

danger of fragmentation is still very real because the current

stabilized system is, in the final analysis, also a result of the clause

and that it is not possible to foresee the consequences that might come

about were the threshold of the limitation clause to be lowered from

five percent to, for example, three percent.
 

A

comparison of the limitation clause with the majority system speaks in

favor of the limitation clause.  Constitutional courts unconditionally

conceive of the majority electoral system as democratic, despite the

fact that the political views of a large percent of the voters are not

represented in the parliament at all or not represented in proportion to

the strength of those voters.  In reality, the very nature of the

majority electoral system gives rise to a limitation clause of a sort

which is far higher than is usual in the proportional electoral system. 

It follows from this that solely the votes cast for the winning

candidate represent success whereas the other votes "fall out of the

picture".  In the final effect of the elections, this significant

differentiation in the composition of the elected ensemble is more or

less balanced out by the diversification of results in individual

districts such that the inequalities in particular districts are

balanced out by the reverse inequalities in other districts.  While in

the majority electoral system the equality of votes is fully maintained

as far as concerns their numerical weight, however, the claim of

individual votes to success is sharply diversified: votes given in favor

of a successful candidate concentrate a 100% share in the success,

other votes concentrate no share.
 

The

following conclusion can be drawn from what was stated above: the

five-percent limitation clause may not a limine be rejected as an

unconstitutional limitation of the equal right to vote. Since in judging

this issue the principle of diversification comes into conflict with

the principle of integration, what remains to be considered is whether

in the case of the Czech Republic the five-percent clause is the minimal

measure which is necessary for the formation of an Assembly of Deputies

which is capable of debating, adopting decisions, and fulfilling its

legal functions, as well as of forming a majority, from which the

government can draw political support, or whether the extent of

intrusion into the principle of proportional representation is so high

as to jeopardize the democratic nature of the elections.
 

As

is well known, the political spectrum of the Czech Republic is the

result of a relatively short development and is not as yet quite clearly

structured or visibly stabilized.  A characteristic feature of all

Czech parliamentary elections so far, but also of the first election to

the Assembly of Deputies of the Czech Parliament in 1996, has been the

marked splintering of political forces into a large number of political

parties competing to obtain seats in the Assembly.  Even though the

number of the parties and movements which competed in the most recent

election to the Assembly of Deputies fell to 20, the election results

demonstrate that, were proportional representation to be respected in

full, at least three other political parties would have had to join the

three presently-governing coalition parties in order to form a governing

coalition representing even a frail majority.  Nevertheless, a

coalition with a different composition and hue would not be faced with

lessor problems.  Experience with similar coalitions, in particular, in

the fourth French Republic justify fears and skepticism.  Therefore, if a

certain distortion of proportionality in political representation,

resulting from the five-percent clause, does not in its overall effect

constitute a disproportion which would justify doubts about the

democratic nature of the political representation, the Constitutional

Court has no choice but to reject DU’s objections.
 

In

addition to the limitation clause, DU also proposed the annulment of

the words "without a hearing by resolution" in § 200n (1) of Act No.

99/1963 Coll.,6) so as to read:  "The court shall decide within ten days

on a complaint against the issuance of a certificate of election as a

Deputy or Senator. "
 

The

Constitutional Court carefully examined the arguments in favor of and

against annulling the words "without a hearing by resolution". 

Undoubtedly, in court decisions the principle that everyone has the

right to have her case considered in public and in her presence, as well

as and to express her views on all the admitted evidence (Article 38

para. 2 of the Charter of Fundamental  Rights and Basic Freedoms10)) is

of the utmost importance.  The significance of this principle is

undeniable despite the fact that it applies cum grano salis - with a

grain of salt, because Article 96 para. 2 of the Czech Constitution2)

provides that exceptions to this principle may be introduced by statute.
 

The

Constitutional Court also takes as its assumption that a Deputy or

Senator can consider the proceedings on the complaint against the

issuance of a certificate of election as "her case" in the sense meant

by Article 38 of the Charter of Fundamental Rights and Basic

Freedoms.10)  In this respect, the Court refers to the reasoning in the

Constitutional Court's judgment dated 10 January 1996 and published in

the Collection of Laws as No. 31/1996, whereby the second paragraph of §

200l of the Civil Procedure Code12) was annulled.  The Court's

experience with complaints of this kind has so far revealed that such

complaints, to a large extent, relate to the personal behavior, actions,

or characteristics of the elected persons rather than with the lack of

order in the organization of the elections. This fact is also

corroborated by the right of persons whose election is contested to

express their views on the objections in oral proceedings.
 

On

the other hand, the Constitutional Court also considered the arguments

for retaining the current provisions of the Civil Procedure Code.  The

Constitutional Court's decision concerning § 200l of the Civil Procedure

Code12) itself contains elements which testify against deleting the

words "without a hearing by resolution" from § 200n of the Civil

Procedure Code.6) Thus, the Constitutional Court annulled only paragraph

2 of § 200l, which stipulated that only the petitioner, that is the

person who filed the complaint, is a party to the proceedings.  The

Court referred to the provision of § 200n of the Civil Procedure Code,6)

pursuant to which in similar proceedings the person whose election is

contested (the Deputy or Senator) is also a party to the proceeding. 

The current provisions of § 200l12) authorizes a regional court to

decide on a complaint without an oral hearing and without permitting an

appeal against it.
 

From the

perspective of constitutional law, it is a completely different matter

in the case of § 200n of the Civil Procedure Code.6) The Constitution

introduced the Constitutional Court into the procedure on the

certification of a Deputy or a Senator's election and understands its

role in matters under Article 87 para. 1, lit. e)13) - as well as § 85

of the Act on the Constitutional Court14) – is conceived of as a

decision in a remedial action against a decision on the certification of

the election of a Deputy or Senator.  A remedial action may be filed by

the Deputy or Senator, or the party for which he stood as a candidate

in the elections, against a decision  that he was not validly elected,

and further by a person whose electoral complaint pursuant to the

Electoral Act was granted, against the decision of the relevant chamber

of the Parliament or one of its bodies certifying the validity of the

Deputy or Senator's election.  From the perspective of the Constitution,

a Supreme Court decision on a complaint against the issuance of a

certificate of election as a Deputy can also be considered a matter

which relates to the certification of a Deputy's election. According to §

86 of Act No 182/1993 Coll., on the Constitutional Court,1) an oral

hearing shall always be held in such remedial actions.  The principle of

personal participation, as well as of holding a public and oral hearing

in a case, is guaranteed for proceedings before the Constitutional

Court which, since it is a proceeding on a remedial action, may not be

separated from the contested matter and which is required to fulfil the

constitutional guarantee of Article 96 para. 2 of the Constitution2)

(proceedings before courts shall be oral and public).  As a consequence

thereof, it can be considered that the requirement of oral and public

proceedings is preserved for this type of court proceeding in all cases

where any of the parties would feel that the lack thereof in the

proceeding before the Supreme Court is to his detriment.
 

If

the requirement of oral, public hearings already before the Supreme

Court had been introduced, it can be expected that the proceedings would

be substantially slowed down. The DU petition would leave the Supreme

Court a ten day period in which to decide on a complaint.  It appears to

the Constitutional Court that, should it adopt this proposed solution,

the time-limit could not be adhered to.  The DU probably did not take

into consideration the time required for individual tasks related to an

oral hearing.  The fact that the said time-limit cannot be adhered to

would introduce into the proceedings itself an element of legal

uncertainty, in the awareness that ultra vires nemo posse tenetur

[Translator’s note: what is beyond possibility cannot exist].  In

addition, it can be presumed, with a probability bordering on certainty,

that Deputies and Senators, against the election of whom a complaint

was successfully lodged before the Supreme Court, would undoubtedly

bring their case to the Constitutional Court.  All this justifies the

conclusion that the whole proceeding would become disproportionately

drawn out.  It would give rise to some sort of a "three-instance"

procedure:  certification of election by the Assembly of Deputies,

proceedings before the Supreme Court, including a full oral hearing, and

similarly even proceedings before the Constitutional Court.  In

comparable European states with a parliamentary system and a

constitutional court (Germany and Austria), the certification of

election is a matter for the assembly, and a complaint is admissible to

one court only, to wit the constitutional court.  In such cases in

Germany, the Constitutional Court does not even have to hold an oral

hearing in every case.
 

After

having compared the arguments for and against, the current statutory

provisions appear to the Constitutional Court to be more suitable. 

Since the Constitutional Court has found that the provisions contravene

neither Article 96 of the Constitution,2) nor Article 38 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms, nor the European

Convention for the Protection of Human Rights and Fundamental Freedoms

(Article 6 para. 1), it does not see any grounds for changing § 200n (1)

of Act No. 99/1963 Coll., as amended.  Therefore, the Constitutional

Court has rejected on the merits this petition from DU as well.
 

 

 

 


Pl. ÚS 25/96
Overview of the most important legal regulations

1.  

 § 86 of Act no. 182/1993 Coll., on the Constitutional Court, provides

that the Constitutional Court shall always conduct oral proceedings on

an appeal under § 85 (i.e. against a decision in the matter of

certifying the election of a deputy or senator).

2.    Art. 96 of

Act no. 1/1993 Coll., the Constitution of the CR, provides in par. 1,

that all parties to a proceeding have equal rights before the court, in

par. 2, that proceedings before courts shall be oral and public;

exceptions to this principle shall be provided for by statute. Judgments

shall always be pronounced publicly.

3.    § 49 of Act no.

247/1995 Coll., on Elections to the Parliament of the CR, provides the

advancement of political parties, political movements and coalitions

into scrutiny. Par. 1 provides that on the basis of a record of the

results of elections in the regions the Czech Statistical Office shall

determine how many valid votes in total were cast for each political

party, each political movement and each coalition, and which political

parties or political movements received less than five percent and which

coalitions, composed of two, three or four and more political parties

received less than 10, 15 or 20 percent of the total number of valid

votes. Par. 2 provides that these political parties, movements and

coalitions are not taken into account in the further determination of

election results and allocation of mandates. Par. 3 governs the

procedure of the Czech Statistical Office which, if it determines that

the specified number of coalitions, parties or movements did not advance

into the scrutiny (e.g. at least 2 coalitions or 1 coalition and 1

political party or political movement …), shall lower the required

percentage share to a threshold specified by the Act. Par. 4 provides

that mandates for political parties, political movements and coalitions

which advanced into the scrutiny are distributed in the framework or

election regions.

4.    § 50 of Act no. 247/1995 Coll., on

Elections to the Parliament of the CR, regulates the scrutiny and

provides, how the number of valid votes for each political party,

political movement or coalition are divided in order to obtain the

number of mandates allocated to the election region.

5.    § 51

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

regulated the procedure in the second scrutiny. Note: The text of § 51

was amended by Act no. 204/2000 Coll.

6.    § 200n par. 1 of Act

no. 99/1963 Coll., the Civil Procedure Code, as amended by later

regulations, provides that the court shall decide on a complaint against

issuance of certification of election as a deputy or senator by a

resolution without proceedings, within 10 days.

7.    Art. 18

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

that elections to the Assembly of Deputies shall be held by secret

ballot on the basis of a universal, equal, and direct right to vote,

according to the principle of proportional representation.

8.  

 Art. 19 of Act no. 1/1993 Coll., the Constitution of the CR, provides

in par. 1 that every citizen of the Czech Republic who has the right to

vote and has attained the age of 40 [should be 21] is eligible for

election to the Assembly of Deputies. Par. 3 provides that Deputies and

Senators gain their mandate by their election.

9.    Art. 21 of

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

provides in par. 1 that citizens have the right to participate in the

administration of public affairs either directly or through the free

election of their representatives. Par. 4 provides that citizens shall

have access, on an equal basis, to any elective and other public office.

10.  

 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 her views on all of the admitted

evidence. The public may be excluded only in cases specified by law.

11.  

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

that international treaties concerning human rights and fundamental

freedoms which have been duly ratified and promulgated and by which the

Czech Republic is bound are directly applicable and take precedence over

statutes.

12.    § 200l of Act no. 99/1963 Coll., the Civil Procedure Code,

13.  

 Art. 87 par. 1 letter e) of Act no. 1/1993 Coll., provides that the

Constitutional Court has jurisdiction over remedial actions from

decisions concerning the certification of the election of a Deputy or

Senator.

14.    § 85 of Act no. 182/1993 Coll., on the

Constitutional Court, provides who is entitled to file an appeal against

a decision in the matter of certifying the election of a deputy or

senator.