1999/02/18 - I. ÚS 526/98: Election Campaign

18 February 1999

Headnotes

In

proceedings under Part 3 Chapter 2 of the Act on the Constitutional

Court the Constitutional Court decides on an appeal against a decision

in the matter of verifying the election of a deputy or senator, and

because it acts as – sui generis – the appeal level, it must evaluate

the particular case not only in terms of protection of constitutionally

guaranteed rights or freedoms, but primarily in terms of the

trustworthiness of the democratic election process.

The Supreme

Court of the CR is entitled to decide by verdict about whether a

particular senator was validly elected or not. Therefore, it cannot be

said that the Supreme Court of the CR only evaluates whether or not

there are grounds for a filed complaint (it is justified), and that it

is not entitled to decide on the validity of the election.

A

body of the Senate reviews the validity of the election from other

viewpoints, particularly with regard to Art. 19 para. 2 of the

Constitution3) and § 57 of the Elections Act (Act No. 247/1995 Coll.).

The filed application (appeal against a decision of verifying the

election of a senator) cannot be formally denied with reference to the

fact that it is aimed “against a legally irrelevant decision of the

Senate”. The relevance of a Senate decision in verifying the election of

a deputy or senator can be derived from § 85 of the Act on the

Constitutional Court5.

The argument concerning objective or

subjective violation of the Elections Act (§ 166)) is considerably

misleading. Generally, the issue should not be exclusively whether the

Elections Act was violated objectively or subjectively, but it is

necessary to take into account the circumstances of the specific case

and the intensity and way in which the Elections Act was violated. Thus,

it cannot be generally stated that each violation of the Elections Act

(if appealed) results in the invalidity of the election, or that the

penalty of invalidity of the election cannot be applied to violation of

the Elections Act at all.

It is clear from the nature of the

matter that in the “moratorium period” of 48 hours before elections

begin and in the election days it is not possible to completely ban any

election campaigning whatsoever. Therefore, § 16 para. 5 of the

Elections Act6) must be interpreted rather restrictively, in the sense

that the legislature intended to ban active election campaigns, i.e.,

intentional and purposeful campaigning, purposefully aimed for political

parties, coalitions and candidates.

Although proceedings on an

appeal in the matter of verifying the election of a deputy or senator

are specific proceedings – whose primary task is to protect the function

of elections in a democratic society in terms of the “objective”

constitutional law – it is necessary in them to reflect the protection

of fundamental rights and freedoms of natural persons and legal

entities. Although the Elections Act bans active election campaigning in

the statutorily defined period, the intended aim of this restriction

(i.e. protection of the subjective decision making of voters) may not

violate other fundamental rights and freedoms, in particular freedom of

expression and the right to information. Thus, even in the statutorily

protected period the media have the right to provide information, and

may present their own opinions; they are only forbidden to campaign

actively for any particular candidate. Freedom of expression and the

right to information are among the main pillars of a democratic society,

which the media, in particular, naturally use in their work. This

fundamental right and its exercise are necessarily an essential for

their free existence.

The right to freedom of expression and

the right to information are one of the cornerstones of a democratic

state, as only free information and its exchange and free discussion

make a person a citizen of a democratic country. It is the press, radio

and television which spread and provide the information; in this regard

freedom of information has extraordinary importance.

Thus, the

principle of honorable and honest election campaigns and the ban on

campaigning in the period of 48 hours before elections and during them

cannot be interpreted so widely that the act would create social vacuum

which makes the existence of freedom of expression and the right to

information (in connection with elections) impossible.

Consideration of the predictability of the law (its consequences) cannot

be restricted only to its grammatical text. It is judicial decision

making which – although it does not have a classical precedential nature

–interprets the law, or completes it, as the case may be, and its

relative constancy guarantees legal certainty and also insures general 

confidence in the law. This applies particularly to the Supreme Court of

the CR, which is the supreme judicial body in the field of the general

judiciary (cf. § 92 of the Constitution). This, of course, does not deny

that judicial case law can develop and change with regard to a number

of aspects, in particular with regard to changes in social conditions.

The purpose of § 16 para. 2 and 5 of Act no. 247/1991 Coll.6) is

undoubtedly protection of honorable and honest elections. It can be

agreed that – institutionally speaking – it would generally not be

appropriate to concentrate exclusively on the question whether it was

only a candidate (political party) who violated the cited provision. On

the other hand, however, it is difficult to comprehensively accept a

strictly objective criterion and ignore the fact that the candidate did

not subjectively cause the violation of the election rules. The opposite

interpretation would necessarily lead to a situation in which any

subject could achieve the invalidity of the election of any candidate

completely without his fault, which could - in eventum – significantly

interfere with elections. The legislature naturally did not intend such

consequences.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court, in a panel, decided on 18 February 1999 by a

finding in the matter of the petitioner, the Civic Democratic Party

(Občanská demokratická strana), the party to the proceedings – the

Supreme Court of the Czech Republic and the Senate of the Parliament of

the Czech Republic, secondary parties – D. L. and the Czech Social

Democratic Party (Česká strana sociálně demokratická) on the appeal

against the decision of the Senate of the Parliament of the Czech

Republic of 16 December 1998 and the Mandate and Immunity Committee of

the Senate of the Parliament of the Czech Republic no. 18 of 15 December

1998 in the matter of verification of the election of senator D. L. and

against a decision by the Supreme Court of the Czech Republic of 3

December 1998, file no. 11 Zp 54/98, as follows:

D. L.

was validly elected a senator in elections to the Senate of the

Parliament of the Czech Republic, held on 13 - 14 November 1998 and 20 –

21 November 1998 in the election district no. 58 Brno-city.
 


REASONING
 

I.
 

The

petitioner appeals against the decision of the Supreme Court of the CR

indicated in the introduction, in which the court decided that “the

election of a senator in elections to the Parliament of the CR held on

20 - 21 November 1998 is invalid and D. L. cannot be given a certificate

of election as a senator”.

In the reasoning of the decision,

the Supreme Court of the CR stated that, in deciding on the complaint

against issuing a certificate of election as a senator under § 88 of Act

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

Amending and Supplementing Certain Other Acts, as amended by other

regulations (the “Elections Act”), and on the basis of § 200n of Civil

Procedure Code, it evaluated “whether the statutorily prescribed

procedure of elections and determination of their results was observed”.

Judiciary review is done in proceedings which are, by their nature, a

special kind of adversary civil court proceedings, and the petitioner is

therefore required to identify evidence to prove its claims. The

petitioner in the proceedings before the Supreme Court of the CR (the

Czech Social Democratic Party, Česká strana sociálně demokratická), in

the adjudicated matter identified five events as evidence of violation

of the Elections Act:

1.     On the first day of the second round

of elections (20 November 1998) the daily newspaper Lidové noviny

published an article on the front page entitled “Brno mayor D. L. has a

chance to become chairman of the Senate”. On that same day the same

daily published a pre-election poll, in which it identified D. L. as the

clear favorite.
2.     On 21 November 1998 the same daily published,

in the article “Commissions discussed campaign” a section with the

sub-title “ČSSD candidate Božek acted immorally”.
3.     In the

first round of the Senate elections, D. L. allegedly had access to the

district election commission, before the protocol on the termination of

its work was signed.
4.     On 20 November 1998, i.e. during the

first day of the elections, D. L. was able to appear in the television

news program Jihomoravský večerník, where she allegedly spoke about and

evaluated her election campaign.
5.     D. L.’s election materials

were allegedly distributed on the second day of the elections, i.e. 21.

November 1998, in the morning.
 
In this connection, the Supreme

Court of the CR pointed to § 16 para. 2 of the Elections Act6), under

which an election campaign must take place honorably and honestly, in

particular, untrue information may not be published about candidates and

political parties or coalitions on whose candidate lists they stand.

Paragraph 5 of this provision primarily forbids election campaigning for

political parties, coalitions and candidates in the period of 48 hours

before elections begin and on election days. It is also forbidden to

publish the results of pre-election public opinion polls, “provided that

they may be published no later than the seventh day before election

day”.

In the opinion of the Supreme Court, the Elections Act

was violated, specifically § 166)concerning regulation of an election

campaign. The violation was to have occurred by the fact that (1.) on

the first day of the second round of elections (20 November 1998) the

daily Lidové noviny published an article on the front page entitled

“Brno Mayor D. L. has a chance to become Chairman of the Senate”. On

that same day the same daily published a pre-election poll, in which it

identified D. L. as the clear favorite, that (2.) on 21 November 1998

the same daily published, in the article “Commissions discussed

campaign” a section with the sub-title “ČSSD candidate Božek acted

immorally” and that (3) on 20 November 1998, i.e. during the first day

of the elections, D. L. was able to appear in the television news

program Jihomoravský večerník, where she allegedly spoke about and

evaluated her election campaign. Concerning the objection about D. L.’s

alleged interference with the work of the District Election Commission,

the Supreme Court of the CR stated that this fact had not been proved in

any way. Concerning the point of the complaint about distribution of D.

L.’s election materials on the second day of the elections, the Supreme

Court of the CR stated that if this did actually occur, it could have

been violation of the Elections Act, nonetheless, “in view of the

conclusions cited above and the shortness of the time which the Supreme

Court of the CR has available for decision making, it no longer

considered it useful to concern itself with this question”.

The

Supreme Court stated that in terms of the degree and seriousness of the

violation of the Elections Act, it is of course important whether the

violation occurred through the active actions of the candidate or her

party, or another entity without her knowledge. In the case of isolated,

less significant interference of third entities with the election,

there would clearly not be such violation of the law which would result

in invalidity of the elections. Nonetheless, if such interference is

committed by the mass media (a national daily considered “trustworthy”

and state-wide public television), “the question of some sort of fault

or participation by the candidate in such election campaigning in these

cases is irrelevant”. At the same time, the obligation to refrain from

election campaigning in the statutorily defined period allegedly can not

be considered interference with freedom of speech and the right to

information, as it is in the interest of the free decision making of

voters just before elections and during elections to have an opportunity

to consider their decision in peace. Likewise, the absolute ban on

publishing results of pre-elections of public opinion polls during the

specified period cannot be circumvented in the way that Lidové noviny

did, as this would cast doubt on its very purpose. Thus, although in the

opinion of the Supreme Court of the CR “there is no discussion” about

the fact that D. L. did not subjectively cause violation of the rules of

elections – with the exception of the television appearance - (and

there is no evidence that she instigated the articles and the television

program), the Elections Act is based on the fact that it is to be

objectively observed, and if it is not observed, (“if someone attacks

this shortcoming, it can have only one consequence - invalidity of the

elections”. The media are also required to observe the law, and if they

violate it, they should bear the liability, including criminal

liability.

The Mandate and Immunity Committee of the Senate of

the Parliament of the Czech Republic by decision on verification of the

validity of elections of senators stated “that it could not verify the

mandate for the election district in question in view of the fact that

the Supreme Court of the CR decided that the election was invalid and D.

L. could not be issued a certificate on election as a senator”. The

Senate of the Parliament of the Czech Republic, by resolution of 16

December 1998, took cognizance of the cited report from the Mandate and

Immunity Committee.
 


II.
 

The

petitioner summarized its main arguments against the decision of the

Supreme Court of the CR. First of all, in its opinion, the Supreme Court

decided on the invalidity of the election without a legal basis, as

neither the Election nor the Civil Procedure Code provides for the

subject matter jurisdiction of the Supreme Court of the CR. Section 79

of the Elections Act is allegedly a statutory basis for decision making

by the President of the Republic and not the court. The question of

whether individual deputies and substitute deputies were validly elected

is decided, under § 45 para. 1 letter a) of the Act on the Rules of

Procedure of the Chamber of Deputies, by the Mandate and Immunity

Committee and the Chamber of Deputies (or Senate). Second, the

petitioner claims that the Elections Act does not connect violation of

obligations provided in § 16 para. 2 and 56) with the sanction/penalty

of invalidity of the election, as such a serious consequence would have

to be stated expressis verbis in the law or “must be derived by

unambigious legal arguments”. The petitioner sees the third level of its

objections in the fact that any violation of § 16 para. 2 and 5 of the

Elections Act6) in this case was of low intensity, did not influence

voters’ decision making and consisted of actions by subjects other than

the candidate and the political party which nominated her. Fourth, the

petitioner concluded that § 16 of the Elections Act6) and its

interpretation are in conflict with the constitutionally guaranteed

right to freedom of expression and right to information under Art. 17 of

the Charter of Fundamental Rights and Freedoms1), so it is clearly

unconstitutional.


III.
 

The

Constitutional Court stated that the file indicates that the appeal

against the decision in the matter of verifying the election of senator

D. L. meets all statutory formal requirements, and thus nothing prevents

review of and a decision in the matter itself.


IV.
 

After discussing the matter, the Constitutional Court concluded that the appeal is justified.
A)

    The Constitutional Court stated that, in the first place, it

considers it necessary to state that proceedings under Art. 87 para.1

letter e) of the Constitution4) and under Chapter 2 of Part three of the

Act on the Constitutional Court, i.e. proceedings on an appeal against

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

senator are special and relatively separate kind of proceedings before

the Constitutional Court, to which general provisions on proceedings

before the Constitutional Court apply only in a subsidiary manner.

In proceedings under Part 3 Chapter 2 of the Act on the Constitutional

Court, the Constitutional Court decides on an appeal against a decision

in the matter of verifying the election of a deputy or senator, and

because it acts as – sui generis – the appeal level, it must evaluate

the particular case not only in terms of protection of constitutionally

guaranteed rights or freedoms, but primarily in terms of the

trustworthiness of the democratic election process. Violation of the

subjective rights of individuals can become an instigation to review the

regularity of elections, but the substantive content of that review

must be a determination whether the existing shortcomings have such

impact that they cast doubt on the results and thereby also the validity

of the elections. Based on foregoing, although it is true in these

proceedings that the Constitutional Court is a judicial body for

protection of constitutionality (Art. 83 of the Constitution) and that

Constitutional Court judges are bound in their decision making only by

constitutional acts and international treaties under Art. 10 of the

Constitution (Art. 88 para. 2 of the Constitution), nonetheless, the

viewpoints from which the Constitutional Court evaluates the

justification of a decision in the matter of verifying an election are

given not only by constitutional norms but also by statutory norms.

B)  

 It must be said that the existing legal regulation of proceedings in

the matter of an appeal against issuing a certificate of election as a

senator (§ 88 para. 1 of the Elections Act) and its interpretation are

considerably disputed and not unified. Therefore, before turning to the

specific adjudicated matter, the Constitutional Court considers it

appropriate to take a position on certain general procedure aspects of

proceedings about this type of election complaint.
 
Section 88

para. 1 of the Elections Act indicates that a complaint against issuing a

certificate on election as a senator can be used by every citizen

registered in the list of voters in the relevant election district, and

every political party or coalition which filed a registration

application in that district to seek a court decision under a special

act. In this case, that act is the Civil Procedure Code, under § 200n of

which on a complaint against issuing a certificate of election as a

senator shall be decided by a court by resolution, without court

proceedings, within ten days. The court‘s decision cannot be appealed.

Section 89 of the Elections Act indicates that the Supreme Court of the

CR has jurisdiction for proceedings in this matter. Under § 88 para. 2

of the Elections Act, “the court shall send its position in the

decision, depending on the nature of the matter, to the Chamber of

Deputies or the Senate”. Under § 79 of the Elections Act, “if a senator

was not elected in the election district due to a court decision on the

invalidity of the election, or due to the fact that the elections were

not held properly, the Ppresident of the Republic shall call

supplemental elections”.

Section 45 para. 1 letter a) of Act no.

90/1995 Coll. on the Rules of Procedure of the Chamber of Deputies

(which is also used commensurately for sessions of the Senate, under §

126 of the act until such time of the Act on the Rules of Procedure of

the Senate is passed) gives the Mandate and Immunity Committee the right

to review whether individual deputies and substitute deputies were

dully elected and, depending on the nature of the matter, it shall

present its findings to the Chamber of Deputies or the Chairman of the

Chamber of Deputies.

Under § 85 para. 1 letter a) of the Act on

the Constitutional Court5), an appeal against the decision in the matter

of verifying the election of a senator may be submitted by the senator,

or the party for which he was a candidate, against the decision that he

was not validly elected. If the Senate verifies the validity of the

election of the senator, an appeal against the decision may be filed by

“the party whose election complaint was granted” [letter b) of the cited

provision].

C)     In the opinion of the Constitutional Court,

the foregoing overview of the legal regulation of this type of “election

complaint” indicates that proceedings in this matter are based on the

following principles:
1.     A complaint against issuance of a

certificate of election as a senator may be filed by every entitled

citizen or the appropriate political party (or coalition). The complaint

is decided by the Supreme Court of the CR.

2.     In this

matter, the Supreme Court of the CR is entitled to decide by a verdict

about whether the senator in question was validly elected or not. This

provision corresponds to the cited provisions of § 88 of the Elections

Act and § 200n para. 1 of the Civil Procedure Code which state that a

complaint against issuance of a certificate of election as a deputy or a

senator shall be decided by a court. Therefore, it cannot be said that

the Supreme Court of the CR only evaluates whether a filed complaint

does or does not have grounds (is justified) and that it does not have

jurisdiction to decide about the validity of the elections. At the same

time, it is clear that the legal regulations of proceedings before the

Supreme Court of the CR in election matters (judicial review) is based

on the nature of those proceedings, one of the basic – and necessary –

requirements of which is that the proceeding must be fast. This fact

alone cannot be seen as violation of the procedural guarantee of due

process under chapter five of the Charter.

In this regard the

Constitutional Court basically begins with the fact that the Parliament

of the CR is the supreme body, not of all power, but only legislative

power. With regard to the current regulation in the Constitution of the

CR and the Elections Act, Parliament primarily has the power – with

constitutionally defined exceptions – to decide using the normative

form, i.e. in a manner generally binding for a further unspecified range

of subjects and not in the form of individual legal acts. Likewise in

the case of deciding on an election complaint, the right to issue an

authoritative decision (an individual legal act) thus belongs to an

independent court and not to the legislative body, with the exception

cited below. Under § 45 para.1 letter a of the Act on the Rules of

Procedure of the Chamber of Deputies, the Mandate and Immunity Committee

is entitled to review whether individual deputies were validly elected,

but during this review it must begin with any decisions of the Supreme

Court of the CR, issued in proceedings on a complaint against issuance

of certification of election. (The body of the Senate itself reviews the

validity of an election from other viewpoints, particularly with regard

to Art. 19 para. 2 of the Constitution3) and § 57 of the Elections

Act.) Therefore, in the adjudicated matter, the decision of the Supreme

Court of the CR cannot be questioned on the grounds that the Supreme

Court of the CR was not authorized to issue it at all, or that the

decision is not binding in the given case.

It is clear from the

foregoing that the law distinguishes a situation when a decision is

issued that a deputy or senator was not validly elected – which is

decided (with the above mentioned exception) by the Supreme Court of the

CR – and one when a decision was issued to certify the validity of an

election by the appropriate house of Parliament. Thus, if (generally)

the Supreme Court of the CR decides on an election complaint under § 88

of the Elections Act, this decision (the position contained in it) is

given to the Chamber of Deputies or the Senate, and the appropriate

house of Parliament must observe it in deciding about certification of

the election of a deputy or a senator.
 
3.     If the Supreme

Court decides that the election in question was not valid, this does not

mean that the mandate of the senator in question terminates by the

decision, but that it was never created.
 
4.     An appeal

against the decision in the matter of verifying election of a senator is

decided by the Constitutional Court, which shall state in its decision

that the senator either was or was not validly elected. By promulgation

of a decision of the Constitutional Court granting an appeal, under § 91

para. 3 of Act no. 182/1993 Coll. on the Constitutional Court,

decisions of other bodies which are in conflict with this decision lose

effect.
 


V.
 

The Constitutional Court reached these conclusions:
a)

§ 16 para. 2 of the Elections Act6) indicates that “an election

campaign must take place honorably and honestly; in particular, untrue

information must not be made public about candidates and the political

parties or coalitions on whose candidate lists they are listed.” Under

para. 5 of this provision, “in a period of 48 hours before elections

begin and on election days election campaign for political parties,

coalitions, and candidates is forbidden; it is forbidden to publish

information which could damage a political party, coalition or

candidate, in speech, in writing, sound or pictures in buildings where

the district election commissions reside, and in their immediate

surroundings. To publish the results of pre-election public opinion

polls is permitted only up to the seventh day before election day.

During the elections, any election poll in the building where the

election room is located is forbidden.” Under para. 7 of this provision,

“during elections, until the election rooms are closed, it is forbidden

to publish results of election polls.”
 

b)

From the wording of the Act – though not only from it – we can conclude

certain basic facts. In the first place it is obvious (and in this the

Constitutional Court considers the petitioner correct), the delineation

of rules for conducting an election campaign, as indicated in § 16 of

the Elections Act6), is not comprehensive, and that an election campaign

is more or less governed by a whole range of provisions from other

legal regulations (the Civil Code, the Criminal Code, the Act on Minor

offences, etc.). Thus, § 16 of the Elections Act6) must also be

understood to relate to other legal regulations and “emphasize” their

importance– for understandable reasons – in the period just before

elections.
It is also true that legal regulation of an election

campaign is not and cannot be regulated exhaustively, as can be seen

with comparable foreign legal regulations. For example, under § 32 of

the German Elections Act (Bundeswahlgesetz, BGBl. I S. 1288 as amended

by later regulations) only election propaganda in the immediate vicinity

of election rooms and publishing public opinion results are expressly

forbidden, and only in the election period. Under § 58 of the Austrian

Elections Act (Nationalrats-Wahlordnung, BGBl. 1992/471) any election

campaigning, particularly questioning voters, distributing election

materials, holding assemblies and carrying weapons are forbidden in

buildings where election rooms are located and in their vicinity on

election days. Thus, rules for conducting election campaigns are and,

per the nature of the matter, necessarily must be considerably general,

and it is the task of judicial case law to shape them more precisely and

make them more specific.
 

c)

The argument contained, on the one hand, in the criticized decision of

the Supreme Court of the CR and, on the other hand, in the appeal,

concerning objective or subjective violation of the Elections Act (§

16)6), is considerably deceptive. Generally speaking, the issue should

not be exclusively whether the Elections Act was violated objectively or

subjectively, but it is necessary to take into consideration the

circumstances of a specific case and the intensity and manner of

violation of the Elections Act. This idea must also be a starting point

in the adjudicated matter. Thus, it cannot be generally stated that

every violation of the Elections Act (if contested) results in the

invalidity of the elections, nor that the penalty of invalidity of

elections cannot be applied to violation of the Elections Act at all.

Every case – as was already stated – must be judged and evaluated not

formally, but materially: always individually and taking into account

all the particular circumstances in the meaning stated above.
 

d)

Thus, we cannot agree with the petitioner’s opinion that violation of

election campaign rules (§ 16 of the Elections Act)6) cannot lead to

invalidity of elections at all. Therefore, it is not appropriate to cast

doubt on the general conclusion of the Supreme Court CR, that violation

of the Elections Act (election campaign rules) can lead to “making

elections invalid”.
 

e)

Regarding the petitioner’s opinion concerning the unconstitutionality of

a possible judicial (Senate) decision on the termination of the

senator’s mandate due to Art. 25 of the Constitution – which does not

address anything like that – it must be stated that this case is not

about a decision on termination of the mandate with effects ex nunc, but

about the invalidity of the senator’s election with effects ex tunc.

This means that if the election complaint is granted, the mandate was

never created, and thus conflict with Art. 25 of the Constitution does

not exist. In this case as well, the Constitutional Court begins with

its settled case law, under which, in a situation when a certain

provision of a legal regulation permits two various interpretations, and

one is in accordance with constitutional laws and with international

treaties under Art. 10 of the Constitution, all state bodies must

interpret it in a manner which conforms to the Constitution (cf. e.g.

decision Pl. ÚS 5/96, The Constitutional Court of the CR: Collection of

Decisions, vol. 6, C. H. Beck, Prague, 1997, p. 203).
 

f)

Thus, in the adjudicated matter – in view of these general conclusions –

the Constitutional Court concentrated on the questions (1.) whether the

Elections Act was violated in this case, and (2.) if so, whether the

intensity of the violation is so serious that in can lead to a decision

that the elections were invalid.
 

g)

In interpreting the provisions of § 16 of the Elections Act6) the

Constitutional Court began first with their grammatical wording. First

of all, it is no accident that the legislature used different

terminology in the paragraphs of § 16 of the Elections Act6): while in

para. 2 it works with the concept “election campaign,” in para. 5 it

speaks of “election campaigning.” It is clear from the nature of the

matter that in the “moratorium period” of 48 hours before elections

begin and on election days it is not possible to completely forbid all

kinds of election campaigns, as the consequences of such a ban would

necessarily mean, e.g., removal of all election posters and billboards,

which is technically very difficult to do. Para. 5 of the cited

provision must therefore be interpreted rather restrictively, in that

the legislature had in mind a ban on an active election campaign, i.e.

intentional and targeted campaigning, purposefully directed for

political parties, coalitions and candidates.
 

h)

In the adjudicated matter the Constitutional Court found that the

television clip aired on Česká televize in the program Jihomoravský

večerník cannot be seen as violation of the rules for conducting an

election campaign in the meaning of § 16 of the Elections Act6) in an

intensity endangering the objectivity of elections. This newscasting

clip also did not violate the ban on election campaigning, as it cannot

be interpreted – in the above-mentioned meaning – as purposeful,

intentional and active election campaigning for the candidate D. L. The

television clip in question was only informative, and its authors

evidently tried to provide room for various opinions in it. The

Constitutional Court did not find violation of the Elections Act in such

an extent as to cast doubt on the overall election results, nor did it

find it in the two articles in the daily Lidové noviny.
 

The

stated conclusions follow– among other things – from the fact that the

Constitutional Court accented particularly material aspects, took into

account the final result of the Senate elections in the particular

election district and took into account the question of whether and to

what extent the function of elections in a democratic society was

endangered in the adjudicated matter. The official records of the

Central Election Commission indicate that in the first round D. L.

received 9,562 votes and V. B. 6,955 votes. In the second round of

elections D. L. received 9,797 votes and V. Božek received 9,534 votes,

i.e. the difference in votes was 263. it is clear that the difference in

votes in the second round of Senate elections was very close, so that

at first glance there could have been an election “upset” from a

decision of only a small number of voters. Nonetheless, it cannot be

overlooked that a comparison of the results of the first and second

round of elections indicates that the number of votes for D. L. was

relatively constant in both rounds, there was no significant increase

(only 2.45 %), and, in contrast, it was V. Božek who received

considerably more votes in the second round of elections that in the

first round (by 37.08 %), which could be attributed to the campaign

conducted for his benefit, which the election commission criticized and

to which L. responded. Thus, we can judge that neither the articles nor

the television clip fundamentally affected the second round of Senate

elections, and they did not interfere with the function of elections in a

democratic society.
 

i) The

Constitutional Court also emphasizes that although proceedings about an

appeal against a decision in the matter of certifying the election of a

deputy or senator are special proceedings – whose primary task is

protection of the function of elections in a democratic society in terms

of “objective” constitutional law – protection of the fundamental

rights and freedoms of natural persons and legal entities must also be

observed in them. Thus, although the Elections Act forbids active

election campaigning in the statutorily defined period, the aim of this

restriction (i.e. protection of the subjective decision making of

voters) cannot violate other fundamental rights and freedoms, in

particular freedom of expression and the right to information. Thus,

even in the statutorily protected period, the media have the right to

provide information, and they may also present their own opinions; they

are only forbidden from actively campaigning for any particular

candidates. Therefore, the adjudicated matter must also be evaluated

from this point of view. We cannot not see that freedom of expression

and the right to information are among the main pillars of a democratic

society, which the media, in particular, naturally use in their work.

This fundamental right and its exercise necessarily form an essential

condition for their free existence. Therefore, with each restriction of

this fundamental right, it is necessary to proceed with extreme caution,

and anxiously heed constitutional regulations, binding norms of

international law (Art. 10 of the Constitution) and the case law of the

European Court of Human Rights.
 

These

general ideas are also the basis for interpretation of § 16 of the

Elections Act6). The principle of honor and honesty of an election

campaign and the ban on election campaigning in the period of 48 hours

before elections and during them thus cannot be interpreted so widely as

if the law created a social vacuum which does not permit the existence

of freedom of expression and the right to information (in connection

with elections). This is discussed in more detail in the next part of

this decision (VII.).

VI.
As the Constitutional Court already

stated, the substance of its arguments was concentrated on the question

of whether “objective” constitutional law, specifically whether there

was a violation of the Elections Act and whether the intensity of the

violation was so serious that it should result in a decision that the

elections were invalid. However, the Constitutional Court also

considered the petitioner’s objection that – although proceedings about

an appeal against a decision in the matter of certifying the election of

a deputy or senator are special proceedings (compared to the

institution of a constitutional complaint) – they too cannot abandon

protection of the fundamental rights and freedoms of natural persons and

legal entities, if they were (in connection with elections of deputies

and senators) violated by interference of a public body. Therefore, the

Constitutional Court also considered this aspect of the matter. In this

regard we can rely on the Charter of Fundamental Rights and Freedoms

(Art. 17 1) ), the Convention for the Protection of Human Rights and

Fundamental Freedoms (Art. 10) and the case law of the European Court of

Human Rights that concerns the question of protection of the right to

freedom of expression in the period of an election campaign (cf. the

decision of the European Court for Human Rights of 19 February 1998 –

Bowman,  Great Britain, no. 141/1996/760/961).
 

Therefore,

the Constitutional Court also considered whether the appealed decisions

violated the fundamental right to freedom of expression and the right

to information in the meaning of Art. 17 of the Charter1) and Art. 10 of

the Convention.

The Constitutional Court reviewed the following questions:
1. Whether this right was interfered with and whether these articles of the Charter and the Convention can be applied

Under

Art. 17 para. 1 – 3 of the Charter, freedom of expression and the right

to information are guaranteed. Everyone has the right to express his

views in speech, in writing, in the press, in pictures, or in any other

form, as well as freely to seek, receive, and disseminate ideas and

information irrespective of the frontiers of the state. Censorship is

not permitted. Similar protection is also provided by Art. 10 of the

Convention. This is a right which is one of the cornerstones of a

democratic state, as only free information and its exchange and free

discussion make a person a citizen of a democratic country. It is the

press, radio and television which spread and provide the information; in

this regard freedom of information has extraordinary importance. This

is also confirmed by well-known case law of the European Commission for

Human Rights and the European Court for Human Rights (cf. e.g. Sunday

Times v. Great Britain (1978, A-30). Thus, if the press and television –

even if in connection with the elections – provided the incriminated

information, D.L. appeared on television, and as a result the elections

were declared invalid and the mandate of D.L. was not certified, then

there was undoubtedly interference in the right to freedom of expression

and the right to information and both articles of the Charter and the

Convention are applicable to the adjudicated matter.

2. However,

these rights are not unlimited. Restrictions on them are provided in

Art. 17 para. 4 of the Charter1), under which freedom of expression and

the right to seek out and spread information can be restricted by law,

in the case of a measure which is, in a democratic society, necessary

for protection of the rights and freedoms of others, national security,

public safety, protection of public health and morals and Art. 10 para. 2

of the Convention, under which exercise of these freedoms, because it

also includes obligations and responsibility, can be subject to such

formalities, conditions, restrictions or sanctions as the law provides

and which are necessary in a democratic society in the interest of

national security, territorial integrity or public safety, prevention of

unrest and crime, protection of health or morals, protection of the

reputation or rights of others, preventing the escape of confidential

information or preserving the authority and independence of the judicial

power.
 

These restrictions

have the character of exceptions to the fundamental right to freedom of

expression and the right to information, and therefore they must

interpreted restrictively according to general principles. This is also

the approach chosen by the Constitutional Court.
 

The

cited articles of the Charter and the Convention indicate that a

restriction of the cited fundamental right is subject to the following

conditions: it must be provided by a law which has a legitimate purpose,

and the restriction must be one that is necessary in a democratic

society.

3. The Constitutional Court first reviewed whether

restrictions in the sense of the cited articles are given by law.

Generally speaking this is so, as these restrictions are established by

§16 para. 2, § 16 para. 5 and § 16 para. 7 of the Elections Act6).

However, the case law of the European Court requires that a restricting

law also have certain qualities, i.e. that it be accessible and that its

consequences be sufficiently foreseeable that a citizen can adapt his

behavior with a view to them (cf. the already cited decision in the

matter of the Sunday Times). In this regard the Constitutional Court

determined the following: concerning the accessibility of the law, this

condition has been met and no objections were raised; concerning the

predictable consequences of the law, the question whether this

requirement has been met is considerably more complicated.
 

a)  

 According to the petitioner the law does not expressly set the penalty

of invalidity for violation of § 16 para. 2 and 5 of the Elections

Act6).
 

We can add that this

penalty can be indirectly inferred only from § 79 of the Elections Act –

which speaks about a court decision about the invalidity of an election

in connection with § 88 para. 1 and 2 and with § 200n of the Civil

Procedure Code. Nonetheless, it is true that this penalty is not

expressly set for violation of § 16 para. 2 and 5 of the Elections

Act6), and its applicability could, in eventum, arouse doubts. The

predictability of this penalty is problematic particularly in view of

the question of whether the penalty – i.e. invalidity of the election of

the senator – arises each time anyone violates the cited provision in

corresponding intensity or whether the condition for its application is

violation of the cited provisions by the relevant candidate for the

position of senator (deputy). Although we can agree that the purpose of

the Act (§ 16 para. 2 and 5) 6) is protection of the cleanness and honor

of an election campaign as such, it is necessary – in view of the

relatively general wording of the Act – to also review judicial case

law, which brings the Act to life and on which the candidate should

rightly rely.
 

Therefore, the

Constitutional Court concentrated on the case law of the Supreme Court

of the CR in matters of complaints against the issuance of certification

of election as a deputy (senator) under §§ 88, 89 of the Elections Act

and § 200n of the Civil Procedure Code.
 

In

the adjudicated matter (as was already stated) the Supreme Court of the

CR in the conclusion of the reasoning of the appealed decision  stated:

“There is no doubt  about the fact that … D. L. subjectively .. did not

cause the violation of the rules of the election competition with the

exception of the cited television appearance. There is no evidence that

she instigated the cited articles and television program … The Act is

based on the principle that during an election campaign … its provisions

are supposed to be objective observed ….”
 

However,

the Supreme Court of the CR chose a completely different viewpoint in

its decision of 7 July 1998, file no. 11 Zp 22/98, in which it denied

the complaint of the petitioner against issuance of certification about

the election of Dr. V. as a deputy of the Chamber of Deputies and

concluded that the forbidden election campaigning (… from which legal

consequences can also be drawn in proceedings on a complaint against

issuing certification of election as a deputy) means conducting active,

targeted promotional activities of the candidate for deputy himself

(political party, coalition), aimed at influencing voters, or performing

such activity at their instruction, request, with their consent or with

their knowledge, in the period of 48 hours before elections begin. The

Supreme Court of the CR stated that in the adjudicated matter the

petitioner’s claim had not been proved that there was, on the part of

the respondent, or his political party, activity which would be

violation of the ban on election campaigning under § 16 para. 5 of the

Act6).
 

The Constitutional

Court considers that even a mere comparison of the two cited decisions

of the Supreme Court of the CR clearly documents that there has been a

visible shift in its fundamental legal opinion. Whereas in the first

decision of 7 July 1998 the Supreme Court of the CR required violation

of the ban on election campaigning in the moratorium period by the

candidate himself (or his political party), or with his consent or

knowledge, in the appealed decision of 3 December 1998 it abandons the

principle of the candidate’s (political party’s) subjective relationship

to the violation of the statutory moratorium and emphasizes that the

law stands on the principle of objective observance of its provisions,

and that the question of the fault or participation of the candidate in

the election campaigning (read, in the moratorium period) is not

decisive. According to the Constitutional Court’s conviction, the two

cases are comparable, as the distribution of a candidate’s publicity

materials to the households of specific citizens can be, depending on

the circumstances, just as effective, or even more effective, than an

article in the press or a television clip, which is seen by an

accidental reader or viewer.
 

As

was already stated elsewhere, in considering the predictability of a

law (its consequences), we cannot restrict ourselves only to its

grammatical text. It is judicial decision making which – although it

does not have the classical precedential character – interprets the law,

or completes it, and its relative constancy guarantees legal certainty

and also ensures general confidence in the law. This applies

particularly to the Supreme Court of the CR, which is the supreme

judicial body in the general judiciary (cf. § 92 of the Constitution).

Naturally, this does not deny that judicial case law can develop and

change in view of a number of aspects, particularly with regard to

changes in social conditions. However, this changes nothing about the

fact that in the adjudicated matter the appealed decision of the Supreme

Court of the CR principally diverged from the fundamental legal opinion

which the same court expressed a mere 5 months before, and with which

it gave content to § 16 para. 2 and 5 of the Elections Act6). That

cannot be overlooked in this situation.
 

Therefore,

the Constitutional Court reached the conclusion that the cited Act (its

consequences) was not predictable in the adjudicated matter. The

fundamental condition of restriction of the right to freedom of

expression and the right to information, i.e. the existence of a law

having the required features (predictable consequences), thus does not

exist in the adjudicated matter.
 

For

thoroughness, the Constitutional Court also considered other conditions

for restricting the fundamental right to freedom of expression and the

right to information, contained in Art. 17 of the Charter1) and in Art.

10 of the Convention. As was already stated, these conditions are the

legitimate aim of restricting a fundamental right and the necessity of

such a restriction in a democratic society.

4. The “legitimate

aims” (restriction of a fundamental right) are established practically

identically, or very similarly, in Art. 17 para. 2 of the Charter and

Art. 10 para. 2 of the Convention. They include, in particular, the

interests of national security and public safety, preventing unrest and

crime, protection of health and morals, preserving the authority and

independence of the judicial power, and the interest in protection of

the reputation or rights (and freedoms) of others. In the opinion of the

Constitutional Court the cited provisions – with regard to their

purpose – can also be applied to the adjudicated matter. This concerns,

in particular, the interest in the protection of the rights (freedoms)

of others, which could be affected by newspaper articles and television

programs. Therefore the Constitutional Court considers that a

“legitimate aim” (restriction of the fundamental right to freedom of

expression and the right to information) existed in the adjudicated

matter.

5. Finally, the Constitutional Court considered – even if

only for completeness, as already stated – the question of whether the

restriction of the fundamental right to freedom of expression and the

right to information and the penalty of invalidity of the election were

necessary in a democratic society.
 

a)

The Constitutional Court recognizes that the purpose of § 16 para. 2

and 5 of the Elections Act6) is undoubtedly protection of the

honorableness and honesty of elections, for which the law also selects

certain restrictive means in the period of 48 hours before elections. We

can agree that usually it would not be appropriate to concentrate

exclusively on the question of whether it was only the candidate (the

political party), who violated the cited provision. On the other hand,

however, we can hardly comprehensively accept the strictly objective

criterion which the Supreme Court of the CR chose in the adjudicated

matter and ignore the fact that – as the Supreme Court of the CR itself

stated – candidate D. L. did not subjectively cause the violation of the

rules of election competition (with the exception of the television

appearance) and did not instigate the articles in Lidové noviny and the

television appearance. The contrary interpretation would necessarily

lead to a situation in which any entity (e.g. every media, including the

tabloid press) could obtain the invalidity of the election of any

candidate completely without his fault, which could – in eventum –

significantly interfere with elections, or, taken to the logical

consequences, ruin them. The legislature, naturally, did not intend such

consequences.
 

We can not

fail to see that the so-called moratorium in the period 48 hours before

elections (nor the general principle of an honorable and honest election

campaign) do not mean a statutorily created sterile environment which

makes impossible any freedom of expression and right to information.

Naturally, of course, by this interpretation the Constitutional Court

absolutely does not intend to tolerate the possible practice of

alternating attacks and counter-attacks violating the principles of an

honorable and honest election campaign and observance of the election

moratorium to the benefit or detriment of individual candidates. Things

will, of course, always depend on the form and content of the public

appearance in question and on the circumstances of the particular case.
 

In

the cited considerations, the Constitutional Court was also guided by

its own existing case law, which clearly gives preference to permitting

exercising of the election right. In its decision, file no. IV. ÚS

275/96, the Constitutional Court said: “If the purpose of the Elections

Act is to implement and more closely regulate the fundamental political

right to elect and be elected, then disputed provisions of this Act must

be interpreted in the spirit of Art. 22 of the Charter of Fundamental

Rights and Freedoms2). The Constitutional Court considers such an

interpretation to be only an interpretation which is favorable to this

fundamental right – i.e. such as permits one to elect and be elected,

and not the contrary.” Although the cited decision concerned the

question of registration of a candidate, the Constitutional Court is

convinced that the statement of law can be used commensurately as a

guideline for interpretation – depending on the circumstances – in other

cases as well.
 

In

connection with the issues discussed, we can also point to a historical

comparison. The Supreme Administrative Court, in its decision of 8

November 1935 [BOH.12124 adm. (19224/35)] stated: Influencing a voter,

as a violation of election freedom, can be recognized as a defect in

election proceedings, or a reason for canceling elections, only if it

happened through means and under circumstances which are, by their

nature, capable of imposing another’s will so that it is possible to

conclude that the voter subjects himself to that will, and acted against

his convictions. Thus, it is apparent, that even historical

administrative case law, though from a time of different

social-political conditions, in evaluating the freedom of elections as a

defect in “election proceedings” began with a restrictive

interpretation.
 

Therefore

the Constitutional Court reached the conclusion that restriction of the

fundamental right to freedom of expression and the right to information

and the penalty of invalidity of the election of the candidate D. L.

were not necessary in a democratic society under Art. 17 of the

Charter1) and Art. 10 para. 2 of the Convention.

6. Thus, these

considerations indicate that the appealed decisions – in their

consequences – violated the fundamental right of D. L. to freedom of

expression and the right to information. Therefore, the Constitutional

Court granted the petitioner’s appeal and in the verdict of the finding

stated that D. L. was validly elected a senator.
 

 

 

 


I. ÚS 526/98
Overview of the most important legal regulations

1.

Art. 17 of Act No. 2/1993 Coll., on the Declaration of the Charter of

Fundamental Rights and Freedoms provides that freedom of expression and

the right to information are guaranteed and that everyone has the right

to express his views in speech, in writing, in the press, in pictures,

or in any other form. Under Art. 17 para. 4 freedom of expression and

the right to seek and disseminate information may be limited by law in

the case of measures that are necessary in a democratic society for

protecting the rights and freedoms of others, the security of the state,

public security, public health, or morals.

2. Art. 22 of Act No.

2/1993 Coll., on the Declaration of the Charter of Fundamental Rights

and Freedoms,2) 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.

3. Art. 19 para. 2 of

Act No. 1/1993 Coll., of 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 40 is eligible for election to the Senate.

4. Art. 87

para. 1 letter e) of Act No. 1/1993 Coll., of the Constitution of the

CR provides that the Constitutional Court has jurisdiction over remedial

actions from decisions concerning the certification of the election of a

Deputy or Senator.

5. § 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 election of a deputy or senator.

6.

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

CR and Amending and Supplementing Certain Acts regulates election

campaigns. In para. 2 it provides that an election campaign must take

place honorably and honestly, in particular, untrue information may be

published about candidates and the political parties or coalitions on

whose candidate lists they are listed; under para. 5 political

campaigning is forbidden in the period of 48 hours before elections

begin and on elections days, and under para. 7 it is forbidden to

publish the results of election opinion polls during the course of

elections.

7. § 19 para. 2 of Act no. 247/1995 Coll., on

Elections to the Parliament of the CR and Amending and Supplementing

Certain Acts provides that an election campaign must take place

honorably and honestly, in particular, untrue information may not be

published about candidates and political parties or coalitions.

8.

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

of the CR and Amending and Supplementing Certain Acts provides that

election campaigning for political parties, coalitions and candidates is

forbidden in the period of 48 hours before elections begin and on

election days.

9. § 200n of the Civil Procedure Code (Act no.

99/1963 Coll.) provides that a court shall decide on a complaint against

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

decision without court proceedings, within 10 days.