1999/10/13 - Pl. ÚS 30/98: Election Contribution

13 October 1999

HEADNOTE

If modern

representative democracy takes into account the functioning of the

parliamentary system and, to a limited extent, accepts the integrative

stimulus to a system of dividing mandates, this does not mean that

integration view points may take precedents before the principle of free

and, in principle, unrestricted election competition of elected

parties. Free competition among them is a direct expression of the

pluralistic nature of a democratic society, and it is precisely

protection of pluralism in political life which has primary importance

for the very existence of a democratic society. Therefore it is

distinctively protected by Article 5 of the Constitution1) and Article

22 of the Charter of Fundamental Rights and Freedoms.2) Any direct or

indirect restriction of the equality of parties in elections may not,

individually or cumulatively through measures which differently afflict

or give advantages to certain parties, a priori suppress the very

participation of political parties in elections. Accumulation of

financial support for only certain parties has the result of also being

accumulation of de facto financial penalties for other parties.

Therefore, it is necessary to consider carefully whether the purpose of

such measures has not been exceeded. This purpose must be only the

seriousness of the competing party’s efforts, which are not aimed at

goals other than participation in political representation and putting

forth their own program. Integrative stimuli are permissible, to a

limited extent, in a representative democracy, only after the process of

free competition between legally equal political parties ends, i.e.

after adding the votes for the parties, through a certain

differentiation in dividing mandates, not, however, by a priori

financial stimulation of certain parties and disadvantaging other

parties, as this could lead to modification and stylization in the

number of votes cast for political parties.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 


By its judgment of 13 October 1999, on the proposal of the complainant –

the political party Democratic Union (Demokratická unie), filed

together with a constitutional complaint for the annul of part of § 85

second sentence of Act no. 247/1995 Coll., on Elections to the

Parliament of the Czech Republic and Amending and Supplementing Certain

Other Acts,3) which reads: " ,which received in elections at least 3 %

of the total number of valid votes,", the Constitutional Court in the

Plenum, decided as follows:

The part of § 85 second

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

Czech Republic and Amending and Supplementing Certain Other Acts, which

reads: "which acquired in elections at least three per cent of the total

number of valid votes", is annulled.

 


REASONING


 


I.
 

The

complainant, i.e. the political party the Democratic Union

(Demokratická unie), filed a constitutional complaint against a decision

of the Ministry of Finance of the CR on non-payment of a contribution

to cover election expenses of the Democratic Union in the amount of CZK

7,778,790. The Ministry of Finance announced its decision to the

Democratic Union by letter of 19 August 1998, with reference to part of §

85 of Act no. 247/1995 Coll.,3) introducing a threshold for payment of

the contribution, of three per cent of votes obtained from the total

number of valid votes cast in elections. Under § 85 of Act no. 247/1995

Coll., on Elections to the Parliament of the Czech Republic (the

“Election Act”), the Ministry of Finance of the Czech Republic is the

body authorized to pay political parties a contribution to cover

election expenses, in the amount of CZK 90 for each valid vote cast. In

view of the fact that in this case payment of the election contribution

to cover election expenses was refused with reference to provisions of

the Act, the Democratic Union joined to its constitutional complaint a

proposal to annul a part of § 85 of the cited Act,3) through application

of which the circumstance arose which is the subject of the

constitutional complaint.

The Democratic Union sees in the

decision of the Ministry of Finance a violation of Article 22 of the

Charter of Fundamental Rights and Freedoms,2) specifically interference

by a public body in the free competition of political forces in a

democratic society. According to the constitutional complaint, if every

valid vote cast in elections is subsidized by an amount of CZK 90 for

the appropriate political party, then any further conditions for paying

this amount are interference in the free competition of political

forces, as they thus create unequal conditions for political parties‘

activities. This inequality of conditions is also further multiplied by

the duty of competing political parties to pay a deposit in the amount

of CZK 1,6 million. If certain parties then do not get this deposit

back, nor receive a contribution for election expenses for each vote

cast, there is economic discrimination by the state against newly

arising political parties, whereby they are disadvantaged against

established parties, which is in direct conflict with Article 5 of the

Constitution of the Czech Republic,1) under which the political system

is based on free competition of political parties. According to the

Democratic Union, by this procedure the state requires a newly created

political party to cross the three per cent threshold in the first

elections after its creation, without any state financial resources, in

competition with parties amply financed by the state. In addition, the

constitutional complaint also sees clear discrimination from the point

of view of a citizen, because the state has decided that one vote will

have the value of CZK 90 and another will not. Finally, the

constitutional complaint points to the fact that it is not possible to

merely announce protection of political rights, and subsequently use

economic instruments to perform the exact opposite. If truly free

competition of political forces is to be preserved, this amount must

also be paid for every vote cast, without further restrictive

conditions.
 


II.


The statement of the Chamber of Deputies of the Parliament of the Czech

Republic, as a party to the proceedings, primarily objects that under

Article 87 par. 1 letter j) of the Constitution and § 73 par. 1 of Act

no. 182/1993 Coll., on the Constitutional Court, a political party may

submit its proposal to the Constitutional Court only in the event of its

dissolution of another decision by a public organ which affects its

activities. According to the statement, current legal regulations do not

recognize any other legal grounds for giving standing to a political

party in proceedings under § 72 et seq. of the Act on the Constitutional

Court.
 
In view of the objection of inadequate standing for a

political party in proceedings under § 72 of the Act on the

Constitutional Court, the Constitutional Court first had to review this

reservation. After considering it, it concluded that the arguments of

the Chamber of Deputies are based on an erroneous interpretation of the

law, and are therefore not justified. Under § 72 par. 1 letter a) of the

Act on the Constitutional Court, a constitutional complaint may be

filed by both a natural person or legal entity under Article 87 par. 1

letter d) of the Constitution, against a decision which has gone into

legal effect or other interference by a public body in constitutionally

guaranteed rights and freedoms. A political party, which is a subject of

rights and obligations as such, i.e. as an organization, is

unquestionably also a legal entity.

The provision about the

range of persons authorized to file a constitutional complaint is not

affected but only supplemented by § 73 of the Act on the Constitutional

Court, which governs the special case of dissolution of a political

party or another decision by the state power which concerns the

activities of a political party, e.g. a decision to refuse registration

of a political party, or suspending the activities of a political party

under § 14 of the Act on Association in Political Parties and Political

Movements, no. 424/1991 Coll., as amended by later regulations, i.e.

matters about which the Supreme Court of the CR generally decides on the

proposal of the government. In the case of § 73 a political party may

file a “proposal” under Article 87 par. 1 letter j) of the Constitution,

if it objects that a decision concerning its activities is not in

accordance with constitutional or other laws. This does not restrict the

right of a political party to also file, in addition to proposals under

§ 73, constitutional complaints under the conditions of § 72 of the Act

on the Constitutional Court.

The Constitutional Court also

considered the objection of the Ministry of Finance, which does not

consider its announcement to be a decision of a state administration

body. It stated that the argument that the announcement of the Ministry

of Finance is not a formal decision of an administrative body will not

hold. Under § 20a of the Act on Association in Political Parties and

Movements, no. 424/1991 Coll., the Ministry of Finance pays the

contribution at the request of a political party or movement. In this

case, there is in fact rejection of a filed request, i.e. taking a

position. In the Constitutional Court‘s opinion, in this case it is not

so significant whether there was a formal substantive rejection of an

application or simply a “measure” or “other interference by a public

body”. The fact remains that there was a negative reaction by a public

body to a submitted claim, although with the reference that a provision

of the law does not, in this case, permit payment of an election

contribution.
 


III.


After considering all the circumstances of the case, the Constitutional

Court concluded that the proposal to annul that part of § 85 of the

Election Act3) which conditions a state contribution for a party‘s

election expenses on obtaining at least three per cent of the total

number of valid votes is justified.

The Constitutional Court‘s

position is based on considering the basic question, the relationship

between two conflicting aspects of election competition between

political parties. The first of them is the requirement of free election

competition of political parties under equal conditions providing

political parties and equal chance in elections, and leading to such

composition of the elected body, as best reflects the actual

differentiation of the political will of voters. The second requirement

is the legislative body‘s ability to make decisions on the basis of

formation of a political majority, i.e. to be not only a nominal

legislative body, but also a functioning one. In countries with a

relatively fragmented spectrum of political parties the principle of

purposeful integration thus conflicts with the principle of natural

differentiation, because the need for creation of a political majority,

capable both of forming a government and of performing legislative

activity, is also in the nature of a constitutional state. Both these

requirements must be observed in a sensitive and balanced manner in the

overall legal regulation of all elements of the election process and in

regulating the status of political parties. Therefore, in terms of a

representative democracy, it is permissible to include integrative

stimuli in legal regulation where – and only where – there are serious

reasons for it, in particular on the assumption that fragmentation of

votes among a large number of political parties would lead to unbridled

“overpopulation” of political parties, and thereby to endangerment of

the functionality and ability to act, as well as the continuity of the

parliamentary system. After bad experiences with excessive fragmentation

of the parliamentary spectrum, European countries which apply a system

of proportional representation in elections also largely implemented

integrative stimuli, particularly restrictive clauses, generally of five

per cent. Such integrative interference by the legislature is generally

considered constitutionally legitimate if it is implemented in an

extent absolutely necessary for formation of the political will of the

people, necessary for making decisions in the elected body, and if these

adaptations, as a whole, do not excessively distort the actual picture

of the political will of the voters expressed by their votes, because in

case of conflict of these two requirements, the principle of free

competition between political parties enjoys higher constitutional

protection (Article 5 of the Constitution,1) Article 22 of the Charger

of the Fundamental Rights and Freedoms)2).

The Constitutional

Court has already concerned itself with integrative stimuli,

particularly in two cases. The first (Pl. ÚS 25/96) concerned the 5%

restrictive clause. The Constitutional Court then declared this clause

to be constitutional, and found that a certain restriction of

differentiation when dividing mandates is permissible if there is

minimum interference which permits the creation of the chamber of

deputies capable of performing its constitutional functions.
 

The second case was an application to cancel election deposits (Pl. ÚS

3/96), which was supported by a majority of the Constitutional Court

judges, but not a two-thirds majority, so it was denied. That case

concerned the cancellation of the duty of each of party or coalition in

the chamber of deputies to  link a deposit of CZK 200,000 in every

election district in which it took part in the elections, and the

returnability of this amount was tied to receiving at least 5 % of votes

in the elections. As a consequence of this, this integrative stimulus

also remained in effect, which imposes on even small parties the

obligation to pay CZK 1,600,000 as a deposit for their participation in

elections in all districts, with the provision that they use this

amount, if they do not receive at least 5 % of votes in the elections (§

35 par. 4 of the Election Act).

Both the 5% restrictive clause

and this measure are justified by the need to provide excessive

differentiation of the political spectrum and the existence of numerous

small political parties. Section 85 of the Election Act3) is based on

basically the same grounds; it tights payment on the election

contribution in the amount of CZK 90 for every vote cast for party or

coalition to the condition of acquiring least 3 % of the total number of

all votes cast.

Another reason for these restrictions is a

fear of recurring self-serving activities by parties, linked primarily

at acquiring state funds and increasing visibility of their candidates

for reasons other than election reasons (e.g. gaining personal

popularity, for reasons of company or business activities etc.).

The contribution for payment of election expenses, as provided in § 85

of the Election Act,3) is not, in and on itself, anything exceptional in

European Union countries. Easier conditions for a payment of an

election contribution are in effect in Germany, France, Italy and

Denmark. Belgium and Spain condition the payment on receiving a

parliamentary mandate; Greece on acquiring 3 % of votes in an election

and on the party having candidates in at least two thirds of districts,

Luxembourg on acquiring at least 5 % in the relevant district, and Great

Britain, Ireland, the Netherlands and Portugal do not have direct

financing of political parties by the state at all. In this regard the

treatment of the Czech Election Act is not outside the European average.

However, the Constitutional Court believes that objective evaluation of

the Democratic Union application requires not only isolated evaluation

of the contribution for payment of election expenses itself, but

evaluation of it in the aggregate resulting effect of all these factors

in our election system.

It is necessary to conceptually

distinguish the function of the 5% restrictive clause from election

deposits and the contribution for payment of election expenses. The

restrictive 5% clause has its effect directly and primarily in the

system of dividing mandates between individual political parties, i.e.

only after voters have finished voting, and its effect on the entry of

political parties into elections and on their participation in elections

is only indirect, i.e. mediated by the consideration whether a party‘s

chance of obtaining representation in the Parliament is or is not

realistic. Although this consideration may deter certain parties from

participating in elections, their freedom to participate in elections

and compete with others in elections is not directly restricted by it.

In contrast, election deposits are primarily interference not in

division of mandates, but directly sort of “in advance” in the freedom

of entering elections and participation in elections, and clearly have

an a priori effect on equality of chances in elections, by tying payment

of CZK 1,600,000 which parties pay in advance for their full

participation in elections, on the acquisition of at least 5 % of votes

on a nation-wide scale.

In the Czech Republic, this “a priori

integration tool”, is also directly joined by restricting the

contribution for payment of election expenses, which by its nature

restricts small political parties by another, subsequent financial

advantage in comparison with parties represented in the parliament.

Thus, in the Czech Republic there is accumulation of economic barriers

to develop participation of small parties in elections which has no

analogy in any of the European Union countries with a proportional

representation election system. These countries do not have even an

indication of election deposits. Although election deposits do not

exist, the very limit for providing contributions for payment of

election expenses is also evaluated critically. Thus, for example in

Germany, the level of 2,5 % of votes acquired is found to be

unconstitutional by the Federal Constitutional Court, and in the new

wording of §18 of the Act on Political Parties was lowered to 0,5 % for

federal and 1 % of votes for state elections. In its decision

(Entscheidungen volume no. 24, p. 300, 339 n.) the Federal

Constitutional Court declared that although the legislature may make

payment of an election contribution dependent on acquiring a certain

minimum number of votes, it found to be limit of 2,5 % unconstitutional,

as it is in conflict with the principle of equal chances for political

parties in elections. Democracy is, in its foundations, aimed against

privileges, therefore, in 1975, in a different matter, the same

Constitutional Court found that “everyone should exercise his

state-civil rights in terms of the form and manner with a maximum level

of equality” and that „everyone must have an equal chance to become a

member of Parliament, without regard to social differences, particularly

his origin, nationality, education or property“ (ibid., volume 40, p.

317 – 318).
 
The principle of free competition between political

parties conceptually includes the obligation of the state to observe

equal opportunity of these parties in terms of legal regulation of

conditions of competition and treatment of entitlements for its

participants, as this is basically application of the general principle

of equality, guaranteed by both constitutional and international acts.

Any interference by the legislature in these conditions is interference

by the state, and should be governed by the public interest. A

percentage restriction for payment of the contribution for payment of

election expenses of political parties may not be the product of will or

suitability evaluated only from the point of view of the interest of

established parties.

Therefore, it is true for the Czech

Republic as well, that the legislature, when regulating the field of

creation of political will, must respect the fact that in this field it

is given particularly narrow bounds, and it is denied any differentiated

treatment of parties which is not based on exceptional serious grounds.

In this regard we can point to the conclusion of the Federal

Constitutional Court of Germany that: “when paying expenses for election

competition, in which all parties which participated in the election

competition must be taken into account, setting a minimum share of votes

cannot be justified by pointing to the fact that the elections are

supposed to create functional parliaments” (Entscheidungen, volume 24,

p. 341). In the Czech Republic as well the criterion for this treatment

must be different. This is not a tool of further integration, but simply

determining whether proposals and programs submitted to election are

meant seriously, whether they are oriented exclusively at success in

elections and not at other aims. A purpose of an election contribution

may not be restricting freedom of election competition, but securing its

dignity. For example, the German Federal Constitutional Court expressly

found that 0,5 % of votes is sufficient as proof of the seriousness of

efforts in the election competition, and makes verification by other

criteria unnecessary. The lower the threshold of election success, the

more it is likely that election success matches the political

significance of the party.  

If modern representative democracy

takes into account the functionality of the parliamentary system and to a

limited extent accepts the integrative stimulus into a system of

dividing mandates, this does not mean that integrative points of view

may take precedence before the principle of free and fundamentally

unrestricted election competition among election parties. Their free

competition is a direct expression of the pluralistic nature of a

democratic society, and it is precisely protection of pluralism in

political life which has primary significance for the very existence of a

democratic society. That is why it is distinctively protected by

Article 5 of the Constitution1) and Article 22 of the Charter of

Fundamental Rights and Freedoms.2) Any direct or indirect restriction of

the equality of parties in election competition may not individually or

cumulatively, in provisions which differentiate the detriment or

advantages a particular party, a priori suppress the very participation

of political parties in election competition. The accumulation of

financial support for only certain parties is, in its consequences, also

an accumulation of de facto financial sanctions for other parties.

Therefore, it is necessary to consider carefully whether the purpose of

such measures has not been exceeded. This purpose must be only the

seriousness of the efforts of the competing parties, which is not aimed

at goals other than participation in political representation and

promotion of their own program in it. In a representative democracy,

integrative stimuli are permissible in a limited extent only after the

end of the process of free competition between legally equal political

parties, i.e., after adding the votes for the parties, in a certain

differentiation in dividing mandates, not, however, by a priori

financial stimulation of certain parties and disadvantaging of other

parties, as this would lead to modification and stylization in a number

of votes cast for political parties.

In 1990 the French Conseil

Constitutionnel (decision no. 89-271 DC) also declared tying an

election contribution to acquiring more than 5% of votes in individual

districts to be unconstitutional and contrary to the principle of

equality, so that at present half of the total amount of election

contributions is divided proportionally between parties according to the

number of members of Parliament, but the second half is divided among

all parties who took part in elections, proportionally according to the

number of votes received, without setting a percentage limit. In Denmark

receiving 1 000 votes cast in the last parliamentary elections is

sufficient to receive a contribution.

In its judgment on

financing of political parties (file no. Pl. ÚS 26/94), the

Constitutional Court recognized the permissibility of a state financial

contribution to political parties, in view of their irreplaceable

functions in the constitutional form of government in a representative

democracy. The Constitution of the Czech Republic in Article 51) is

based on the idea that the formation of political will and the formation

of state power are the result of free competition of political parties

within a democratic legal state. The result of this competition is a

certain political profile of the elected bodies of state power.

Therefore, interference by state bodies back into the life of political

parties is not desirable when they could restrict free and unrestricted

competition of parties. Likewise, Article 22 of the Charter of

Fundamental Rights and Freedoms2) provides that statutory treatment of

all political rights and freedoms and its interpretation and use must

permit and protect free competition of political parties in a democratic

society.

At the present time material stimuli exist for

elections to the chamber of deputies of the Parliament of the CR which

institute abstention from elections by small parties which must, through

non-returnable election deposits, “pay” the state for the fact that

they do not reach the limits set at 5 % of valid cast votes, and thus

also pay a kind of “fine” in the amount of CZK 1,600,000 for their mere

participation in election competition. In addition, however, there is a

number of restrictions, which completely eliminate financial claims in

the opposite direction, i.e., claims of political parties toward the

state, despite the fact that these parties perform their role in

election competition in the general interest, just like parties

established in Parliament. However, those parties, in addition to the

contribution for the payment of election expenses, enjoy a number of

material advantages: they are entitled to a permanent contribution to a

political party or movement, a minimum of CZK 3,000,000 each year, if

they receive at least 3 % of votes (§ 20 par. 4 and par. 6 of the Act on

Association of Political Parties and Movements). This amount is

increased annually by CZK 100,000 for each additional tenth of a percent

of votes or part of a tenth of a percent of votes. They are also

entitled to a contribution for each individual mandate under par. 7 of

the same provision in the amount of CZK 500,000 per mandate, and

finally, they receive financial compensation from the state in

connection with performance of parliamentary functions and activities of

the parliamentary club. In contrast, in Germany for example, there is

only an election contribution paid to all parties which receive at least

0,5 % of votes.

The accumulation of a number of financial

burdens on small parties (and thus financial advantages for larger

parties) is presently so extensive that there is a priori “suffocation”

of these small parties which do not have sufficient financial resources

to conduct an election campaign and pay deposits. With awareness of

that, potential voters for these parties in actual voting turn their

votes otherwise if “their” party does not have enough funds to make

itself visible in competition with others. The higher the limit for

small parties, the less number of votes cast for them express their true

significance and the weaker the reliability of election results.

However, voters’ votes are supposed to be an expression of free decision

in free competition among parties and the integrative factor is

supposed to have an effect only after completion of free election

competition.    

The disproportionate accumulation of material

sanctions has contra-productive consequences, as it afflicts only those

democratic political parties which do not have a large number of

abandoned sponsorship gifts at their disposal and for whom the

accumulation of financial sanctions makes it impossible to conduct an

appropriate election campaign or enter the election competition at all.

On the other hand, other, also small political parties may have at their

disposal sufficient financial means from influential sponsors which

connect them to political promotion of their own interests.

In

view of all those circumstances, the Constitutional Court reached the

conclusion that tying the contribution for payment of election expenses

to receiving at least 3 % of the total number of valid votes in

elections to the chamber of deputies of the Parliament of the CR, by its

extent and particularly in view of other restrictions which afflict

political parties which obtain less than 5 or 3 % respectively of votes,

exceeds the necessary extent for determining the seriousness of

election intentions of parties and interferes in the equality of

opportunity of political parties in election competition. Given the

aggregate financial burdens, participation in elections becomes, for

some of them, a luxury which is impossible to finance.

Therefore, the Constitutional Court cancelled the relevant provision on

the Election Act with effect as of the promulgation of the judgment, due

to conflict with Article 5 of the Constitution of the Czech Republic1)

and with Article 22 of the Charter of Fundamental Rights and Freedoms.2)

It is a matter for the consideration of the Parliament of the Czech

Republic whether, for elections to the chamber of deputies, given the

existence of election deposits, a certain limit should be maintained –

let us say around 1 % - of votes received as evidence of the seriousness

of election intentions of parties and thus also a condition for payment

of the contribution to cover election expenses.

The first Panel

of the Constitutional Court shall decide on the constitutional

complaint itself, consisting of the request of the Democratic Union for

payment of the contribution to cover election expenses in the amount of

CZK 7,778,790, raised in connection with the last elections to the

chamber of deputies, held in 1998, as soon as this judgment of the

Constitutional Court´s Plenum becomes enforceable.


 


Pl. US 30/98
Overview of the most important related legal regulations

1.  

   Article 5 of Act No. 1/1993 Coll., the Constitution of the CR

provides, that the political system is based on the free and voluntary

formation of and free competition among those political parties which

respect the fundamental democratic principles and which renounce force

as a means of promoting their interests.

2.    Article 22 of Act

No. 2 /1993 Coll., which introduces the Charter of Fundamental Rights

and Freedoms, provides that the 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.  

 Section 85 of Act No. 247/1995 Coll., on elections to the Parliament of

the CR and amending and supplementing certain other acts, as amended by

later regulations, provides that the contribution to cover election

expenses is provided only for the results of elections to the chamber of

deputies, and a political party or coalition will receive CZK 90 from

the state budget for each individual vote cast provided it will acquire

at least three per cent of the total number of valid votes in elections.

(Note: The condition that a political party or coalition has to acquire

at least 3 % of the total number of valid votes for purposes of payment

of the contribution was cancelled by amendment of the Election Act No.

243/1999 Coll.)