2001/01/24 - Pl. ÚS 42/00: Elections Act

24 January 2001

HEADNOTES
 
The process

of differentiation can fulfill its basic function as a driving force

and a creative element in historical development and progress only if it

is implemented on the field of a continuum between extreme tendencies,

the functional tension of which rules out taking extreme positions.

Therefore, the model also used in political practice, “proportional

representation,” can and must make a series of concessions to the

principle of integration, but this can only happen on a particular

segment of the continuum, when it remains “turned” to its ideal type, in

other words, when there is a tendency to at least approach this type in

its basic aspects. However, in the opinion of the Constitutional Court,

in this particular case, i.e. in the matter at hand, increasing the

number of election regions to 35 (§ 27 first sentence),1) setting the

lowest number of mandates in the region to 4 (§ 48 par. 4)2) and the

method of calculating shares and allocating a mandate with the modified

d’Hondt formula (§ 50 par. 1, 2, 3)4) in its aggregate represents a

concentration of integration elements which result in abandoning the

continuum, still capable of registering at least a turning to the model

of proportional representation. Thus, if the constitutional assembly

decided to apply proportional representation to elections to the Chamber

of Deputies, then even while respecting integrationist stimuli and the

emphasis laid on the functionality of the democratic political system it

is necessary at the same time to observe the need to reflect the will

of the highest possible number of voters.
 
If the country’s

political system is based (among other things) on the free competition

of political parties respecting the democratic organization of the

state, then constitutionally there are no other barriers which could

(should) prevent political parties from participating in electoral

competition, all the more so if these parties, as was already stated,

have already gone through the filter provided by the Act on Association

in Political Parties and political Movements (Act no. 424/1991 Coll.).

Therefore election deposits too are a preventive a priori measure, which

a limine restricts free competition, and, in addition, financial levers

which do not belong in elections.

If the fact is taken into

account that the contested provision, § 85 third sentence of Act no.

247/1995 Coll., as amended by later regulations,6) decreased the amount

of payment for each vote cast from CZK 90 to CZK 30, the Constitutional

Court believes that even lowering the threshold from three percent to

two percent can not, in the context of all the relevant circumstances,

change anything about the justification of the conclusion stated in the

Constitutional Court’s previous judgment, that the cited provision is

(even after it was amended) in conflict with Art. 5 of the Constitution

of the CR 7) and Art. 22 of the Charter, 8) which judgment was evidently

not respected by the legislature.

However, concerning the

contested provision of § 49 par. 1 let. b), c), d), par. 3 let. b), c),

d) of the Election Act,3) it must be emphasized that the Constitution of

the CR contains no express provision about the formation of coalitions,

that it is governed only by 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. The Constitution of the CR enshrines

in Art. 57) the principle of free competition among political parties;

the Charter, in Art. 228) uses the term “political forces”. The

legislature, in setting the level of the closing clause for coalitions

of political parties or political movements, basically applies the

method of adding the 5 percent allocated to each individual political

party or political movement, which it does not abandon until the case of

a coalition of more than 4 political parties or political movements, as

the closing clause for 4 and more of these parties or movements is

always a maximum of 20 percent of the total number of valid votes. In

the Constitutional Court’s opinion, the possibility that this provision

is self-serving can not be ruled out, as the legislature, if it

regulates the ability to form election coalitions at all, as a rule,

should simultaneously aim to create conditions for a certain mitigation

of the 5 % threshold for parties that are capable of entering into a

coalition with others, so that in this regard allowing election

coalitions in the amendment of the Election Act without a simultaneous

mitigation of the conditions for their participation in the distribution

of mandates appears to lack purpose; however, the existence of this

possible self-servingness in the legislature’s intent can scarcely lead

to a conclusion that it was unconstitutional.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE REPUBLIC

 


The Constitutional Court, in the Plenum, decided on 24 January 2001 in

the matter of the petition from the President of the Czech Republic for

annulment of the provisions of § 27 first sentence,1) § 48 par. 4,2) §

49 par. 1 let. b), c), d) and par. 3 let. b), c), d),3) § 50 par. 1, 2

and 34) and Appendices no. 1 and 2 of Act no. 247/1995 Coll., on

Elections to the Parliament of the Czech Republic and Amending and

Supplementing Certain Other Acts, as amended by later regulations (the

“Election Act”), and the proposal from a group of senators of the

Parliament of the CR, for annulment of the provisions of § 31 par. 45)

and § 85 third sentence of the Election Act6) with the participation of

1) the Chamber of Deputies of the Parliament of the CR, 2) the Senate of

the Parliament of the CR, as parties to the proceedings, and a group of

senators of the Parliament of the CR, also as a secondary party, as

follows:

The provisions of § 27 first sentence,1) § 31 par. 4,5)

§ 48 par. 4,2) § 50 par. 1, 2, 3,4) § 85 third sentence6) and

Appendices no. 1 and 2 of Act no. 247/1995 Coll., on Elections to the

Parliament of the Czech Republic and Amending and Supplementing Certain

Other Acts, as amended by later regulations, are annulled as of the day

this decision is promulgated in the Collection of Laws.
 

On

the day this decision is promulgated in the Collection of Laws, the

Decree of the Ministry of Finance no. 268/2000 Coll., which sets more

detailed conditions for the manner of making and returning a deposit in

connection with elections to the Parliament of the Czech Republic, also

ceases to be valid, in the parts of the provisions concerning the

deposit for elections to the Chamber of Deputies.
 

The

proposal for annulment of the provisions of § 49 par. 1 let. b), c),

d), par. 3 let. b), c), d)3) of Act no. 247/1995 Coll., Elections to the

Parliament of the Czech Republic and Amending and Supplementing Certain

Other Acts, as amended by later regulations, is denied.
 



REASONING

I.
 

On

17 July 2000 The Constitutional Court received a proposal from the

President of the Czech Republic for annulment of the provisions of

provisions of § 27 first sentence,1) § 48 par. 4,2) § 50 par. 1, 2 and

34) and Appendices no. 1 and 2 of the Election Act due to conflict with

Art. 18 par. 1 Of the Constitution of the CR and for the annulment of

the provisions of § 49 par. 1 let. b), c), d) and par. 3 let. b), c),

d)3) of the Election Act due to conflict with Art. 5 of the Constitution

of the CR7) and Art. 228) of the Charter of Fundamental Rights and

Freedoms (the “Charter”).

The proposal states that § 27 first

sentence of the election Act1) creates 35 election regions for elections

to the Chamber of Deputies, which, in comparison with the situation

before the last amendment of the Election Act (8 election regions) is a

considerable increases in their number. Meanwhile, it is precisely the

number of election regions which is a fundamental element of the

election system, influencing the quality of the projection of the

proportion of votes cast in the shares held by individual political

entities in the allocated mandates. The number of election regions

established determines the number of mandates allocated in individual

regions, and the more mandates are distributed in a given district, the

more the given system is “proportional”. As a result of this provision,

on the one hand the election system diverges in the opposite direction

toward a majority system, and on the other hand, apart from the

statutorily set closing clause, a “natural” closing clause is created,

which will be, for a candidate entity within a region, at least over 10 %

of valid votes necessary to obtain a mandate. The complainant doubts

that this distortion of proportionality is reasonable and justified in

relation to the specified objective, i.e. the creation of a stable

government.

Concerning § 50 par. 1, 2 and 34) the proposal

states that it governs the method of calculating mandates from votes

obtained and that the chosen method is a modification of the classical

d´Hondt system of an election divisor, from which it differs in the

initial divisor, instead of the number 1, the number 1.42. This leads to

a deformation of the system, which even more distinctly gives an

advantage to stronger political entities, which already have an

advantage to a certain extent anyway. The absence of any kind of

justification for introducing a divisor of 1.42 casts doubt upon the

appropriateness of the interference in the proportionality of the

election system.

According to the complainant these fundamental

changes of the basic elements of the election system, due to their

complexity, cross the acceptable limits, in which it is possible to

deviate from the principles of the proportional representation system

without it losing its constitutional character. The complainant is also

led to conclude that deformation of the proportionality of the election

system exists by the case law of the Constitutional Court in matters of

the Election Act. In connection with reviewing the constitutionality of

the five percent closing clause (decision no. 88/1997 Coll.) and the

requirement of a 3 % threshold of votes obtained for the provision of a

contribution to cover election expenses (decision no. 243/1999 Coll.)

the Constitutional Court reached significant legal conclusions and

evaluations concerning the balance of the principle of natural

differentiation, which is part of the proportional system, and the

principle of purposeful integration, which is meant to be part of the

system only in a limited extent, necessary to ensure the functionality

of the elected body. The complainant believes that the cited provisions,

unilaterally giving an advantage to strong political entities, grossly

interfered with the balance of these principles in the election system.

Because the first sentence of § 27 of the Election Act1) is directly

tied to Appendix no. 1, containing the list of election regions for

elections to the Chamber of Deputies, stating their capital cities, and

Appendix no. 2, which sets the maximum number of candidates on candidate

lists, annulment of these is also proposed.

Concerning § 48

par. 4 of the Election Act,2) which provides at least 4 mandates in an

election region regardless of the number of participating voters in the

region, the complainant states that given minimal voter participation a

voter in such a region will have a “stronger” vote than voters in other

regions, where the number of elected deputies is calculated under § 48

par. 1 to 3 of the Election Act, using the national mandate number,

which is in conflict with the principle of equality of voting rights

under Article 18 par. 1 of the Constitution of the CR,9) which requires

not only that each voter have at his disposal the same number of votes,

but also that each vote have the same weight, i.e. that one mandate

receive approximately the same number of votes.

According to the

complainant, as a result of § 49 par. 1 let. b), c), d) and par. 3 let.

b), c), d) of the Election Act3), a considerable increase of the closing

clause results from introducing a calculation model according to the

number of coalition members. This can lead to discouraging stronger

political parties from associating with weaker coalition partners out of

concern that they will not jointly cross the thus raised threshold for

entry into the Parliament, or the effect of the change may discourage

voters from voting for a coalition, particularly if a more numerous one

is established. Thus, in the complainant’s opinion, the new provisions

for the entry of coalition election entities into the Chamber of

deputies in a constitutionally unacceptable manner restricts the free

competition of political parties enshrined in Art. 5 of the Constitution

of the CR7) and Art. 22 of the Charter.8)
 


II.
 

The

Chamber of Deputies of the Parliament of the CR stated in its position

that the new statutory regulation of the number of election regions

reflects the principle of proportional representation, because, under

the new regulation too, mandates are distributed on the basis of the

candidate lists of political parties, political movements, or their

coalitions, according to the number of votes received. The constitution

leaves the legislature relatively wide authorization to determined in

the Election Act both the number and size of election districts, and the

election technique through which the votes cast are converted into

mandates. The Constitutional Court also reasoned this way in decision

no. 88/1997 Coll., when it stated that building certain integration

stimuli into the election mechanism is permissible where serious reasons

for doing so exist. Therefore, the Election Act may also limit the

principle of proportional representation by “closing clauses,” which are

to prevent the existence in the Chamber of Deputies of too large a

number of political parties with a very low number of mandates. The

existing method of converting votes to mandates considerably hinders the

activity of the Chamber of Deputies, and for several years has markedly

complicated the creation of a stable majority government. Increasing

the number of election regions is a modification of the existing system

which, however, does not cross the line between a proportional and a

majority system, is in accordance with Art. 18 par. 1 of the

Constitution of the CR,9) and by strengthening the relationship between

the voter and the deputy, is also in accordance with the requirement

that elected deputies reflect and express the will of their voters as

faithfully as possible.

A position on the proposal was also

stated by the Senate of the Parliament of the Czech republic, which

emphasized in its position that the proposed changes do lead to

strengthening larger political parties, but on the other hand do not in

any way restrict the right of smaller political parties to take part in

elections and, based on their results, obtain representation in the

Chamber of Deputies, which means that the principle of free competition

between political parties guaranteed in Art. 5 of the Constitution of

the CR7) remains preserved.

A position on the proposal was

stated, at the invitation of the Constitutional Court, by the Ministry

of the Interior, which stated in its position that the d´Hondt method is

without any doubt traditionally classed among methods of the

proportional representation system, and its application in the Act thus

can not be in conflict with the Constitution, which provides the

principle of proportional representation for elections to the Chamber of

Deputies. Therefore, the new regulation of the number of election

regions also can not be in conflict with the Constitution, because the

distribution of mandates will take place according to the principle of

proportional representation, nor can the introduction of the initial

divisor of 1.42, because it is merely a modification of the d´Hondt

method, but fully within the framework of proportional representation.

The Ministry of the Interior is of the opinion that the Act as passed is

not in conflict with the principle of the free competition of political

parties and does not conflict with Art. 22 of the Charter.8)
 


III.
 

On

1 September 2000 the Constitutional Court received a proposal from a

group of 33 senators of the Senate of the Parliament of the CR for

annulment of § 27 first sentence,1) § 48 par. 4,2) § 50 par. 1, 2 and

34) and Appendices nos. 1 and 2 of the Election Act, § 31 par. 4,5)  §

49 par. 1 let. b), c) and d) and par. 3 let. b), c) and d)3) and § 85

third sentence6) due to conflict with provisions of the Constitution of

the CR and the Charter.

The proposal states that the amendment

of the Election Act results in fundamental change revision of voting

rights in the Czech Republic, as there are substantial changes to the

organization of elections, the manner of exercising voting rights, and

primarily individual components of the election system, so as to meet

the political order of two political parties which have a narrow

majority in Parliament, which might be acceptable under certain

circumstances, if this procedure did not affect the Constitutionally

defined principles of elections and the political system and did not

restrict subjective voting rights. The concept of proportional

representation is generally understood to mean that the elections will

proportionally transfer to Parliament a political distribution which

corresponds to how voters voted, and the result of such elections is

usually a parliament with several political parties and a coalition

government. However, the group of senators if of the opinion that the

Election Act, in terms of its factual fulfillment, does not correspond

to this principle. The election formula, particularly the high first

divisor, combined with the large number of election districts with a

small number of mandates will cause disproportional results of elections

comparable to a single-round majority election system, which is not

only in conflict with Art. 5 of the Constitution of the CR7) and Art. 22

of the charter,8) but in its results also an indirect amendment to the

Constitution through a procedure not corresponding to the prescribed

regime for amending the Constitution, as well as a violation of the

principle of two chambers in parliament, as election according to the

principles of proportional representation is prescribed for the Chamber

of Deputies and election according to the principles of a majority

system is prescribed for the Senate.
 


V.
 

The

Constitutional Court, under § 68 par. 2 pf Act no. 182/1993 Coll., on

the Constitutional Court, reviewed whether Act no. 204/2000 Coll., which

amended the Election Act, Act no. 99/1963 Coll., the Civil Procedure

Code, as amended by later regulations, and Act no. 2/1969 Coll., on

Establishment of Ministries and Other Central Bodies of State

Administration of the Czech Republic, as amended by later regulations,

which, among other things, amended the Election Act in the contested

provisions, was passed within the limits of Constitutionally prescribed

competence and in a Constitutionally prescribed manner.

The

Constitutional Court states that the Act was passed and issued within

the limits of the competence prescribed by the Constitution of the CR

and in a Constitutionally prescribed manner.



VI.
 

Because

the proposal from the president of the republic preceded the proposal

from the group of senators, the Constitutional Court denied the

senators’ proposal in the part which was identical with the proposal

from the president of the republic, by decision of 19 September 2000,

file no. Pl. ÚS 42/2000-39, as amended by the corrected decision of 23

October 2000, file no. Pl. ÚS 42/2000-47, under § 43 par. 2 let. b) and §

43 par. 1 let. e) of Act no. 182/1993 Coll., on the Constitutional

Court, as amended by Act no. 77/1998 Coll., on the grounds of being

barred by a pending matter, with the provision that the group of

senators has the right to take part in the proceedings on the previously

submitted proposal as a subsidiary party (§ 35 par. 2 second sentence

after the semi-colon of the Act on the Constitutional Court).The

Constitutional Court by decision of 19 September  2000, file no Pl. ÚS

42/2000-34, in the interests of efficiency of the proceedings under § 63

of the Act on the Constitutional Court and under § 112 of the Civil

Procedure Code, combined the rest of the proposal, i.e. concerning § 31

par. 45) and § 85 third sentence of the Election Act,6)for joint

discussion and decision.
 


VII.
 

1)  

 The provisions of § 27 first sentence, § 48 par. 4, § 49 par. 1 let.

b), c) and d), par. 3 let. b), c) and d), § 50 par. 1, 2 and 3 of Act

no. 247/1995 Coll., as amended by later regulations

§ 27 first sentence:

For elections to the Chamber of Deputies, 35 election regions are

created in the territory of the Czech Republic; election regions are

provided in Appendix no. 1 to this Act.

§ 48 par. 4:
The

lowest number of mandates in an election region is 4. If an election

region is allocated fewer than 4 mandates, the missing number of

mandates is progressively allocated from election regions which have the

smallest division remainders. If remainders are equal, the decision is

made by drawing lots.

§ 49 par. 1 let. b), c) and d), par. 3 let. b), c) and d):
§ 49:
par. 1:
 

On the basis of a record of the election results 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,
let. b):
which coalitions, composed of 2 political parties or political movements, received less than 10 percent
let. c):
which coalitions, composed of 3 political parties or political movements, received less than 15 percent
let. d):
which

coalitions, composed of at least 4 or more political parties or

political movements, received less than  20 percent of the total number

of valid votes.
 

Par. 3:

If the Czech Statistical Office determines that at least 2 coalitions or

1 coalition and 1 political party or political movement or 2 political

parties or political movements have not advanced into the scrutiny, it

shall lower
let. b):
for a coalition under par. 1 let. b) the 10 percent threshold to a 6 percent threshold
let. c)
for a coalition under par. 1 let. c) the 15 percent threshold to an 8 percent threshold
let. d):
for a coalition under par. 1 let. d) the 20 percent threshold to a 10 percent threshold.
 

§ 50 par. 1, 2, 3:

Par. 1:

The number of valid votes for each of the political parties, political

movements and coalitions which advanced into the scrutiny is within each

election regions successively divided by 1.42, 2 and 3 and then each

time by a number that is greater by 1. As many shares as there are

candidates on the election ballot are calculated, but not counting

candidates who gave up their candidacy after the registration of the

candidate list or were recalled under § 36. The values of the shares are

calculated and stated rounded up to two decimal places.
 

Par.2:

All shares calculated under par. 1 are listed in decreasing order of

size and a list is provided of as many shares as were allocated to the

election region under § 48. If 2 or more shares in this series are

equal, the order is decided by the number of votes for the political

party, political movement or coalition in the election region, and if

that is identical, the order of the share is decided by drawing lots.

The political party, political movement or coalition which achieved the

share is stated along with the size of the share.

Par. 3:
A

political party, political movement or coalition is allocated 1 mandate

for each share contained in the list under paragraph 2.

Under

Art. 18 par. 1 of the Constitution of the CR9) elections to the Chamber

of Deputies are conducted by secret voting on the basis of a general,

equal and direct voting right, on the principle of proportional

representation. As provided in Art. 18 par. 2 of the Constitution of the

CR,9) elections to the Senate are conducted by secret voting on the

basis of a general, equal and direct voting right, on the principles of

the majority system. This indicates that our Constitution distinguishes

between “proportional representation” and the “majority system”.

Although Art. 20 of the Constitution of the CR10) provides that a

statute shall provide further conditions for the exercise of voting

rights, organization of elections and the extent of judicial review, it

is beyond any doubt that this can occur only within the limits and

thresholds of the two institutions provided. Here, for greater clarity,

the Constitutional Court considers it necessary to state that the

proportional and majority principles are two different principles of

political representation, striving to find a solution for the age-old

problem of democratic systems arising from the tension between the

pretended government of all the people and the need to ensure optimum

functioning of the system. While the advantages of majority

representation include, among other things, that it prevents

fragmentation of parties and, on the contrary, supports their

concentration and the creation of a stable government and permits voters

to directly decide which political party should form a government

instead of leaving this decision to coalition negotiations after

elections, the advantages of proportional representation include, among

other things, that it permits maximum representation of all opinions and

interests in parliament, prevents excessive political majorities and

supports the formation of a majority on the basis of negotiation and

compromise. Both basic election systems produce the effects ascribed to

them only under certain social and political conditions, and therefore

specific social and political conditions existing in various countries

must be taken into account in evaluating these effects.

In this

introductory part it is also necessary to emphasize that every social

concept is, precisely by its social nature, subject to a process of

differentiation. So, for example, views of what can be understood under

the concept of democracy differ in a number of cases to such a degree

that they are completely divergent. Therefore, the concept of

“proportional representation” also can not be connected to attributes

such as absolute certainty or single definability, but, on the contrary,

it must be understood and interpreted in connection with the

unavoidability of the process of constant change, with oscillation on

various parts of a smooth continuum, and therefore with the mere

possibility of approaching one or another polar position. If we place

the subsequently stated mere possibility of approximating an ideally

typical model of proportional representation in relation to the process

of differentiation and integration, then what the Constitutional Court

stated in its decision file no. Pl. ÚS 25/96 (č. 88/1997 Coll.) seems

quite evident, i.e. that a certain restriction of differentiation in

distributing mandates is unavoidable, and therefore admissible. The

purpose of voting is indisputably differentiation of the electorate.

However, the aim of elections is not merely expressing the political

will of individual voters and obtaining only a differentiated mirror

image of the opinions and political positions of voters. Because the

people also exercise the state power – primarily through the Parliament

of the CR – and because exercise of state power presupposes the ability

to make decisions, elections and the election system must also bear in

mind the ability to make such decisions based on the will of the

majority. The consequential proportional image of the results of voting

in the composition of the chamber of deputies could create political

representation split into a large number of small groups with diverse

interests, which would considerably hinder the formation of a majority

or make it completely impossible. Thus, in the stage of the election

process in which mandates are distributed, the principle of

differentiation comes into conflict with the principle of integration,

because elections should create a chamber of deputies whose composition

permits the creation of a political majority which is capable of forming

a government and the performing the legislative activity for which the

Constitution authorizes it. Therefore, in terms of the principle of

representative democracy, it is admissible to build into the election

mechanism itself certain integrationist stimuli where serious reasons

for this exist, in particularly on the assumption that an unlimited

proportional assembly would resulting in fragmenting votes between a

large number of political parties, in unlimited “over-multiplication” of

political parties, and thus in endangering the functionality and

ability to act, as well as the continuity of the parliamentary system.

In this fact lies the admissibility of the existence of a restricting

clause, conditioned, however, in every case on serious reasons and in

the stage of rising thresholds justifiable on by especially intense

seriousness. The increasing of thresholds in the restrictive clause

cannot be unlimited, so for example the 10 % clause can already be

considered intervention in the proportional system which endangers its

democratic substance.

In the adjudicated matter the

Constitutional Court adds to the cited decision that it is very well

aware of the complexity of social and political events in which

structuring society is provoked by the effects of decentralizing,

differentiating social forces, which, however, do not represent the only

constituent in the social process, but are always noticeable only in an

antinomic position toward all “centralizing” integrationist

manifestations. Likewise, these “centralizing” integrative elements, if

they became the only factor in social development, would, by their

pressure toward integration and cooperation, would finally annul all

social structures and would thus bring human society to the form of an

unmoving monolith, so on the contrary disproportional domination of

“decentralizing”, differentiationist forces would transform human events

into a whirl of statements eliminating any kind of communication, not

even capable of an indication of structural composition. Thus, the very

basis of the structural principle contains a polarly and co-relatively

based substratum, preventing, on the one hand, a disproportional

diffusion of structures, but on the other hand also achieving a

disproportional degree of integration. The process of differentiation

can thus fulfill its basic function of a driving force and a formative

element of historical development and progress only if it is implemented

in a continuum between extreme tendencies, whose functional tension

rules out taking extreme positions. Thus, the model of “proportional

representation” used in political practice can, and also must, make a

number of concessions to the principle of integration, but this can only

happen in a certain section of the continuum, where it remains “turned”

to its ideal type, in other words, where it manifests tendencies to at

least approximate this type in its fundamental aspects. However, in the

opinion of the Constitutional Court, in this specific case, i.e. in the

adjudicated matter, increasing the number of election regions to 35 (§

27 first sentence),1) setting the minimum number of mandates in a region

at 4 (§ 48 par. 4)2) and the method of calculating shares and

allocating mandates using a modified d´Hondt formula (§ 50 par. 1, 2,

3)4) in the aggregate represents a concentration of integrationist

elements whose results lead to abandoning the continuum which would be

capable of registering at least a “turning” to the model of proportional

representation.

To reach this conclusion the Constitutional

Court naturally does not have at its disposal any of the means of exact

measuring and research, often typical for the natural sciences, and it

is therefore, just as with social concepts and events in general, left

more to means such as comparison, classification, evaluation, etc,

However, such means can also be reliable sources of information,

particularly because in these cases it is not a question of capturing a

particular static point, but the overall dynamic appearing on a certain

continuum, trends. In this regard, starting with the report from the

Czech Statistical Office of 28 November 2000, ref. no. 1694/2000, by

comparing the results of elections to the Chamber of Deputies in 1998

with the results calculated under the amendment of the Election Act one

can conclude that in elections regions numbering 35 there would be a

marked raising of the entry threshold enabling the acquisition of at

least 1 mandate. The smallest increase of this natural closing clause

would take place in the election regions Liberec (10.49 %) and Brno –

city (10,78 %), which the greatest increase would take place in the

election regions Ostrava – city (17.67 %), Ústí nad Labem (18.74 %) and

Teplice (18.87 %). On average, as far as individual elections regions

are concerned, this natural closing clause is 14.69 %. All this leads

the Constitutional Court to the conclusion that the amendment of the

Election Act in the provisions of § 27 first sentence1) and § 50 par. 1,

2 and 3,4) concerning the number of election regions and the election

divisor, as well as § 48 par. 4,2) introducing the minimum number of

mandates in a region at 4 – which is in conflict with the principle of

equality of voting rights enshrined in Art. 18 par. 1 of the

Constitution of the CR9), introduces into the election process for

elections to the Chamber of Deputies, as far as proportional

representation is concerned, more than elements of proportional

representation, elements which, in the aggregate, are a kind of hybrid,

but the Constitution of the CR does not presume such a hybrid, as it

distinguishes only proportional representation and the majority system.

If the will of voters in the proportional representation system becomes

irrelevant in a scope ranging in individual regions from 10.49 % to

18.87 %, thus on average 14.69 %, then, in the opinion of the

Constitutional Court, this fact evidently testifies to casting doubt on

the will of the sovereign. If the legislature decided, as far as

elections to the Chamber of Deputies are concerned, to apply

proportional representation, then even if respecting the integrationist

stimuli and the emphasis laid on the functionality of the democratic

political system it is necessary at the same time to observe the need to

reflect the will of the highest possible number of voters. Thus,

however the data obtained from the Czech Statistical Office may

certainly appear in many ways disputable in this regard, e.g. because in

elections in 1998 the voter could reflect the effects of a different

legal regulation, in the opinion of the Constitutional Court, despite

the possible disputability, they are basically quite evident testimony

of the existence of the already discussed basic trends toward a

dysfunctional and inadmissible hypertrohpy of integrationist elements in

the system of proportional representation, evident testimony not only

because in any elections a similar situation can not at a minimum be

eliminated, but also because integrationist trends are markedly

multiplied by the modified d´Hondt system, expressed in this case by the

election divisor of 1.42. The determining element in the proportional

representation system is the size of election districts, so that as, on

the one hand, the larger the district, the more the election results

approach the principle of proportionality on the other hand, the small

the election district, the more markedly the cited result becomes

distant from that principle. Moreover, it is also quite evident that

Art. 18 of the Constitution of the CR9) has in mind precisely the global

effect of proportional representation models, that is, the election of

the Chamber of Deputies according to principles of proportional

representation as a whole. If the legislature had a different effect in

mind, it would have to formulate Art. 18 of the Constitution of the CR9)

not globally (“elections to the Chamber of Deputies are held ...

according to principles of proportional representation”), but it would

have to expressly state this intent, e.g. like the Spanish constitution

in Art. 63 with the formulation that elections are held in each

(individual) election district according to the proportional

representation system. In this way the Spanish constitution clearly

expressed the particularization of the effect of proportional

representation for purposes of combining proportional and majority

elements in distributing mandates in individual districts, but the

Constitution of the CR does not contain such a provision.

In

addition, just for comparison, it is necessary to state that the

Bavarian constitutional court deliberated analogously in its decision of

24 April 1992, ref. no. Vf. 5-V-92, in which it stated, among other

things, that it is not a conflict with the fundamental right of election

equality if there is distribution of parliamentary seats allocated to

an election district under Art. 23 par. 1 second sentence of LWG and now

divided into 7 election districts. However, such a provision on

distribution must be oriented toward the higher principle of the most

identical possible value of the success of each election vote with the

aim of achieving a composition of the Land Assembly according to

proportional distribution of places in the entire country. If several

calculation methods are available for the distribution of seats within

an election district, the legislature must choose a method which

approaches this aim as much as possible. The separate application of the

d´Hondt method of the highest number in distributing the mandatory

share of seats may lead, in individual election districts, to

disadvantaging small parties in the entire country and to a result which

is not compatible with the fundamental right of election equality. The

distribution of parliamentary mandates must mirror as precisely as

possible the relative strength of parties represented in the Land

Assembly according to the number of votes cast for them in the entire

country, and therefore there should not be a deviation for any party of

more than 1 seat. In the adjudicated matter, the Constitutional Court

adds to this that the election divisor beginning, under § 50 par. 1 of

the Election Act, with the number 1.42 multiplies this deviation so that

for individual parties it is several times the cited one seat.

Therefore, for all the cited reasons the provisions cited in point 1 of

§ 27 first sentence,1) § 48 par. 4,2) § 50 par. 1, 2 and 3,4) and the

related Appendices no. 1 and 2 of Act no. 247/1995 Coll., as amended by

later regulations, are in conflict with Art. 1,10) Art. 5 of the

Constitution of the CR7) and Art. 22 of the Charter of Fundamental

Rights and Freedoms,8) Art. 9 par. 2 of the Constitution of the CR,11)

as well as Art. 18 par. 1 of the Constitution of the CR.9)

However, concerning the contested § 49 par. 1 let. b), c) and d) and

par. 3 let. b), c), d),3) it must be emphasized that the Constitution of

the CR contains no express provisions about the formation of

coalitions; that is governed by 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. The Constitution of the CR

enshrines in Art. 57) the principle of free competition between

political parties; the Charter, in Art. 228), uses the term “political

forces”. In setting the level of the closing clause for coalitions of

political parties or political movements, the legislature basically

applies the method of adding the 5 percent allocated to each individual

political party or political movement, which it abandons on the in the

case of a coalition of more than 4 political parties or political

movements, as the closing clause for 4 and more of these parties or

movements is always at most 20 percent of the total number of valid

votes. In the opinion of the Constitutional Court the possibility that

this provision is self serving can not be ruled out, as the legislature,

if it regulates the ability to form an election coalition at all, as a

rule should simultaneously also aim to create conditions for a certain

mitigation of the 5 % threshold for parties which are capable of

entering into a coalition with others – so in this regard allowing

election coalitions in the amendment to the Election Act without a

simultaneous mitigation of conditions for the participation in mandates

appears to be senseless, the existence of this possible self-servingness

in the legislature’s intent can nevertheless hardly lead to a

conclusion that it is unconstitutional. So, e.g., the German Federal

Republic, in § 27 of its election law (Bundeswahlgesetz-BWG, as in

effect on 20 April 1998) does not allow the possibility of forming

election coalitions, as parties may take part in elections only

individually. The Austrian election law of 1992 (Nationalrats

Wahlordnung Nr 471/1992) also requires distinct identification of a

party (§ 43), and the law indicates, that in practice this means a

political party. The gaining of mandates by coalitions is not expressly

regulated in this law. Election coalitions are also not regulated in the

Republic of Hungary or in the Netherlands, where candidate lists are

submitted by political parties. In Estonia, where political parties used

the possibility of forming coalitions to overcome the 5 percent closing

clause for the next round of allocating mandates and when in Parliament

immediately divided and formed independent parliamentary factions, this

led to amendment of the law on elections and a ban on election

coalitions. In contrast, for example in the Polish Republic, candidate

lists may also be submitted by election coalitions, and there is no

restriction at all for the number of entities associated in a coalition.

The closing clause for an election coalition is 8 percent. In the

Slovak Republic, amendment 223/1999 Coll. introduced a closing clause of

10 percent for 4 and more parties.

The foregoing brief review

of the legislative regulation of election coalitions in other states

thus indicates that these states variously reflect one or the other

aspect of the self-servingness of the problem, in other words, that they

leave the resolution to the legislature, which is naturally bound at

least by the level of the closing clause for 1 political party.

Therefore, in view of the undisputed existence of the variety of these

purposes, pursued by individual political forces, in the opinion of the

Constitutional Court this contested provision can hardly be considered

unconstitutional.


2)    § 31 par. 4 of Act no. 247/1995 Coll., as amended by later regulations5)

A political party, political movement or coalition shall attach to the

candidate list confirmation of payment of a deposit of CZK 40,000. A

deposit is paid in all election regions in which the political party,

political movement or coalition submits a candidate list, to a special

account which the District Office in the region’s capital city shall

open with the Czech National Bank no later than 72 days before election

day. The District Office in the capital city in the region shall return

the paid deposit to the political party, political movement or coalition

within 1 month after election results are announced if the political

party, political movement or coalition advanced to the scrutiny (§

49).3) Interest on the deposit and amounts which are not returned are

income of the state budget.

The Constitutional Court already

considered the question of election deposits in connection with the then

valid § 35 of the Election Act12) in its negative decision file no. Pl.

ÚS 3/96, published under no. 161/1996 Coll. The cited decision was, in

the manner it was adopted, borderline, and it is precisely in such

cases, reflecting a difference of opinion, it can be considered

completely natural and in no way outside the constitutional framework,

if after the passage of more than 4.5 years the matter may appear in a

somewhat different light, particularly if during that time social

changes have occurred, e.g. characterized by strong pressure in the

direction of integrationist stimuli. What appears relevant to the

Constitutional Court at present is precisely what was stated in the

dissenting opinions of several judges to the cited decision. Primarily

this is the basic opinion that this provision is in conflict with the

Constitution of the CR and the Charter, as it is the duty of the state

to enable parties which were legally registered to take part in

elections to Parliament and ensure full implementation of Art. 5 of the

Constitution of the CR.7) Setting a deposit introduces a priori

discrimination by making it impossible, through the introduction of

property (financial) conditions, for some parties to take part in

elections which are the decisive and most watched stage for the

competition of political parties, and demonstrate the degree of voter

support. The conditions for registration of political entities are given

by statute, and in the period before elections it is not possible from a

legal aspect to construct deliberations about the representativeness of

parties. A party’s ability to fully participate in the competition of

political forces would be verified only in the registration process

under Act no. 424/1991 Coll., on Association in Political Parties and

Political Movements, as amended by later regulations. The degree of

representativeness is then express in elections and their results.

Effective integrationist stimuli in proportional representation systems

are based on so-called “restrictive” clauses, which have the advantage

that they do not restrict the principle of free competition between

political parties in elections and are applied only in the stage of

distributing mandates, i.e. after the free competition has ended and the

results of voting have been determined. In contrast, election deposits

are a preventive and a priori measure which restricts free competition

"a limine", and in addition, financial levers which do not belong in

elections. Moreover, the purpose and function of election deposits have

their specific differences in the proportional representation system

used for elections to the Chamber of Deputies and different ones in

connection with the majority system used for elections to the Senate.

These specific features are tied to the different characteristics of the

two election systems, the first of which is based primarily on the

principle of choice and differentiation and on the basic value criterion

of proportional representation of political forces vis a vis the number

of votes received by them, while the second emphasizes the importance

of election differentiation as a starting point for political

integration to the benefit of the majority expressed. In view of this,

experience from abroad, from countries which apply the proportional

representation system and rely on the five percent restrictive clause,

do not support the introduction of election deposits, or even hint at

them. As an example, we can cite states such as Belgium, Denmark,

Germany, Switzerland, Sweden, Norway, Finland Span, Portugal and others

which do not have election deposits. This absence of election deposits

in proportional representation systems is no coincidence, but is a

logical result of the overall function of this type of election

mechanism in a system of representative democracy.

In addition,

the amount of money prescribed by the Act is, in conflict with the

generally understood meaning, as well as the administratively

established concept, described as a deposit, although in the given case,

in the relationship political party – state, it is evidently not a

deposit. The essential requirements of a deposit include primarily a

certain (generally contractual) legal relationship on one side and a

sufficiently clearly expressed duty (obligation) on the other side,

where there must be, on the side of the obligated party, an objective

and realistic ability to fulfill the obligation arising from the

contractual (or analogous) legal relationship so that, e.g., in the area

of public law (exercise of public power) the state (an office) “by

imposing the deposit did not make its task easier at the cost of the

citizens". The “deposit” imposed by the contested Act does not meet

either of these basic conditions. First of all, in the considered

circumstances, there is no legal relationship (even less a contractual

one) between a political party (coalition) and the state, because –

considered according to constitutional aspects – it is among the primary

duties of the state to create, in selecting its political

representation, such conditions for political parties as enable them to

reach the constitutionally presupposed aim. In contrast – by order of

the Constitution of the Czech republic – political parties are basically

given a single duty, that in their efforts to gain a share in the state

power they respect “fundamental democratic principles and reject force

as a means for promotion their aims " (Art. 5 of the Constitution of the

CR).7) In other words, if the Czech Republic’s political system is

founded (among other things) on the free competition of political

parties respecting the democratic organization of the state, then

constitutionally there are no other barriers which could (should) hinder

political parties in taking part in the electoral combat, all the more

so if these parties, as was already stated, have already gone through

the filter given by the Act on Association in Political Parties and

Political Movements (Act no. 424/1991 Coll.).

Therefore, in the

opinion of the Constitutional Court, § 31 par. 4 of Act no. 247/1995

Coll.5) is in conflict with the constitutional order of the Czech

Republic, specifically with Art. 5 of the Constitution of the CR and

Art. 22 of the Charter.


3)    § 85 third sentence of Act no. 247/1995 Coll., as amended by later regulations6)

A political party, political movement or coalition which received at

least 2 percent of the total number of valid votes will be paid CZK 30

from the state budget for each vote received. In this case as well the

Constitutional Court discussed an analogous matter in its decision file

no. Pl. ÚS 30/98, published under no. 243/1999 Coll. The Constitutional

Court decided in view of the then valid wording of § 85, under which a

political party, political movement or coalition which received at least

three percent of the total number of valid votes, will receive CZK 90

from the state budget for each vote received. Even a cursory comparison

of the previously valid and amended wording points primarily to the fact

that there was a marked decrease in the state contribution provided in

this connection. The Constitutional Court is aware that the

constitutionality of the above-mentioned provision was decided in a

situation where the Election Act contained election deposits, which,

however, were annulled in the adjudicated matter. However, in the cited

decision something was stated which can be considered relevant, that

although election deposits do not exist in European Union countries, the

threshold itself for providing a contribution to cover election costs

is critically evaluated. So, e.g. i Germany, the level of 2.5 % of votes

received was found unconstitutional by the Federal Constitutional Court

and a new wording of § 18 of the Act on Political Parties reduced it to

0.5 % for federal and 1 % of votes for land elections. The Federal

Constitutional Court declared in its decision (Entscheidungen, vol. 24,

p. 300, 339 n.) that the legislature may make the payment of an election

contribution dependent on receiving a certain minimal number of votes,

but it described the threshold of 2.5 % as unconstitutional, as it is in

conflict with the principle of equal election opportunities of

political parties. The principle of free competition of political

parties conceptually includes the obligation of the state to respect the

equality of parties’ chances from the point of view of legal regulation

of the conditions of the competition and regulation of entitlements for

its participants, as this is basically application of the general

principle of equality, guaranteed by both constitutional and

international acts. A percentage restriction for payment of a

contribution to cover the election expenses of political parties may not

be the product of arbitrary will or suitability evaluated only from the

point of view of the interests of established parties. Therefore, it

also applies to the Czech Republic that the legislature must, when

making regulations in the area of formation of political will, respect

the fact that in this field it has been given especially narrow

boundaries and that it is denied any differentiated treatment of parties

which is not based on an exceptionally serious grounds. The purpose of

an election contribution may not be a restriction on free electoral

competition, but must ensure its seriousness. It is not an instrument

for further integration, but simply a determination of whether the

proposals and programs submitted for election are intended seriously,

whether they are oriented exclusively toward election success and not

toward other aims. The Federal Constitutional Court of Germany, for

example, expressly stated that a 0.5 % share of votes as proof of

serious efforts in the election competition is sufficient and makes

verification by other criteria unnecessary. In view of these and other

circumstances the Constitutional Court in its previous decision reached

the conclusion that tying the contribution for covering election

expenses to obtaining at least three percent of the total number of

valid votes in elections to the Chamber of Deputies of the Parliament of

the CR, in its scope, and also particularly in view of other

restrictions which affect political parties that received less than

five, or three, percent of votes, exceeds the degree necessary to

determine the seriousness of parties’ election intentions and interferes

in the equality of opportunity of political parties in election

competition. In this aggregate of financial burdens for some of them

participation in elections becomes a financially impossible luxury. In

conclusion the Constitutional Court emphasized that it is a matter for

the deliberation of the Parliament of the CR whether, for elections of

the Chamber of Deputies given the existence of election deposits, a

certain threshold should be retained, e.g. around 1 % of votes received

as proof of the seriousness of parties’ election intentions, and thereby

also a condition for payment of the contribution to cover election

expenses.

Thus, if we take into consideration the fact that the

contested provision reduced the amount of payment for each vote

received from CZK 90 to CZK 30, the Constitutional Court believes that

even lowering the threshold from three percent to two percent can, in

the context of all relevant circumstances, change anything about the

justifiability of the conclusion stated in the Constitutional Court’s

previous decision, that the cited provision is (even after it was

amended) in conflict with Art. 5 of the Constitution of the CR7) and

Art. 22 of the Charter, which decision was not respected by the

legislature.

Therefore, for all the state reasons, the

Constitutional Court annulled § 27 first sentence, § 48 par. 4,2) § 50

par. 1, 2, and 3,4) Appendices no. 1 and 2 of Act no. 247/1995 Coll., as

amended by later regulations, due to conflict with Art. 1,10) Art. 5 of

the Constitution of the CR,7) Art. 22 of the Charter,8) Art. 9 par.

211) and Art. 18 par. 1 of the Constitution of the CR,9) annulled § 31

par. 45) of the cited Act due to conflict with Art. 5 of the

Constitution of the CR and Art. 22 of the Charter, annulled § 85 third

sentence of the cited Act due to conflict with Art. 5 of the

Constitution of the CR and Art. 22 of the Charter, as of the day of

promulgation of the decision in the Collection of Laws, while otherwise,

concerning § 49 par. 1 let. b), c) and d) and par. 3 let. b), c) and d)

of the cited Act it denied the petition. In view of the fact that this

decision annulled § 31 par. 4 Act no. 247/1995 Coll., as amended by

later regulations, concerning the payment of election deposits, the

Constitutional Court decided under § 70 par. 3 of Act no. 182/1993

Coll., on the Constitutional Court, that by promulgation of the decision

in the Collection of Laws the decree of the Ministry of Finance of the

CR no. 268/2000 Coll., which sets more detailed conditions for the

manner of paying and returning a deposit in connection with holding

elections to the Parliament of the CR, also ceases to have effect, in

those parts of the provisions concerning deposits for elections to the

Chamber of Deputies.

The Constitutional Court is aware that,

with regard to the derogations performed, and also taking into account

the fact that some provisions of the amendment to the Act were to take

effect only as of 1 January 2002, a situation arises which, if difficult

interpretation disputes are to be avoided, requires the active work of

the legislators, i.e., in the spirit of the Constitutional Court’s

decision, making such adaptations to the Election Act which will permit

problem-free conduct of elections.

This decision is executable on the day of its promulgation in the Collection of Laws.

Decisions of the Constitutional Court cannot be appealed.


 



Pl. ÚS 42/2000
Dissenting opinion of judge JUDr. Ivana Janů

To the verdict of the decision

I agree with the majority opinion expressed in the 1st and 2nd

paragraphs of the verdict of the decision of the Constitutional Court in

the Plenum and with its reasoning.

My separate vote is directed

solely at the decision on the contested provision of § 49 par. 1 let.

b), c) and d) and par. 3 let. b), c) and d) of the Election Act,3) as

amended, which governs the formation of coalitions and conditions for

their participation in elections, which the majority opinion did not

find unconstitutional.

The reasoning for my dissenting opinion

is as follows: To start with, it is necessary to point out the mutual

interaction of the principles of differentiation and integration in

election systems. The five percent entry threshold as an integration

stimulus for a political party basically means that even if a party

received a number of votes which would be enough to receive one or more

mandates, it will not receive any mandate if it has not received an

aggregate of 5% of all votes cast in the elections.

It is a

matter of the legislature’s sovereign will, whether or not it recognizes

the creation of coalitions as a natural instrument of integration of

the formation of political will and the penetration of political

parties’ programs. However, if it recognizes coalitions, it is in

conflict with the principles of a state governed by the rule of law,

logic and fulfilling the purpose of the law for it to then negate the

indicated intention by another provision of the same law.

The

admissibility of coalitions in elections in a proportional

representation system generally manifests the will to mitigate the

artificially set threshold for entry to the parliament by small parties.

This measure mitigates for these parties their inability to overcome

the threshold of 5%, which is not a problem for large parties.

The case of a linear additive model, which the legislature selected in

the contested amendment, is a completely isolated regulation in the

world. Our degressive legal regulation before the amendment was quite

standard and logical, and this also exists in, e.g. Polish legislation,

which sets an entry threshold for coalitions of 8%, regardless of the

number of entities in the coalition.
 
The legal treatment before

the amendment set a 5% entry threshold for a political party, 7% for a

two-member coalition, 9% for a three-member coalition, and ended at 11%

for a coalition of four or more members. The legislature thus proved

that it understood the principle of proportional representation, into

which an integration threshold is artificially inserted in the interest

of integration, and therefore it gave small parties a chance to overcome

the five percent threshold, if they are able to associate in a

coalition.

In this regard one cannot overlook other facts, which the majority opinion does not reflect sufficiently clearly.
 

First, the constitutionality of most of the provisions of the contested

amended Election Act that were annulled by the decision was evaluated

in the context of mutual internal relationships, but in my opinion this

approach was abandoned in evaluation the constitutionality of § 49,3)

concerning coalitions, and the cited legal provision was evaluated in

isolation. That led to a simplified view of its constitutionality.
 

Further,

in 1996, when the Constitutional Court addressed the constitutionality

of the 5% integration clause (Pl. ÚS 25/96, in: Collection of Decisions

of the Constitutional Court ÚS, vol. 7, p. 251 et seq.), coalitions were

formed under advantageous conditions (see above: 7%, 9% and 11% ). The

new setting of integration thresholds (entry clauses) for coalitions by

the legislature, at 10%, 15% and 20%, was not found unconstitutional by

the majority opinion of the Constitutional Court in the Plenum. In my

opinion, the question arises whether the Constitutional Court did not

thereby cast doubt on the constitutionality of the five percent entry

threshold itself, in the sense of minimal interference in the equality

of the voting right, expressed in the cited earlier judgment and

confirmed by its current decision.

In that regard, the cited

decision (Pl. ÚS 25/96) stated, among other things, that the 5% limiting

clause causes a certain disproportion in the acquisition of mandates,

which affects small political parties. At the same time, however, it

justified the constitutionality of the 5% threshold by the need to limit

the number of parties which get into parliament, as elections are

supposed to produce a chamber of deputies whose composition makes

possible the formation of a political majority which is able to both

form a government and perform the legislative activity for which it is

authorized under the Constitution. The principle of minimizing state

interference in relation to the selected aim also applies to a

restrictive clause. Therefore, it is also necessary to interpret the

need of election restrictions in a restrictive manner.

Setting

the entry of a coalition to parliament at a multiple of the basic, i.e.

5% entry threshold for one political party, at 10 % and 15 %, as well as

the fact that the increase ends at 20 % for a four-member coalition and

is then zero, leads me to conclude that this is self-serving behavior

by the legislature, and does not testify that the assumptions on which

the legislature relied had a credible foundation, particularly in the

analysis of previous legal regulations.

In my opinion, this

approach denies the aim which is otherwise pursued by admitting

coalitions. The steps taken by the legislature unconstitutionally

affect, in particular, Art. 1, Art. 5 and Art. 18 par. 1 of the

Constitution, as well as Art. 22 of the Charter. Specifically, it does

not adequately materially protect the equality of the voting right of a

citizen which is implemented through the free competition of political

parties.

A state governed by the rule of law should not

knowingly produce laws which suffer from serious internal conflict and

do not respect the principle of proportionality and minimizing state

interference in the equality of the voting right in s proportional

representation system, as happened in the contested amendment.

Brno, 24 January 2001
 




Pl. US 42/2000
Overview of the most important legal regulations

1.  

 § 27 first sentence 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 35 elections regions are

created in the territory of the Czech Republic for elections; the

election regions are specified in Appendix no. 1 to this Act.
2.  

 § 48 par. 4 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 lowest number of mandates in an

election region is 4. If fewer than 4 mandates are allocated to an

election region, the number of missing mandates is progressively

allocated from election regions which have the smallest division

remainders. If the remainders are equal, the decision is made by drawing

lots.
3.    § 49 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: Par. 1: let. a) Based on 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 let.

b): which coalitions, composed of 2 political parties or political

movements, received less than 10 percent, let. c): which coalitions,

composed of 3 political parties or political movements, received less

than 15 percent let. d): which coalitions, composed of at least 4 and

more political parties or political movements received less than 20

percent of the total number of valid votes. Par. 3: let. a) If the Czech

Statistical Office determines that at least 2 coalitions or 1 coalition

and 1 political party or political movement or 2 political parties or

political movements do not advance into the scrutiny, It shall lower

let. b): for a coalition under par. 1 let. b) the threshold of 10

percent to a threshold of 6 percent let. c) for a coalition under par. 1

let. c) the threshold of 15 percent to a threshold of 8 percent let.

d): for a coalition under par. 1 let. d) the threshold of 20 percent to a

threshold of 10 percent.
4.    § 50 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, reads:
Par. 1:

The number of valid votes for each political party, political movement

and coalition which advanced into the scrutiny is, within the framework

of each election region, consecutively divided by the numbers 1.42; 2

and 3 and further each time by a number that is one higher. As many

shares are calculated as there are candidates on the voting ballot, but

candidates who gave up their candidacy after registration of the

candidate list or were recalled under § 36 are not counted. The values

of the shares are calculated and state rounded up to two decimal places.
Par.

2: All shares calculated under par. 1 are listed in descending order by

size and as many shares are stated in the list as there are mandates

allocated to the election region under § 48. If 2 or more shares are

equal in this list, for its purposes the number of votes for a political

party, political movement or coalition in the election region is

decisive for its order, and if that is identical, the order of the

shares shall be decided by drawing lots. The name of the political

party, political movement or coalition which attained the share is

stated along with the size of the share.
Par. 3: For each share in the list under paragraph 2 a political party, political movement or coalition is allocated 1 mandate.
5.  

 § 31 par. 4 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 a political party, political

movement or coalition shall attach to its candidate list confirmation of

payment of a deposit of CZK 40,000; this deposit is returned if the

political party, political movement or coalition advanced into the

scrutiny.
6.    § 85 third sentence 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 a

political party, political movement or coalition which received at least

2 percent of the total number of valid votes will be paid CZK 30 from

the state budget for each vote received.
7.    Article 5 of Act no.

1/1993 Coll., the Constitution of the CR, provides that the political

system is founded on the free and voluntary formation and free

competition of political parties which respect basic democratic

principles and reject force as a means for promoting their interests.
8.  

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

Fundamental Rights and Freedoms, provides that the statutory regulation

of all political rights and freedoms and its interpretation and use must

permit and protect the free competition of political forces in a

democratic society.
9.    Art. 18 of Act no. 1/1993 Coll., the

Constitution of the CR, provides in par. 1, that elections to the

Chamber of Deputies are held by secret ballot on the basis of a general,

equal and direct voting right, according to the principles of

proportional representation. Par. 2 provides that elections to the

Senate are held by secret ballot on the basis of a general, equal and

direct voting right, according to the principles of a majority system.
10.  

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

that the CR is a sovereign, unitary and democratic state based on the

rule of law, founded on respect for the rights and freedoms of the human

being and the citizen.
11.    Art. 9 par. 2 of Act no. 1/1993 Coll.,

the Constitution of the CR, provides that amendment of the essential

requirements of a democratic state is not permissible.
12.    § 35 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 the obligation of a political party or coalition

whose candidate list was registered in a region to pay a deposit; this

deposit is returned only if the party or coalition advanced to the first

scrutiny.