2005/01/19 - Pl. ÚS 10/03: Election Contribution

19 January 2005

HEADNOTES

The

basic criterion of constitutionality when setting the minimum threshold

for payment of a regular contribution for activities to a political

party consists of ensuring the openness of the political system – thus,

this threshold must be considerably lower than the closing clause in the

proportional system.

The purpose of state financing of political parties is to support equal

opportunity to participate in a pluralist democratic political system.

The individual forms of this financing pursue different aims, i.e. they

support different activities of the parties. The aim of paying for

election expenses is to permit parties which meet the condition of

“seriousness of effort of competing parties,” or “seriousness of

election intentions of parties” to participate in the electoral

competition. Whereas the Constitutional Court, in judgment file no. Pl.

ÚS 30/98, saw the threshold of this “seriousness” in obtaining “about

1%” of the total number of valid votes, the legislature set that

threshold in the valid legal regulation at 1.5%. The contribution per

seat won reflects the tasks of political parties which are related to

their legislative activities. The condition for providing it is being

elected in elections to the Chamber of Deputies or to the Senate (§ 20

par. 5 of Act no. 424/1991 Coll.), i.e. it applies only to parliamentary

political parties.

The regular contribution is a form of financing parliamentary and

non-parliamentary political parties. For that reason, a condition for

its constitutionality is ensuring the openness of the political system;

therefore, the threshold for providing it must be significantly lower

than the level of the closing clause of the proportional voting system. A

threshold of 3% of valid votes received in elections, i.e. a threshold

40% lower than the closing clause, can be considered such a

significantly lower threshold. If the statutory regulation of the

regular contribution meets the constitutional requirement of

guaranteeing the openness of the political system, then, in view of the

different function of the regular contribution for activities of parties

and payment of political parties’ election expenses, there are no

grounds for setting them at an equivalent level.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, after hearings on 19 January 2005,

decided on a petition from the petitioner SNK s. n., with its registered

office in T., represented by JUDr. D. D., attorney, seeking the

annulment of § 20 par. 4, 5 and 6, and in paragraph 7 of the words “per

deputy or senate seat is 900,000 CZK per year and” or possibly the

entire § 20 of Act no. 424/1991 Coll., on Association in Political

Parties and Political Movements, as amended by later regulations, filed

together with a constitutional complaint against another intervention by

a body of public authority – an official letter from the Ministry of

Finance file no. 143/133437/2002 of 9 December 2002 – as follows:

1.

The petition to annul § 20 par. 1, 2, 3, 5, 7 to 11 of Act no. 424/1991

Coll., on Association in  Political Parties and Political Movements, as

amended by later regulations, is denied.
2. The petition to annul §

20 par. 4 and § 20 par. 6 of Act no. 424/1991 Coll., on Association in

Political Parties and Political Movements, as amended by later

regulations, is denied.
 



REASONING


I.
 

In

its constitutional complaint, the petitioner, with reference to a

claimed violation of Art. 22 of the Charter of Fundamental Rights and

Freedoms (the “Charter”) and Art. 5 of the Constitution of the Czech

Republic seeks to have the Constitutional Court issue a finding which

would forbid the Ministry of Finance from continuing to violate its

right to payment of a regular contribution under § 20 of Act no.

424/1991 Coll., on Association in Political Parties and Political

Movements, as amended by later regulations (“Act no. 424/1991 Coll.”) in

the amount of 200,000 CZK for every 0.1% or part thereof of votes

received in elections to the Chamber of Deputies of the Parliament of

the Czech Republic.
 

In its

constitutional complaint, the petitioner stated, that, as a political

movement, it received a total of 2.78% of valid votes in elections to

the Chamber of Deputies of the Parliament of the Czech Republic in June

2002. Therefore, on 20 November 2002, it filed a request to the Ministry

of Finance for payment of a regular contribution under Act no. 424/1991

Coll.; the Ministry, however, rejected it in official letter file no.

143/133437/2002 of 9 December 2002, stating that the statutory condition

for payment of a regular contribution under § 20 par. 4 and par. 6 of

the cited Act had not been met, that is, that the political movement

Sdružení nezávislých [Association of Independents] did not receive at

least 3% of votes in elections to the Chamber of Deputies. In the

petitioner’s opinion the refusal to pay this regular contribution

amounts to a so-called “other” intervention by a body of public power,

which violated its fundamental rights regarding the question of its

active standing; concerning the filing of a constitutional complaint and

the general conditions for filing it, it then referred to the allegedly

analogous situation addressed in Constitutional Court judgment no.

243/1999 Coll. (Collection of Decisions of the Constitutional Court of

the Czech Republic, volume 16, judgment no. 137).
 

The

petitioner believes that the threshold for payment of a regular

contribution, 3% of votes received in elections to the Chamber of

Deputies, discriminates against smaller political parties (where the

term “political party” is used here, it is understood to also include a

political movement, unless the context indicates otherwise), although it

also stated that it is not evaluating whether the amount of the

contribution is appropriate. However, it considers unconstitutional in

particular the fact that a regular contribution is paid only to parties

which were relatively successful in the competition for seats in the

Chamber of Deputies, but is not paid to parties which are successful in

Senate, regional, or municipal elections. The petitioner attempted to

document the alleged inequality in conditions for political competition

by comparing its election results and those of the political part Unie

svobody-Demokratické unie [Freedom Union – Democratic Union “US-DEU”].

In this regard, it stated, among other things, that in elections to the

Chamber of Deputies, US-DEU, in a coalition with KDU-ČSL, received

14.41% of votes and 9 seats; however, in elections to the Senate US-DEU

only received a single seat, while the petitioner received two, and in

municipal elections US-DEU received 617 seats in all representative

bodies, while the petitioner received 3,131 seats. Upon comparing these

results, it is claimed that the fact that US-DEU receives 10 million CZK

a year in regular contributions, while the petitioner receives nothing,

cannot be upheld. The total state contributions to the petitioner in

2003 are allegedly 6,300,000 CZK and those to US-DEU 42 million CZK,

which, in the petitioner’s opinion, is in gross disproportion to the

election results. The petitioner does not hide the fact that payment of a

regular contribution of 200,000 CZK for every 0.1% of votes would

significantly improve its financial situation (as the amount of 5.6

million CZK per year for the 2.78% of votes it received approaches its

current state contribution of 6.3 million CZK, which the petitioner

receives for 2 senate seats and 18 seats in regional representative

bodies); however, the main motive for filing the petition is said to be

an effort to change the existing legal regulation of financing political

parties, which, in its opinion, provides too much taxpayer money to

parliamentary parties and disproportionately little or nothing at all to

other (non-parliamentary) parties and movements.
 

For

these reasons, the petitioner – in accordance with § 74 of Act no.

182/1993 Coll., on the Constitutional Court, as amended by later

regulations, (the “Act on the Constitutional Court”) – joined its

constitutional complaint with a petition to annul certain provisions of

Act no. 424/1991 Coll., specifically § 20 par. 4, 5 and 6 and in

paragraph 7 the words “for a deputy or senate seat shall be 900,000 CZK

per year and.” In the alternatively, it proposed that the Constitutional

Court annul the entire § 20 of the Act; it stated that by formulating

such a broad proposed judgment it “wishes to create room for the

Constitutional Court, in its discretion, to annul either the individual

provisions of § 20 or the entire regulation of financing of political

parties” and it “believes that the Constitutional Court will also be

sensitive in choosing when its derogative decision will go into effect,”

in particular because several parties and movements not represented in

the Chamber of Deputies are allegedly financially dependent on state

contributions allocated for seats in regional representative bodies.
 

In

its extensive petition, the petitioner finds the legal framework for

financing political parties to be unconstitutional particularly in the

following claims, into which it has divided its specific objections:

1.  

 contributions for a deputy or senate seat (i.e. in the amount of

900,000 CZK) are allegedly unjustifiably high; it also considers the

threshold for entitlement to a contribution “for votes” in elections to

the Chamber of Deputies under § 85 of Act no. 247/1995 Coll., on

Elections to the Parliament of the Czech Republic, as amended by later

regulations to be disproportionately high (in these cases its arguments

referred to Constitutional Court judgments no. 243/1999 Coll., no.

64/2001 Coll. and no. 98/2001 Coll.).
 

2.  

 Likewise, in the petitioner’s opinion, the threshold of 3% for

entitlement to payment of a regular contribution under § 20 par. 4 and

par. 6 of Act no. 424/1991 Coll. is unjustifiably high, and it considers

it unconstitutional that it is derived solely from the results of

elections to the Chamber of Deputies, as both houses of parliament have

legislative power. In this regard it gave a hypothetical example where a

party which would receive 2.9% of votes in elections to the Chamber of

Deputies, but would occupy all the Senate seats and receive the highest

number of seats in representative bodies of regions and municipalities,

would not be entitled to a contribution. A number of political parties

receive no support at all from the state, and yet these are not only

parties of negligible importance, but also parties which have existed

for a long time, although they have been unsuccessful in national

elections, or parties which see their role only at the municipal or

regional level, where they are quite successful (the petition cites

examples, including Strana pro otevřenou společnost [Party for an Open

Society], Volba pro město [Choice for the City], Demokratická regionální

strana [the Democratic Regional Party], Hnutí nezávislých za harmonický

rozvoj obcí a měst [Movement of Indpendents for Harmonious Development

of Municipalities and Cities], and others). The state does not even

reimburse these parties for expenses which it causes itself through its

requirements, such as preparation of an annual financial report and a

compulsory audit of financial statements. The petitioner concluded that

it does not see a solution for these issues merely in lowering the

threshold for entitlement for a regular contribution, but in “creating a

completely different structure,” which would ensure an appropriate

contribution for their activities to all parties, regardless of whether

they are involved in political competition at the parliamentary,

regional, or municipal level.
 

3.  

 In the petitioner’s opinion, it is also unconstitutional to condition

the contribution for a seat in a regional representative body on winning

at least one deputy or senate seat. A party which wins a number of

seats in regional representative bodies but has no deputy or senator is

thus not entitled to a contribution for the seat in the regional

representative body (note: although in fact the Ministry of Finance

allegedly does pay these contributions to parties which have no deputy

or senator). Finally, the petitioner protests against the fact that the

state pays contributions for votes received only in elections to the

Chamber of Deputies (100,- CZK per vote), or newly also in votes to the

European Parliament. However, no contributions are paid for votes

received in elections to the Senate, in elections to regional

representative bodies, or in elections to municipal representative

bodies. This again creates a marked advantage for parties which are

successful in elections to the Chamber of Deputies, which new parties or

parties which limit themselves to regional politics are disadvantaged.

The petitioner also stated that the allocation of contributions among

political parties does not correspond to the support which these parties

have in society; state contributions to political parties represented

in the Chamber of Deputies in 2003 allegedly exceed 95%, which

contributions to other parties are only 4.6%. Thus, parties that are not

represented in the Chamber of Deputies must obtain money practically

exclusively from private sources, “in a situation where it is precisely

the parliamentary parties … which caused the fact that financing

political parties, which is considered … a socially beneficially

activity in developed democratic countries … has in the Czech Republic

acquired the flavor” of a dubious activity. The total amount of state

contributions appears to the petitioner to be unjustified and markedly

in excess of parties’ expenses for participation in election contests

and the needs of financing their basic activities; the petitioner finds

no reason why even the most successful political party should receive

over 100 million CZK for its activities every year. Thus, according to

the petitioner, the entire statutory framework for financing political

parties is aimed at providing complete financial support of

parliamentary political parties from the state budget and blocking or at

least considerably limiting access to state contributions for

non-parliamentary political parties.
 

The

petition also considers unconstitutional the formulation of § 20 par. 8

of Act no. 424/1991 Coll., under which a contribution per seat for an

entire term of office goes only to a party on whose candidate list the

deputy, senator or member of regional representative body was elected.

Although the legislature’s aim was – according to the petitioner – a

legitimate attempt to prevent the entitlement to a state contribution

transferring to another party with a deputy, senator or representative

body member who changes to another party during a term of office;

however, this overlooked the fact that a change in party membership may

happen not only individually, but also collectively, through the merger

or parties. The legal framework, which penalizes those political parties

or movements which decided to integrate, thus restricts the free

competition of political forces.
 

The

petitioner closed its extensive arguments with its own specific

proposal for how to regulate the financing of political parties and

movements in order for it to be consistent with Art. 5 of the

Constitution and Art. 22 of the Charter. It claims this would be best

met by a system in which contributions for votes received in elections

to the Chamber of Deputies, the Senate, the European Parliament,

representative bodies of regions and representative bodies of

municipalities would be given to parties which participate seriously in

election competition, i.e. they receive more than a certain minimum

percentage of votes (e.g., for the Chamber of Deputies it proposes 0.5

to 1% of votes, for the Senate 4-6% of votes in a given electoral

district); minimum contributions would be paid to those parties which

proved their significance as organized political forces by a

sufficiently wide involvement in election competition (regardless of

result), and an increased contribution to those parties which, in

elections to all representative bodies, had proportionate success in at

least some regions. The total scope of state contributions to political

parties should not exceed 100 to 150 million CZK per year, because, in

the petitioner’s opinion, an amount of around 20 million CZK must be

sufficient for even the largest political party to cover all its

ordinary activities.
 


II.
 

By

resolution of panel I of the Constitutional Court of 5 May 2003, file

no. I. ÚS 59/03, proceedings on the constitutional complaint were

suspended under § 78 of the Act on the Constitutional Court, and the

petition to annul the abovementioned paragraphs of § 20 of Act no.

424/1991 Coll., or perhaps the entire provision, was referred to the

Plenum of the Constitutional Court for a decision under Art. 87 par. 1

let. a) of the Constitution of the Czech Republic.
 


III.
 

In

accordance with § 69 of the Act on the Constitutional Court, the Court

sent the petition to open proceedings to the parties to the proceedings –

the Chamber of Deputies and the Senate of the Parliament of the Czech

Republic.
 

The statement from

the Chamber of Deputies, signed by its Chairman, PhDr. L. Z., states,

regarding the point of the petition that seeks the annulment of § 20

par. 4 to 6 of Act no. 424/1991 Coll., that restricting political

parties in their participation in elections, in access to the media, in

freedom of speech, in the right of assembly, and so on, would certainly

be inconsistent with Art. 22 of the Charter. However, no such

restrictions are contained in the text of paragraphs 4 to 6 of the cited

Act. Concerning another point in the petition, seeking the annulment of

the part of the sentence in § 20 par. 7 concerning the amount of

contribution per seat (900,000 CZK), the Chamber of Deputies stated that

it was fully in the jurisdiction of the legislative body to set its

amount by statute. Before Act no. 424/1991 Coll., was amended by Act no.

170/2001 Coll., the amount of the contribution was 1,000,000 CZK; in

reducing it the legislature responded to the Constitutional Court

judgment published as no. 98/2001 Coll. Insofar as the amount of this

contribution was set at 500,000 CZK in 1991, 12 years later the current

level of the contribution is not something which should violate the

constitutional criteria of free competition of political forces and

which could generally be considered disproportionate. According to the

Chamber of Deputies’ statement, if the alternative proposal to annul the

entire § 20 of the Act were granted, political parties would be placed

on substantially the same level as civic associations created under the

Act on Association of Citizens. However, state participation in

financing political parties is standard in the laws of European

democratic states. Annulment of the cited provision would create a need

for immediate amendment of the law; according to the statement it is

difficult to imagine “not again taking into account an exact and just

criterion which divides political parties into those that have real

significance for political events in the state thanks to their voter

base and those that represent practically nobody and are thus

unsuccessful in elections, often repeatedly.” In the opinion of the

Chamber of Deputies, the fundamental rules of free competition of

political forces are really guaranteed in practice, and the legal order

in no way prevents the creation of new political entities and their

entry into Parliament, which depends only on the ability of these groups

to attract the necessary number of voters. A state contribution can

never replace this ability, or, on the contrary, inability. The

framework for financing political parties is necessary in the legal

order also in order to limit the existence of entities which would be

aimed primarily at obtaining state contributions without real influence

on political life in the Czech Republic. The Chamber of Deputies

concluded that the entire proposal from the political movement Sdružení

nezávislých [Association of Independents] is based on a simplified

thesis – which basically is not related in any way to Art. 22 of the

Charter – that without the existence of financial support for all

parties and movements by the state one can not have unrestricted and

free competition among them.
 

In

the statement from the Senate of the Parliament of the Czech Republic,

signed by its Chairman, Doc. JUDr. P. P., the Senate stated that, for

the proceedings on the petition to annul § 20 of Act no. 424/1991 Coll.,

the most significant discussions were those on the draft of Act no.

170/2001 Coll., on the National Bond Issue to Cover Obligations Arising

from the Treaty between the Government of the Czech Republic, the

Government of the Slovak Republic, and the Government of the Federal

Republic of Germany on Ending Mutual Accounting in Convertible Rubles

and Settling Mutual Obligations and Claims which Arose as a Balance of

Convertible Rubles to the Benefit of the Federal Republic of Germany,

Amending Act no. 407/2000 Coll., on the State Bond Issue for Partial

Compensation of Damages to Agricultural Entities Damaged by Drought in

2000, and Amending Act no. 424/1991 Coll., on Association in Political

Parties and Political Movements, as amended by later regulations (“Act

no. 170/2001 Coll.); the draft contained, among other things, a news

statutory framework for contributions for the activities of political

parties and movements, as a response to the Constitutional Court

judgment published as no. 98/2001 Coll., in which the Constitutional

Court annulled part of § 20 par. 4 and 7 of Act no. 424/1991 Coll. After

being passed by the Chamber of Deputies, the draft Act was passed on to

the Senate. In committee discussion on the draft Act it was stated that

this amendment of Act no. 424/1991 Coll. was, in this case,

non-systematically joined to text concerning the state bond program,

where delay in the approval process could have negative economic and

political effects. The Senate Constitutional Law Committee therefore

recommended returning the draft Act to the Chamber of Deputies with an

amending proposal, which limited the validity of the proposed amendment

only to the period to the end of 2001. The aim was to allow sufficient

time for Parliament, in the interim period, with knowledge of the

conclusions contained in the judgment of the Constitutional Court, to

prepare an amendment to the regulation for financing political parties

that would address the matter comprehensively, including contributions

for election expenses, regulated in § 85 of the Act on Elections to the

Parliament. However, another committee which reviewed the draft Act –

the Committee for the Economy, Agriculture and Transport- on the

contrary recommended that the Senate not discuss the draft, in

particular in view of the gravity and urgency of the existence of a

legal framework for the state bond program . In the end the Senate

expressed its will not to consider the draft act. The statement from the

Senate of the Parliament of the Czech Republic concludes by stating

that it leaves the decision on the constitutionality of the contested

statutory provisions to the consideration of the Constitutional Court.
 

The

statement from the Ministry of the Interior of the CR, which the

Constitutional Court also requested in this matter, states briefly that

the contested Act in no way violates equal conditions for the free

competition of political parties under Art. 5 of the Constitution and

Art. 22 of the Charter; the success of political entities is decided

primarily by the votes of voters, and not by financial contributions

from the state. The Ministry stated that the petitioner’s criticisms

concern an area of legal regulation which was reflected in the law based

on proposals from deputies, as the original version of the provision in

question anticipated only state contributions to cover for election

results.
 


IV.
 

The

Constitutional Court always first reviews whether all the necessary

procedural requirements have been met in order for it to consider the

merits of a petition to annul a statute or its individual provisions In

this case, it is evident from the petition that the petitioner basically

seeks revision of the entire current system of financing political

parties, not only parliamentary parties, but also on the regional or

municipal level, and that it is not contesting only the extensive § 20

of Act no. 424/1991 Coll., but that in the reasoning of the petition

(not the proposed judgment) it also protests against the regulation of

contributions to cover election expenses under Act no. 247/1995 Coll.,

on Elections to the Parliament of the Czech Republic. The same also

applies to the petitioner’s extensive presentation at a hearing (which

was also submitted to the Constitutional Court in written form).

However, the contested official letter from the Ministry of Finance of 9

December 2002 file no. 143/133 437/2002 indicates that the Ministry

refused to pay the petitioner a regular contribution with reference to §

20 par. 4, 6 of Act no. 424/1991 Coll., which ties entitlement for a

regular contribution to those parties which received 3% of votes in

elections to the Chamber of Deputies. Thus, the other contested

provisions, i.e. § 20 par. 1 to 3, 5, 7 to 11, were not directly applied

in any proceedings that preceded the filing of the constitutional

complaint, so, as far as they are concerned, the conditions under which a

petition to annul a statute (§ 74 of the Act on the Constitutional

Court) can be filed – together with a constitutional complaint – have

not been met. Therefore the Constitutional Court had no choice but to

deny this part of the petition as a petition filed by a person obviously

not entitled to do so[§ 43 par. 1 let. c) of the Act on the

Constitutional Court], which also applies to the alternative petition to

annul the entire § 20 of the Act.
 


V.
 

The

Constitutional Court then, in accordance with § 68 par. 2 of the Act on

the Constitutional Court considered the question of whether the statute

which is claimed to be unconstitutional was passed and issued within

the bounds of constitutionally provided jurisdiction and in a

constitutionally prescribed manner.
 

As

regards Act no. 424/1991 Coll., (in the original version), the

Constitutional Court did not examine whether it was passed and issued

within the bounds of constitutionally provided jurisdiction and in a

constitutionally prescribed manner, because with legal regulations

issued before the Constitution of the Czech Republic the Court is only

authorized to review whether they are substantively consistent with the

constitutional order at the time, but not whether the procedure by which

they were created is constitutional or whether norm-creating authority

was observed (cf. e.g., judgment file no. Pl. ÚS 9/99, Collection of

Decisions of the Constitutional Court, volume 16, p. 14). Thus, in this

case the Constitutional Court concentrated on the amendment of Act no.

424/1991 Coll., which concerns the contested § 20.
 

This

was Act no. 117/1994 Coll., which amends and supplements Act no.

424/1991 Coll., which introduced the 3% threshold for an entitlement to a

regular contribution in elections to the Chamber of Deputies. In this

regard, the Constitutional Court determined from the appropriate Chamber

of Deputies publications, stenographic records and data on voting, that

the Chamber of Deputies approved the draft of this act at its session

held on 29 April 1994. After being signed by the President of the

Republic and the Prime Minister, the act was duly promulgated in the

Collection of Laws, in part 37, as number 117/1994 Coll. The Act was

thus passed and issued within the bounds of constitutionally provided

jurisdiction and in a constitutionally prescribed manner.
 


VI.
 

In

its existing case law, the Constitutional Court has fundamentally

addressed the constitutional safeguards for democratic formation of the

Parliament. In the present context, judgment file no. Pl. ÚS 25/96,

which reviewed the constitutionality of the so-called “closing” clause

for elections to the Chamber of Deputies, must be considered relevant.

In it, the Court defined the fundamental framework for applying elements

which integrate the political organization of the Chamber of Deputies

in a proportional electoral system: “in terms of the principle of

representative democracy it is permissible to build into the electoral

mechanism itself certain integrative stimuli where there are serious

reasons for it, in particular on the assumption that an unrestricted

proportional system would lead to fragmentation of votes among a great

number of political parties, to unlimited ‘overpopulation’ of political

parties, and thereby to endangering the functionality and ability to

act, as well as the continuity of the parliamentary system.” When

evaluating the limits of acceptability of integrative stimuli, the

Constitutional Court consistently began with the principle of

proportionality: “Of course, increasing the threshold of the limiting

clause may not endanger the democratic substance of elections. It is

always necessary to also weight whether this restriction of equality in

voting rights is a minimum measure needed in order to enable a majority

to be formed in the Chamber of Deputies, which is necessary for making

decisions and creating a government. Thus, the principle of minimizing

state intervention in relation to the intended aim also applied to the

limiting clause.”
 

This legal opinion was then confirmed by other decisions, in particular by judgment file no. Pl. ÚS 42/2000.
 

The

fundamental element of a democratic, pluralist political system is not

only plurality by itself, but also the openness of the system, i.e. the

possibility for new entities to enter the political scene, the ability

to found political parties and political movements, i.e. the free and

voluntary formation of and free competition among political parties

(Art. 5 of the Constitution, Art. 20 of the Charter, of Act no. 424/1991

Coll.). The reality, i.e. not only the fiction, of the openness of the

political system is then, among other things, also tied to the formation

of an adequate system for financing political parties and movements.
 

A

number of safeguards for the formation of such a system arise from the

constitutional order. The Constitutional Court has articulated these in

many of its decisions.
 

In

judgment file no. Pl. ÚS 26/94 the Court defined the most general

principles in this regard. Although, according to the Court, the

constitutional order does not contain support for a rejection in

principle of financial support of political parties by the state, “that,

however, does not mean that state financing of political parties and

political movements does not have limits … financial support of

political parties and movements may not exceed a degree which respects

the general limit in Art. 20 par. 4 of the Charter, under which

political parties and political movements are separate from the state.”
 

The

Court then analyzed these limits in terms of two principles: the

principle of integration and the principle of representativeness (which

was formulated in judgment file no. Pl. ÚS 3/96: “The principle of

representativeness means above all that the composition of a

representative body is derived from the political structure of a civil

society. However, it also contains a requirement for minimum

representation of entities (political parties and movements) which

participate in political competition.”). In judgment file no. Pl. ÚS

30/98 the Constitutional Court annulled the condition of receiving at

least 3% of the total number of valid votes received in elections to the

Chamber of Deputies for purposes of a contribution for covering

election expenses; in doing so, it gave priority, in issues of state

financing of political parties, in the conflict between the principle of

integration and the principle of pluralism in a democratic society

(Art. 5 of the Constitution a Art. 22 of the Charter), to the latter

principle. It formulated the criterion for limiting the contribution for

payment of election expenses in terms of the “seriousness of the

efforts of competing parties,” or the “seriousness of the election

intentions of parties,” which it expressed as the degree of their

representativeness. The legal opinion thus expressed was subsequently

confirmed in judgment file no. Pl. ÚS 42/2000.
 

In

judgment file no. Pl. ÚS 53/2000 the Constitutional Court directly

reviewed the constitutionality of part of the text § 20 par. 4 of the

Act on Political Parties, in a petition to annul the provision under

which a party which had already become entitled to a regular

contribution but did not exceed the closing clause for entry to the

Chamber of Deputies set forth by the Election Act, would not receive the

contribution in subsequent elections. Thus, the Court considered

conditioning provision of a regular contribution to a political party

(movement) on reaching the closing clause in subsequent elections to be

inconsistent with the constitutional order. In other words, it connected

the openness of the political system with a permanently lower threshold

for providing the contribution than that of the closing clause set by

statute and confirmed as constitutional by the previously cited judgment

of the Constitutional Court. As the threshold of 3% was not contested

in the matter, within the framework of rationis decidendi the Court did

not consider it, but also did not cast doubt on the threshold even in

possible consideration of obiter dictum.
 

In

the petitioner’s opinion, the inconsistency of § 20 par. 4 and par. 6

of Act no. 424/1991 Coll. with the constitutional order in the matter of

the threshold 3% of valid votes cast in elections to the Chamber of

Deputies of the Parliament of the Czech Republic for entitlement to

payment of a regular contribution for the activities of political

parties, arises because of its unjustified level, as well as the

unjustified deriving of the regular contribution only from the results

of elections to the Chamber of Deputies, because the legislative power

is a Parliament composed of two chambers - the Chamber of Deputies and

the Senate.
 

The basic

criterion of constitutionality when setting the minimum threshold for

payment of a regular contribution for activities to a political party

consists of ensuring the openness of the political system – thus, this

threshold must be considerably lower than the closing clause in the

proportional system.
 

State

financing of political parties provides only part of the income of

political parties (§ 17 par. 4 of Act no. 424/1991 Coll.). This part

consists of, on the one hand, a contribution for payment of election

expenses (§ 85 of Act no. 247/1995 Coll., on Elections to the Parliament

of the Czech Republic, as amended by later regulations, § 65 of Act no.

62/2003 Coll., on Elections to the European Parliament and Amending

Certain acts), and on the other, the contribution to the activities of a

political party, which includes a regular contribution and a

contribution per seat won (§ 20 of Act no. 424/1991 Coll.).

Parliamentary political parties are also financed indirectly, through

the payment of deputy salaries, support for parties’ parliamentary

organizations, cost-free provision of materials for parties’

parliamentary organizations, etc.
 

The

purpose of state financing of political parties is to support equal

opportunity to participate in a pluralist democratic political system.

The individual forms of this financing pursue different aims, i.e. they

support different activities of the parties. The aim of paying for

election expenses is to permit parties which meet the condition of

“seriousness of effort of competing parties,” or “seriousness of

election intentions of parties” to participate in the electoral

competition. Whereas the Constitutional Court, in judgment file no. Pl.

ÚS 30/98, saw the threshold of this “seriousness” in obtaining “about

1%” of the total number of valid votes, the legislature set that

threshold in the valid legal regulation at 1.5%. The contribution per

seat won reflects the tasks of political parties which are related to

their legislative activities. The condition for providing it is being

elected in elections to the Chamber of Deputies or to the Senate (§ 20

par. 5 of Act no. 424/1991 Coll.), i.e. it applies only to parliamentary

political parties.
 

The

regular contribution is a form of financing parliamentary and

non-parliamentary political parties. For that reason, a condition for

its constitutionality is ensuring the openness of the political system;

therefore, the threshold for providing it must be significantly lower

than the level of the closing clause of the proportional voting system. A

threshold of 3% of valid votes received in elections, i.e. a threshold

40% lower than the closing clause, can be considered such a

significantly lower threshold. If the statutory regulation of the

regular contribution meets the constitutional requirement of

guaranteeing the openness of the political system, then, in view of the

different function of the regular contribution for activities of parties

and payment of political parties’ election expenses, there are no

grounds for setting them at an equivalent level.
 

This

statement changes nothing about the Constitutional Court’s general

position regarding the question of constitutionality of the entire

system of financing political parties, expressed in judgment file no.

Pl. ÚS 53/2000. In it, the court stated: “If the free competition of

political parties under equal conditions is not respected, and if there

is an attempt to create different conditions for large or larger parties

and thus to form, directly or indirectly, political parties with a

better or worse position, and thus also citizens with different

conditions for their movement in the political system, such steps cannot

be described as constitutional. We cannot neglect the fact that a

democratic society is characterized precisely by the free competition of

political parties, whose activities in the administration of public

affairs is derived from the free choice exercised by voters.” The

Constitutional Court evaluated maximum equality in the positions of

political parties, ensuring their free and fair competition, as well as

the openness of the political system to according to the value of

seriousness of election intentions of political parties, as “measured”

by their minimum representativeness (file no. Pl. ÚS 3/96, Pl. ÚS

42/2000), as well as by the aims of individual forms of state financing

of parties (file no. Pl. ÚS 53/2000).
 

In

its decisions, the Constitutional Court pointed to the viewpoint of

balancing the share of state financing of political parties and the

shares of other forms of financing, independent of the state (Pl. ÚS

26/94). In its derogative finding, file no. Pl. ÚS 53/2000, it took a

critical position on the existing level of state financial support for

political parties, and pointed to the endangerment of the constitutional

principle of separating parties from the state (Art. 20 par. 4 of the

Charter).
 

In the

Constitutional Court’s settled opinion, the court is bound in its

decision making by the scope of the filed petition, and can not step out

of its boundaries (ultra petitum) in its decision (see, e.g., the

decisions file nos. Pl. ÚS 16/94, Pl. ÚS 8/95, Pl. ÚS 5/01, Pl. ÚS

7/03). For this reason, it is not authorized in the adjudicated matter

to consider the constitutionality of the entire system of state

financing of political parties, and thus it has not choice but to appeal

to the democratic legislature to accept the legal opinion contained in

the cited judgments file nos. Pl. ÚS 26/94 and Pl. ÚS 53/2000.
 

However,

lowering the threshold for providing a regular contribution to the

activities of political parties below the threshold of 3% of votes

received in elections not only does not solve the cited problem, but, on

the contrary, expands the circle of contribution recipients, and in

consequence means further growth of the state share in financing

political parties, i.e. a shift in the direction with which the

Constitutional Court did not agree in its previous case law. Apart from

increasing the demands on the state budget, such a shift would conflict

with the principle of political parties being rooted in civil society, a

principle which is expressed above all in voluntary support of

political parties by citizens, based on their consideration and

selection according to their affinity for parties’ programs.
 

Insofar

as the petitioner argues on the basis of unjustified derivation of the

regular contribution only from results of elections to the Chamber of

Deputies, such a framework could be considered unconstitutional only in

the event of it being arbitrary, i.e. in the absence of a rational

connection between the legal framework and the aim pursued.
 

The

constitutional order the of the Czech Republic and its statutory system

do not contain an explicit legal definition of a political party

(political movement). Thus, a political party’s constitutional nature,

nature as a subject of law, purpose and aim must be derived from its

overall constitutional and general legal framework.
 

Political

parties are a key subject of a democratic pluralist political system;

they perform the function of representatives of pluralist, differing

interests. Their aim is to achieve these interests through the means of a

democratic constitutional system, i.e. by representation in

representative assemblies, in particular in the Parliament and in the

representative bodies of municipalities and regions (Art. 5 of the

Constitution, Art. 20 par. 2 and Art. 22 of the Charter, Act no.

247/1995 Coll., on Elections to the Parliament of the Czech Republic, as

amended by later regulations, Act no. 491/2001 Coll., on Elections to

the Representative Bodies of Municipalities and Amending Certain Acts,

as amended by later regulations, Act no. 130/2000 Coll., on Elections to

the Representative Bodies of Regions and Amending Certain Acts, as

amended by later regulations). The foregoing indicates that the Czech

constitutional and legal system does not recognize a special category of

regional political parties; their functioning is connected to the

formation of all representative assemblies.
 

Under

the Czech Republic’s constitutional system, the two chambers of

Parliament do not have the same powers and do not participate in the

same degree in the legislative process; thus, they do not have

symmetrical positions. It is exclusively the Chamber of Deputies which

creates the government and declares lack of confidence in it; as a rule,

in the area of legislative authority it has the final decision-making

power. The Senate has the position of a controlling brake, a

counter-balance, vis-à-vis the Chamber of Deputies. If the legal

framework derives allocation of regular contribution for activities from

the results of elections to the Chamber of Deputies, this reflects the

real position of a political party in the state’s constitutional system,

in particular the degree of its participation, or, for

non-parliamentary parties, potential participation, in the legislative

power, as well as in the formation of the supreme body of executive

power – the government. If this framework is not also derived from the

results of elections to municipal or regional representative bodies, it

then reflects the conceptual characteristics of a political party

(movement) in the significance of a statewide, not only regionally,

relevant political entity.
 

Due

to the foregoing, the Constitutional Court did not find the statutory

framework of a threshold of 3% of valid votes received in elections to

the Chamber of Deputies of the Parliament of the Czech Republic for

allocation of a regular contribution for the activities of a political

party, contained in § 20 par. 4, 6 of Act no. 424/1991 Coll., to be

inconsistent with Art. 5 of the Constitution and Art. 20 par. 2 and Art.

22 of the Charter, wherefore it denied the petition to annul the cited

statutory provisions.

Instruction: Decisions of the Constitutional Court can not be appealed.

Brno, 19 January 2005
 

 



Dissenting Opinion

of Judges JUDr. Vojen Güttler and JUDr. František Duchoň in the matter Pl. US 10/03

The

undersigned judges have a dissenting opinion to verdict point 2 of the

judgment of the Constitutional Court of 19 January 2005, file no. Pl. ÚS

10/03, which denied the petition to annul § 20 par. 4 and § 20 par. 6

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

Political Movements, as amended by later regulations.
 

It is based on the following reasons.
1)

A democratic law-based state – which is required to protect and support

a pluralist, open society in which a free individual can best develop –

constitutionally guarantees room for the formation of various interest

groups, which then, as individual political parties or movements,

attempt to put forth their ideas by obtaining a share of power in the

free competition of political forces. In general, political parties are

basically legal entities under private law, and are therefore subject to

Art. 2 par. 3 of the Charter of Fundamental Rights and Freedoms, under

which they can do that which is not prohibited by law, and may not be

compelled to do that which is not imposed on them by law. The state and

its bodies may interfere in their activities only on the basis of law

and within its bounds. However, the Constitutional Court, in the first

of its judgments concerning the issue of financing political parties

(judgment file no. Pl. ÚS 26/94, Collection of Decisions of the

Constitutional Court of the Czech Republic, volume 4, judgment no. 62,

promulgated as no. 296/1995 Coll.) has said, in particular (among other

things), that the constitutional law position of these parties may not

be defined only as the simple consequence of a determination that they

do not have the status of a state body and that as a result of that they

are nothing more than private associations. After World War II,

developed democracies recognized a certain public status, i.e. a role

which political parties have in the state and vis-à-vis the state,

without, however, themselves being the state, or having a state,

public-law nature. This ambivalent nature of political parties gives

rise to a number of problems connected to the interpretation of their

position, function and relationship to the state. Political parties, in

accordance with the constitution, fulfill certain public roles which are

essential for the life of a state founded on representative democracy.

The public interest in a state which is, under the constitution, a

democratic law-based state (Art. 1), also being legitimated in a

democratic manner (i.e. in elections, based on the competition of

political parties) is undoubtedly of a public nature. From this public

(general) interest we can derive a requirement that the state enable and

support the fulfillment of these tasks, which are essential for the

functioning of the state. The framework for financing political parties

by a democratic state, which resulted in the contribution for activities

of political parties and in the contribution for payment of their

election costs, also corresponds to this.
 

The

existing financing of political parties in the Czech Republic – as

elsewhere in the world – can be divided into state financing and

financing from private sources. Direct state financing is connected

primarily to elections. Under § 85 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 (“Act

no. 247/1995 Coll.”) a political party which received at least 1.5% of

the total number of valid votes in elections will be paid 100 CZK from

the state budget for each vote received (the contribution for payment of

election expenses, or the so-called contribution “for votes”). Act no.

424/1991 Coll., on Association in Political Parties and Movements, as

amended by later regulations, in § 20 regulates the so-called

contribution for activity, which includes a regular contribution for a

party which received at least 3% of votes in elections to the Chamber of

Deputies (6 to 10 million CZK per year) and a contribution for the seat

of a deputy or senator (900,000 CZK per year), or for the seat of a

member of a representative body of a region and a member of the

representative body of the capital city of Prague (250,000 CZK per

year). This is an expression of a certain privilege for political

parties vis-à-vis other types of associations, in view of their

abovementioned importance for a democratic state (in the expert

literature, cf. Filip, J.: Ústavní právo [Constitutional Law], Brno,

Masarykova univerzita, 1997, in particular p. 257).
 

The

Constitutional Court has already spoken distinctly several times –

apart from the cited judgment no. 296/1995 Coll. – on the serious issues

of financing political parties and their particular role in a

democratic law-based state (specifically, judgments no. 243/1999 Coll.,

no. ;64/2001 Coll. and no. 98/2001 Coll. Collection of Decisions of the

Constitutional Court volume 16, judgment no. 137 a volume 21, judgments

no. 16 and no. 36). In the first of these judgments the Constitutional

Court granted the petition of the political part Demokratická unie

[Democratic Union] to annul part of § 85 of Act no. 247/1995 Coll., on

Elections to the Parliament of the Czech Republic (the contribution for

payment of election expenses being tied to receiving at least 3% of the

total number of valid votes). It considered the same provision in the

next judgment, in which it stated that in the context of all relevant

circumstances, even the lowering of the threshold from three to two

percent, given the simultaneous lowering of compensation for every vote

received from 90 to 30 CZK, can change nothing in the conclusions stated

in the previous judgment. In the last case (judgment no. 98/2001 Coll.)

the Constitutional Court considered Act no. 424/1991 Coll., on

Association in Political Parties and Political Movements – whose

provisions are also subject to review in the present matter – where it

annulled the then second sentence of § 20 par. 4 (a party which reached

the threshold of 3% of votes cast and became entitled to a regular

contribution would not receive the contribution if it did not, in

subsequent elections, receive the number of votes necessary for

representation in the Chamber of Deputies) and part of § 20 par. 7 (a

contribution for the seat of a deputy or senator in the amount of

1,000,000 CZK per year). In the present adjudicated matter, the

dissenting judges also found no reason for the Constitutional Court to

diverge from its previously expressed opinion on this issue. Therefore,

in their opinion it is necessary to re-emphasize – with reference to the

cited judgments – the conclusions already stated, which concentrate the

essence of the position of political parties in the Czech Republic and

formulate the principles of financing them, consistently with the

constitutional order.
 

Political

parties and political movements are institutions which are constituted

on the basis and within the framework of a constitutional state, whose

principles and rules bind both the parties, and the state. They include

Article 5 of the Constitution, which enshrines the free and voluntary

creation and free competition of those political parties which respect

the fundamental democratic principles, Art. 2 par. 3 of the

Constitution, under which state authority serves all citizens, and Art.

20 par. 2, 4 of the Charter of Fundamental Rights and Freedoms, which

guarantees the right the right to form political parties and political

movements and to associate in them, and also provides that political

parties and political movements are separate from the state. Parties

serve as an intermediary link between citizens and the state: they serve

for their participation in the political life of the society, in

particular in forming legislative assemblies and local government

bodies. In their basic function – the creation of political will in the

state – political parties (their results) predetermine the forming of

state bodies. In other words, in order for democratic state bodies to be

created at all, they must be preceded by free competition among

autonomous political parties independent of the state, because it is

only the results of that competition which form the political contours

and proportions of the state.
 

In

this regard it must be stated that neither the Constitution of the

Czech Republic nor the Charter of Fundamental Rights and Freedoms, nor

international treaties under Art. 10 of the Constitution, as amended,

provide support for the state to refuse, in principle, financial support

for political parties. However, that does not mean that the financing

of political parties and political movements by the state has no

thresholds. A state which made financial support for political parties

and political movements a means for influencing their activities, or

even a tool for manipulating them, could cease to fulfill the task of

supporting parties and movements in their constitutional (Art. 5 of the

Constitution) and statutory functions. Therefore, financial support of

political parties and movements may not exceed a degree which respects

thee general threshold in Art. 20 par. 4 of the Charter of Fundamental

Rights and Freedoms, under which political parties and political

movements are separate from the state. Of course, in view of the need

for partial balancing of their chances, a certain financial support for

political parties by the state is acceptable. Generally, however, one

must begin with the fact that the more political parties are subsidized

by the state, the less they feel the need to seek support for their

activities from other legal sources. Therefore, contributions for the

activities of political parties should not weaken the efforts of

political parties to obtain political and material support from their

voters and supporters. Political parties can not fulfill their function

if they are left to the mercy of the state or rely on state support more

than on the support of citizens (judgment no. 296/1995 Coll.).
 

The

principle of free competition among political parties includes the

state’s obligation to respect equal chances for them – in terms of the

legal regulation of conditions for the competition and regulation of the

participants’ entitlements – because basically this involves

application of the general principle of equality, guaranteed both by

constitutional regulations and by international acts. Any interference

in these conditions by the legislature is interference by the state, and

should be guided by the public interest. The percentage limitation for

paying the contribution for payment of election expenses of political

parties can not be the result of arbitrariness or suitability evaluated

only in terms of the interests of established parties. However, this

conclusion has general significance, and therefore also applies to the

so-called regular contribution under Act no. 424/1991 Coll. When

regulating the area of creation of political will, the legislature must

respect the fact that it has been given a narrow range in this field and

that it is denied the opportunity for differential treatment of parties

which is not based on a particularly serious reason. The purpose of an

election contribution may not be to limit the freedom of election

competition, but to ensure its seriousness. If a modern representative

democracy takes into account the functioning of a parliamentary system

and accepts, in a limited degree, the integrational stimulus for the

system of allocating seats, this does not mean that integrational

viewpoints can have fundamental priority over the principle of free

competition among electoral parties. That free competition is a direct

expression of the pluralist nature of a democratic society, and it is

precisely protection of political pluralism in political life which is

of primary importance for its very existence. Therefore it is markedly

protected by Art. 5 of the Constitution and Art. 22 of the Charter of

Fundamental Rights and Freedoms. Any direct or indirect limitation of

the equality of parties in election competition may not, individually or

as an accumulation of measures, which differentially disadvantage or

advantage particular parties, a priori make impossible the very

participation of political parties in election competition. The

accumulation of financial support for only certain parties has as a

consequence the simultaneous accumulation of de facto financial

penalties for other parties, and therefore it must be carefully weighted

whether the purpose of such measures has not been exceeded (judgment

no. 243/1999 Coll.).
 

The

term “free competition of political forces” under Art. 22 of the Charter

of Fundamental Rights and Freedom emphasizes the part of the political

competition process which precedes the establishing of parties in the

positions they have achieved, i.e., emphasizes above all the free entry

of political forces into election competition. “The free competition of

political parties is thus undoubtedly a value which must be given

precedence by the statutory regulation of state financing of political

parties.” The concentration of state financial aid for only those

parties represented in Parliament (or for strong, established parties)

limits the economically equal participation of parties in election

competition (Art. 5 of the Constitution) and fails to respect the

principle of Art. 20 par. 4 of the Charter of Fundamental Rights and

Freedoms, which enshrines the separation of parties from the state. The

high threshold for a contribution for a seat neglects the fundamental

criterion for state support, that is, the number of votes received by

parties, and concentrates state financial support on parliamentary

activity to a constitutionally unacceptable extent (judgment no. 98/2001

Coll.).

2) In the opinion of the dissenting judges, these

conclusions must also be applied – in view of the need for a

comprehensive review of the matter – to the adjudicated case.
 

With

reference to the cited arguments, repeatedly emphasized by the

Constitutional Court, the dissenting judges conclude that the contested §

20 par. 4 and part of § 20 par. 6 of Act no. 424/1991 Coll., in their

present form, are – if the existing statutory framework for financing

political parties is evaluated comprehensively – unconstitutional. Thus,

this unconstitutionality can not be seen only in the cited provisions

themselves, in other words in the fact that an entitlement to a regular

contribution would be tied to reaching the 3% threshold or its level

would be in and of themselves inconsistent with the constitutional order

of the Czech Republic. Objective evaluation of the filed petition

requires not only isolated weighing of one kind of state contribution,

but evaluation of it in the aggregate, the resulting effect of all

relevant factors, that is, in particular – as has already been stated –

the contribution for payment of election expenses under § 85 of Act no.

247/1995 Coll. and the contribution for a deputy or senate seat under

Act no. 424/1991 Coll. The need for such an aggregate view arises from

the nature of the matter itself. Such a view is also the duty of the

Constitutional Court as a guarantor of constitutionality in a democratic

state. The Constitutional Court has already demonstrated the inequality

of allocation of budget funds to political parties – based on the

then-existing legal framework – in the fictitious example of two

political parties, one of which received 2% of votes in elections and

the other 6% (judgment no. 98/2001 Coll.). A party which was only three

times more successful would receive roughly 25 times more from the state

coffers. The Constitutional Court then stated that disproportion thus

arise which are inconsistent with the purpose and aims of financing

political parties from public funds, that is, with enabling free

competition among them. If free competition among political parties

under comparable conditions is not respected, and if there is a tendency

to create different conditions for large or larger parties and thus to

directly or indirectly form political parties with a better or worse

position – and thus also citizens with different conditions for their

movement in the political system – such steps can not be considered

constitutional (see the cited judgment).
 

At

the present time that disproportion between established political

parties (note: of course, even the term “established party” is deceptive

to a certain degree, because in a democratic state no political entity

should be so established that it would lead to doubts about the free

competition of political forces ) and non-parliamentary parties has

lessened somewhat, but I still too high. The lessening of this

disproportion was helped by lowering the threshold for entitlement to a

contribution fro payment of election expenses under Act no. 247/1995

Coll., as amended, to 1.5%, with the simultaneous increase of that

contribution to 100 CZK, which can clearly be considered a positive

step; however, it is evident that in comparison with the income of

parliamentary parties it is not sufficient. If we take an analog of the

abovementioned hypothetical example – without having to go into detail

in a perfectionist manner – we can determine through simple mathematical

operations, that a party which does not exceed the threshold of 3% for

entitlement to a regular contribution under Act no. 424/1991 Coll., even

if it is only one third or one half less successful than a party which

barely got into the Chamber of Deputies, receives only the contribution

for payment of election expenses (§ 85 of Act no. 247/1995 Coll. as

amended), whereas the parliamentary part also receives an annual regular

contribution and an annual contribution per seat, and in consequence is

therefore “compensated” for the electoral term more than ten times

better (cf. also Collection of Decisions of the Constitutional Court,

volume 21, file no. Pl. ÚS 53/2000, p. 324).
 

Thus,

in the opinion of the dissenting judges, in order to find a

constitutional solution it is necessary – while observing the

abovementioned general principles, previously stated by the

Constitutional Court – also to allocate the relevant financial resources

more fairly among the weaker (although not fragmentary political

parties); it would likewise be appropriate not to give so much

preference to the importance of elections to the Chamber of Deputies,

but, in an appropriate manner to take also into account the successes of

political parties in other elections. It is surely suitable and fair –

as stated in the statement from the Chamber of Deputies – for parties

which, thanks to their voter base, have a more real importance for

political events in the state, to receive more, but the disproportion

between parliamentary and non-parliamentary parties in that regard

should not be as high as it is at the present time. Insofar as the

statement from the Chamber of Deputies speaks of the “need to take into

account an exact and fair criterion,” we cannot but agree, provided that

smaller political entities are also taken into consideration, if their

importance cannot be considered quite negligible (e.g. around 2% of

votes received). The principle of fairness should be a guiding idea of

every democratic society. The seriousness and dignity of elections, as

well as the honesty of intent of political parties can not be secured

only or primarily by revenues for the most successful, in particular in a

situation where the curve of financial profit rises disproportionately

in comparison with only slightly less successful parties or movements.

In this regard, however, the dissenting judges point to the danger of

further increasing the financial dependence of political parties on the

state; state financing should never significantly exceed the financing

of parties form private sources, because that – as was already stated

above – would violate the principle of separation of political parties

from the state, enshrined in Art. 20 par. 4 of the Charter of

Fundamental Rights and Freedoms.

3) In the opinion of the

dissenting judges, the Constitutional Court evaluated the present issue

from a too narrow viewpoint (although, in formal terms, solely in

relation to the contested provisions, basically correctly); as was

already repeatedly emphasized, the existing statutory framework for

financing political parties should, however, be evaluated

comprehensively and in the aggregate, particularly in relation to the

contribution for payment of election expenses under § 85 of Act no.

247/1995 Coll. and the contribution for a deputy or senate seat under

Act no. 424/1991 Coll. This is also related to the fact that the

previous judgments to which the Constitutional Court refers, and the

trend of its case law in general, leans more toward granting the

petition – and thus for the position of the dissenting judges – than

against it.
 

The dissenting

judges also do not agree with the majority opinion insofar as the

judgment of the Constitutional Court overly emphasizes the more

important position of the Chamber of Deputies in relation to the Senate

in the constitutional system of the Czech Republic. It is their belief –

even if the Senate, conceived as a stabilizing and controlling actor

understandably has different powers and does not participate in the

legislative process to the same degree as the Chamber of Deputies – that

there are no reasonable grounds for such a different approach to

elections to the two parliamentary chambers in relation to state

financing, which is established by a valid legal framework. The

dissenting judges also do not see a reason to ignore the results of

elections to municipal and regional representative bodies; nationwide

political parties which have more than merely regional importance are

also often successful in these elections, as the Constitutional Court

argues.
 

Insofar as the

Constitutional Court states that parliamentary political parties also

receive indirect state financing (e.g., in the form of payment of

deputies salaries, support for parliamentary organizations, etc., which,

of course, is not unconstitutional in and of itself), this can be

considered another substantive argument supporting the opinion of the

dissenting judges, because – again, looking at the issue comprehensively

– this leads to a further increase in the disproportion between

parliamentary and non-parliamentary parties, as well as to further

weakening of the principle of thorough separation of political parties

from the state (Art. 20 par. 4 of the Charter of Fundamental Rights and

Freedoms).
 

In conclusion,

the dissenting judges again emphasize that their dissenting opinion does

not intend to support fragmentary political parties and movements,

which often do not even want to seriously participate in political life

and election competition, and not infrequently pursue only financial

aims. They have in mind those political parties and movements that take

their participation seriously, often have existed for a number of years,

and have a certain non-negligible voter base.
 

For

all the foregoing reasons, the dissenting judges have concluded that §

20 par. 4 and § 20 par. 6 of the contested Act are inconsistent with

Art. 22 of the Charter of Fundamental Rights and Freedoms and with Art. 5

of the Constitution, and therefore in this regard the petition should

be granted. As the Constitutional Court, which, as a “negative

legislature,” could not in this case decide otherwise than by partial

derogation, which, however, given the nature of the matter, could not be

a systematic solution, there would be no choice but to also decide on

an appropriate delay before the decision went into effect, so that the

legislature would have sufficient time to prepare a new legal framework.

Brno, 19 January 2005
 




Dissenting Opinion
of Judge JUDr. Eliška Wagnerová, Ph.D. in the matter Pl. US 10/03

I am led to disagree with the majority opinion expressed in point II. of the judgment Pl. ÚS 10/03 by the following reasons:
1.

The judgment departs from the existing case law on state financing of

political parties in terms of the methods used to address the matter.
2. It also departs from it in terms of the criteria selected for reviewing the matter.
3.

It reaches speculative conclusions which ignore the mutual conditions

between law and reality, so characteristic precisely for the area of

financing political parties, not only by the state.
4. Deriving state

financing of political parties only from one of the chambers of

Parliament, i.e. from the Chamber of Deputies, which does not correspond

to the constitutional framework.

Re 1.
In my opinion, there

are only three previous relevant judgments of the Constitutional Court

on state financing of political parties. The basis of the solution is

contained in a judgment which addressed the issue of the contribution

for election expenses (Pl. ÚS 30/98), the second judgment addresses,

among other things, the issue of a contribution for votes (Pl. ÚS

42/2000), and finally there is a judgment concerning primarily the issue

of a contribution per seat and the issue of a regular contribution (Pl.

ÚS 53/2000).
 

In all these

cases, the Constitutional Court did not evaluate the specifically

contested form of financing political parties separately; it always

viewed it in the context of other instruments for state financing of

political parties. So, for example, in judgment Pl. ÚS 30/98, after

putting the contribution for payment of election expenses into context

with other methods of state financing, it stated: “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 threshold 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

level of a contribution per seat was evaluated equally markedly in

context. Judgment Pl. ÚS 53/2000 states: “However, it is precisely

comparing the amount of the contribution per vote cast with other forms

of funding political parties, that is, in particular, the contribution

for a deputy or senate seat discussed in this matter, as well as with

the amount of a contribution for a seat in a regional representative

body (which is not questioned in the adjudicated matter but we cannot

abstract from it) supports the opinion of the Constitutional Court that

there is a clear tendency against free competition of all political

forces, as increasing the support of parliamentary parties is

accompanied by simultaneous restriction of less successful parties. Thus

disproportions arise which are inconsistent with the purpose and aim of

financing political parties from public resources, i.e. with

facilitating their free competition.”
 

I

completely agree with this contextual method for evaluating individual

forms of financing political parties. The majority opinion abandoned it,

shielding itself behind the doctrine which forbids deciding “ultra

petitum,” which, however, the contextual method respects and does not

exceed.

Re 2.
The majority opinion states that the in the past

the Constitutional Court searched for the threshold for state financing

of a political party in terms of two principles, the principle of

integration and the principle of representation. These were supposed to

have been found in judgment Pl. ÚS 3/96, which denied a petition to

cancel election deposits. This reference is irrelevant to me for two

reasons. For one thing this was a judgment which expressed the majority

of only a minority of seven judges (which is called a “relevant”

minority), while in 1996 eight judges were of the opposite opinion. The

later, and in my opinion only, relevant opinion, which overruled the

cited minority opinion, was expressed in judgment Pl. ÚS 42/2000, which

cancelled the deposits. Its reasoning states, among other things, that

since the Constitutional Court’s last decision-making social changes

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

integrationist stimuli.” However, I consider it an important fact that

when addressing the issue of a regular contribution one can not rely on

opinions expressed on the issue of deposits, because, after all,

deposits were not an issue of direct state financing of political

parties.

Of course, what

appears most important to me is the fact that the present majority

opinion has not dealt at all with the quite fundamental opinion of the

Constitutional Court expressed in judgment Pl. ÚS 30/98, under which:

“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 allocating seats, 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.” At that

time the Constitutional Court also said: “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.”

It

must be pointed out that the Constitutional Court expressed these

considerations in connection with evaluating the contribution for

payment of election expenses. In the issue of state financing of parties

it thus clearly and distinctly shifted the deliberation on the

competing principles of integration and representation from one side to

the level of the principle of equal opportunity in elections, which is

to be provided to all electoral parties who have demonstrated the

seriousness of their programs and proposals through election results of

about 1% of votes cast, i.e. distinctly lower than are the 3% of votes

cast on the other side. On the contrary, the integration principle was

expressly rejected as inapplicable for the phase which precedes

allocation of the seats obtained in elections.
 

In

my judgment, the generality in the cited judgment requires that it also

be “brought into the game” when evaluating the current matters today,

i.e. the regular contribution to the activities of a political party.

Where the majority opinion today evaluated the threshold of 3% of votes

received in elections, it certainly did not use the criterion of

seriousness, defined by receiving about 1% of votes cast. It refuses to

break the 3% threshold, referring to the demands on the state budget.

Moreover, it adds that such a shift would contradict the principle of

political parties being rooted in civil society. In other words, of

course, it thereby justifies, inconsistently with the cited case law of

the Constitutional Court, an upward shift of the percentage for

acknowledging the seriousness of political parties’ activities, without

providing principles to justify this shift. I will add peripherally

that, of course, nothing prevents the total amount provided to political

parties from being limited for fiscal reasons. However, the topic for

evaluation now is the fair allocation of that amount so as to respect

the principle of equal opportunity for those parties which are seriously

competing in elections. Incidentally, the German Federal Constitutional

Court proceeded analogously (decision BVerfG of 9 April 1992).

Moreover,

it is evident that all activities of political parties, including in

the period between elections, is ultimately aimed at seeking success in

elections. Similarly, the decision of the German Constitutional Court,

BVerfG of 19. 6. 1966, which even cancelled the contribution for

activities of political parties on the grounds of that form of financing

being in conflict with the principle of a free and open process of

formation of opinions and the will of the voters, i.e. with out state

contributions. Thanks to this decision, state financing of political

parties shifted to merely compensating elections expenses, understood,

of course, in the abovementioned broad sense.

Re 3.
The

majority opinion tried to differentiate in defining the purposes (aims)

of individual forms of state financing of political parties. I can not

agree with this fragmentary view of the purpose of state financing of

political parties, because, particularly when defining the purpose of

the state-provided contribution per seat, this is obvious mixing of the

state and political parties, which is forbidden by Art. 20 par. 4 of the

Charter. In my judgment, Parliament’s legislative activity is

sufficiently secured by financing that state institution and

compensating the political representatives who are active in it. As

regards work on legislative proposals performed within individual

political parties, there is no reason to distinguish between

parliamentary and non-parliamentary parties, as this is an activity

which, in my judgment, can not be mixed with the activities of deputy

and senate factions. Otherwise, the difference between a political party

as a component of civil society and the parliamentary chambers as state

bodies would be erased. In other words, there would be impermissible

state interference in political parties, moreover only in some, that is,

those which are represented in Parliament. However, in my opinion the

purpose of state financing of political parties is to enable and support

the formation of plural opinions in society with the aim of effectively

presenting them in elections. In my eyes, the individual forms of

financing are only a technique which reflects, or should appropriate

reflect, the support for individual opinions presented by the parties in

society.
 

The fragmentation

of the aims of individual forms of state financing in reality completely

erases the ability to verify whether the difference between financing

parliamentary and non-parliamentary parties is proportionate, because

the majority opinion implicitly removes state support for

non-parliamentary parties in their preparations for electoral jousting

in the form of preparing legislative programs. All this despite the fact

that, as I mentioned above, the Constitutional Court recognized the

seriousness of election intents of parties which achieved election

results around 1% of votes cast, and there are no reasonable grounds to

differentiate between parliamentary and non-parliamentary parties.
 

If

we consider that the contribution per seat (set at 900,000 CZK in a

curious and, I do not hesitate to say, constitutionally quite incorrect

process), has remained practically at the level which the Constitutional

Court described as conflicting with the purpose of a state financial

contribution to political parties (Pl. ÚS 53/2000), the difference thus

established between parliamentary and non-parliamentary parties, which,

of course, benefit from the bonus of “seriousness of election

intentions,” appears to me to be quite unjustifiable. This evident

disproportion makes parliamentary political parties into parties rooted

in the state, not in the society. Insofar as the majority opinion then

states that breaking the threshold of 3% of votes received for provision

of a regular contribution would mean increased demands on the state

budget, yet does not taking into account the quite inappropriate

disproportions between the over-financing of parliamentary parties and

non-financing of non-parliamentary parties which, however, have proved

the seriousness of their programs and thus their being rooted in

society, this is a self-serving position, lacking a constitutional law

dimension which consists precisely in reviewing the justification of

differences, or in reviewing the proportionality of differences thus

established.
 

The situation

created by the amount of the state contribution per seat is not only

inconsistent with Art. 20 par 4 of the Charter, but is fundamental for

evaluating the quality of democracy in the Czech Republic. As a state

body, the Parliament is supposed to be the result of serious election

competition of private entities (political parties) representing various

interests in society. It is incompatible with democracy for the state,

by giving financial preference to certain entities, to eliminate other,

authentic entities rooted in the society, with results of about 1% of

votes cast in elections, from real and fair election competition. It is

no accident that the Constitutional Court (Pl. ÚS 53/2000) appealed to

the legislature to, after the Constitutional Court canceled the

contribution per seat, use the space created to implement a new model

for state financing of political parties “in such a way that the

proportion between positions attained through subsidies and subsidies

for success in election campaigns will change markedly in the favor of

valuing the number of votes gained in the elections.”
 

In

my opinion, it is also necessary to interpret from the viewpoint of

this appeal the absence of comment by the Constitutional Court in the

cited judgment to the threshold of 3% of votes cast for entitlement to a

regular contribution, which the majority opinion points out, and

thereby considers that threshold to have been unquestioned by the

Constitutional Court in the past. However, I do not share this

conclusion, because in the cited judgment the Constitutional Court went

farther, in terms of its opinion on state financing of political

parties, than just to the 3% threshold for entitlement to a regular

contribution. The fact that it was disregarded, just as in the case of

the contribution per seat, is testimony to the internalization of

constitutional values by members of political elites, here, members of

Parliament, both if I consider the clarity of the constitutional

imperative that decisions of the Constitutional Court are binding (Art.

89 par. 2 of the Constitution), and if I take into account the reality

abroad. For example, in Germany, decisions of the Federal Constitutional

Court on the financing of political parties were always accepted by the

legislature in their entirety, or statutes on financing of political

parties were formed on the bases of those decisions, including, of

course, their reasoning (see, e.g. Stationen der Parteienfinanzierung im

Spiegel der Rechtsprechung des Bundesverfassungsgerichts, Sebastian

Lovens, Zeitschrift für Parlamentsfragen 2/2000, p. 284-299).
 

In

any case, the binding nature of the Constitutional Court’s decisions,

including the material grounds stated in the reasoning, has heightened

significance in the case of judgments on financing of political parties

generally, and especially financing by the state. This is because

reality indicates that parliamentary parties, when passing statues on

the financing of political parties, are deciding “in their own case,”

although the constitutional construction of a deputy or senate seat is

different (deputies and senators have an unrestricted mandate, which

they exercise in the interest of all the people, according to their best

knowledge and conscience, and they also commit to respecting the

Constitution – Art. 23 par. 3 of the Constitution). On the contrary,

however, the Constitutional Court, institutionally and in terms of

personnel demonstrates elements of impartiality (the prohibition on

membership in political parties for judges of the Constitutional Court –

§ 4 par. 4 of the Act on the Constitutional Court). Therefore it

appears to be the appropriate body to determine the principles on which

the financing of political parties should be based. In doing so it draws

from the Constitution and the constitutional order as a whole. The test

of the contested provision applied by the Constitutional Court should

be stricter; it should not threshold itself merely to a mathematical

comparison of the 5% closing clause with the threshold of 3% of votes

received in elections and be satisfied with the finding that 3 is less

5.

Re 4.
On the one hand the majority opinion states that

there is no legal definition of a political party. I see this fact as a

plus, because of the previously mentioned dynamic interconnection and

smooth mutual influencing of law and reality in the area of financing of

political parties. Materially, constitutional references to political

parties (in particular Art. 5 of the Constitution, Art. 20 of the

Charter) can be understood, from a constitutional law viewpoint, as an

institutional guarantee for the exercise of individual political rights,

in particular the right to vote (Art. 21 of the Charter, Art. 6 of the

Constitution). In any case, if there is no legal definition of a

political party as such, it is only logical that there is also no legal

definition of a regional party. However, one can not conclude from this

without anything further (as the majority opinion does), that “the

constitutional and legal system does not recognize a special category of

regional political parties; their functioning is connected to the

formation of all representative assemblies.” Such a claim contradicts

reality and the material understanding of a political party (e.g. Strana

pro otevřenou společnost – SOS [Party for an Open Society], Volba pro

město - VPM [Choice for the City], and others). The fact that such a

political party is not state financed is another, in my view problematic

matter; nonetheless there is no doubt that it is still a political

party.
 

The majority opinion

develops from a construction of the what is called the “real” position

of a political party in the constitutional system of the state, which it

ties exclusively to the presence of the party in the Chamber of

Deputies. This construction seems artificial to me. If it uses the

functional interconnection of the Chamber of Deputies with the

government to conclude that the lower chamber is more important compared

to the upper chamber – the senate (apparently thanks to the real power

of the government), in my opinion this deliberation has no support in

the Constitution. Art. 15 par. 2 of the Constitution describes the

Parliament as one entity. In other provisions of the Constitution the

powers of both chambers of Parliament are developed in such a way that,

if the Chamber of Deputies is a “partner” to the government, the Senate,

apart from the exercise of safeguards in relation to the Chamber of

Deputies (e.g. in terms of the legislative process, continuity of the

legislative power, etc.), is characterized by its position of “partner”

to the other branch of the dually-established executive, i.e. to the

President of the Republic and with him also to the Constitutional Court.

This position of the Senate is evident in particular in granting

consent with the naming of a judge of the Constitutional Court by the

president. The fact that this is a very real Senate power (if I apply

the logic of the majority opinion on the real position of the

parliamentary chambers in the constitutional system of the state), is

proved by the efforts, now on-going for more than a year and a half, to

appoint judges to the Constitutional Court, as well as the role of the

Constitutional Court in the constitutional system. Finally, it is the

Constitutional Court, in whose formation the Senate participates, which

is the guarantor of the constitutional exercise of all state power,

regardless of which state body exercises it. The position of the

Constitutional Court in the constitutional system (although it governs

neither by sword nor by purse) is undoubtedly strong thanks to the

integrative constitutional guiding and influencing of the uses of power

of individual elements which exercise power in the state. Insofar as the

Senate take part in creating it, this testifies to its real, equal

status with the Chamber of Deputies. The majority opinion overlooked

this aspect.

Brno, 19 January 2005