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Judgement Pl. ÚS 44/17 of 2 February 2021 - Constitutionality of the Electoral Act (equality of votes and of the right to vote and equal opportunities for parties and coalitions standing in elections)


A distinction must be drawn between the principles of proportional representation under Article 18.1 of the Constitution of the Czech Republic and the principles of majority rule under Article 18.2. When the constitutionality of the legal regulation of elections to the Chamber of Deputies is under review, it is not possible simply to settle for differences arising from the nature of the matter. Emphasis must be placed on ensuring proportionality in the regulation of the organisation of elections under Article 20 of the Constitution.

The division of the constituency into regions of different sizes under Section 26.2 of the Electoral Act (Act no. 247/1995 Coll.) is not in itself unconstitutional. However, along with other elements of the electoral system, it does violate the principle of equality of the voters’ ballots and equal opportunities of political parties standing in elections as holders of the right to proportional representation.

Under Article 5 of the Constitution, in conjunction with Article 22 of the Charter of Fundamental Rights and Freedoms, the political system of the Czech Republic is based on free competition between political parties. The constitutional order thus assumes the mediation of voters’ opinions not only by means of free choice of their representatives, but also through the choice between programmes and candidates of political parties. From the perspective of the applicable constitutional law, the right holders to proportional representation are de lege lata the candidates of political parties or their coalitions. The concept of free competition does not preclude the search for allies to achieve certain objectives. While political parties are perceived as permanent groups and not only for elections which are to be repeated on a regular basis under Article 21.2 of the Charter, their electoral alliance is possible; they do not have to run together in subsequent elections. Although it would be more transparent in terms of free competition under Article 5 of the Constitution and Article 22 of the Charter if political parties participated with their election programmes and candidates on their own, it cannot be deemed a single constitutionally conforming arrangement. It is directly relevant to the legal regulation of elections and the right to vote under Article 20 of the Constitution, and its potential regulation.

If the legislature wishes to allow, by means of regulating electoral coalitions, parties not reaching five per cent of valid votes cast to enter the Chamber of Deputies, this must be expressed unambiguously and made possible even at the cost of considerable complication and clarity of voting. The applicable legal regulation of coalitions’ advance to scrutiny under Section 49.1.b to 49.1.d of the Electoral Act is unreasonable, disproportionate, inconsistent, discriminatory, and allows for a constitutionally relevant number of votes cast by voters to be wasted in violation of Article 2.1 of the Constitution and Article 21.1 of the Charter.



I. A group of Senators, the applicant in this matter, sought the annulment of several provisions of the Electoral Act. The reason for the alleged unconstitutionality of these provisions consists in the application of the D'Hondt electoral formula (Section 50.1 to 50.3 of the Electoral Act), dividing the Czech Republic into fourteen different constituencies (Section 26, sentence two of the Electoral Act.) The applicants also challenged the constitutionality of the electoral threshold for political parties and movements running in the coalition (Section 49.1).

The applicant contended that the division of the Czech Republic into 14 constituencies with the application of the D'Hondt method was in breach of the principle of equal suffrage or the equality of votes and the principle of proportional representation. Especially in smaller constituencies, votes by voters of the parties which have exceeded the electoral threshold have such a different value that voters of smaller parties are systematically discriminated against. The applicant substantiated the argument as to the unconstitutionality of the electoral threshold for coalitions by pointing out the groundlessness of this institute, which does not fulfil the expected integration function and, according to the applicant, was introduced in the Act in a very non-standard manner.

II. The Constitutional Court first dealt in detail with the general principles and starting points of electoral law, the limits of the review of the constitutionality of electoral legislation, the constitutional requirement of proportional representation in elections to the Chamber of Deputies, and the relationship between individual elements of the electoral system; against the background of the existing case law and extensive legal-historical comparisons.

In relation to the applicant’s objections regarding the different size of the constituencies, the Constitutional Court concluded that if the expression of the proportion of voters’ support for individual ballots within the Chamber of Deputies is to serve as a basis for proportional representation, it is not possible to divide the constituency into constituencies of different sizes without any support in the Constitution, as this may distort the application of proportional representation. According to the Constitutional Court, the proportionality of representation cannot be measured only by constituencies, where proportionality is now ensured to the detriment of the minority; it must also be measured by the result of elections to the Chamber of Deputies as a whole. Relative equality must thus be achieved throughout the country, both in terms of equal access to elected office and in that voters in each constituency must have the same opportunity to influence the overall outcome of the election. Although the current division of the country into constituencies of different sizes is not in itself unconstitutional, along with other elements of the electoral system, it violates the principles of equality of votes and equal chances of political parties standing in elections, which is unconstitutional. Although the applicant’s objections were directed mainly against the fact that pursuant to Section 26 of the Electoral Act, higher territorial self-governing regions serve as the constituencies for elections to the Chamber of Deputies, the Constitutional Court did not annul this concept of constituencies. It would, in the Court’s view, suffice to set aside other elements of the technique of electoral representation contained in Sections 48 and 50 of the Electoral Act, which will allow the legislature to adopt a new systemic correction of the electoral system without changing the number or structure of the constituencies.

A 5% election threshold to allow entry of a political party into the Chamber of Deputies pursuant to Section 49.1.a of the Electoral Act was not, in the Constitutional Court’s view, unconstitutional. Here, the Court followed its previous case law (file reference Pl. ÚS 25/96) and upheld that the Constitution enshrined the principle of proportional representation precisely for the purpose of holding elections “to the Chamber of Deputies”. The purpose of elections thus does not consist only in a binding determination of the opinions of voters, but also in establishing a chamber of the Parliament competent to perform all the functions of the legislature within the conditions of parliamentary democracy. The fragmentation of several political parties, unable to secure a parliamentary majority, could make it impossible to perform these functions.

On the other hand, the Constitutional Court found the stipulated election thresholds (the so-called “artificial additional election threshold” of 10%, 15% and 20% of votes) for coalitions of political parties to be contrary to Article 2.1 of the Constitution and Article 21.1 of the Charter. The contested regulation was introduced into the Electoral Act in 2000, and the Constitutional Court has dealt with its alleged unconstitutionality before (in the large electoral judgment, file reference Pl. ÚS 42/2000). It has now concluded that this artificial regulation of coalitions does not make sense, as it may distort the legitimacy of the election result and forces the parties to form coalitions ex lege (in an effort to enter the Chamber of Deputies, rather than to promote a programme of similar opinions), and therefore this legal regulation is disproportionate and inconsistent. If the legislature wishes to allow smaller parties with a result lower than of 5% to enter the Chamber of Deputies, this must be expressly provided for in the new legal regulation.

The Constitutional Court found the applicant’s request for the repeal of the D'Hondt electoral formula for the distribution of seats within the constituencies among political parties standing in elections (Section 50.1 to 50.3 of the Electoral Act) to be well-founded, since the challenged provisions are unconstitutional in the context of their scope of effect in separate unequally large (or partially small) constituencies.

The Constitutional Court concluded that the majority of the applicant’s objections were well-founded due to the inconsistency with the constitutional safeguards of elections and the right to vote enshrined in Articles 18.1, 5 and 6 of the Constitution in conjunction with Articles 21.4 and 22 of the Charter. The Constitutional Court emphasised that, based on its scope of authority, it was required to assess (and had therefore assessed) the constitutionality of the contested provisions and subsequently annulled those which caused a violation of the principle of equality of votes. The organisation of the forthcoming elections was not affected by this decision. The risks associated with the change in electoral rules would occur only upon expiry of the time limit for submitting ballots, i.e. in August 2021. This provides the legislature with adequate space to adopt a new legal regulation to substitute the annulled parts of the four sections of the Electoral Act. The opposite solution, i.e. postponing the enforceability of the Constitutional Court’s judgment to the post-election period, would reduce the legitimacy of the newly established Chamber of Deputies, create mistrust in the elected political representation and could lead to the risk of retrospective revocation of voting within the electoral judiciary.

III. Jan Filip served as Judge Rapporteur in this case. A dissenting opinion was submitted by Judges Ludvík David, Jaroslav Fenyk, Josef Fiala, and Radovan Suchánek.