Judgment Pl. ÚS 41/21

The Plenum of the Constitutional Court (with Jan Filip as Justice-Rapporteur) has rejected the submission of the political party Czech Pirate Party and the political movement Mayors and Independents (hereinafter the petitioners) against the resolution of the Supreme Administrative Court of 5 November 2021, ref. No Vol 202/2021-89, which rejected the petitioners’ complaint regarding the recount of votes under the new Elections Act.

The petitioners, who were candidates in the elections to the Chamber of Deputies held from 8 to 9 October 2021 as the “COALITION OF PIRATES AND MAYORS”, applied that the Constitutional Court declare that the contested resolution of the Supreme Administrative Court violated their right guaranteed by Article 21(1) and (3), Article 22 and Article 36 of the Charter of Fundamental Rights and Freedoms, the principles of free competition between political parties in accordance with Article 5 of the Constitution of the Czech Republic, and the principle of proportional representation in elections to the Chamber of Deputies in accordance with Article 18(1) of the Constitution, and to therefore annul the resolution and refer the case back to the Supreme Administrative Court for further proceedings. In particular, the petitioners argue that the interpretation of the relevant provisions of the Elections Act chosen by the State Election Commission is not in line with the supporting reasons of the judgment of the Constitutional Court of 2 February 2021, file No Pl. ÚS 44/17. They explicitly referred to their submission as a constitutional complaint filed in accordance with Section 87(1)(d) of the Constitution in conjunction with Section 72(1)(a) of the Constitutional Court Act.

The Constitutional Court has based its reasoning on the competence set out in Article 87(1)(e) of the Constitution, according to which its decision in the matter (not “on the matter”) of verification of the election of a member of parliament or senator is determined exclusively by a remedial measure and the procedure in accordance with Sections 85 to 91 of the Constitutional Court Act.

The Constitutional Court has assessed whether the procedural prerequisites for the proceedings have been met and has concluded that the coalition’s petition, designated as a constitutional complaint, challenges the aforementioned resolution of the Supreme Administrative Court issued in accordance with Section 87 of the Act on Parliamentary Elections and Section 90 of the Code of Administrative Procedure. In accordance with Article 87(1)(e) of the Constitution, such a resolution on the validity of the election or the vote or election of a member of parliament or senator may be challenged by a remedial measure specifically designated for that purpose and filed no later than 10 days after the decision of the relevant chamber of Parliament on the validity of the election of its members, as the Constitutional Court has already interpreted in its judgment file No Pl. ÚS 73/04 in 2005. In the present case, the Constitutional Court has maintained that it can no longer be expected that such a matter would be decided as a constitutional complaint.

In deciding on this special remedial measure in accordance with Sections 85 to 91 of the Constitutional Court Act, the Constitutional Court acts as the final or last instance in the electoral justice system, where the proceedings end. Therefore, unlike a constitutional complaint, if this complaint is upheld, the case is not returned, but the Constitutional Court itself decides who has been validly elected and issues a certification to that effect. In the electoral justice proceedings before the Constitutional Court under the Constitutional Court Act, the rules on the constitutional complaint procedure do not apply because the subject-matter of the proceedings is the protection of the public interest in a duly constituted and electorally legitimate chamber of Parliament, not the protection of constitutionally guaranteed rights and freedoms of the individual. In this case, the Constitutional Court pointed to the supporting reasons of the resolution of the Supreme Administrative Court of 19 January 2017, ref. No Vol 58/2017-187, in which the differences in decision-making in matters of objective electoral rights in the electoral justice system and in the protection of subjective constitutionally guaranteed rights are clearly visible and explained. The procedure of constitutional complaint is used to protect them and there are different conditions laid down for the procedure – it may be filed only by someone whose constitutionally guaranteed rights and freedoms are directly affected, alone, in his own interest, within a set time limit (two months or up to one year), after exhausting all the means provided by the law for the protection of his right; the decision (cassation) is of a different legal nature, and it is decided on the level of constitutional order, not on the level of laws (sub-constitutional law).

In its current judgment, the Constitutional Court has elaborated on the conditions under which a coalition may file such a remedial measure in accordance with Section 31 of the Act on Parliamentary Elections, explaining the reasons why an election result determined in accordance with the objective electoral law can only be challenged specifically under the Constitution and the Constitutional Court Act in accordance with the procedure provided for that purpose, and why the electoral justice legislation must be interpreted not only in accordance with its outdated state of 1992 and 1993, but also taking into account the substantial changes made by the legislature in 1995, 2000, 2002 and 2016. Without such a procedure, the new legislation would not provide effective means of protecting the right to vote in an objective sense, e.g., it would mean that in some cases (as in the present case of the coalition’s submission) the petitioner would be left without an option for a remedial measure before the Constitutional Court, which would be in violation of the constitutional order.  

The Constitutional Court emphasised that this legal regulation cannot be circumvented by using another procedural means. Contrary to the coalition’s view, the Constitutional Court found that it could have used the remedial measure in terms of the overall regulation of election verification and electoral justice, and, according to the content of the submission, it did use and apply it. The Constitutional Court could decide on the basis of that decision on the legality (and not just the unconstitutionality, as in the case of a constitutional complaint) of the conclusions of the Supreme Administrative Court and, if necessary, on who was validly elected. However, this would have to be done within the statutory time limit.

However, the petition was filed and delivered to the Constitutional Court’s data box only on 23 November 2021 at 17:59:24. The contested resolution of the Supreme Administrative Court became final and enforceable on 5 November 2021. In this regard, the Constitutional Court recalled that on 10 November 2021 the Chamber of Deputies took note of the report of its Mandate and Immunity Committee, according to which all the deputies of the Chamber of Deputies had been validly elected and 196 of them had already received certificates of having acquired the mandate of a member of parliament. This resolution was approved, and no member (i.e., not even from the coalition or its parliamentary party) objected to the resolution of the Chamber of Deputies. The Constitutional Court concluded that the time limit specified in Section 85(2) of the Constitutional Court Act, which is calculated from the resolution of the Chamber of Deputies on the certification of the election, did not begin to run until 11 November 2021 (i.e. not 6 November 2021) and ended on the closest working day of the week, i.e. on Monday, 22 November 2021. Therefore, the petitioners’ submission was untimely even taking into account the date of the Chamber of Deputies’ decision.

In its resolution, the Constitutional Court stated that it was aware of the procedural complexity and intricacy of the legal regulation related to the proceedings in accordance with Article 87(1)(e) of the Constitution. The legislator has emphatically, but so far without result, drawn the attention to these shortcomings, in particular in judgment file No Pl. ÚS 73/04. However, this does not change the fact that, although the coalition’s extensive and thorough argumentation would require an opinion on how – and it needs to be emphasised in this context – the sub-constitutional legislator “dealt” with the supporting reasons of the judgment in file No Pl. ÚS 44/17, the petition was filed after the ten-day period set out in Section 85(2) of the Constitutional Court Act. In its case law, the Constitutional Court does not accept attempts to correct procedural errors by using another procedural means.

It follows from the above that the only remedial measure against a decision (whether of the Supreme Administrative Court or of the relevant Chamber of the Parliament) “in the matter of the certification of elections” of a Member of Parliament or a Senator is the remedial measure in accordance with Article 87(1)(e) of the Constitution, brought within the time limit prescribed by law and seeking to protect the interest of the holder of all State authority (and not merely the personal interest of the petitioner) in a duly elected and duly constituted legislative authority body in accordance with Articles 2(1) and 16 to 20 of the Constitution.