I. ÚS 127/96
                     “Election Coalitions”

Statement of law:>
Act  no. 247/1995 Coll., on Elections to the Parliament of  the
Czech  Republic does not govern public law conditions  for  the
creation and activities of a coalition, and does not set  forth
the  power  of  any body to decide that a particular  political
party  or  group  of political parties or movements  is  to  be
considered  a coalition participating in elections. Thus  there
is  no authorization for a state body or a body entrusted  with
exercising public powers to interfere, by its decisions, in the
pre-election   activities  of  political  entities,   and   the
legislature apparently did not intend to interfere  via  public
law in the creation of (election) coalitions.

We can conclude from the existing legal situation that only the
political  subject itself decides of its own free will  whether
it  wishes  to  participate  in  elections  as  an  independent
(election) subject or as an (election) coalition. Given a  lack
of  other legal regulations the only relevant thing is thus how
the   subject  registers  its  candidate  list.  This  is  also
indicated  by  the  fact that the cited Act,  when  enumerating
subjects  authorized  to submit candidate list  for  elections,
sets forth coalitions as well as political parties without  any
further  determination  or  characteristics.  The  creation  of
(election)  coalitions  is thus subject  to  agreement  of  the
parties,  which  is not in any way regulated  or  forbidden  by
public  law.  The cited act does not tie any legal consequences
for  a  participating party to such actions, nor is  it  stated
that  only  members of a participating party can be entered  in
the  candidate lists. Creation of a coalition is  under present
laws  –  a voluntary act, i.e., a manifestation of the will  of
two  or  more  political  parties or  movements  to  create  an
election coalition, which is not subject to any further act  of
approval or review by state bodies.

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Judgment:
The  Constitutional Court of the Czech Republic decided,  in  a
panel, on the constitutional complaint of the complainant,  the
political  party  the  Free Democrats  –  the  National  Social
Liberal  Party  (Svobodní demokraté – Liberální strana  národně
sociální)  (SD  – LSNS), against the decision  of  the  Central
Election  Commission  of 27 April 1996,  that  the  complainant
would be considered a coalition in elections to the Chamber  of
Deputies of the Parliament of the Czech Republic, as follows:

The   Constitutional   Court  forbids  the   Central   Election
Commission to express an opinion on the question of whether the
complainant’s candidate list is or is not a candidate list of a
coalition, or to pass resolutions about this.

The  Constitutional  Court  also orders  the  Central  Election
Commission to renew the status of the complainant in  elections
to  the  Chamber  of Deputies of the Parliament  of  the  Czech
Republic  so as to correspond to the status before the election
commission’s resolution after registration of the complainant’s
candidate  list and, when exercising its powers,  not  to  take
into account its resolution, which stated in point 9 that SD  –
LSNS is a coalition; further, in connection with the renewal of
the  complainant’s  status, within 24 hours after  delivery  of
this  judgment, to send to the CTK press agency  a  declaration
that  the  complainant’s candidate list will  be  considered  a
candidate  list  of  a  single  political  party  in  the  1996
parliamentary elections.

Concerning  the complainant’s other motions, the constitutional
complaint is denied.

Reasoning:
I.
In  its constitutional complaint of 3 May 1996, the complainant
–  the political party the Free Democrats – the National Social
Liberal  Party  (Svobodní demokraté - Liberální strana  národně
sociální)  (SD - LSNS), proposed that the Constitutional  Court
decide that the Central Election Commission’s resolution of  27
April  1996,  that  the political party  SD  -  LSNS  would  be
considered  a  coalition  in the 1996 parliamentary  elections,
interfered in the political party’s constitutionally guaranteed
rights   and   freedoms  and,  as  a  result,   also   in   the
constitutional rights of citizens who associated in that party.
The  complainant  objects  that the  decision  is  in  complete
conflict  with legal regulations contained in Act no.  247/1995
Coll., on Elections to the Parliament of the Czech Republic and
Amending  and Supplementing Certain Other Acts, as  amended  by
later regulations (the “Election Act”), and with the purpose of
that  Act.  The  issue is that the Central Election  Commission
decided that the complainant, heretofore considered a political
party,  which  needs 5 % of votes to enter the first  scrutiny,
would  in  future  be considered a coalition,  which  needs  to
receive  7  %  of  votes  to  enter  the  first  scrutiny.  The
complainant states that the Central Election Commission decided
on  this condition even though no provision of the Election Act
authorizes  it to do so, and decided in its own discretion.  In
view   of  the  fact  that  this  commission  is  composed   of
representatives of all political parties, it  can  in  fact  be
said   that  representatives  of  political  parties   decided,
completely  outside the scope provided by law, to  create  more
difficult conditions for another political subject to enter the
Parliament of the CR.

The  complainant emphasizes that it met all conditions provided
by  law  for  registration of candidate lists, and these  lists
were   also  registered.  Subsequently  the  Central   Election
Commission  assigned the complainant, by lottery, a  number  to
identify  its candidate lists for elections to the  Chamber  of
Deputies  of  the  Parliament of the Czech  Republic,  and  the
complainant,  as  a  political  party,  paid  the   appropriate
security  deposit under the law. The decision  of  the  Central
Election  Commission that is criticized in this  constitutional
complaint   was   made  only  after  all  the   above-mentioned
formalities  had been met. This decision, that the  complainant
would  be considered a coalition in the 1996 elections  to  the
Parliament  of  the Czech Republic, was made despite  the  fact
that in previous meetings of the Central Election Commission it
was  resolved  that the complainant would not be  considered  a
coalition.

The complainant sees the steps that were taken concerning it as
violation of the articles of the Charter of Fundamental  Rights
and Freedoms stated below. Under art. 2 par. 3 everyone may  do
that  which is not forbidden by law and nobody may be compelled
to  do that which is not imposed upon him by law. Under art.  3
par.  1  fundamental  rights  and freedoms  are  guaranteed  to
everyone  without regard to, among other things,  political  or
other conviction. Under art. 4 par. 3 statutory restrictions of
fundamental rights and freedoms must apply equally to all cases
that  meet  the  specified conditions. Under  art.  21  par.  4
citizens have access to elective and other public office  under
the  specified  conditions.  The complainant  also  raised  the
objection  that  there  was violation of  free  competition  of
political forces in a democratic society under art. 22  of  the
Charter  of  Fundamental Rights and Freedoms.  It  agrees  that
elections  to  the Parliament of the CR, although  they  are  a
manifestation  of  the  constitutional right  to  vote  freely,
certainly cannot avoid certain formalities that must be met  as
a  condition for access to elections. These are quite evidently
formalities whose fulfillment guarantees that a political party
which participates in elections has been duly registered,  that
the  clear identity of candidates will be ensured, duplication,
consisting  of  a  certain candidate running  for  election  in
multiple  election  districts,  will  be  prevented,   that   a
candidate’s rank on a candidate list will be clear and it  will
also  be apparent that the candidate is a citizen of the  Czech
Republic.  In  all  these cases decision making  about  whether
these  formalities were met or not is clear, and precludes  the
possibility of any sort of discretion. Any actions excluding  a
political party or a candidate from participation in elections,
whether  by  decision  of  a Regional  Election  Commission  or
Central Election Commission, can be appealed to a court,  which
is  required to decide in a very short time whether  or  not  a
mistake  was made in evaluating the above mentioned formalities
and  the relevant consequences. Even here, however, the  matter
is  not one of discretion, but of comparing conditions provided
by law with the facts.

The  foregoing  indicates that the much lesser interference  in
free   competition  of  political  forces,  which  the  Central
Election   Commission  conducts  when  reviewing   the   formal
requirements  of candidate lists, is subject to  court  review.
Thus,  the  legislature  clearly  did  not  even  consider  the
possibility  that  the  Central Election  Commission  would  be
authorized  to  interfere in competition in other  ways,  which
would  not  be  subject to court review. Quite  clearly,  then,
there  can  be  no question of interference where the  decision
about  whether  steps  will or will not  be  taken  is  only  a
question of discretion without any firm rules.

The  complainant also points out that the Election Act does not
define  what is a coalition, nor does any other law  passed  in
the  CR  since 1918. Thus, when defining a coalition it is  not
possible  to  rely  on  analogie legis or analogie  iuris.  The
legislature clearly did not want to define a coalition  in  any
way,  so as not to create the necessity of deciding what  is  a
coalition  and  what  is  not a coalition.  In  that  state  of
affairs,  then,  a coalition is, de iure, only a  subject  that
identifies itself as such on its candidate list.

II.
The complaint was also reviewed in formal terms, and no reasons
were found to reject it.


III.
The  Constitutional  Court began with the filed  constitutional
complaint  and statements of the parties, and in  view  of  its
status  as a judicial body for protection of constitutionality,
considered   whether  the  actions  of  the  Central   Election
Commission   did   or   did  not  violate   the   complainant’s
constitutionally guaranteed fundamental rights and freedoms.

Before the Constitutional Court turned to evaluating the matter
itself,  it was necessary to note how the term “coalition”  was
understood  in  the course of actions by the  Central  Election
Commission.  Differences of opinion in that regard  undoubtedly
led  to  the  filing  of  this  constitutional  complaint.  The
Constitutional Court states that the term “coalition”  was  not
defined  by the Act on Elections or in other legal regulations.
The  term  “coalition”  is  familiar from  political  practice,
mostly   from  the  co-operation  of  a  so-called   “governing
coalition,”  whose meaning has been settled  for  years.  Where
this  is  not  so,  the term “coalition” may  indicate  various
levels of relationships, from mere co-operation between various
parties  through  tighter  or looser interconnection  up  to  a
degree  of  co-operation  which precedes  the  merger  of  such
parties.

No  provision of the Election Act governs public law conditions
for  the creation and activities of a coalition, enshrines  the
authority  of  any  body to decide that a particular  political
subject  (political  party or declared or undeclared  group  of
political  parties  or  movements) participating  in  elections
(e.g. as a party) must be seen as a coalition; there is thus no
authorization  for  a  state body  or  a  body  entrusted  with
exercising  public powers to interfere, by its decision-making,
in  (pre-) election activities of political subjects.  This  is
also  confirmed  by Act no. 424/1991 Coll., on  Association  in
Political  Parties  and Political Movements,  which  explicitly
provides  that state bodies may interfere in their  status  and
activities only on the basis of law and within its bounds .  It
is  apparent  that the legislature did not intend to  interfere
(via public law) in the creation of coalitions. If it wanted to
influence such questions, it would have to precisely define  an
election  coalition and also regulate the mechanism  of  review
(evidently judicial) of whether a political subject is a  party
or  a  coalition. We can conclude from this, in accordance with
art.  2  par. 2 and art. 3 of the Charter of Fundamental Rights
and  Freedoms, or art. 2 par. 3 and art. 4 of the  Constitution
of the CR (particularly with the argument that “everyone may do
that  which  is  not prohibited by law”) that in  the  existing
legal situation only the political subject itself decides of it
own free will whether it wishes to participate in elections  as
an   independent  (election)  subject  or  as   an   (election)
coalition.  Given  a lack of other legal regulations  the  only
relevant thing is thus how the subject registered its candidate
list. The Election Act itself provides some support for such  a
conclusion  in  §  31  par. 1 where, when enumerating  subjects
authorized  to  submit candidate lists for elections,  it  sets
forth coalitions (without further requirements) in addition  to
political  parties.  The creation of (election)  coalitions  is
thus  subject to agreement of the parties, which is not in  any
way regulated or forbidden by public law. The Election Act does
not  tie  any legal consequences for a participating  party  to
such actions. It is not even prescribed that only members of  a
party  are  recorded on its candidate list; any natural  person
who  is  entitled to run for office can be registered. Creation
of a coalition is – under present laws – a voluntary act, i.e.,
a manifestation of the will of two or more political parties or
movements to create an election coalition, which is not subject
to any further act of approval or review by state bodies.

A  similar  construction, though expressed more precisely,  was
adopted, for example, in Act no. 47/1990 Coll., on Elections to
the  Federal  Assembly, as amended by Act  no.  59/1992  Coll.,
which  provided that “political parties may agree to  submit  a
joint  candidate  list. Provisions of this Act  applying  to  a
political  party shall be applied commensurately to a coalition
thus  created .…” An identical provision was also  included  in
Act  no.  54/1990  Coll., on Elections to  the  Czech  National
Council,  as amended by Act no. 94/1992 Coll. For the  sake  of
completeness  it must be noted that in the first  elections  to
the  highest  representative bodies, in 1990,  only  a  minimum
threshold was provided for votes necessary to progress  to  the
first   scrutiny,  which  applied  to  political  parties   and
coalitions,  and  thus  it  was not  necessary  to  distinguish
between  the two political subjects. Differentiated  thresholds
were  not established until amendments to the election acts  in
1992.

The  Constitutional Court also had to clarify for  itself  what
was  the  position  of  the  Central  Election  Commission   in
resolving the conflict about whether the candidate list of SD –
LSNS  is  a  candidate list of a political party or a candidate
list  of a coalition under § 31 of the Election Act. The answer
to  this  is  given  by the Election Act, which  provides  that
elections  to  the  Parliament  are  governed  by  the  Central
Election Commission, whose jurisdiction is elaborated in  §  12
par.  6  of the Election Act, under which the Central  Election
Commission
a)  monitors the observance of Acts and other legal regulations
on elections,
b)  decides on complaints against procedures taken by  regional
and  district  election commissions and appeals  against  their
decisions;  the decision of the Central Election Commission  is
binding for all election commissions,
c) determines and publishes the results of elections,
d)  shall deliver a record of the results of elections  to  the
Parliament of the Czech Republic  to the appropriate chamber of
the Parliament,
e) shall issue a certificate of election to elected candidates,
f)  performs  other  tasks  under  this  Act  and  other  legal
regulations.

Other  tasks  of  the  Central  Election  Commission  must   be
understood  to  mean, in particular, review  of  the  candidate
lists   by  the  Central  Election  Commission  under   §   33,
registration of candidate lists under § 34, resolving  disputes
on  rejection  of a candidate list under § 32  par.  3  in  the
period before its registration, or cancellation of registration
if  a  political  party  that submitted a  candidate  list  was
dissolved or its activities suspended (§ 31 par. 4).

Thus,  in  this  case,  where the Central  Election  Commission
decided  that  the  already  registered  candidate  list  of  a
political party is a candidate list of a coalition, it exceeded
its   powers,   because  the  law  does  not   give   it   such
authorization. The question of whether in this case there was a
political  party or a coalition under the Act on Elections  was
related  chronologically primarily to submitting and  reviewing
candidate lists under §§ 31 to 33 of that Act.

To  evaluate  this  case  it  must  also  be  stated  that  the
complainant  was already registered as a political  party,  had
been allocated, by lottery, a number to the Chamber of Deputies
by  the  Central Election Commission, and it paid  the  deposit
prescribed  by  law. If no inadequacies in the  candidate  list
were  discovered at this stage of preparations  for  elections,
the  Central Election Commission’s authority to decide  in  the
matter in question after registration of candidate lists cannot
be derived from the text of the law.

After  clarifying  the foregoing questions  the  Constitutional
Court  of  the CR concluded that the procedures of the  Central
Election Commission were interference by a body of public power
into  the  constitutionally guaranteed fundamental  rights  and
freedoms  of  a  political party, i.e.,  the  complainant.  The
Central  Election  Commission’s  procedures  were  not  only  a
violation of the Act on Elections, as was discussed above,  but
also a violation of art. 4 of the Charter of Fundamental Rights
and  Freedoms, under par. 1 of which obligations may be imposed
only  on the basis of law and within its bounds and only  while
respecting   fundamental  rights  and   freedoms.   This   also
corresponds  to  the purpose of art. 20 of the Constitution  of
the  CR,  under  which further conditions for exercise  of  the
right  to  vote, organization of elections and  the  extent  of
judicial review shall be provided by law.

The  cited  provision of the Charter of Fundamental Rights  and
Freedoms  was  violated by the fact that the  Central  Election
Commission’s resolution was not based on statutory provision or
authorization,  and, merely on the basis of discretion,  beyond
the  framework  of its authority, required a legal  entity,  in
this  case a political party, to tolerate the fact that, unlike
other  parties,  its  entry  to the  Parliament  of  the  Czech
Republic  will not be subject to the condition of receiving  at
least  5 % of votes, but the need to receive at least  7  %  of
votes  under the Act on Elections. Therefore this “resolution,”
even  though, for example, the constitutional complaint  speaks
of  it  as a “decision,” must be considered interference  by  a
body  of  public power in the complainant’s fundamental  rights
and freedoms, in the wider sense of the word, under § 72 par. 1
letter a) of Act no. 182/1993 Coll., and the conclusions  which
are set forth in verdict of this judgment must be drawn.

While  the  Central  Election Commission, in oral  proceedings,
pointed  to  the provisions of § 49 par. 1 and  2  of  Act  no.
247/1995  Coll.,  and from it derived its authority  to  decide
whether  the  complainant  is  or  is  not  a  coalition,   the
Constitutional  Court believes that this  provision  cannot  be
taken  into  account  in  the  adjudicated  matter.  The  cited
provision  governs only the counting of valid  votes  cast  for
political  parties and for election coalitions,  and  does  not
give  the  Central Election Commission an ex post right,  i.e.,
after  voting  has been completed, to subsequently  change  the
status  of parties or coalitions duly registered to participate
in elections.

For all these reasons, the Constitutional Court, applying §  72
par.  1 letter a) and § 82 par. 3 letter b) of Act no. 182/1993
Coll.,  on  the  Constitutional Court, decided as  follows:  it
forbade  the  Central Election Commission  from  continuing  to
violate  the complainant’s rights and freedoms, and ordered  it
to  renew  the  situation  before the  violation.  Within  this
framework,   the  Constitutional  Court  ordered  the   Central
Election   Commission  to  send  the  CTK  press   agency   the
declaration which is set forth in the verdict of this judgment.
Therefore,  to  renew that situation, i.e., for  voters  to  be
properly  informed,  an  active step of  the  Central  Election
Commission is necessary, in the form of a declaration  for  the
CTK press agency.

The  Constitutional Court rejected the constitutional complaint
only  insofar as the complainant sought to impose an obligation
on  the  respondent to apologize to the complainant and  secure
posting of the declaration for the CTK press agency in front of
every election room.