I. ÚS 526/98
                      “Election campaign”


Headnote:
    In  proceedings under part 3 chapter 2 of the  Act  on  the
Constitutional  Court the Constitutional Court  decides  on  an
appeal  against  a  decision in the  matter  of  verifying  the
election of a deputy or senator, and because it acts as  –  sui
generis  –  the  appeal level, it must evaluate the  particular
case  not  only  in  terms  of protection  of  constitutionally
guaranteed  rights or freedoms, but primarily in terms  of  the
trustworthiness of the democratic election process.

    The  Supreme  Court  of  the CR is entitled  to  decide  by
verdict  about whether a particular senator was validly elected
or  not. Therefore, it cannot be said that the Supreme Court of
the  CR only evaluates whether or not there are grounds  for  a
filed  complaint (it is justified), and that it is not entitled
to decide on the validity of the election.

    A  body  of the Senate reviews the validity of the election
from other viewpoints, particularly with regard to art. 19 par.
2  of  the  Constitution and § 57 of the Election Act (Act  no.
247/1995 Coll.).

    The  filed  application  (appeal  against  a  decision   of
verifying the election of a senator) cannot be formally  denied
with  reference to the fact that it is aimed “against a legally
irrelevant decision of the Senate”. The relevance of  a  Senate
decision  in verifying the election of a deputy or senator  can
be derived from § 85 of the Act on the Constitutional Court.

    The  argument concerning objective or subjective  violation
of   the  Election  Act  (§  16)  is  considerably  misleading.
Generally,  the  issue  should not be exclusively  whether  the
Election Act was violated objectively or subjectively,  but  it
is  necessary  to  take into account the circumstances  of  the
specific  case and the intensity and way in which the  Election
Act was violated. Thus, it cannot be generally stated that each
violation  of  the Election Act (if appealed)  results  in  the
invalidity  of the election, or that the penalty of  invalidity
of  the election cannot be applied to violation of the Election
Act at all.

    It  is  clear  from the nature of the matter  that  in  the
“moratorium period” of 48 hours before elections begin  and  in
the  election  days  it is not possible to completely  ban  any
election campaigning whatsoever. Therefore, § 16 par. 5 of  the
Election Act must be interpreted rather restrictively,  in  the
sense  that  the  legislature intended to ban  active  election
campaigns,   i.e.,  intentional  and  purposeful   campaigning,
purposefully  aimed  for  political  parties,  coalitions   and
candidates.

    Although  proceedings  on  an  appeal  in  the  matter   of
verifying  the  election of a deputy or  senator  are  specific
proceedings – whose primary task is to protect the function  of
elections  in a democratic society in terms of the  “objective”
constitutional  law – it is necessary in them  to  reflect  the
protection  of  fundamental  rights  and  freedoms  of  natural
persons  and  legal  entities. Although the Election  Act  bans
active  election campaigning in the statutorily defined period,
the  intended aim of this restriction (i.e. protection  of  the
subjective  decision making of voters) may  not  violate  other
fundamental  rights  and  freedoms, in  particular  freedom  of
expression  and  the right to information. Thus,  even  in  the
statutorily  protected  period the  media  have  the  right  to
provide  information, and may present their own opinions;  they
are  only  forbidden  to campaign actively for  any  particular
candidate.  Freedom of expression and the right to  information
are  among the main pillars of a democratic society, which  the
media,  in  particular,  naturally  use  in  their  work.  This
fundamental right and its exercise are necessarily an essential
for their free existence.

    The  right  to  freedom  of expression  and  the  right  to
information are one of the cornerstones of a democratic  state,
as  only  free information and its exchange and free discussion
make  a  person a citizen of a democratic country.  It  is  the
press,  radio  and  television which  spread  and  provide  the
information;   in  this  regard  freedom  of  information   has
extraordinary importance.

    Thus,  the  principle  of  honorable  and  honest  election
campaigns and the ban on campaigning in the period of 48  hours
before  elections  and  during them cannot  be  interpreted  so
widely that the act would create social vacuum which makes  the
existence of freedom of expression and the right to information
(in connection with elections) impossible.

    Consideration  of  the  predictability  of  the  law   (its
consequences)  cannot  be restricted only  to  its  grammatical
text.  It is judicial decision making which – although it  does
not  have a classical precedential nature –interprets the  law,
or completes it, as the case may be, and its relative constancy
guarantees  legal  certainty  and  also  insures  general  also
insures   general   confidence  in  the   law.   This   applies
particularly  to  the Supreme Court of the  CR,  which  is  the
supreme  judicial  body in the field of the  general  judiciary
(cf.  § 92 of the Constitution). This, of course, does not deny
that judicial case law can develop and change with regard to  a
number  of  aspects, in particular with regard  to  changes  in
social conditions.

The purpose of § 16 par. 2 and 5 of Act no. 247/1991 Coll. is
undoubtedly protection of honorable and honest elections. It
can be agreed that – institutionally speaking – it would
generally not be appropriate to concentrate exclusively on the
question whether it was only a candidate (political party) who
violated the cited provision. On the other hand, however, it is
difficult to comprehensively accept a strictly objective
criterion and ignore the fact that the candidate did not
subjectively cause the violation of the election rules. The
opposite interpretation would necessarily lead to a situation
in which any subject could achieve the invalidity of the
election of any candidate completely without his fault, which
could - in eventum – significantly interfere with elections.
The legislature naturally did not intend such consequences.

<
Verdict:
     The  Constitutional  Court, in  a  panel,  decided  on  18
February 1999 by a finding in the matter of the petitioner, the
Civic  Democratic  Party  (Občanská demokratická  strana),  the
party  to  the  proceedings – the Supreme Court  of  the  Czech
Republic  and  the  Senate  of  the  Parliament  of  the  Czech
Republic,  secondary  parties – D.  L.  and  the  Czech  Social
Democratic  Party (Česká strana sociálně demokratická)  on  the
appeal against the decision of the Senate of the Parliament  of
the  Czech  Republic of 16 December 1998 and  the  Mandate  and
Immunity Committee of the Senate of the Parliament of the Czech
Republic  no.  18  of  15  December  1998  in  the  matter   of
verification  of the election of senator D. L.  and  against  a
decision  by  the  Supreme Court of the  Czech  Republic  of  3
December 1998, file no. 11 Zp 54/98, as follows:

     D.  L.  was validly elected a senator in elections to  the
Senate of the Parliament of the Czech Republic, held on 13 - 14
November  1998  and  20  – 21 November  1998  in  the  election
district no. 58 Brno-city.

Reasoning

I.
     The petitioner appeals against the decision of the Supreme
Court  of  the CR indicated in the introduction, in  which  the
court  decided that “the election of a senator in elections  to
the  Parliament  of  the CR held on 20 - 21  November  1998  is
invalid and D. L. cannot be given a certificate of election  as
a senator”.

     In the reasoning of the decision, the Supreme Court of the
CR stated that, in deciding on the complaint against issuing  a
certificate  of election as a senator under §  88  of  Act  no.
247/1995  Coll. on Elections to the Parliament of  the  CR  and
Amending  and Supplementing Certain Other Acts, as  amended  by
other regulations (the “Election Act”), and on the basis  of  §
200n  of  Civil  Procedure  Code,  it  evaluated  “whether  the
statutorily prescribed procedure of elections and determination
of  their  results was observed”. Judiciary review is  done  in
proceedings  which  are, by their nature,  a  special  kind  of
adversary  civil  court  proceedings,  and  the  petitioner  is
therefore  required to identify evidence to prove  its  claims.
The  petitioner in the proceedings before the Supreme Court  of
the  CR  (the  Czech  Social  Democratic  Party,  Česká  strana
sociálně  demokratická), in the adjudicated  matter  identified
five events as evidence of violation of the Election Act:

1.      On  the first day of the second round of elections  (20
  November  1998)  the daily newspaper Lidové noviny  published
  an  article on the front page entitled “Brno mayor D. L.  has
  a  chance to become chairman of the Senate”. On that same day
  the  same  daily published a pre-election poll, in  which  it
  identified D. L. as the clear favorite.
2.      On  21  November 1998 the same daily published, in  the
  article  “Commissions discussed campaign” a section with  the
  sub-title “ČSSD candidate Božek acted immorally”.
3.      In  the  first  round of the Senate  elections,  D.  L.
  allegedly  had  access  to the district election  commission,
  before  the  protocol  on the termination  of  its  work  was
  signed.
4.      On  20 November 1998, i.e. during the first day of  the
  elections,  D.  L. was able to appear in the television  news
  program  Jihomoravský  večerník, where  she  allegedly  spoke
  about and evaluated her election campaign.
5.      D.  L.’s  election materials were allegedly distributed
  on  the second day of the elections, i.e. 21. November  1998,
  in the morning.

  In this connection, the Supreme Court of the CR pointed to  §
16 par. 2 of the Election Act, under which an election campaign
must  take place honorably and honestly, in particular,  untrue
information may not be published about candidates and political
parties  or  coalitions on whose candidate  lists  they  stand.
Paragraph  5  of  this  provision  primarily  forbids  election
campaigning for political parties, coalitions and candidates in
the  period of 48 hours before elections begin and on  election
days.  It  is  also forbidden to publish the  results  of  pre-
election  public  opinion polls, “provided  that  they  may  be
published no later than the seventh day before election day”.

  In  the  opinion of the Supreme Court, the Election  Act  was
violated,  specifically  §  16  concerning  regulation  of   an
election  campaign. The violation was to have occurred  by  the
fact  that  (1.)  on  the  first day of  the  second  round  of
elections  (20 November 1998) the daily Lidové noviny published
an  article on the front page entitled “Brno mayor D. L. has  a
chance to become chairman of the Senate”. On that same day  the
same   daily  published  a  pre-election  poll,  in  which   it
identified  D.  L.  as  the clear favorite,  that  (2.)  on  21
November  1998  the  same  daily  published,  in  the   article
“Commissions  discussed campaign” a section with the  sub-title
“ČSSD  candidate  Božek acted immorally” and  that  (3)  on  20
November  1998, i.e. during the first day of the elections,  D.
L.   was   able  to  appear  in  the  television  news  program
Jihomoravský  večerník,  where she allegedly  spoke  about  and
evaluated her election campaign. Concerning the objection about
D.  L.’s  alleged  interference with the work of  the  district
election  commission, the Supreme Court of the CR  stated  that
this  fact had not been proved in any way. Concerning the point
of  the  complaint  about  distribution  of  D.  L.’s  election
materials on the second day of the elections, the Supreme Court
of the CR stated that if this did actually occur, it could have
been  violation of the Election Act, nonetheless, “in  view  of
the conclusions cited above and the shortness of the time which
the  Supreme Court of the CR has available for decision making,
it  no longer considered it useful to concern itself with  this
question”.

  The  Supreme  Court stated that in terms of  the  degree  and
seriousness  of the violation of the Election  Act,  it  is  of
course  important  whether the violation occurred  through  the
active actions of the candidate or her party, or another entity
without   her   knowledge.  In  the  case  of  isolated,   less
significant  interference of third entities with the  election,
there  would  clearly not be such violation of  the  law  which
would  result  in invalidity of the elections. Nonetheless,  if
such  interference is committed by the mass media  (a  national
daily    considered   “trustworthy”   and   state-wide   public
television),   “the  question  of  some  sort   of   fault   or
participation by the candidate in such election campaigning  in
these cases is irrelevant”. At the same time, the obligation to
refrain  from  election campaigning in the statutorily  defined
period  allegedly  can  not  be  considered  interference  with
freedom of speech and the right to information, as it is in the
interest  of  the  free decision making of voters  just  before
elections  and  during  elections to  have  an  opportunity  to
consider their decision in peace. Likewise, the absolute ban on
publishing  results  of pre-elections of public  opinion  polls
during  the specified period cannot be circumvented in the  way
that  Lidové noviny did, as this would cast doubt on  its  very
purpose. Thus, although in the opinion of the Supreme Court  of
the  CR “there is no discussion” about the fact that D. L.  did
not  subjectively cause violation of the rules of  elections  –
with the exception of the television appearance - (and there is
no evidence that she instigated the articles and the television
program), the Election Act is based on the fact that it  is  to
be  objectively  observed,  and if it  is  not  observed,  (“if
someone  attacks  this  shortcoming,  it  can  have  only   one
consequence - invalidity of the elections”. The media are  also
required  to  observe  the law, and if they  violate  it,  they
should bear the liability, including criminal liability.

  The  Mandate  and  Immunity Committee of the  Senate  of  the
Parliament of the Czech Republic by decision on verification of
the  validity  of the validity of elections of senators  stated
“that it could not verify the mandate for the election district
in  question in view of the fact that the Supreme Court of  the
CR decided that the election was invalid and D. L. could not be
issued  a certificate on election as a senator”. The Senate  of
the  Parliament  of  the Czech Republic, by  resolution  of  16
December  1998,  took cognizance of the cited report  from  the
Mandate and Immunity Committee.
    
II.
    The  petitioner summarized its main arguments  against  the
decision of the Supreme Court of the CR. First of all,  in  its
opinion,  the  Supreme Court decided on the invalidity  of  the
election without a legal basis, as neither the Election nor the
Civil   Procedure   Code  provides  for  the   subject   matter
jurisdiction of the Supreme Court of the CR. Section 79 of  the
Election Act is allegedly a statutory basis for decision making
by  the  president  of  the republic and  not  the  court.  The
question of whether individual deputies and substitute deputies
were validly elected is decided, under § 45 par. 1 letter a) of
the  Act  on the Rules of Procedure of the Chamber of Deputies,
by  the  Mandate  and  Immunity Committee and  the  Chamber  of
Deputies  (or Senate). Second, the petitioner claims  that  the
Election Act does not connect violation of obligations provided
in § 16 par. 2 and 5 with the sanction/penalty of invalidity of
the  election, as such a serious consequence would have  to  be
stated  expressis  verbis in the law or  “must  be  derived  by
unambigious  legal arguments”. The petitioner  sees  the  third
level of its objections in the fact that any violation of §  16
par.  2  and  5  of the Election Act in this case  was  of  low
intensity,  did  not  influence  voters’  decision  making  and
consisted  of actions by subjects other than the candidate  and
the political party which nominated her. Fourth, the petitioner
concluded  that § 16 of the Election Act and its interpretation
are  in conflict with the constitutionally guaranteed right  to
freedom of expression and right to information under art. 17 of
the  Charter  of  Fundamental Rights and  Freedoms,  so  it  is
clearly unconstitutional.
         
III.
    The  Constitutional  Court stated that the  file  indicates
that the appeal against the decision in the matter of verifying
the  election  of  senator  D. L. meets  all  statutory  formal
requirements,  and  thus  nothing  prevents  review  of  and  a
decision in the matter itself.
    
IV.
  After   discussing  the  matter,  the  Constitutional   Court
concluded that the appeal is justified.
A)      The  Constitutional Court stated  that,  in  the  first
  place,  it  considers it necessary to state that  proceedings
  under  art. 87 par.1 letter e) of the Constitution and  under
  chapter  2  of  part  three of the Act on the  Constitutional
  Court, i.e. proceedings on an appeal against the decision  in
  the  matter of verifying the election of a deputy or  senator
  are  special  and  relatively separate  kind  of  proceedings
  before  the Constitutional Court, to which general provisions
  on  proceedings before the Constitutional Court apply only in
  a subsidiary manner.

  In  proceedings  under part 3 chapter 2 of  the  Act  on  the
  Constitutional Court, the Constitutional Court decides on  an
  appeal  against  a  decision in the matter of  verifying  the
  election  of a deputy or senator, and because it  acts  as  –
  sui  generis  –  the  appeal  level,  it  must  evaluate  the
  particular   case  not  only  in  terms  of   protection   of
  constitutionally   guaranteed   rights   or   freedoms,   but
  primarily  in terms of the trustworthiness of the  democratic
  election  process.  Violation of  the  subjective  rights  of
  individuals   can  become  an  instigation  to   review   the
  regularity of elections, but the substantive content of  that
  review  must  be  a determination whether the existing  short
  comings  have such impact that they cast doubt on the results
  and  thereby  also  the validity of the elections.  Based  on
  foregoing, although it is true in these proceedings that  the
  Constitutional  Court is a judicial body  for  protection  of
  constitutionality  (art.  83 of the  Constitution)  and  that
  Constitutional  Court  judges are  bound  in  their  decision
  making   only   by  constitutional  acts  and   international
  treaties  under art. 10 of the Constitution (art. 88  par.  2
  of  the Constitution), nonetheless, the viewpoints from which
  the  Constitutional  Court evaluates the justification  of  a
  decision  in  the matter of verifying an election  are  given
  not  only  by  constitutional norms  but  also  by  statutory
  norms.

B)It  must  be  said  that  the existing  legal  regulation  of
  proceedings  in  the matter of an appeal  against  issuing  a
  certificate  of election as a senator (§ 88  par.  1  of  the
  Election   Act)  and  its  interpretation  are   considerably
  disputed  and not unified. Therefore, before turning  to  the
  specific   adjudicated   matter,  the  Constitutional   Court
  considers  it  appropriate  to take  a  position  on  certain
  general  procedure aspects of proceedings about this type  of
  election complaint.

  Section  88  par.  1  of the Election Act  indicates  that  a
  complaint  against issuing a certificate  on  election  as  a
  senator  can be used by every citizen registered in the  list
  of  voters  in  the  relevant election  district,  and  every
  political  party  or  coalition which  filed  a  registration
  application  in that district to seek a court decision  under
  a  special act. In this case, that act is the Civil Procedure
  Code, under § 200n of which on a complaint against issuing  a
  certificate  of election as a senator shall be decided  by  a
  court  by  resolution, without court proceedings, within  ten
  days. The court‘s decision cannot be appealed. Section 89  of
  the  Election Act indicates that the Supreme Court of the  CR
  has  jurisdiction for proceedings in this matter. Under §  88
  par.  2  of  the  Election Act, “the  court  shall  send  its
  position  in  the decision, depending on the  nature  of  the
  matter,  to the Chamber of Deputies or the Senate”.  Under  §
  79  of the Election Act, “if a senator was not elected in the
  election  district due to a court decision on the  invalidity
  of  the election, or due to the fact that the elections  were
  not  held properly, the president of the republic shall  call
  supplemental elections”.

  Section 45 par. 1 letter a) of Act no. 90/1995 Coll.  on  the
  Rules of Procedure of the Chamber of Deputies (which is  also
  used  commensurately for sessions of the Senate, under §  126
  of  the  act  until  such time of the Act  on  the  Rules  of
  Procedure  of  the Senate is passed) gives  the  Mandate  and
  Immunity  Committee  the right to review  whether  individual
  deputies  and  substitute deputies were  dully  elected  and,
  depending  on the nature of the matter, it shall present  its
  findings  to the Chamber of Deputies or the chairman  of  the
  Chamber of Deputies.

  Under  § 85 par. 1 letter a) of the Act on the Constitutional
  Court,  an  appeal  against the decision  in  the  matter  of
  verifying the election of a senator may be submitted  by  the
  senator,  or the party for which he was a candidate,  against
  the  decision that he was not validly elected. If the  Senate
  verifies  the  validity of the election of  the  senator,  an
  appeal against the decision may be filed by “the party  whose
  election  complaint  was granted” [letter  b)  of  the  cited
  provision].

C)       In  the  opinion  of  the  Constitutional  Court,  the
  foregoing  overview of the legal regulation of this  type  of
  “election  complaint”  indicates  that  proceedings  in  this
  matter are based on the following principles:

  1.      A  complaint  against issuance of  a  certificate  of
     election  as  a  senator may be filed  by  every  entitled
     citizen or the appropriate political party (or coalition).
     The complaint is decided by the Supreme Court of the CR.

  2.      In  this  matter,  the Supreme Court  of  the  CR  is
     entitled to decide by a verdict about whether the  senator
     in  question  was validly elected or not.  This  provision
     corresponds  to  the  cited provisions  of  §  88  of  the
     Election Act and § 200n par. 1 of the Civil Procedure Code
     which  state  that  a  complaint  against  issuance  of  a
     certificate of election as a deputy or a senator shall  be
     decided by a court. Therefore, it cannot be said that  the
     Supreme  Court  of the CR only evaluates whether  a  filed
     complaint does or does not have grounds (is justified) and
     that  it  does not have jurisdiction to decide  about  the
     validity  of the elections. At the same time, it is  clear
     that  the  legal  regulations of  proceedings  before  the
     Supreme  Court  of  the CR in election  matters  (judicial
     review)  is based on the nature of those proceedings,  one
     of  the  basic – and necessary – requirements of which  is
     that  the proceeding must be fast. This fact alone  cannot
     be  seen as violation of the procedural guarantee  of  due
     process under chapter five of the Charter.

     In  this regard the Constitutional Court basically  begins
     with the fact that the Parliament of the CR is the supreme
     body,  not of all power, but only legislative power.  With
     regard  to  the current regulation in the Constitution  of
     the  CR and the Election Act, Parliament primarily has the
     power  –  with  constitutionally defined exceptions  –  to
     decide   using  the  normative  form,  i.e.  in  a  manner
     generally  binding  for  a further  unspecified  range  of
     subjects  and  not in the form of individual  legal  acts.
     Likewise in the case of deciding on an election complaint,
     the   right   to  issue  an  authoritative  decision   (an
     individual legal act) thus belongs to an independent court
     and  not to the legislative body, with the exception cited
     below.  Under § 45 par.1 letter a of the Act on the  Rules
     of  Procedure of the Chamber of Deputies, the Mandate  and
     Immunity   Committee  is  entitled   to   review   whether
     individual deputies were validly elected, but during  this
     review  it  must begin with any decisions of  the  Supreme
     Court  of  the  CR, issued in proceedings on  a  complaint
     against  issuance of certification of election. (The  body
     of  the  Senate itself reviews the validity of an election
     from  other view points, particularly with regard to  art.
     19 par. of the Constitution and § 57 of the Election Act.)
     Therefore, in the adjudicated matter, the decision of  the
     Supreme  Court  of  the  CR cannot be  questioned  on  the
     grounds  that  the  Supreme  Court  of  the  CR  was   not
     authorized to issue it at all, or that the decision is not
     binding in the given case.

    It  is  clear from the foregoing that the law distinguishes
     a  situation  when a decision is issued that a  deputy  or
     senator  was not validly elected – which is decided  (with
     the above mentioned exception) by the Supreme Court of the
     CR  –  and  one when a decision was issued to certify  the
     validity  of  an  election  by the  appropriate  house  of
     Parliament. Thus, if (generally) the Supreme Court of  the
     CR  decides  on an election complaint under §  88  of  the
     Election Act, this decision (the position contained in it)
     is given to the Chamber of Deputies or the Senate, and the
     appropriate  house  of  Parliament  must  observe  it   in
     deciding  about certification of the election of a  deputy
     or a senator.

  3.      If  the  Supreme Court decides that the  election  in
     question  was  not  valid, this does  not  mean  that  the
     mandate  of  the  senator in question  terminates  by  the
     decision, but that it was never created.
  
  4.      An  appeal  against the decision  in  the  matter  of
     verifying  election  of  a  senator  is  decided  by   the
     Constitutional  Court, which shall state in  its  decision
     that the senator either was or was not validly elected. By
     promulgation  of  a  decision of the Constitutional  Court
     granting  an appeal, under § 91 par. 3 of Act no. 182/1993
     Coll.  on  the  Constitutional Court, decisions  of  other
     bodies  which  are  in conflict with  this  decision  lose
     effect.

V.
The Constitutional Court reached these conclusions:
a)  § 16 par. 2 of the Election Act indicates that “an election
campaign must take place honorably and honestly; in particular,
untrue information must not be made public about candidates and
the  political  parties or coalitions on whose candidate  lists
they  are listed.” Under par. 5 of this provision, “in a period
of  48  hours  before  elections begin  and  on  election  days
election  campaign  for  political  parties,  coalitions,   and
candidates is forbidden; it is forbidden to publish information
which  could damage a political party, coalition or  candidate,
in speech, in writing, sound or pictures in buildings where the
district  election commissions reside, and in  their  immediate
surroundings.  To  publish the results of  pre-election  public
opinion  polls is permitted only up to the seventh  day  before
election  day. During the elections, any election poll  in  the
building  where  the  election room is located  is  forbidden.”
Under  par. 7 of this provision, “during elections,  until  the
election  rooms are closed, it is forbidden to publish  results
of election polls.”
b)  From the wording of the Act – though not only from it –  we
can  conclude  certain basic facts. In the first  place  it  is
obvious  (and  in this the Constitutional Court  considers  the
petitioner correct), the delineation of rules for conducting an
election campaign, as indicated in § 16 of the Election Act, is
not  comprehensive, and that an election campaign  is  more  or
less  governed by a whole range of provisions from other  legal
regulations  (the  Civil Code, the Criminal Code,  the  Act  on
Misdemeanors, etc.). Thus, § 16 of the Election Act  must  also
be   understood  to  relate  to  other  legal  regulations  and
“emphasize” their importance– for understandable reasons  –  in
the period just before elections.
It  is  also true that legal regulation of an election campaign
is  not  and cannot be regulated exhaustively, as can  be  seen
with comparable foreign legal regulations. For example, under §
32  of  the German election act (Bundeswahlgesetz, BGBl.  I  S.
1288  as amended by later regulations) only election propaganda
in  the  immediate  vicinity of election rooms  and  publishing
public opinion results are expressly forbidden, and only in the
election  period.  Under  §  58 of the  Austrian  election  act
(Nationalrats-Wahlordnung,   BGBl.   1992/471)   any   election
campaigning,   particularly  questioning  voters,  distributing
election materials, holding assemblies and carrying weapons are
forbidden in buildings where election rooms are located and  in
their  vicinity  on election days. Thus, rules  for  conducting
election  campaigns  are and, per the  nature  of  the  matter,
necessarily must be considerably general, and it is the task of
judicial  case law to shape them more precisely and  make  them
more specific.
c)  The  argument contained, on the one hand, in the criticized
decision of the Supreme Court of the CR and, on the other hand,
in  the appeal, concerning objective or subjective violation of
the  Election Act (§ 16), is considerably deceptive.  Generally
speaking,  the  issue  should not be  exclusively  whether  the
Election Act was violated objectively or subjectively,  but  it
is necessary to take into consideration the circumstances of  a
specific case and the intensity and manner of violation of  the
Election  Act. This idea must also be a starting point  in  the
adjudicated  matter. Thus, it cannot be generally  stated  that
every  violation of the Election Act (if contested) results  in
the  invalidity  of  the elections, nor  that  the  penalty  of
invalidity of elections cannot be applied to violation  of  the
Election Act at all. Every case – as was already stated –  must
be  judged  and evaluated not formally, but materially:  always
individually  and  taking  into  account  all  the   particular
circumstances in the meaning stated above.
d)  Thus,  we  cannot agree with the petitioner’s opinion  that
violation of election campaign rules (§ 16 of the Election Act)
cannot lead to invalidity of elections at all. Therefore, it is
not  appropriate to cast doubt on the general conclusion of the
Supreme  Court CR, that violation of the Election Act (election
campaign rules) can lead to “making elections invalid”.
e)   Regarding   the   petitioner’s  opinion   concerning   the
unconstitutionality of a possible judicial (Senate) decision on
the  termination of the senator’s mandate due to art. 25 of the
Constitution – which does not address anything like that  –  it
must  be  stated  that  this case is not about  a  decision  on
termination of the mandate with effects ex nunc, but about  the
invalidity of the senator’s election with effects ex tunc. This
means  that  if the election complaint is granted, the  mandate
was  never  created,  and thus conflict with  art.  25  of  the
Constitution  does  not  exist.  In  this  case  as  well,  the
Constitutional  Court begins with its settled case  law,  under
which,  in  a  situation when a certain provision  of  a  legal
regulation permits two various interpretations, and one  is  in
accordance  with  constitutional laws  and  with  international
treaties  under art. 10 of the Constitution, all  state  bodies
must   interpret  it  in  a  manner  which  conforms   to   the
Constitution (cf. e.g. decision Pl. ÚS 5/96, The Constitutional
Court  of the CR: Collection of Decisions, vol. 6, C. H.  Beck,
Prague, 1997, p. 203).
f)  Thus, in the adjudicated matter – in view of these  general
conclusions  –  the  Constitutional Court concentrated  on  the
questions  (1.) whether the Election Act was violated  in  this
case, and (2.) if so, whether the intensity of the violation is
so  serious  that in can lead to a decision that the  elections
were invalid.
g)  In interpreting the provisions of § 16 of the Election  Act
the  Constitutional  Court began first with  their  grammatical
wording.  First of all, it is no accident that the  legislature
used  different terminology in the paragraphs of §  16  of  the
Election  Act:  while  in  par. 2 it  works  with  the  concept
“election   campaign,”  in  par.  5  it  speaks  of   “election
campaigning.” It is clear from the nature of the matter that in
the  “moratorium period” of 48 hours before elections begin and
on  election days it is not possible to completely  forbid  all
kinds of election campaigns, as the consequences of such a  ban
would  necessarily mean, e.g., removal of all election  posters
and billboards, which is technically very difficult to do. Par.
5  of  the cited provision must therefore be interpreted rather
restrictively, in that the legislature had in mind a ban on  an
active   election  campaign,  i.e.  intentional  and   targeted
campaigning,  purposefully  directed  for  political   parties,
coalitions and candidates.
h)  In  the  adjudicated matter the Constitutional Court  found
that the television clip aired on Česká televize in the program
Jihomoravský večerník cannot be seen as violation of the  rules
for  conducting an election campaign in the meaning of § 16  of
the Election Act in an intensity endangering the objectivity of
elections. This newscasting clip also did not violate  the  ban
on  election campaigning, as it cannot be interpreted – in  the
above-mentioned meaning – as purposeful, intentional and active
election  campaigning for the candidate D.  L.  The  television
clip   in  question  was  only  informative,  and  its  authors
evidently tried to provide room for various opinions in it. The
Constitutional Court did not find violation of the Election Act
in  such  an  extent as to cast doubt on the  overall  election
results,  nor did it find it in the two articles in  the  daily
Lidové noviny.
The  stated conclusions follow– among other things –  from  the
fact   that  the  Constitutional  Court  accented  particularly
material  aspects, took into account the final  result  of  the
Senate  elections in the particular election district and  took
into  account  the question of whether and to what  extent  the
function of elections in a democratic society was endangered in
the  adjudicated matter. The official records  of  the  Central
Election  Commission indicate that in the  first  round  D.  L.
received 9,562 votes and V.B. 6,955 votes. In the second  round
of  elections D. L. received 9,797 votes and V. Božek  received
9,534  votes, i.e. the difference in votes was 263. it is clear
that  the  difference in votes in the second  round  of  Senate
elections  was very close, so that at first glance there  could
have  been an election “upset” from a decision of only a  small
number  of voters. Nonetheless, it cannot be overlooked that  a
comparison  of  the results of the first and  second  round  of
elections  indicates that the number of votes  for  D.  L.  was
relatively  constant in both rounds, there was  no  significant
increase  (only 2.45 %), and, in contrast, it was V. Božek  who
received  considerably  more  votes  in  the  second  round  of
elections that in the first round (by 37.08 %), which could  be
attributed to the campaign conducted for his benefit, which the
election commission criticized and to which L. responded. Thus,
we  can judge that neither the articles nor the television clip
fundamentally  affected the second round of  Senate  elections,
and they did not interfere with the function of elections in  a
democratic society.
h)  The  Constitutional  Court also  emphasizes  that  although
proceedings about an appeal against a decision in the matter of
certifying  the  election of a deputy or  senator  are  special
proceedings – whose primary task is protection of the  function
of  elections  in a democratic society in terms of  “objective”
constitutional law – protection of the fundamental  rights  and
freedoms  of  natural persons and legal entities must  also  be
observed  in  them.  Thus, although the  election  act  forbids
active  election campaigning in the statutorily defined period,
the  aim of this restriction (i.e. protection of the subjective
decision  making  of voters) cannot violate  other  fundamental
rights  and  freedoms, in particular freedom of expression  and
the  right  to  information.  Thus,  even  in  the  statutorily
protected   period,  the  media  have  the  right  to   provide
information, and they may also present their own opinions; they
are only forbidden from actively campaigning for any particular
candidates.  Therefore, the adjudicated  matter  must  also  be
evaluated  from  his  point of view. We  cannot  not  see  that
freedom  of expression and the right to information  are  among
the  main pillars of a democratic society, which the media,  in
particular, naturally use in their work. This fundamental right
and  its  exercise necessarily form an essential condition  for
their free existence. Therefore, with each restriction of  this
fundamental  right,  it is necessary to  proceed  with  extreme
caution, and anxiously heed constitutional regulations, binding
norms  of  international law (art. 10 of the Constitution)  and
the case law of the European Court of Human Rights.
These general ideas are also the basis for interpretation of  §
16  of the Election Act. The principle of honor and honesty  of
an election campaign and the ban on election campaigning in the
period of 48 hours before elections and during them thus cannot
be  interpreted so widely as if the law created a social vacuum
which  does  not permit the existence of freedom of  expression
and  the  right to information (in connection with  elections).
This  is  discussed  in more detail in the next  part  of  this
decision (VII.).

VII.


As  the  Constitutional Court already stated, the substance  of
its  arguments  was  concentrated on the  question  of  whether
“objective” constitutional law , specifically whether there was
a  violation  of the Election Act and whether the intensity  of
the  violation  was  so  serious that it  should  result  in  a
decision   that  the  elections  were  invalid.  However,   the
Constitutional Court also considered the petitioner’s objection
that  – although proceedings about an appeal against a decision
in the matter of certifying the election of a deputy or senator
are  special  proceedings (compared to  the  institution  of  a
constitutional complaint) – they too cannot abandon  protection
of  the fundamental rights and freedoms of natural persons  and
legal  entities, if they were (in connection with elections  of
deputies  and senators) violated by interference  of  a  public
body. Therefore, the Constitutional Court also considered  this
aspect of the matter. In this regard we can rely on the Charter
of  Fundamental  Rights and Freedoms (art. 17), the  Convention
for  theProtection  of  Human Rights and  Fundamental  Freedoms
(art.  10)  and  the case law of the European  Court  of  Human
Rights that concerns the question of protection of the right to
freedom  of  expression in the period of an  election  campaign
(cf. the decision of the European Court for Human Rights of  19
February 1998 – Bowman,  Great Britain, no. 141/1996/760/961).
Therefore, the Constitutional Court also considered whether the
appealed decisions violated the fundamental right to freedom of
expression and the right to information in the meaning of  art.
17 of the Charter and art. 10 of the Convention.

The Constitutional Court reviewed the following questions:
1.  Whether  this right was interfered with and  whether  these
articles of the Charter and the Convention can be applied
Under  art. 17 par. 1 – 3 of the Charter, freedom of expression
and  the right to information are guaranteed. Everyone has  the
right to express his views in speech, in writing, in the press,
in  pictures, or in any other form, as well as freely to  seek,
receive, and disseminate ideas and information irrespective  of
the  frontiers  of  the  state. Censorship  is  not  permitted.
Similar  protection  is  also  provided  by  art.  10  of   the
Convention. This is a right which is one of the cornerstones of
a  democratic state, as only free information and its  exchange
and  free  discussion make a person a citizen of  a  democratic
country. It is the press, radio and television which spread and
provide  the information; in this regard freedom of information
has  extraordinary importance. This is also confirmed by  well-
known case law of the European Commission for Human Rights  and
the  European Court for Human Rights (cf. e.g. Sunday Times  v.
Great Britain (1978, A-30). Thus, if the press and television –
even  if  in  connection  with the  elections  –  provided  the
incriminated information, D.L. appeared on television, and as a
result  the elections were declared invalid and the mandate  of
D.L. was not certified, then there was undoubtedly interference
in  the  right  to  freedom  of expression  and  the  right  to
information and both articles of the Charter and the Convention
are applicable to the adjudicated matter.

2.  However,  these rights are not unlimited.  Restrictions  on
them are provided in art. 17 par. 4 of the Charter, under which
freedom  of  expression and the right to seek  out  and  spread
information can be restricted by law, in the case of a  measure
which is, in a democratic society, necessary for protection  of
the  rights  and freedoms of others, national security,  public
safety, protection of public health and morals and art. 10 par.
2  of  the  Convention, under which exercise of these freedoms,
because it also includes obligations and responsibility, can be
subject  to  such  formalities,  conditions,  restrictions   or
sanctions  as  the law provides and which are  necessary  in  a
democratic  society  in  the  interest  of  national  security,
territorial  integrity or public safety, prevention  of  unrest
and  crime, protection of health or morals, protection  of  the
reputation  or  rights  of  others, preventing  the  escape  of
confidential  information  or  preserving  the  authority   and
independence of the judicial power.
These  restrictions  have the character of  exceptions  to  the
fundamental  right to freedom of expression and  the  right  to
information,  and therefore they must interpreted restrictively
according  to  general principles. This is  also  the  approach
chosen by the Constitutional Court.
The  cited articles of the Charter and the Convention  indicate
that a restriction of the cited fundamental right is subject to
the  following conditions: it must be provided by a  law  which
has  a legitimate purpose, and the restriction must be one that
is necessary in a democratic society.

3. The Constitutional Court first reviewed whether restrictions
in  the sense of the cited articles are given by law. Generally
speaking  this is so, as these restrictions are established  by
§16  par.  2, § 16 par. 5 and § 16 par. 7 of the Election  Act.
However,  the  case law of the European Court requires  that  a
restricting law also have certain qualities, i.e.  that  it  be
accessible   and   that   its  consequences   be   sufficiently
foreseeable that a citizen can adapt his behavior with  a  view
to  them (cf. the already cited decision in the matter  of  the
Sunday   Times).  In  this  regard  the  Constitutional   Court
determined the following: concerning the accessibility  of  the
law, this condition has been met and no objections were raised;
concerning  the  predictable  consequences  of  the  law,   the
question  whether this requirement has been met is considerably
more complicated.
a)   According to the petitioner the law does not expressly set
  the penalty of invalidity for violation of § 16 par. 2 and 5 of
  the Election Act.
We  can  add that this penalty can be indirectly inferred  only
from  §  79  of the Election Act – which speaks about  a  court
decision about the invalidity of an election in connection with
§  88 par. 1 and 2 and with § 200n of the Civil Procedure Code.
Nonetheless, it is true that this penalty is not expressly  set
for violation of § 16 par. 2 and 5 of the Election Act, and its
applicability   could,   in   eventum,   arouse   doubts.   The
predictability  of this penalty is problematic particularly  in
view  of  the question of whether the penalty – i.e. invalidity
of  the  election  of  the senator – arises  each  time  anyone
violates  the  cited  provision in corresponding  intensity  or
whether the condition for its application is violation  of  the
cited provisions by the relevant candidate for the position  of
senator (deputy). Although we can agree that the purpose of the
Act  (§  16  par. 2 and 5) is protection of the  cleanness  and
honor  of  an election campaign as such, it is necessary  –  in
view  of  the relatively general wording of the Act –  to  also
review  judicial case law, which brings the Act to life and  on
which the candidate should rightly rely.
Therefore,  the Constitutional Court concentrated on  the  case
law  of  the  Supreme Court of the CR in matters of  complaints
against  the issuance of certification of election as a  deputy
(senator) under §§ 88, 89 of the Election Act and § 200n of the
Civil Procedure Code.
In  the  adjudicated matter (as was already stated) the Supreme
Court  of  the  CR  in the conclusion of the reasoning  of  the
appealed  decision  stated: “There is no doubt  about the  fact
that … D. L. subjectively .. did not cause the violation of the
rules  of  the election competition with the exception  of  the
cited  television  appearance. There is no  evidence  that  she
instigated the cited articles and television program … The  Act
is  based  on the principle that during an election campaign  …
its provisions are supposed to be objective observed ….”
However,  the  Supreme  Court of  the  CR  chose  a  completely
different viewpoint in its decision of 7 July 1998, file no. 11
Zp  22/98,  in which it denied the complaint of the  petitioner
against issuance of certification about the election of Dr.  V.
as  a deputy of the Chamber of Deputies and concluded that  the
forbidden election campaigning (… from which legal consequences
can also be drawn in proceedings on a complaint against issuing
certification of election as a deputy) means conducting active,
targeted  promotional  activities of the candidate  for  deputy
himself  (political  party, coalition),  aimed  at  influencing
voters,  or  performing  such activity  at  their  instruction,
request,  with  their consent or with their knowledge,  in  the
period of 48 hours before elections begin. The Supreme Court of
the  CR  stated that in the adjudicated matter the petitioner’s
claim  had not been proved that there was, on the part  of  the
respondent,  or  his political party, activity which  would  be
violation of the ban on election campaigning under §  16  par.5
of the Act.
The  Constitutional Court considers that even a mere comparison
of  the  two  cited decisions of the Supreme Court  of  the  CR
clearly  documents that there has been a visible shift  in  its
fundamental legal opinion. Whereas in the first decision  of  7
July 1998 the Supreme Court of the CR required violation of the
ban  on  election campaigning in the moratorium period  by  the
candidate himself (or his political party), or with his consent
or  knowledge, in the appealed decision of 3 December  1998  it
abandons  the principle of the candidate’s (political  party’s)
subjective  relationship  to  the violation  of  the  statutory
moratorium and emphasizes that the law stands on the  principle
of  objective  observance  of  its  provisions,  and  that  the
question of the fault or participation of the candidate in  the
election  campaigning (read, in the moratorium period)  is  not
decisive.  According to the Constitutional Court’s  conviction,
the  two  cases  are  comparable,  as  the  distribution  of  a
candidate’s  publicity materials to the households of  specific
citizens  can  be,  depending  on the  circumstances,  just  as
effective, or even more effective, than an article in the press
or  a television clip, which is seen by an accidental reader or
viewer.
As   was   already   stated  elsewhere,  in   considering   the
predictability of a law (its consequences), we cannot  restrict
ourselves only to its grammatical text. It is judicial decision
making  which  –  although  it  does  not  have  the  classical
precedential  character – interprets the law, or completes  it,
and  its relative constancy guarantees legal certainty and also
ensures   general   confidence  in  the   law.   This   applies
particularly  to  the Supreme Court of the  CR,  which  is  the
supreme judicial body in the general judiciary (cf. § 92 of the
Constitution). Naturally, this does not deny that judicial case
law  can  develop  and change in view of a number  of  aspects,
particularly  with  regard  to changes  in  social  conditions.
However,  this  changes nothing about  the  fact  that  in  the
adjudicated  matter the appealed decision of the Supreme  Court
of  the  CR  principally  diverged from the  fundamental  legal
opinion  which the same court expressed a mere 5 months before,
and  with  which it gave content to § 16 par. 2 and  5  of  the
Election Act. That cannot be overlooked in this situation.
Therefore, the Constitutional Court reached the conclusion that
the  cited  Act (its consequences) was not predictable  in  the
adjudicated matter. The fundamental condition of restriction of
the   right  to  freedom  of  expression  and  the   right   to
information,  i.e. the existence of a law having  the  required
features (predictable consequences), thus does not exist in the
adjudicated matter.
For  thoroughness,  the  Constitutional Court  also  considered
other  conditions  for  restricting the  fundamental  right  to
freedom  of expression and the right to information,  contained
in  art. 17 of the Charter and in art. 10 of the Convention. As
was already stated, these conditions are the legitimate aim  of
restricting  a fundamental right and the necessity  of  such  a
restriction in a democratic society.

4.  The  “legitimate aims” (restriction of a fundamental right)
are established practically identically, or very similarly,  in
art.  17  par.  2  of the Charter and art. 10  par.  2  of  the
Convention.  They  include,  in particular,  the  interests  of
national  security  and  public safety, preventing  unrest  and
crime,   protection  of  health  and  morals,  preserving   the
authority  and  independence of the  judicial  power,  and  the
interest  in  protection  of  the  reputation  or  rights  (and
freedoms) of others. In the opinion of the Constitutional court
the  cited provisions – with regard to their purpose – can also
be  applied  to  the  adjudicated  matter.  This  concerns,  in
particular,  the  interest  in the  protection  of  the  rights
(freedoms)  of  others,  which could be affected  by  newspaper
articles  and television programs. Therefore the Constitutional
Court  considers  that a “legitimate aim” (restriction  of  the
fundamental  right to freedom of expression and  the  right  to
information) existed in the adjudicated matter.

5.  Finally, the Constitutional Court considered – even if only
for  completeness, as already stated – the question of  whether
the  restriction  of  the  fundamental  right  to  freedom   of
expression  and  the right to information and  the  penalty  of
invalidity  of  the  election were necessary  in  a  democratic
society.
a) The Constitutional Court recognizes that the purpose of § 16
par.  2 and 5 of the Election Act is undoubtedly protection  of
the  honorableness and honesty of elections, for which the  law
also  selects  certain restrictive means in the  period  of  48
hours before elections. We can agree that usually it would  not
be  appropriate to concentrate exclusively on the  question  of
whether  it  was only the candidate (the political party),  who
violated  the cited provision. On the other hand,  however,  we
can   hardly  comprehensively  accept  the  strictly  objective
criterion  which  the  Supreme Court of the  CR  chose  in  the
adjudicated  matter and ignore the fact that – as  the  Supreme
Court  of  the  CR  itself stated – candidate  D.  L.  did  not
subjectively  cause  the violation of  the  rules  of  election
competition  (with the exception of the television  appearance)
and  did  not instigate the articles in Lidové noviny  and  the
television   appearance.  The  contrary  interpretation   would
necessarily lead to a situation in which any entity (e.g. every
media, including the tabloid press) could obtain the invalidity
of  the election of any candidate completely without his fault,
which  could  –  in  eventum  –  significantly  interfere  with
elections,  or, taken to the logical consequences,  ruin  them.
The legislature, naturally, did not intend such consequences.
We  can  not fail to see that the so-called moratorium  in  the
period 48 hours before elections (nor the general principle  of
an  honorable  and  honest election campaign)  do  not  mean  a
statutorily created sterile environment which makes  impossible
any  freedom of expression and right to information. Naturally,
of  course,  by  this  interpretation the Constitutional  Court
absolutely does not intend to tolerate the possible practice of
alternating   attacks   and   counter-attacks   violating   the
principles  of  an honorable and honest election  campaign  and
observance  of  the  election  moratorium  to  the  benefit  or
detriment  of  individual candidates. Things will,  of  course,
always  depend on the form and content of the public appearance
in question and on the circumstances of the particular case.
In  the cited considerations, the Constitutional Court was also
guided  by  its  own  existing case law,  which  clearly  gives
preference to permitting exercising of the election  right.  In
its  decision, file no. IV. ÚS 275/96, the Constitutional Court
said:  “If the purpose of the Election Act is to implement  and
more  closely regulate the fundamental political right to elect
and  be  elected, then disputed provisions of this Act must  be
interpreted  in  the  spirit  of art.  22  of  the  Charter  of
Fundamental  Rights  and  Freedoms.  The  Constitutional  Court
considers  such  an interpretation to be only an interpretation
which  is  favorable to this fundamental right – i.e.  such  as
permits  one  to  elect and be elected, and not the  contrary.”
Although   the  cited  decision  concerned  the   question   of
registration  of  a  candidate,  the  Constitutional  Court  is
convinced  that the statement of law can be used commensurately
as   a   guideline  for  interpretation  –  depending  on   the
circumstances – in other cases as well.
In connection with the issues discussed, we can also point to a
historical comparison. The Supreme Administrative Court, in its
decision of 8 November 1935 [BOH.12124 adm. (19224/35)] stated:
Influencing a voter, as a violation of election freedom, can be
recognized as a defect in election proceedings, or a reason for
cancelling  elections, only if it happened  through  means  and
under  circumstances  which are, by their  nature,  capable  of
imposing another’s will so that it is possible to conclude that
the  voter subjects himself to that will, and acted against his
convictions.  Thus,  it  is  apparent,  that  even   historical
administrative case law, though from a time of different social-
political conditions, in evaluating the freedom of elections as
a  defect  in  “election proceedings” began with a  restrictive
interpretation.
Therefore the Constitutional Court reached the conclusion  that
restriction  of the fundamental right to freedom of  expression
and  the right to information and the penalty of invalidity  of
the  election  of the candidate D. L. were not necessary  in  a
democratic  society under art. 17 of the Charter  and  art.  10
par. 2 of the Convention.

6.  Thus,  these  considerations  indicate  that  the  appealed
decisions  –  in their consequences – violated the  fundamental
right  of  D.  L.  to freedom of expression and  the  right  to
information.  Therefore, the Constitutional Court  granted  the
petitioner’s  appeal and in the verdict of the  finding  stated
that D. L. was validly elected a senator.