IV. US 275/96


                          JUDGMENT

         The Constitutional Court of the Czech Republic

              In the Name of the Czech Republic


     The Constitutional Court of the Czech Republic, sitting in
a  Panel  composed of its Chairwoman, JUDr. Eva Zarembova,  and
Justices, JUDr. Vladimir Cermak and JUDr. Pavel Varvarovsky, in
the  matter  of the constitutional complaint of  PhDr.  J.  S.,
represented  by  Mgr. Y. K., Dr., an attorney,  against  the  7
October  1996  resolution of the Supreme  Court  of  the  Czech
Republic, action no. Ovs 78/96/St, in conjunction with  the  27
September  1996  decision of the Central Electoral  Commission,
action  no.  UVK  281/1996, and the decision  of  the  District
Electoral  Commission  for District No.  54,  headquartered  in
Znojmo,  all of which rejected his application for registration
for  the election to the Senate of the Parliament of the  Czech
Republic, decided,

                       THUSLY:

     The 7 October 1996 resolution of the Supreme Court of  the
Czech Republic, action no. Ovs 78/96/St, the 27 September  1996
decision  of the Central Electoral Commission, action  no.  UVK
281/1996, and the decision of the District Electoral Commission
for  District  No. 54, headquartered in Znojmo,  all  of  which
rejected the application of PhDr. J. S for registration to  the
Senate election, are hereby annulled.


                   REASONING:


      In   his  constitutional  complaint,  delivered  to   the
Constitutional Court of the Czech Republic on 11 October  1996,
the  complainant requested the annulment of the 7 October  1996
resolution  of the Supreme Court of the Czech Republic,  action
no.  Ovs  78/96/St, which turned down his petition seeking  his
registration as a candidate for the election to the  Senate  in
Electoral  District No. 54, after his registration  application
had  already been rejected by the District Electoral Commission
on  18  September 1996, and his appeal to the Central Electoral
Commission was unsuccessful as well.  All of these bodies gave,
as  the  grounds for rejecting his registration, the fact  that
his   application   contained  no  document  evidencing   Czech
citizenship, so that it was incomplete.  At the hearing  on  15
October 1996, the complainant supplemented his petition in  the
respect  that, in addition to requesting the annulment  of  the
Supreme  Court resolution, he also seeks the annulment  of  the
related  decisions of the Central Electoral Commission and  the
District Electoral Commission.

     The  complainant states that he is naturally aware of  the
fact  that  Czech  citizenship is one  of  the  conditions  for
candidacy given in Art. 19 para. 2 of the Constitution  of  the
Czech  Republic.  However, in his view the Electoral  Act  does
not  prescribe the specific manner in which citizenship  should
be  proven.   Such legal provisions are contained  in  Act  No.
40/1993 Sb., on the Acquisition and Loss of Citizenship of  the
Czech  Republic,  specifically in § 20, which  distinguishes  a
total  of  four  kinds of documents, all of which  are  equally
valid.  The civil identity card, which in practice is used most
often, comes under letter a).  The complainant also made use of
this  document to prove his citizenship when, on  16  September
1996,  he  attempted to submit a copy of  it  as  part  of  the
application  he  filed  with  the  registrar  of  the  District
Electoral   Commission,.   However,  the   registrar   of   the
commission  refused  to  accept  it.   For  this  reason,   the
complainant obtained, without unnecessary delay (that same day)
a  certificate  of citizenship from the City Council  of  Brno,
which, together with a certified copy thereof, he delivered  to
the  registrar  of  the District Electoral  Commission  on  the
following  day, 17 September 1996.  None of the  stated  bodies
referred  to  above ever entertained any doubts concerning  the
complainant's  citizenship.  What is more, as  the  complainant
states,  §  14  para. 1(c) of Interior Ministry Regulation  No.
74/1996   Sb.,   which  lays  down  detailed   provisions   for
implementing  the  Electoral Act, gave the  district  electoral
commissions and the Central Electoral Commission the authority,
without problem, to verify facts relating to the citizenship by
enquiring at authorized offices.

     The  complainant concurs with the factual findings in  the
case  as  they  were  stated  in the  contested  Supreme  Court
resolution;  however, he is of the opinion that the formulation
of  the  legal  rule contained in it infringes his  fundamental
right  to  compete under equal conditions for  elected  office,
which Art. 21 para. 4 of the Charter of Fundamental Rights  and
Basic  Freedoms  (hereinafter "Charter")  guarantees  him.   He
states  that  he fulfills all of the statute's substantive,  as
well  as  formal,  requirements, but still he was  disqualified
from  standing  as  a  candidate on  the  basis  of  the  legal
interpretation that the civil identity card may not be used  as
a document evidencing citizenship of the Czech Republic for the
purposes  of  a  candidate's registration for election  to  the
Senate.  In his opinion, support for such an interpretation can
be  found neither in the Act on Elections to the Parliament  of
the  Czech Republic nor in the Act on the Acquisition and  Loss
of Citizenship of the Czech Republic.

     The  complainant further objected that the  Supreme  Court
violated  his  right  guaranteed by Art.  38  para.  2  of  the
Charter, for the proceeding was conducted in a manner which did
not allow him the opportunity to give his views on the admitted
evidence.   On  this  point, he also cites  the  Constitutional
Court  judgment  which  annulled §  250f  CCP  [Code  of  Civil
Procedure].

     For  all of the above-given reasons, the complainant seeks
the  annulment  of the contested Supreme Court  resolution  and
requests  that  he be granted, under § 62 of  the  Act  on  the
Constitutional  Court, the reimbursement of the  costs  of  his
legal representation.  In view of the fast approaching date for
the  Senate  election, he also requests that the Constitutional
Court give priority to deciding his case, as § 39 of the Act on
the Constitutional Court empowers it to do.  The Constitutional
Court,  therefore, first of all considered the urgency  of  the
matter  and, after consideration of all circumstances, came  to
the conclusion that the conditions for invoking § 39 of the Act
on  the  Constitutional Court are met.   For  this  reason,  it
ordered an oral hearing to be held in the matter without  delay
and  asked  parties and secondary parties to the proceeding  to
give their views on the complaint by the day of the hearing.

     In  its  submission made on 14 October 1996,  the  Supreme
Court  in  essence  continued to adhere to the  arguments  upon
which it rested its decision in the matter.  In particular,  it
rejected  the contention that the declaration of the  registrar
of  a  district electoral commission, who is not authorized  to
assess  whether  a person meets the conditions for  eligibility
for  election,  could  be  accepted  in  place  of  a  document
evidencing  citizenship.  In addition,  as  it  stated  in  its
submission,  in resolving election disputes, the Supreme  Court
has  dealt with a number of cases where the registrar  came  to
erroneous conclusions concerning submitted documents evidencing
citizenship.  It can be seen from the record, that the District
Electoral  Commission  gave  the  candidate  explicit   written
notification  of the fact that a certificate of citizenship  is
the most suitable means of meeting the requirements under §  61
para.  4(a) of  the Act on Elections to the Parliament  of  the
Czech Republic.  Finally then, the submission also states that,
in  the Supreme Court's view, § 61 para. 5, second sentence, of
Act  No.  247/1995  Sb.,  excludes  the  possibility  that  the
deficiencies  in  the  application might  be  cured  after  the
deadline  in § 61 para. 3 expires.  This provision  binds  even
the Supreme Court.

     In  its  submission made on 14 October 1996,  the  Central
Electoral  Commission in the main merely repeated the arguments
made  in the contested decision.  The Constitutional Court also
familiarized itself with the contents of the record  which  the
Supreme  Court  compiled  in  the case  and  with  the  annexes
thereto.

      In   considering   the  constitutional   complaint,   the
Constitutional  Court first directed its attention  to  judging
the  constitutionality  of  those  provisions  of  the  Act  on
Elections  to  the  Parliament  of  the  Czech  Republic,   the
application of which brought on the state of affairs which form
the  subject of the constitutional complaint, in this case, the
refusal  to  register the complainant as a  candidate  for  the
election to the Senate.  In this regard, however, Panel  IV  of
the  Constitutional Court ascertains no grounds for  suspending
the  proceeding under § 78 para. 2 of Act No. 182/1993 Sb.,  on
the  Constitutional  Court, and certifying  the  issue  to  the
Plenum.   What leads the Panel to this conclusion is  the  fact
that,  in spite of possible reservations concerning a  host  of
provisions  of  the Act on Elections to the Parliament  of  the
Czech  Republic, it is possible, at least in the view of  Panel
IV,   to   interpret  them  in  a  manner  conforming  to   the
Constitution.

     The  basic interpretive principle for any acts  which  set
down  more  detailed provisions for the exercise  of  political
rights  is  without  question Art. 22  of  the  Charter,  which
provides  that  every  body that applies  law  is  required  to
interpret  and apply the statutory rules in such a  way  as  to
facilitate  and  protect the free competition  among  political
forces   in  a  democratic  society.   In  the  view   of   the
Constitutional   Court,  this  principle  requires   that   all
provisions of the Act on Elections, as well as of other related
statutes,  the  meaning  of  which  are  open  to  dispute,  be
interpreted and applied in favor of the purpose and meaning  of
these  statutes.  At the same time, the purpose and meaning  of
the  law  is  not  to  be sought in the words  and  clauses  of
enactments  alone.   Legal  enactments  do,  and  must  always,
include within themselves the principles recognized as part  of
a  democratic  law based state.  In Art. 1 of the Constitution,
the  Czech Republic declares itself to be just such a law-based
state.  If then the purpose of the Act on Elections is to bring
to  life  and  set down more detailed provisions on  the  basic
political right to elect and stand for election, then contested
provisions  must  always be interpreted in  a  manner  that  is
solicitous of this right, that is then, so as to facilitate, to
the extent possible, the right to elect and stand for election,
and  not  the  contrary.  Apart from this special  interpretive
rule  for political rights, the Constitutional Court's  opinion
also  rests  on  Art. 4 para. 4 of the Charter  which  provides
that,  when employing the provisions concerning limitations  on
the  fundamental  rights and basic freedoms,  the  essence  and
significance of these rights and freedoms must be preserved.

     Giving  consideration  to  the above-cited  constitutional
interpretive  principle,  which  without  a  doubt  binds   the
Constitutional  Court itself as well, the Constitutional  Court
can  come  to  no conclusion other than that the constitutional
complaint is well-founded.

     In  judging  the  case,  all  participating  state  bodies
considered the decisive issue to be whether the civil  identity
card is or is not a document that adequately evidences that the
holder possesses Czech citizenship.  At the same time, they all
reached  the  conclusion that, for the  purposes  of  candidate
registration  for  elections to the  Senate,  the  document  is
insufficient,  even  despite the fact that  §  20  of  Act  No.
40/1993 Sb, on the Acquisition and Loss of Citizenship  of  the
Czech  Republic, explicitly lists this document as one  of  the
documents  that proves Czech citizenship.  The Act on Elections
to  the  Parliament of the Czech Republic contains  no  special
provision  on  this issue.  The arguments made by  all  bodies,
including the Supreme Court of the Czech Republic, consists  in
the  fact  that  the civil identity card is a special  document
which  cannot  be submitted in duplicate, and further  that  to
submit  it  would  be a violation of the duty  imposed  on  the
holder  of the identity card by Act No. 75/1957 Sb.,  on  Civil
Identity  Cards,  that  the registrar of a  district  electoral
commission is not a subject which would be authorized  to  take
away the civil identity card, and then finally, that it is  not
possible  to  certify copies of the civil identity  card  (§  3
para.  3(a)  of Act No. 41/1993 Sb., on the Certification  that
Copies  are Identical with a Document, on the Certification  by
Municipal  Offices  that a Signature is  Genuine,  and  on  the
Issuance  of  Acknowledgments by Municipal Bodies and  District
Offices).  With such an interpretation, the bodies applying law
raise  considerations of convenience and practicality over  the
law,  and  above all over constitutional principles,  and  they
count  any inconsistencies among laws to the detriment of those
who  are  trying  to assert their constitutional  rights.   The
civil identity card is a public document, so that a presumption
applies  that  it  is accurate; thus, unless  the  contrary  is
shown,  it  holds  that  the contents  of  such  a  certificate
correspond  to  the  facts.  While it  may  be  possible,  even
probable,  that  it would facilitate the job of  the  electoral
commissions  to  work  with  something  that  can  be   copied,
certified,  and reproduced (for example, with a certificate  on
citizenship), this consideration in no way alters the fact that
the  means which the complainant chose to prove his citizenship
fulfills  all  of the statute's requirements.  In this  regard,
one  can  also  refer  to the fact that another  Supreme  Court
Panel,  judging  in  a  different case, came  to  an  identical
conclusion.

     In  the  opinion of the Constitutional Court, the  grounds
described above are in and of themselves sufficient grounds for
granting   the   constitutional   complaint.    However,    the
Constitutional Court considers it appropriate to give its  view
on  an  additional issue as well.  The contested Supreme  Court
resolution  takes no position whatsoever on an issue  to  which
the   complainant  raised  objections,  practically  from   the
beginning  of the entire proceeding.  Specifically, he  alludes
to  the  fact that he immediately submitted the document  which
the  electoral  commission requested and that,  from  the  very
beginning, there had not been, nor could there have  been,  any
doubt   as   to  whether,  at  the  moment  he  submitted   his
application, the complainant met the conditions for eligibility
for  election,  that is, possession of Czech  citizenship.   In
this  regard,  the Constitutional Court would expect  that  the
Supreme  Court  would  have adopted a position  concerning  the
character of the proceeding which took place before it pursuant
to  §  200m of the CCP, namely whether it is or is not possible
in  this  type  of  proceeding to cure any formal  deficiencies
there  might be in the application.  In view of the  systematic
placement of § 200m of the CCP, there can be no doubt  that  it
is  a special proceeding and that, therefore, it is not related
to  the  part  of  the CCP on judicial review of administrative
decisions;  if the opposite were the case, the court  would  be
bound by the determination of the facts of the case made by the
administrative organ (the electoral commission), and  it  would
only  be  competent to make a judgment as to  whether,  at  the
moment  the  commission  made its  decision,  it  proceeded  in
accordance  with law.  The proceeding before the Supreme  Court
of  the  Czech  Republic is a proceeding  which  results  in  a
decision  having  no formal relation to the  Central  Electoral
Commission's decision.  Consequently, with its resolution,  the
Supreme  Court  does not modify the decision of  the  electoral
commission,  rather it decides the matter directly.   For  this
reason,  the  Constitutional Court does not share  the  Supreme
Court's  views  concerning the character of the deadline  given
under § 61 para. 5 of the Electoral Act.  For the same reasons,
neither  does  it share the opinion of the complainant  to  the
effect that, the Constitutional Court judgment Pl US 18/96,  in
which  it  declared  § 250f of the CCP to be  unconstitutional,
should  constitute a fact that is relevant to consideration  of
this case.

      On   the  basis  of  all  the  above-cited  reasons,  the
Constitutional  Court  declares that  the  contested  decisions
constitute an infringement of Art. 4 para. 4 and Art. 22 of the
Charter  and,  in consequence thereof, also an infringement  of
Art. 21 para. 4 of the Charter and Art. 90 of the Constitution.
In  order to ensure that this judgment serves its purpose,  the
Constitutional Court hereby annuls the decisions of the Central
Electoral  Commission and the District Electoral Commission  as
well.

     Taking  into  account  the fact that  this  is  the  first
election to the Senate and, thus, also the first application of
a   number   of  provisions  of  Act  No.  247/1995  Sb.,   the
Constitutional  Court  considers  this  judgment,   first   and
foremost,  as a decision which should assist in the  future  in
interpreting  this  law in a manner that is  correct  from  the
perspective of constitutional law.  At the same time, it  makes
the  assumption  that  the legislature will  consider,  in  the
spirit  of  this judgment, the possible need for  modifications
and  clarifications of the text of the Act on Elections to  the
Parliament  of  the  Czech Republic.  For  these  reasons,  the
Constitutional  Court does not consider it justified  to  award
the   complainant   costs   of  the   proceeding   before   the
Constitutional Court.

     Pursuant  to  Art. 89 para. 2 of the Constitution  of  the
Czech Republic, all enforceable decisions of the Constitutional
Court are binding on all authorities and persons, which in  the
instant  case means that the District Electoral Commission  for
Electoral  District  No.  54,  headquartered  in  Znojmo,  must
immediately   take   the   steps  necessary   to   effect   the
complainant's registration as a candidate for the  election  to
the  Senate, if the legitimacy of the election in this district
is not to be called into question.


Notice:   A  decision of the Constitutional Court  may  not  be
appealed.

In Brno, 15 October 1996

                                        JUDr Eva Zarembova
                                        Chairwoman of the Panel