IV. US 276/96

                        JUDGMENT

      Of 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  the  Civic
Democratic  Party,  represented by JUDr.  P.T.,  an  attorney,
against the October 7, 1996 resolution of the Supreme Court of
the  Czech  Republic,  file no. Ovs 53/96/St  -  8,  with  the
Supreme Court of the Czech Republic joined as a party  to  the
proceeding, and the Central Electoral Commission joined  as  a
secondary party, decided,

                       THUSLY:
                               
    The 7 October 1996 resolution of the Supreme Court of  the
Czech  Republic,  file  no.  Ovs 53/96/St  -  8,  and  the  25
September  1996 decision of the Central Electoral  Commission,
file no. UVK 254/1/1996, are hereby annulled.

                      REASONING:

    This  constitutional complaint contests the aforementioned
resolution  of the Supreme Court of the Czech Republic,  which
rejected   the   candidate   PhDr.  J.G.'s   application   for
registration  in the electoral district No. 3 - Cheb  for  the
elections  to  the  Senate  of the  Parliament  of  the  Czech
Republic, scheduled to be held on 15 and 16 November 1996, and
the  decision  of  the Central Electoral Commission  rejecting
PhDr.   J.G.'s  application  for  registration  due  to   non-
compliance with the requirements set down in § 61 of  Act  No.
247/1995  Sb., as subsequently amended.  In the constitutional
complaint, the complainant states that the contested decisions
violated  his constitutionally guaranteed rights and  freedoms
as  laid  down  in  Article 22 of the Charter  of  Fundamental
Rights  and  Basic  Freedoms  (hereinafter  "Charter"),  which
provides that legal provisions governing all political  rights
and freedoms, as well as the interpretation and application of
them,  shall  facilitate  and  protect  the  free  competition
between  political forces in a democratic society, in  Article
36  para. 1 of the Charter, establishing the right to judicial
and  other  legal protection, in Article 37  para.  2  of  the
Charter,  establishing  the  right  to  legal  assistance   in
proceedings held before courts, other state bodies, or  public
administration  bodies  from  the  very  beginning   of   such
proceedings,  in Article 90 of the Constitution of  the  Czech
Republic,  which  places upon courts the duty  to  afford  the
protection of rights in the manner provided by law, in Article
21  para.  4 of the Charter, pursuant to which citizens  shall
have  access,  on  an equal basis, to any elective  and  other
public  office, in Article 4 para. 4 of the Charter,  pursuant
to  which when the provisions on the limits of the fundamental
rights  and freedoms are applied, the essence and significance
of  these  rights and freedoms must be preserved, such  limits
may  not be used for other purposes than those for which  they
were  instituted,  as well as in Article 19  para.  2  of  the
Constitution  of the CR, which establishes the  right  of  any
citizen  of the Czech Republic who has the right to  vote  and
has  attained the age of forty, to stand for elections to  the
Senate.  The lengthy arguments presented by the complainant in
the  constitutional complaint, find fault, in particular, with
the  opinion  of the Supreme Court of the Czech Republic  with
respect to the fact that the document evidencing PhDr.  J.G.'s
citizenship  presented  by  it, lost  its  validity  upon  the
adoption of Czech National Council Act No. 40/1993 Sb., on the
Acquisition  and  Loss of Citizenship of the  Czech  Republic,
because  no legal provisions sets forth the date as  of  which
the evidence of citizenship of a candidate to the Senate is to
be  proved, thus, the presented evidence is valid until  PhDr.
J.G.  would lose the Czech citizenship. For these reasons,  as
well  as  for  other  reasons mentioned in the  constitutional
complaint,  the  plaintiff  asks that  this  Court  grant  the
constitutional complaint and annul the contested resolution of
the  Supreme  Court of the Czech Republic in relation  to  the
decision of the Central Electoral Commission.
    In  its statement dated 14 October 1996, the Supreme Court
of  the  Czech  Republic confirmed its position, stating  that
when examining the question of the existence of citizenship of
the  Czech  Republic,  as  well as  the  manner  of  providing
evidence  thereof, it is necessary to apply  the  legal  rules
governing this issue that are currently in force, that is, the
said Czech National Council Act No. 40/1993 Sb.  Up until  the
filing of the application, it had not been evidenced that  the
candidate acquired citizenship  of the Czech Republic  in  any
manner regulated by the mentioned act, that is, that he  is  a
citizen   of   the   Czech  Republic.   His  application   for
registration did not contain any of the documents establishing
citizenship  of the Czech Republic pursuant to the  provisions
of  §  20 of Czech National Council Act No. 40/1993 Sb.   This
leads  to  the  inevitable  conclusion  that  the  candidate's
application for registration in the matter did not  contain  a
document evidencing his citizenship pursuant to the provisions
of  § 61 (4)(a) of Act No. 247/1995 Coll., and that is one  of
the  defects mentioned in § 62 (2)(b) of the Act.   Therefore,
the   Central   Electoral  Commission  has  rightly   rejected
PhDr.J.G.'s application for registration for elections to  the
Senate  of  the  Czech  Parliament  in  accordance  with   the
applicable  provisions  of  the Electoral  Act.   The  Supreme
Court,  in  fact,  was only able to deal  with  the  objection
raised  by  the  petitioner in his 2 October 1996  submission,
namely,  that concerning the evidence of citizenship, and  not
facts  concerning  his  membership in  a  political  party  or
movement,  the fact that this information was incomplete  also
constituted one of the reasons for which the Central Electoral
Commission rejected PhDr. J.G.'s application for registration.
    In  its  submission, dated 14 October  1996,  the  Central
Electoral  Commission stated that it had reviewed PhD.  J.G.'s
application for registration for the election to the Senate of
the Czech Parliament at its meeting held on 25 September 1996,
at  which it ascertained that this application failed to  meet
the  requirements  under  § 61 of Act  No.  247/1995  Sb.,  on
Elections  to  the  Parliament of the Czech  Republic  and  on
amendments  and  supplements to some other laws,  as  amended.
It,  therefore, rejected it pursuant to § 63 (3) of  the  Act.
The  appended document on citizenship was not, as a matter  of
fact,  issued  pursuant to § 20 of the Czech National  Council
Act   No.  40/1993  Sb.,  on  the  Acquisition  and  Loss   of
Citizenship  of  the  Czech Republic,  thus,  the  application
lacked  a  document  evidencing  the  candidate's  citizenship
pursuant  to  §  61(4)(a)  of  the  Act.   Thus,  the  Central
Electoral  Commission's  rejection  of  the  application   was
justified on the grounds listed in § 63(3) of the Act.
    The Constitutional Court is, pursuant to Article 83 of the
Constitution of the Czech Republic, the judicial  body for the
protection  of constitutionality and as such is  not  part  of
the  system  of ordinary courts, and it has jurisdiction  over
matters defined in Article 87 (1) of the Constitution  of  the
Czech   Republic.   Pursuant  to  Article  87(1)(d)   of   the
Constitution  of the Czech Republic, the Constitutional  Court
also  has jurisdiction over constitutional complaints  against
final  and  enforceable decisions and other  infringements  by
public  authorities of constitutionally guaranteed fundamental
rights  and basic freedoms. The substance of the given  matter
is  to  answer  the  basic  question,  that  is,  whether  the
contested  decision  has violated the plaintiff's  fundamental
rights and basic freedoms, in particular, whether the decision
violated  Article  22 of the Charter, pursuant  to  which  all
legal  provisions  governing political  rights  and  freedoms,
their  interpretation, and their application shall  facilitate
and protect the free competition between political forces in a
democratic  society.   When examining  this  question,  it  is
rather  difficult, in the opinion of the Constitutional Court,
to take a purely positivist approach, because concepts such as
the   free  competition  of  political  forces  or  democratic
society,  inevitably introduce elements which go   beyond  the
scope  of  such  an  approach.  Here  already  it  should   be
emphasized that all political rights and freedoms are  closely
related  to  the  category of responsibility  as  one  of  the
decisive  elements  in  the  democratic  political  order.  If
Article 1 of the Constitution of the Czech Republic emphasizes
the  democratic  and  legal nature of our  state,  founded  on
respect  for  the  rights and freedoms  of  human  beings  and
citizens, then, the other side of this democratic coin is  the
inevitable social and political responsibility of individuals,
political  parties, the society, and the state, as  well.  The
awareness  of  such responsibility, as well  as  institutional
creation  of such awareness, are, therefore essential  in  the
competitive  process  of political forces, thus, also  in  the
electoral  process, where, on the one hand, the responsibility
of individuals, political parties, and coalitions not only for
the  correctness  and  accuracy of the  information  presented
during  the elections is paired by the responsibility  of  the
public  administrative bodies to act in  conformity  with  the
purposes  and objectives of a democratic law-based state  when
they  are  overseeing the observance of laws and  other  legal
regulations on elections, as well as in their approach to  the
application of law, in this case of Act No. 247/1995  Sb.,  on
Elections  to  the  Parliament of the Czech  Republic  and  on
amendments and supplements to some other laws, as amended.
    With  respect  to  the given matter, the  complainant  has
submitted,   as   the   document   evidencing   PhDr.   J.G.'s
citizenship, a certificate of the Interior Ministry  of  Czech
Republic,  dated  11 October 1990, file no.  VSP/3-57/4287/90,
stating  that,  pursuant to Article II  (2)  (a)  of  Act  No.
88/1990  Sb.,  J.G.  is a citizen of the Czech  Republic  and,
consequently,  of  the  Czech  and  Slovak  Federal  Republic.
Although  the Constitutional Court shares the opinion  of  the
Supreme Court of Czech Republic on this particular point, that
this  document  is  not  one of the  documents  that  evidence
citizenship as indicated in § 20 of the Czech National Council
Act   No.  40/1993  Sb.,  on  the  Acquisition  and  Loss   of
Citizenship   of   the  Czech  Republic,   as   amended,   the
Constitutional  Court differs with the Supreme  Court  in  the
next  conclusion  it drew.  If it ensues from the  certificate
submitted  by the plaintiff, which undoubtedly has the  nature
of  a public document, that the plaintiff was a citizen of the
Czech  Republic  and, consequently, of the  Czech  and  Slovak
Federal  Republic while the Czech and Slovak Federal  Republic
was  still in existence, it can mean nothing else with respect
to  the provisions of § 1(1) of the Czech National Council Act
No.  40/1993  Sb., other than that, on 1 January  1993,  PhDr.
J.G.  was  a  citizen  of  the Czech Republic.   He  was  also
considered  to  be  a  citizen of the Czech  Republic  by  the
District  Electoral  Commission for  District  3,  having  its
registered  office in Cheb, the registrar of which  stated  in
the confirmation certifying the receipt of the application for
registration as a candidate for the elections to the Senate of
the  Czech  Parliament, dated September  10,  1996,  that  the
application for registration contains the requirements under §
61(4)  of  Act No. 247/1995 Sb., as amended. In its  contested
decision the Supreme Court acknowledges that the reference  to
the  provisions of § 20 of the Czech National Council Act  No.
40/1993 Sb., contained in the provisions of § 61(4)(a) of  the
same  Act, does not have a prescriptive nature, in respect  to
which   the  Constitutional  Court  adds,  and  considers   it
decisive, that if the objective of such a document is only  to
prove  citizenship  of a candidate, which  the  plaintiff  has
accomplished  by the submission of the said certificate,  then
the  failure to submit one of the documents listed under §  20
the  Czech  National  Council Act No. 40/1993  Sb.,  to  which
reference  is  made  in  the comments on  this  provision,  is
legally   irrelevant,   in   other  words,   the   sanctioning
(censuring) the failure to submit it is, in the opinion of the
Constitutional  Court  nothing other  than  an  interpretation
requiring  a  document  for the sake of  a  document.  In  the
opinion  of the Constitutional Court on the given matter,  the
date on which the certificate of PhDr. J.G.'s citizenship  was
issued is not material because Act No. 247/1995 Sb., does  not
set  down any limitation on the age of the document and, thus,
makes the time dimension irrelevant.
    In closing, the Constitutional Court deems it necessary to
add  that  the  negative  decision of  the  Central  Electoral
Commission   also  took  into  consideration  the   incomplete
information  on membership in a political party  or  political
movement.   Although the complainant which filed the  proposal
to  the  Supreme  Court requesting a decision registering  the
applying  candidate PhDr. J.G., sets out in its  reasoning  in
detail  solely  the  circumstances related to  citizenship  of
PhDr.  J.G., it continues to adhere to its assertion that  the
application for the registration of the candidate, along  with
appendices thereto, complies with all the prerequisites stated
in  §  61 of Act No. 247/1995 Coll.  As the Supreme Court  did
not  later  deal with the issue of whether the information  on
membership  of  a  political party or political  movement  was
complete,  so much the less may the Constitutional Court  deal
with  it at this stage. This fact, however, may not be to  the
detriment  of  the  plaintiff,  who  has  been  afforded   the
protection  of the right by the Supreme Court, and, therefore,
the  Constitutional Court considers this fact, in light of its
conclusions   on  the  justifiability  of  the  constitutional
complaint,  as legally irrelevant. Nevertheless, it  is  clear
from the application for the registration for the elections to
the  Senate of the Parliament of the Czech Republic, filed  by
the  plaintiff in the election region No. 3 - Cheb,  that  the
plaintiff  included in it that J.G. is not  a  member  of  any
political  party or movement; the declaration  of  J.G.  dated
October  29,  1996, on the consent with the  candidacy,  shows
that the pre-printed text in section 4b - I am not a member of
any political party or political movement, has been circled.
     In   light  of  all  the  above-stated  reasons  of   the
constitutional complaint against the violation of  Article  22
and  Article 4 para. 4 of the Charter, as well as  Articles  1
and  90  of  the  Constitution  of  the  Czech  Republic,  the
Constitutional Court has, therefore, pursuant to § 82(2)(a) of
Act  No.  182/1993 Sb., on the Constitutional Court, issued  a
judgment  granting the complaint and annulling  the  contested
decisions of the Supreme Court of  Czech Republic and  of  the
Central Electoral Commission pursuant to § 82(3)(a) of Act no.
182/1993 Coll., on the Constitutional Court.
    Pursuant  to  Article 89(2) of the Constitution  of  Czech
Republic,  enforceable decisions of the  Constitutional  Court
are  binding upon all bodies and persons.  In the  given  case
this  means  that any failure to respect the decision  of  the
Constitutional  Court in this matter would be unconstitutional
and  would cast overwhelming doubt over the legitimacy of  the
elections.

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

   Brno, October 15, 1996

                              JUDr. Eva Zarembova
                              Chairwoman of the Panel