decided 19th January 2005 - Pl. US 10/03
Election Contribution


HEADNOTES
The basic criterion of constitutionality when setting the minimum threshold for payment of a regular 
contribution for activities to a political party consists of ensuring the openness of the political system – 
thus, this threshold must be considerably lower than the closing clause in the proportional system.
     The purpose of state financing of political parties is to support equal opportunity to participate in a 
pluralist democratic political system. The individual forms of this financing pursue different aims, i.e. 
they support different activities of the parties. The aim of paying for election expenses is to permit 
parties which meet the condition of “seriousness of effort of competing parties,” or “seriousness of 
election intentions of parties” to participate in the electoral competition. Whereas the Constitutional 
Court, in judgment file no. Pl. ÚS 30/98, saw the threshold of this “seriousness” in obtaining “about 
1%” of the total number of valid votes, the legislature set that threshold in the valid legal regulation at 
1.5%. The contribution per seat won reflects the tasks of political parties which are related to their 
legislative activities. The condition for providing it is being elected in elections to the Chamber of 
Deputies or to the Senate (§ 20 par. 5 of Act no. 424/1991 Coll.), i.e. it applies only to parliamentary 
political parties.
     The regular contribution is a form of financing parliamentary and non-parliamentary political 
parties. For that reason, a condition for its constitutionality is ensuring the openness of the political 
system; therefore, the threshold for providing it must be significantly lower than the level of the 
closing clause of the proportional voting system. A threshold of 3% of valid votes received in 
elections, i.e. a threshold 40% lower than the closing clause, can be considered such a significantly 
lower threshold. If the statutory regulation of the regular contribution meets the constitutional 
requirement of guaranteeing the openness of the political system, then, in view of the different 
function of the regular contribution for activities of parties and payment of political parties’ election 
expenses, there are no grounds for setting them at an equivalent level.

JUDGMENT
The Plenum of the Constitutional Court, composed of justices JUDr. Stanislav Balík, JUDr. František 
Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, 
JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav 
Výborný, JUDr. Eliška Wagnerová a JUDr. Michaela Židlická, after hearings on 19 January 2005, 
decided on a petition from the petitioner SNK s. n., with its registered office in T., represented by 
JUDr. D. D., attorney, seeking the annulment of § 20 par. 4, 5 and 6, and in paragraph 7 of the words 
“per deputy or senate seat is 900,000 CZK per year and” or possibly the entire § 20 of Act no. 
424/1991 Coll., on Association in Political Parties and Political Movements, as amended by later 
regulations, filed together with a constitutional complaint against another intervention by a body of 
public authority – an official letter from the Ministry of Finance file no. 143/133437/2002 of 9 
December 2002 – as follows:
     1. The petition to annul § 20 par. 1, 2, 3, 5, 7 to 11 of Act no. 424/1991 Coll., on Association in  
Political Parties and Political Movements, as amended by later regulations, is denied.
     2. The petition to annul § 20 par. 4 and § 20 par. 6 of Act no. 424/1991 Coll., on Association in 
Political Parties and Political Movements, as amended by later regulations, is denied.

REASONING

I.
In its constitutional complaint, the petitioner, with reference to a claimed violation of Art. 22 of the 
Charter of Fundamental Rights and Freedoms (the “Charter”) and Art. 5 of the Constitution of the 
Czech Republic seeks to have the Constitutional Court issue a finding which would forbid the 
Ministry of Finance from continuing to violate its right to payment of a regular contribution under § 
20 of Act no. 424/1991 Coll., on Association in Political Parties and Political Movements, as amended 
by later regulations (“Act no. 424/1991 Coll.”) in the amount of 200,000 CZK for every 0.1% or part 
thereof of votes received in elections to the Chamber of Deputies of the Parliament of the Czech 
Republic.
     In its constitutional complaint, the petitioner stated, that, as a political movement, it received a total 
of 2.78% of valid votes in elections to the Chamber of Deputies of the Parliament of the Czech 
Republic in June 2002. Therefore, on 20 November 2002, it filed a request to the Ministry of Finance 
for payment of a regular contribution under Act no. 424/1991 Coll.; the Ministry, however, rejected it 
in official letter file no. 143/133437/2002 of 9 December 2002, stating that the statutory condition for 
payment of a regular contribution under § 20 par. 4 and par. 6 of the cited Act had not been met, that 
is, that the political movement Sdružení nezávislých [Association of Independents] did not receive at 
least 3% of votes in elections to the Chamber of Deputies. In the petitioner’s opinion the refusal to pay 
this regular contribution amounts to a so-called “other” intervention by a body of public power, which 
violated its fundamental rights regarding the question of its active standing; concerning the filing of a 
constitutional complaint and the general conditions for filing it, it then referred to the allegedly 
analogous situation addressed in Constitutional Court judgment no. 243/1999 Coll. (Collection of 
Decisions of the Constitutional Court of the Czech Republic, volume 16, judgment no. 137).
     The petitioner believes that the threshold for payment of a regular contribution, 3% of votes 
received in elections to the Chamber of Deputies, discriminates against smaller political parties (where 
the term “political party” is used here, it is understood to also include a political movement, unless the 
context indicates otherwise), although it also stated that it is not evaluating whether the amount of the 
contribution is appropriate. However, it considers unconstitutional in particular the fact that a regular 
contribution is paid only to parties which were relatively successful in the competition for seats in the 
Chamber of Deputies, but is not paid to parties which are successful in Senate, regional, or municipal 
elections. The petitioner attempted to document the alleged inequality in conditions for political 
competition by comparing its election results and those of the political part Unie svobody-
Demokratické unie [Freedom Union – Democratic Union “US-DEU”]. In this regard, it stated, among 
other things, that in elections to the Chamber of Deputies, US-DEU, in a coalition with KDU-ČSL, 
received 14.41% of votes and 9 seats; however, in elections to the Senate US-DEU only received a 
single seat, while the petitioner received two, and in municipal elections US-DEU received 617 seats 
in all representative bodies, while the petitioner received 3,131 seats. Upon comparing these results, it 
is claimed that the fact that US-DEU receives 10 million CZK a year in regular contributions, while 
the petitioner receives nothing, cannot be upheld. The total state contributions to the petitioner in 2003 
are allegedly 6,300,000 CZK and those to US-DEU 42 million CZK, which, in the petitioner’s 
opinion, is in gross disproportion to the election results. The petitioner does not hide the fact that 
payment of a regular contribution of 200,000 CZK for every 0.1% of votes would significantly 
improve its financial situation (as the amount of 5.6 million CZK per year for the 2.78% of votes it 
received approaches its current state contribution of 6.3 million CZK, which the petitioner receives for 
2 senate seats and 18 seats in regional representative bodies); however, the main motive for filing the 
petition is said to be an effort to change the existing legal regulation of financing political parties, 
which, in its opinion, provides too much taxpayer money to parliamentary parties and 
disproportionately little or nothing at all to other (non-parliamentary) parties and movements.
     For these reasons, the petitioner – in accordance with § 74 of Act no. 182/1993 Coll., on the 
Constitutional Court, as amended by later regulations, (the “Act on the Constitutional Court”) – joined 
its constitutional complaint with a petition to annul certain provisions of Act no. 424/1991 Coll., 
specifically § 20 par. 4, 5 and 6 and in paragraph 7 the words “for a deputy or senate seat shall be 
900,000 CZK per year and.” In the alternatively, it proposed that the Constitutional Court annul the 
entire § 20 of the Act; it stated that by formulating such a broad proposed judgment it “wishes to 
create room for the Constitutional Court, in its discretion, to annul either the individual provisions of § 
20 or the entire regulation of financing of political parties” and it “believes that the Constitutional 
Court will also be sensitive in choosing when its derogative decision will go into effect,” in particular 
because several parties and movements not represented in the Chamber of Deputies are allegedly 
financially dependent on state contributions allocated for seats in regional representative bodies.
     In its extensive petition, the petitioner finds the legal framework for financing political parties to be 
unconstitutional particularly in the following claims, into which it has divided its specific objections:

1.	contributions for a deputy or senate seat (i.e. in the amount of 900,000 CZK) are allegedly 
unjustifiably high; it also considers the threshold for entitlement to a contribution “for votes” in 
elections to the Chamber of Deputies under § 85 of Act no. 247/1995 Coll., on Elections to the 
Parliament of the Czech Republic, as amended by later regulations to be disproportionately high 
(in these cases its arguments referred to Constitutional Court judgments no. 243/1999 Coll., no. 
64/2001 Coll. and no. 98/2001 Coll.).
2.	Likewise, in the petitioner’s opinion, the threshold of 3% for entitlement to payment of a regular 
contribution under § 20 par. 4 and par. 6 of Act no. 424/1991 Coll. is unjustifiably high, and it 
considers it unconstitutional that it is derived solely from the results of elections to the Chamber of 
Deputies, as both houses of parliament have legislative power. In this regard it gave a hypothetical 
example where a party which would receive 2.9% of votes in elections to the Chamber of 
Deputies, but would occupy all the Senate seats and receive the highest number of seats in 
representative bodies of regions and municipalities, would not be entitled to a contribution. A 
number of political parties receive no support at all from the state, and yet these are not only 
parties of negligible importance, but also parties which have existed for a long time, although they 
have been unsuccessful in national elections, or parties which see their role only at the municipal 
or regional level, where they are quite successful (the petition cites examples, including Strana pro 
otevřenou společnost [Party for an Open Society], Volba pro město [Choice for the City], 
Demokratická regionální strana [the Democratic Regional Party], Hnutí nezávislých za 
harmonický rozvoj obcí a měst [Movement of Indpendents for Harmonious Development of 
Municipalities and Cities], and others). The state does not even reimburse these parties for 
expenses which it causes itself through its requirements, such as preparation of an annual financial 
report and a compulsory audit of financial statements. The petitioner concluded that it does not see 
a solution for these issues merely in lowering the threshold for entitlement for a regular 
contribution, but in “creating a completely different structure,” which would ensure an appropriate 
contribution for their activities to all parties, regardless of whether they are involved in political 
competition at the parliamentary, regional, or municipal level.
3.	In the petitioner’s opinion, it is also unconstitutional to condition the contribution for a seat in a 
regional representative body on winning at least one deputy or senate seat. A party which wins a 
number of seats in regional representative bodies but has no deputy or senator is thus not entitled 
to a contribution for the seat in the regional representative body (note: although in fact the 
Ministry of Finance allegedly does pay these contributions to parties which have no deputy or 
senator). Finally, the petitioner protests against the fact that the state pays contributions for votes 
received only in elections to the Chamber of Deputies (100,- CZK per vote), or newly also in votes 
to the European Parliament. However, no contributions are paid for votes received in elections to 
the Senate, in elections to regional representative bodies, or in elections to municipal 
representative bodies. This again creates a marked advantage for parties which are successful in 
elections to the Chamber of Deputies, which new parties or parties which limit themselves to 
regional politics are disadvantaged.

     The petitioner also stated that the allocation of contributions among political parties does not 
correspond to the support which these parties have in society; state contributions to political parties 
represented in the Chamber of Deputies in 2003 allegedly exceed 95%, which contributions to other 
parties are only 4.6%. Thus, parties that are not represented in the Chamber of Deputies must obtain 
money practically exclusively from private sources, “in a situation where it is precisely the 
parliamentary parties … which caused the fact that financing political parties, which is considered … a 
socially beneficially activity in developed democratic countries … has in the Czech Republic acquired 
the flavor” of a dubious activity. The total amount of state contributions appears to the petitioner to be 
unjustified and markedly in excess of parties’ expenses for participation in election contests and the 
needs of financing their basic activities; the petitioner finds no reason why even the most successful 
political party should receive over 100 million CZK for its activities every year. Thus, according to the 
petitioner, the entire statutory framework for financing political parties is aimed at providing complete 
financial support of parliamentary political parties from the state budget and blocking or at least 
considerably limiting access to state contributions for non-parliamentary political parties.
     The petition also considers unconstitutional the formulation of § 20 par. 8 of Act no. 424/1991 
Coll., under which a contribution per seat for an entire term of office goes only to a party on whose 
candidate list the deputy, senator or member of regional representative body was elected. Although the 
legislature’s aim was – according to the petitioner – a legitimate attempt to prevent the entitlement to a 
state contribution transferring to another party with a deputy, senator or representative body member 
who changes to another party during a term of office; however, this overlooked the fact that a change 
in party membership may happen not only individually, but also collectively, through the merger or 
parties. The legal framework, which penalizes those political parties or movements which decided to 
integrate, thus restricts the free competition of political forces.
     The petitioner closed its extensive arguments with its own specific proposal for how to regulate the 
financing of political parties and movements in order for it to be consistent with Art. 5 of the 
Constitution and Art. 22 of the Charter. It claims this would be best met by a system in which 
contributions for votes received in elections to the Chamber of Deputies, the Senate, the European 
Parliament, representative bodies of regions and representative bodies of municipalities would be 
given to parties which participate seriously in election competition, i.e. they receive more than a 
certain minimum percentage of votes (e.g., for the Chamber of Deputies it proposes 0.5 to 1% of 
votes, for the Senate 4-6% of votes in a given electoral district); minimum contributions would be paid 
to those parties which proved their significance as organized political forces by a sufficiently wide 
involvement in election competition (regardless of result), and an increased contribution to those 
parties which, in elections to all representative bodies, had proportionate success in at least some 
regions. The total scope of state contributions to political parties should not exceed 100 to 150 million 
CZK per year, because, in the petitioner’s opinion, an amount of around 20 million CZK must be 
sufficient for even the largest political party to cover all its ordinary activities.

II.
By resolution of panel I of the Constitutional Court of 5 May 2003, file no. I. ÚS 59/03, proceedings 
on the constitutional complaint were suspended under § 78 of the Act on the Constitutional Court, and 
the petition to annul the abovementioned paragraphs of § 20 of Act no. 424/1991 Coll., or perhaps the 
entire provision, was referred to the Plenum of the Constitutional Court for a decision under Art. 87 
par. 1 let. a) of the Constitution of the Czech Republic.

III.
In accordance with § 69 of the Act on the Constitutional Court, the Court sent the petition to open 
proceedings to the parties to the proceedings – the Chamber of Deputies and the Senate of the 
Parliament of the Czech Republic.
     The statement from the Chamber of Deputies, signed by its Chairman, PhDr. L. Z., states, 
regarding the point of the petition that seeks the annulment of § 20 par. 4 to 6 of Act no. 424/1991 
Coll., that restricting political parties in their participation in elections, in access to the media, in 
freedom of speech, in the right of assembly, and so on, would certainly be inconsistent with Art. 22 of 
the Charter. However, no such restrictions are contained in the text of paragraphs 4 to 6 of the cited 
Act. Concerning another point in the petition, seeking the annulment of the part of the sentence in § 20 
par. 7 concerning the amount of contribution per seat (900,000 CZK), the Chamber of Deputies stated 
that it was fully in the jurisdiction of the legislative body to set its amount by statute. Before Act no. 
424/1991 Coll., was amended by Act no. 170/2001 Coll., the amount of the contribution was 
1,000,000 CZK; in reducing it the legislature responded to the Constitutional Court judgment 
published as no. 98/2001 Coll. Insofar as the amount of this contribution was set at 500,000 CZK in 
1991, 12 years later the current level of the contribution is not something which should violate the 
constitutional criteria of free competition of political forces and which could generally be considered 
disproportionate. According to the Chamber of Deputies’ statement, if the alternative proposal to 
annul the entire § 20 of the Act were granted, political parties would be placed on substantially the 
same level as civic associations created under the Act on Association of Citizens. However, state 
participation in financing political parties is standard in the laws of European democratic states. 
Annulment of the cited provision would create a need for immediate amendment of the law; according 
to the statement it is difficult to imagine “not again taking into account an exact and just criterion 
which divides political parties into those that have real significance for political events in the state 
thanks to their voter base and those that represent practically nobody and are thus unsuccessful in 
elections, often repeatedly.” In the opinion of the Chamber of Deputies, the fundamental rules of free 
competition of political forces are really guaranteed in practice, and the legal order in no way prevents 
the creation of new political entities and their entry into Parliament, which depends only on the ability 
of these groups to attract the necessary number of voters. A state contribution can never replace this 
ability, or, on the contrary, inability. The framework for financing political parties is necessary in the 
legal order also in order to limit the existence of entities which would be aimed primarily at obtaining 
state contributions without real influence on political life in the Czech Republic. The Chamber of 
Deputies concluded that the entire proposal from the political movement Sdružení nezávislých 
[Association of Independents] is based on a simplified thesis – which basically is not related in any 
way to Art. 22 of the Charter – that without the existence of financial support for all parties and 
movements by the state one can not have unrestricted and free competition among them.
     In the statement from the Senate of the Parliament of the Czech Republic, signed by its Chairman, 
Doc. JUDr. P. P., the Senate stated that, for the proceedings on the petition to annul § 20 of Act no. 
424/1991 Coll., the most significant discussions were those on the draft of Act no. 170/2001 Coll., on 
the National Bond Issue to Cover Obligations Arising from the Treaty between the Government of the 
Czech Republic, the Government of the Slovak Republic, and the Government of the Federal Republic 
of Germany on Ending Mutual Accounting in Convertible Rubles and Settling Mutual Obligations and 
Claims which Arose as a Balance of Convertible Rubles to the Benefit of the Federal Republic of 
Germany, Amending Act no. 407/2000 Coll., on the State Bond Issue for Partial Compensation of 
Damages to Agricultural Entities Damaged by Drought in 2000, and Amending Act no. 424/1991 
Coll., on Association in Political Parties and Political Movements, as amended by later regulations 
(“Act no. 170/2001 Coll.); the draft contained, among other things, a news statutory framework for 
contributions for the activities of political parties and movements, as a response to the Constitutional 
Court judgment published as no. 98/2001 Coll., in which the Constitutional Court annulled part of § 
20 par. 4 and 7 of Act no. 424/1991 Coll. After being passed by the Chamber of Deputies, the draft 
Act was passed on to the Senate. In committee discussion on the draft Act it was stated that this 
amendment of Act no. 424/1991 Coll. was, in this case, non-systematically joined to text concerning 
the state bond program, where delay in the approval process could have negative economic and 
political effects. The Senate Constitutional Law Committee therefore recommended returning the draft 
Act to the Chamber of Deputies with an amending proposal, which limited the validity of the proposed 
amendment only to the period to the end of 2001. The aim was to allow sufficient time for Parliament, 
in the interim period, with knowledge of the conclusions contained in the judgment of the 
Constitutional Court, to prepare an amendment to the regulation for financing political parties that 
would address the matter comprehensively, including contributions for election expenses, regulated in 
§ 85 of the Act on Elections to the Parliament. However, another committee which reviewed the draft 
Act – the Committee for the Economy, Agriculture and Transport- on the contrary recommended that 
the Senate not discuss the draft, in particular in view of the gravity and urgency of the existence of a 
legal framework for the state bond program . In the end the Senate expressed its will not to consider 
the draft act. The statement from the Senate of the Parliament of the Czech Republic concludes by 
stating that it leaves the decision on the constitutionality of the contested statutory provisions to the 
consideration of the Constitutional Court.
     The statement from the Ministry of the Interior of the CR, which the Constitutional Court also 
requested in this matter, states briefly that the contested Act in no way violates equal conditions for the 
free competition of political parties under Art. 5 of the Constitution and Art. 22 of the Charter; the 
success of political entities is decided primarily by the votes of voters, and not by financial 
contributions from the state. The Ministry stated that the petitioner’s criticisms concern an area of 
legal regulation which was reflected in the law based on proposals from deputies, as the original 
version of the provision in question anticipated only state contributions to cover for election results.

IV.
The Constitutional Court always first reviews whether all the necessary procedural requirements have 
been met in order for it to consider the merits of a petition to annul a statute or its individual 
provisions In this case, it is evident from the petition that the petitioner basically seeks revision of the 
entire current system of financing political parties, not only parliamentary parties, but also on the 
regional or municipal level, and that it is not contesting only the extensive § 20 of Act no. 424/1991 
Coll., but that in the reasoning of the petition (not the proposed judgment) it also protests against the 
regulation of contributions to cover election expenses under Act no. 247/1995 Coll., on Elections to 
the Parliament of the Czech Republic. The same also applies to the petitioner’s extensive presentation 
at a hearing (which was also submitted to the Constitutional Court in written form). However, the 
contested official letter from the Ministry of Finance of 9 December 2002 file no. 143/133 437/2002 
indicates that the Ministry refused to pay the petitioner a regular contribution with reference to § 20 
par. 4, 6 of Act no. 424/1991 Coll., which ties entitlement for a regular contribution to those parties 
which received 3% of votes in elections to the Chamber of Deputies. Thus, the other contested 
provisions, i.e. § 20 par. 1 to 3, 5, 7 to 11, were not directly applied in any proceedings that preceded 
the filing of the constitutional complaint, so, as far as they are concerned, the conditions under which a 
petition to annul a statute (§ 74 of the Act on the Constitutional Court) can be filed – together with a 
constitutional complaint – have not been met. Therefore the Constitutional Court had no choice but to 
deny this part of the petition as a petition filed by a person obviously not entitled to do so[§ 43 par. 1 
let. c) of the Act on the Constitutional Court], which also applies to the alternative petition to annul the 
entire § 20 of the Act.

V.
The Constitutional Court then, in accordance with § 68 par. 2 of the Act on the Constitutional Court 
considered the question of whether the statute which is claimed to be unconstitutional was passed and 
issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed 
manner.
     As regards Act no. 424/1991 Coll., (in the original version), the Constitutional Court did not 
examine whether it was passed and issued within the bounds of constitutionally provided jurisdiction 
and in a constitutionally prescribed manner, because with legal regulations issued before the 
Constitution of the Czech Republic the Court is only authorized to review whether they are 
substantively consistent with the constitutional order at the time, but not whether the procedure by 
which they were created is constitutional or whether norm-creating authority was observed (cf. e.g., 
judgment file no. Pl. ÚS 9/99, Collection of Decisions of the Constitutional Court, volume 16, p. 14). 
Thus, in this case the Constitutional Court concentrated on the amendment of Act no. 424/1991 Coll., 
which concerns the contested § 20.
     This was Act no. 117/1994 Coll., which amends and supplements Act no. 424/1991 Coll., which 
introduced the 3% threshold for an entitlement to a regular contribution in elections to the Chamber of 
Deputies. In this regard, the Constitutional Court determined from the appropriate Chamber of 
Deputies publications, stenographic records and data on voting, that the Chamber of Deputies 
approved the draft of this act at its session held on 29 April 1994. After being signed by the President 
of the Republic and the Prime Minister, the act was duly promulgated in the Collection of Laws, in 
part 37, as number 117/1994 Coll. The Act was thus passed and issued within the bounds of 
constitutionally provided jurisdiction and in a constitutionally prescribed manner.

VI.
In its existing case law, the Constitutional Court has fundamentally addressed the constitutional 
safeguards for democratic formation of the Parliament. In the present context, judgment file no. Pl. ÚS 
25/96, which reviewed the constitutionality of the so-called “closing” clause for elections to the 
Chamber of Deputies, must be considered relevant. In it, the Court defined the fundamental 
framework for applying elements which integrate the political organization of the Chamber of 
Deputies in a proportional electoral system: “in terms of the principle of representative democracy it is 
permissible to build into the electoral mechanism itself certain integrative stimuli where there are 
serious reasons for it, in particular on the assumption that an unrestricted proportional system would 
lead to fragmentation of votes among a great number of political parties, to unlimited ‘overpopulation’ 
of political parties, and thereby to endangering the functionality and ability to act, as well as the 
continuity of the parliamentary system.” When evaluating the limits of acceptability of integrative 
stimuli, the Constitutional Court consistently began with the principle of proportionality: “Of course, 
increasing the threshold of the limiting clause may not endanger the democratic substance of elections. 
It is always necessary to also weight whether this restriction of equality in voting rights is a minimum 
measure needed in order to enable a majority to be formed in the Chamber of Deputies, which is 
necessary for making decisions and creating a government. Thus, the principle of minimizing state 
intervention in relation to the intended aim also applied to the limiting clause.”
     This legal opinion was then confirmed by other decisions, in particular by judgment file no. Pl. ÚS 
42/2000.
     The fundamental element of a democratic, pluralist political system is not only plurality by itself, 
but also the openness of the system, i.e. the possibility for new entities to enter the political scene, the 
ability to found political parties and political movements, i.e. the free and voluntary formation of and 
free competition among political parties (Art. 5 of the Constitution, Art. 20 of the Charter, of Act no. 
424/1991 Coll.). The reality, i.e. not only the fiction, of the openness of the political system is then, 
among other things, also tied to the formation of an adequate system for financing political parties and 
movements.
     A number of safeguards for the formation of such a system arise from the constitutional order. The 
Constitutional Court has articulated these in many of its decisions.
     In judgment file no. Pl. ÚS 26/94 the Court defined the most general principles in this regard. 
Although, according to the Court, the constitutional order does not contain support for a rejection in 
principle of financial support of political parties by the state, “that, however, does not mean that state 
financing of political parties and political movements does not have limits … financial support of 
political parties and movements may not exceed a degree which respects the general limit in Art. 20 
par. 4 of the Charter, under which political parties and political movements are separate from the 
state.”
     The Court then analyzed these limits in terms of two principles: the principle of integration and the 
principle of representativeness (which was formulated in judgment file no. Pl. ÚS 3/96: “The principle 
of representativeness means above all that the composition of a representative body is derived from the 
political structure of a civil society. However, it also contains a requirement for minimum 
representation of entities (political parties and movements) which participate in political 
competition.”). In judgment file no. Pl. ÚS 30/98 the Constitutional Court annulled the condition of 
receiving at least 3% of the total number of valid votes received in elections to the Chamber of 
Deputies for purposes of a contribution for covering election expenses; in doing so, it gave priority, in 
issues of state financing of political parties, in the conflict between the principle of integration and the 
principle of pluralism in a democratic society (Art. 5 of the Constitution a Art. 22 of the Charter), to 
the latter principle. It formulated the criterion for limiting the contribution for payment of election 
expenses in terms of the “seriousness of the efforts of competing parties,” or the “seriousness of the 
election intentions of parties,” which it expressed as the degree of their representativeness. The legal 
opinion thus expressed was subsequently confirmed in judgment file no. Pl. ÚS 42/2000.
     In judgment file no. Pl. ÚS 53/2000 the Constitutional Court directly reviewed the constitutionality 
of part of the text § 20 par. 4 of the Act on Political Parties, in a petition to annul the provision under 
which a party which had already become entitled to a regular contribution but did not exceed the 
closing clause for entry to the Chamber of Deputies set forth by the Election Act, would not receive 
the contribution in subsequent elections. Thus, the Court considered conditioning provision of a 
regular contribution to a political party (movement) on reaching the closing clause in subsequent 
elections to be inconsistent with the constitutional order. In other words, it connected the openness of 
the political system with a permanently lower threshold for providing the contribution than that of the 
closing clause set by statute and confirmed as constitutional by the previously cited judgment of the 
Constitutional Court. As the threshold of 3% was not contested in the matter, within the framework of 
rationis decidendi the Court did not consider it, but also did not cast doubt on the threshold even in 
possible consideration of obiter dictum.
     In the petitioner’s opinion, the inconsistency of § 20 par. 4 and par. 6 of Act no. 424/1991 Coll. 
with the constitutional order in the matter of the threshold 3% of valid votes cast in elections to the 
Chamber of Deputies of the Parliament of the Czech Republic for entitlement to payment of a regular 
contribution for the activities of political parties, arises because of its unjustified level, as well as the 
unjustified deriving of the regular contribution only from the results of elections to the Chamber of 
Deputies, because the legislative power is a Parliament composed of two chambers - the Chamber of 
Deputies and the Senate.
     The basic criterion of constitutionality when setting the minimum threshold for payment of a 
regular contribution for activities to a political party consists of ensuring the openness of the political 
system – thus, this threshold must be considerably lower than the closing clause in the proportional 
system.
     State financing of political parties provides only part of the income of political parties (§ 17 par. 4 
of Act no. 424/1991 Coll.). This part consists of, on the one hand, a contribution for payment of 
election expenses (§ 85 of Act no. 247/1995 Coll., on Elections to the Parliament of the Czech 
Republic, as amended by later regulations, § 65 of Act no. 62/2003 Coll., on Elections to the European 
Parliament and Amending Certain acts), and on the other, the contribution to the activities of a 
political party, which includes a regular contribution and a contribution per seat won (§ 20 of Act no. 
424/1991 Coll.). Parliamentary political parties are also financed indirectly, through the payment of 
deputy salaries, support for parties’ parliamentary organizations, cost-free provision of materials for 
parties’ parliamentary organizations, etc.
     The purpose of state financing of political parties is to support equal opportunity to participate in a 
pluralist democratic political system. The individual forms of this financing pursue different aims, i.e. 
they support different activities of the parties. The aim of paying for election expenses is to permit 
parties which meet the condition of “seriousness of effort of competing parties,” or “seriousness of 
election intentions of parties” to participate in the electoral competition. Whereas the Constitutional 
Court, in judgment file no. Pl. ÚS 30/98, saw the threshold of this “seriousness” in obtaining “about 
1%” of the total number of valid votes, the legislature set that threshold in the valid legal regulation at 
1.5%. The contribution per seat won reflects the tasks of political parties which are related to their 
legislative activities. The condition for providing it is being elected in elections to the Chamber of 
Deputies or to the Senate (§ 20 par. 5 of Act no. 424/1991 Coll.), i.e. it applies only to parliamentary 
political parties.
     The regular contribution is a form of financing parliamentary and non-parliamentary political 
parties. For that reason, a condition for its constitutionality is ensuring the openness of the political 
system; therefore, the threshold for providing it must be significantly lower than the level of the 
closing clause of the proportional voting system. A threshold of 3% of valid votes received in 
elections, i.e. a threshold 40% lower than the closing clause, can be considered such a significantly 
lower threshold. If the statutory regulation of the regular contribution meets the constitutional 
requirement of guaranteeing the openness of the political system, then, in view of the different 
function of the regular contribution for activities of parties and payment of political parties’ election 
expenses, there are no grounds for setting them at an equivalent level.
     This statement changes nothing about the Constitutional Court’s general position regarding the 
question of constitutionality of the entire system of financing political parties, expressed in judgment 
file no. Pl. ÚS 53/2000. In it, the court stated: “If the free competition of political parties under equal 
conditions is not respected, and if there is an attempt to create different conditions for large or larger 
parties and thus to form, directly or indirectly, political parties with a better or worse position, and thus 
also citizens with different conditions for their movement in the political system, such steps cannot be 
described as constitutional. We cannot neglect the fact that a democratic society is characterized 
precisely by the free competition of political parties, whose activities in the administration of public 
affairs is derived from the free choice exercised by voters.” The Constitutional Court evaluated 
maximum equality in the positions of political parties, ensuring their free and fair competition, as well 
as the openness of the political system to according to the value of seriousness of election intentions of 
political parties, as “measured” by their minimum representativeness (file no. Pl. ÚS 3/96, Pl. ÚS 
42/2000), as well as by the aims of individual forms of state financing of parties (file no. Pl. ÚS 
53/2000).
     In its decisions, the Constitutional Court pointed to the viewpoint of balancing the share of state 
financing of political parties and the shares of other forms of financing, independent of the state (Pl. 
ÚS 26/94). In its derogative finding, file no. Pl. ÚS 53/2000, it took a critical position on the existing 
level of state financial support for political parties, and pointed to the endangerment of the 
constitutional principle of separating parties from the state (Art. 20 par. 4 of the Charter).
     In the Constitutional Court’s settled opinion, the court is bound in its decision making by the scope 
of the filed petition, and can not step out of its boundaries (ultra petitum) in its decision (see, e.g., the 
decisions file nos. Pl. ÚS 16/94, Pl. ÚS 8/95, Pl. ÚS 5/01, Pl. ÚS 7/03). For this reason, it is not 
authorized in the adjudicated matter to consider the constitutionality of the entire system of state 
financing of political parties, and thus it has not choice but to appeal to the democratic legislature to 
accept the legal opinion contained in the cited judgments file nos. Pl. ÚS 26/94 and Pl. ÚS 53/2000.
     However, lowering the threshold for providing a regular contribution to the activities of political 
parties below the threshold of 3% of votes received in elections not only does not solve the cited 
problem, but, on the contrary, expands the circle of contribution recipients, and in consequence means 
further growth of the state share in financing political parties, i.e. a shift in the direction with which 
the Constitutional Court did not agree in its previous case law. Apart from increasing the demands on 
the state budget, such a shift would conflict with the principle of political parties being rooted in civil 
society, a principle which is expressed above all in voluntary support of political parties by citizens, 
based on their consideration and selection according to their affinity for parties’ programs.
     Insofar as the petitioner argues on the basis of unjustified derivation of the regular contribution 
only from results of elections to the Chamber of Deputies, such a framework could be considered 
unconstitutional only in the event of it being arbitrary, i.e. in the absence of a rational connection 
between the legal framework and the aim pursued.
     The constitutional order the of the Czech Republic and its statutory system do not contain an 
explicit legal definition of a political party (political movement). Thus, a political party’s 
constitutional nature, nature as a subject of law, purpose and aim must be derived from its overall 
constitutional and general legal framework.
     Political parties are a key subject of a democratic pluralist political system; they perform the 
function of representatives of pluralist, differing interests. Their aim is to achieve these interests 
through the means of a democratic constitutional system, i.e. by representation in representative 
assemblies, in particular in the Parliament and in the representative bodies of municipalities and 
regions (Art. 5 of the Constitution, Art. 20 par. 2 and Art. 22 of the Charter, Act no. 247/1995 Coll., 
on Elections to the Parliament of the Czech Republic, as amended by later regulations, Act no. 
491/2001 Coll., on Elections to the Representative Bodies of Municipalities and Amending Certain 
Acts, as amended by later regulations, Act no. 130/2000 Coll., on Elections to the Representative 
Bodies of Regions and Amending Certain Acts, as amended by later regulations). The foregoing 
indicates that the Czech constitutional and legal system does not recognize a special category of 
regional political parties; their functioning is connected to the formation of all representative 
assemblies.
     Under the Czech Republic’s constitutional system, the two chambers of Parliament do not have the 
same powers and do not participate in the same degree in the legislative process; thus, they do not 
have symmetrical positions. It is exclusively the Chamber of Deputies which creates the government 
and declares lack of confidence in it; as a rule, in the area of legislative authority it has the final 
decision-making power. The Senate has the position of a controlling brake, a counter-balance, vis-?-
vis the Chamber of Deputies. If the legal framework derives allocation of regular contribution for 
activities from the results of elections to the Chamber of Deputies, this reflects the real position of a 
political party in the state’s constitutional system, in particular the degree of its participation, or, for 
non-parliamentary parties, potential participation, in the legislative power, as well as in the formation 
of the supreme body of executive power – the government. If this framework is not also derived from 
the results of elections to municipal or regional representative bodies, it then reflects the conceptual 
characteristics of a political party (movement) in the significance of a statewide, not only regionally, 
relevant political entity.
     Due to the foregoing, the Constitutional Court did not find the statutory framework of a threshold 
of 3% of valid votes received in elections to the Chamber of Deputies of the Parliament of the Czech 
Republic for allocation of a regular contribution for the activities of a political party, contained in § 20 
par. 4, 6 of Act no. 424/1991 Coll., to be inconsistent with Art. 5 of the Constitution and Art. 20 par. 2 
and Art. 22 of the Charter, wherefore it denied the petition to annul the cited statutory provisions.

Instruction: Decisions of the Constitutional Court can not be appealed.

Brno, 19 January 2005 


Dissenting Opinion 
of Judges JUDr. Vojen Güttler and JUDr. František Duchoň in the matter Pl. US 10/03

The undersigned judges have a dissenting opinion to verdict point 2 of the judgment of the 
Constitutional Court of 19 January 2005, file no. Pl. ÚS 10/03, which denied the petition to annul § 20 
par. 4 and § 20 par. 6 of Act no. 424/1991 Coll., on Association in Political Parties and Political 
Movements, as amended by later regulations.
     It is based on the following reasons.
1) A democratic law-based state – which is required to protect and support a pluralist, open society in 
which a free individual can best develop – constitutionally guarantees room for the formation of 
various interest groups, which then, as individual political parties or movements, attempt to put forth 
their ideas by obtaining a share of power in the free competition of political forces. In general, political 
parties are basically legal entities under private law, and are therefore subject to Art. 2 par. 3 of the 
Charter of Fundamental Rights and Freedoms, under which they can do that which is not prohibited by 
law, and may not be compelled to do that which is not imposed on them by law. The state and its 
bodies may interfere in their activities only on the basis of law and within its bounds. However, the 
Constitutional Court, in the first of its judgments concerning the issue of financing political parties 
(judgment file no. Pl. ÚS 26/94, Collection of Decisions of the Constitutional Court of the Czech 
Republic, volume 4, judgment no. 62, promulgated as no. 296/1995 Coll.) has said, in particular 
(among other things), that the constitutional law position of these parties may not be defined only as 
the simple consequence of a determination that they do not have the status of a state body and that as a 
result of that they are nothing more than private associations. After World War II, developed 
democracies recognized a certain public status, i.e. a role which political parties have in the state and 
vis-?-vis the state, without, however, themselves being the state, or having a state, public-law nature. 
This ambivalent nature of political parties gives rise to a number of problems connected to the 
interpretation of their position, function and relationship to the state. Political parties, in accordance 
with the constitution, fulfill certain public roles which are essential for the life of a state founded on 
representative democracy. The public interest in a state which is, under the constitution, a democratic 
law-based state (Art. 1), also being legitimated in a democratic manner (i.e. in elections, based on the 
competition of political parties) is undoubtedly of a public nature. From this public (general) interest 
we can derive a requirement that the state enable and support the fulfillment of these tasks, which are 
essential for the functioning of the state. The framework for financing political parties by a democratic 
state, which resulted in the contribution for activities of political parties and in the contribution for 
payment of their election costs, also corresponds to this.
     The existing financing of political parties in the Czech Republic – as elsewhere in the world – can 
be divided into state financing and financing from private sources. Direct state financing is connected 
primarily to elections. Under § 85 of Act no. 247/1995 Coll., on Elections to the Parliament of the 
Czech Republic and Amending and Supplementing Certain Other Acts, as amended by later 
regulations (“Act no. 247/1995 Coll.”) a political party which received at least 1.5% of the total 
number of valid votes in elections will be paid 100 CZK from the state budget for each vote received 
(the contribution for payment of election expenses, or the so-called contribution “for votes”). Act no. 
424/1991 Coll., on Association in Political Parties and Movements, as amended by later regulations, in 
§ 20 regulates the so-called contribution for activity, which includes a regular contribution for a party 
which received at least 3% of votes in elections to the Chamber of Deputies (6 to 10 million CZK per 
year) and a contribution for the seat of a deputy or senator (900,000 CZK per year), or for the seat of a 
member of a representative body of a region and a member of the representative body of the capital 
city of Prague (250,000 CZK per year). This is an expression of a certain privilege for political parties 
vis-?-vis other types of associations, in view of their abovementioned importance for a democratic 
state (in the expert literature, cf. Filip, J.: Ústavní právo [Constitutional Law], Brno, Masarykova 
univerzita, 1997, in particular p. 257).
     The Constitutional Court has already spoken distinctly several times – apart from the cited 
judgment no. 296/1995 Coll. – on the serious issues of financing political parties and their particular 
role in a democratic law-based state (specifically, judgments no. 243/1999 Coll., no. ;64/2001 Coll. 
and no. 98/2001 Coll. Collection of Decisions of the Constitutional Court volume 16, judgment no. 
137 a volume 21, judgments no. 16 and no. 36). In the first of these judgments the Constitutional 
Court granted the petition of the political part Demokratická unie [Democratic Union] to annul part of 
§ 85 of Act no. 247/1995 Coll., on Elections to the Parliament of the Czech Republic (the contribution 
for payment of election expenses being tied to receiving at least 3% of the total number of valid 
votes). It considered the same provision in the next judgment, in which it stated that in the context of 
all relevant circumstances, even the lowering of the threshold from three to two percent, given the 
simultaneous lowering of compensation for every vote received from 90 to 30 CZK, can change 
nothing in the conclusions stated in the previous judgment. In the last case (judgment no. 98/2001 
Coll.) the Constitutional Court considered Act no. 424/1991 Coll., on Association in Political Parties 
and Political Movements – whose provisions are also subject to review in the present matter – where it 
annulled the then second sentence of § 20 par. 4 (a party which reached the threshold of 3% of votes 
cast and became entitled to a regular contribution would not receive the contribution if it did not, in 
subsequent elections, receive the number of votes necessary for representation in the Chamber of 
Deputies) and part of § 20 par. 7 (a contribution for the seat of a deputy or senator in the amount of 
1,000,000 CZK per year). In the present adjudicated matter, the dissenting judges also found no reason 
for the Constitutional Court to diverge from its previously expressed opinion on this issue. Therefore, 
in their opinion it is necessary to re-emphasize – with reference to the cited judgments – the 
conclusions already stated, which concentrate the essence of the position of political parties in the 
Czech Republic and formulate the principles of financing them, consistently with the constitutional 
order.
     Political parties and political movements are institutions which are constituted on the basis and 
within the framework of a constitutional state, whose principles and rules bind both the parties, and the 
state. They include Article 5 of the Constitution, which enshrines the free and voluntary creation and 
free competition of those political parties which respect the fundamental democratic principles, Art. 2 
par. 3 of the Constitution, under which state authority serves all citizens, and Art. 20 par. 2, 4 of the 
Charter of Fundamental Rights and Freedoms, which guarantees the right the right to form political 
parties and political movements and to associate in them, and also provides that political parties and 
political movements are separate from the state. Parties serve as an intermediary link between citizens 
and the state: they serve for their participation in the political life of the society, in particular in 
forming legislative assemblies and local government bodies. In their basic function – the creation of 
political will in the state – political parties (their results) predetermine the forming of state bodies. In 
other words, in order for democratic state bodies to be created at all, they must be preceded by free 
competition among autonomous political parties independent of the state, because it is only the results 
of that competition which form the political contours and proportions of the state.
     In this regard it must be stated that neither the Constitution of the Czech Republic nor the Charter 
of Fundamental Rights and Freedoms, nor international treaties under Art. 10 of the Constitution, as 
amended, provide support for the state to refuse, in principle, financial support for political parties. 
However, that does not mean that the financing of political parties and political movements by the 
state has no thresholds. A state which made financial support for political parties and political 
movements a means for influencing their activities, or even a tool for manipulating them, could cease 
to fulfill the task of supporting parties and movements in their constitutional (Art. 5 of the 
Constitution) and statutory functions. Therefore, financial support of political parties and movements 
may not exceed a degree which respects thee general threshold in Art. 20 par. 4 of the Charter of 
Fundamental Rights and Freedoms, under which political parties and political movements are separate 
from the state. Of course, in view of the need for partial balancing of their chances, a certain financial 
support for political parties by the state is acceptable. Generally, however, one must begin with the 
fact that the more political parties are subsidized by the state, the less they feel the need to seek 
support for their activities from other legal sources. Therefore, contributions for the activities of 
political parties should not weaken the efforts of political parties to obtain political and material 
support from their voters and supporters. Political parties can not fulfill their function if they are left to 
the mercy of the state or rely on state support more than on the support of citizens (judgment no. 
296/1995 Coll.).
     The principle of free competition among political parties includes the state’s obligation to respect 
equal chances for them – in terms of the legal regulation of conditions for the competition and 
regulation of the participants’ entitlements – because basically this involves application of the general 
principle of equality, guaranteed both by constitutional regulations and by international acts. Any 
interference in these conditions by the legislature is interference by the state, and should be guided by 
the public interest. The percentage limitation for paying the contribution for payment of election 
expenses of political parties can not be the result of arbitrariness or suitability evaluated only in terms 
of the interests of established parties. However, this conclusion has general significance, and therefore 
also applies to the so-called regular contribution under Act no. 424/1991 Coll. When regulating the 
area of creation of political will, the legislature must respect the fact that it has been given a narrow 
range in this field and that it is denied the opportunity for differential treatment of parties which is not 
based on a particularly serious reason. The purpose of an election contribution may not be to limit the 
freedom of election competition, but to ensure its seriousness. If a modern representative democracy 
takes into account the functioning of a parliamentary system and accepts, in a limited degree, the 
integrational stimulus for the system of allocating seats, this does not mean that integrational 
viewpoints can have fundamental priority over the principle of free competition among electoral 
parties. That free competition is a direct expression of the pluralist nature of a democratic society, and 
it is precisely protection of political pluralism in political life which is of primary importance for its 
very existence. Therefore it is markedly protected by Art. 5 of the Constitution and Art. 22 of the 
Charter of Fundamental Rights and Freedoms. Any direct or indirect limitation of the equality of 
parties in election competition may not, individually or as an accumulation of measures, which 
differentially disadvantage or advantage particular parties, a priori make impossible the very 
participation of political parties in election competition. The accumulation of financial support for 
only certain parties has as a consequence the simultaneous accumulation of de facto financial penalties 
for other parties, and therefore it must be carefully weighted whether the purpose of such measures has 
not been exceeded (judgment no. 243/1999 Coll.).
     The term “free competition of political forces” under Art. 22 of the Charter of Fundamental Rights 
and Freedom emphasizes the part of the political competition process which precedes the establishing 
of parties in the positions they have achieved, i.e., emphasizes above all the free entry of political 
forces into election competition. “The free competition of political parties is thus undoubtedly a value 
which must be given precedence by the statutory regulation of state financing of political parties.” The 
concentration of state financial aid for only those parties represented in Parliament (or for strong, 
established parties) limits the economically equal participation of parties in election competition (Art. 
5 of the Constitution) and fails to respect the principle of Art. 20 par. 4 of the Charter of Fundamental 
Rights and Freedoms, which enshrines the separation of parties from the state. The high threshold for a 
contribution for a seat neglects the fundamental criterion for state support, that is, the number of votes 
received by parties, and concentrates state financial support on parliamentary activity to a 
constitutionally unacceptable extent (judgment no. 98/2001 Coll.).

2) In the opinion of the dissenting judges, these conclusions must also be applied – in view of the need 
for a comprehensive review of the matter – to the adjudicated case.
     With reference to the cited arguments, repeatedly emphasized by the Constitutional Court, the 
dissenting judges conclude that the contested § 20 par. 4 and part of § 20 par. 6 of Act no. 424/1991 
Coll., in their present form, are – if the existing statutory framework for financing political parties is 
evaluated comprehensively – unconstitutional. Thus, this unconstitutionality can not be seen only in 
the cited provisions themselves, in other words in the fact that an entitlement to a regular contribution 
would be tied to reaching the 3% threshold or its level would be in and of themselves inconsistent with 
the constitutional order of the Czech Republic. Objective evaluation of the filed petition requires not 
only isolated weighing of one kind of state contribution, but evaluation of it in the aggregate, the 
resulting effect of all relevant factors, that is, in particular – as has already been stated – the 
contribution for payment of election expenses under § 85 of Act no. 247/1995 Coll. and the 
contribution for a deputy or senate seat under Act no. 424/1991 Coll. The need for such an aggregate 
view arises from the nature of the matter itself. Such a view is also the duty of the Constitutional Court 
as a guarantor of constitutionality in a democratic state. The Constitutional Court has already 
demonstrated the inequality of allocation of budget funds to political parties – based on the then-
existing legal framework – in the fictitious example of two political parties, one of which received 2% 
of votes in elections and the other 6% (judgment no. 98/2001 Coll.). A party which was only three 
times more successful would receive roughly 25 times more from the state coffers. The Constitutional 
Court then stated that disproportion thus arise which are inconsistent with the purpose and aims of 
financing political parties from public funds, that is, with enabling free competition among them. If 
free competition among political parties under comparable conditions is not respected, and if there is a 
tendency to create different conditions for large or larger parties and thus to directly or indirectly form 
political parties with a better or worse position – and thus also citizens with different conditions for 
their movement in the political system – such steps can not be considered constitutional (see the cited 
judgment).
     At the present time that disproportion between established political parties (note: of course, even 
the term “established party” is deceptive to a certain degree, because in a democratic state no political 
entity should be so established that it would lead to doubts about the free competition of political 
forces ) and non-parliamentary parties has lessened somewhat, but I still too high. The lessening of 
this disproportion was helped by lowering the threshold for entitlement to a contribution fro payment 
of election expenses under Act no. 247/1995 Coll., as amended, to 1.5%, with the simultaneous 
increase of that contribution to 100 CZK, which can clearly be considered a positive step; however, it 
is evident that in comparison with the income of parliamentary parties it is not sufficient. If we take an 
analog of the abovementioned hypothetical example – without having to go into detail in a 
perfectionist manner – we can determine through simple mathematical operations, that a party which 
does not exceed the threshold of 3% for entitlement to a regular contribution under Act no. 424/1991 
Coll., even if it is only one third or one half less successful than a party which barely got into the 
Chamber of Deputies, receives only the contribution for payment of election expenses (§ 85 of Act no. 
247/1995 Coll. as amended), whereas the parliamentary part also receives an annual regular 
contribution and an annual contribution per seat, and in consequence is therefore “compensated” for 
the electoral term more than ten times better (cf. also Collection of Decisions of the Constitutional 
Court, volume 21, file no. Pl. ÚS 53/2000, p. 324).
     Thus, in the opinion of the dissenting judges, in order to find a constitutional solution it is 
necessary – while observing the abovementioned general principles, previously stated by the 
Constitutional Court – also to allocate the relevant financial resources more fairly among the weaker 
(although not fragmentary political parties); it would likewise be appropriate not to give so much 
preference to the importance of elections to the Chamber of Deputies, but, in an appropriate manner to 
take also into account the successes of political parties in other elections. It is surely suitable and fair – 
as stated in the statement from the Chamber of Deputies – for parties which, thanks to their voter base, 
have a more real importance for political events in the state, to receive more, but the disproportion 
between parliamentary and non-parliamentary parties in that regard should not be as high as it is at the 
present time. Insofar as the statement from the Chamber of Deputies speaks of the “need to take into 
account an exact and fair criterion,” we cannot but agree, provided that smaller political entities are 
also taken into consideration, if their importance cannot be considered quite negligible (e.g. around 
2% of votes received). The principle of fairness should be a guiding idea of every democratic society. 
The seriousness and dignity of elections, as well as the honesty of intent of political parties can not be 
secured only or primarily by revenues for the most successful, in particular in a situation where the 
curve of financial profit rises disproportionately in comparison with only slightly less successful 
parties or movements. In this regard, however, the dissenting judges point to the danger of further 
increasing the financial dependence of political parties on the state; state financing should never 
significantly exceed the financing of parties form private sources, because that – as was already stated 
above – would violate the principle of separation of political parties from the state, enshrined in Art. 
20 par. 4 of the Charter of Fundamental Rights and Freedoms.

3) In the opinion of the dissenting judges, the Constitutional Court evaluated the present issue from a 
too narrow viewpoint (although, in formal terms, solely in relation to the contested provisions, 
basically correctly); as was already repeatedly emphasized, the existing statutory framework for 
financing political parties should, however, be evaluated comprehensively and in the aggregate, 
particularly in relation to the contribution for payment of election expenses under § 85 of Act no. 
247/1995 Coll. and the contribution for a deputy or senate seat under Act no. 424/1991 Coll. This is 
also related to the fact that the previous judgments to which the Constitutional Court refers, and the 
trend of its case law in general, leans more toward granting the petition – and thus for the position of 
the dissenting judges – than against it.
     The dissenting judges also do not agree with the majority opinion insofar as the judgment of the 
Constitutional Court overly emphasizes the more important position of the Chamber of Deputies in 
relation to the Senate in the constitutional system of the Czech Republic. It is their belief – even if the 
Senate, conceived as a stabilizing and controlling actor understandably has different powers and does 
not participate in the legislative process to the same degree as the Chamber of Deputies – that there are 
no reasonable grounds for such a different approach to elections to the two parliamentary chambers in 
relation to state financing, which is established by a valid legal framework. The dissenting judges also 
do not see a reason to ignore the results of elections to municipal and regional representative bodies; 
nationwide political parties which have more than merely regional importance are also often 
successful in these elections, as the Constitutional Court argues.
     Insofar as the Constitutional Court states that parliamentary political parties also receive indirect 
state financing (e.g., in the form of payment of deputies salaries, support for parliamentary 
organizations, etc., which, of course, is not unconstitutional in and of itself), this can be considered 
another substantive argument supporting the opinion of the dissenting judges, because – again, looking 
at the issue comprehensively – this leads to a further increase in the disproportion between 
parliamentary and non-parliamentary parties, as well as to further weakening of the principle of 
thorough separation of political parties from the state (Art. 20 par. 4 of the Charter of Fundamental 
Rights and Freedoms).
     In conclusion, the dissenting judges again emphasize that their dissenting opinion does not intend 
to support fragmentary political parties and movements, which often do not even want to seriously 
participate in political life and election competition, and not infrequently pursue only financial aims. 
They have in mind those political parties and movements that take their participation seriously, often 
have existed for a number of years, and have a certain non-negligible voter base.
     For all the foregoing reasons, the dissenting judges have concluded that § 20 par. 4 and § 20 par. 6 
of the contested Act are inconsistent with Art. 22 of the Charter of Fundamental Rights and Freedoms 
and with Art. 5 of the Constitution, and therefore in this regard the petition should be granted. As the 
Constitutional Court, which, as a “negative legislature,” could not in this case decide otherwise than 
by partial derogation, which, however, given the nature of the matter, could not be a systematic 
solution, there would be no choice but to also decide on an appropriate delay before the decision went 
into effect, so that the legislature would have sufficient time to prepare a new legal framework.

Brno, 19 January 2005



Dissenting Opinion 
of Judge JUDr. Eliška Wagnerová, Ph.D. in the matter Pl. US 10/03


I am led to disagree with the majority opinion expressed in point II. of the judgment Pl. ÚS 10/03 by 
the following reasons:
1. The judgment departs from the existing case law on state financing of political parties in terms of 
the methods used to address the matter.
2. It also departs from it in terms of the criteria selected for reviewing the matter.
3. It reaches speculative conclusions which ignore the mutual conditions between law and reality, so 
characteristic precisely for the area of financing political parties, not only by the state.
4. Deriving state financing of political parties only from one of the chambers of Parliament, i.e. from 
the Chamber of Deputies, which does not correspond to the constitutional framework.

Re 1.
In my opinion, there are only three previous relevant judgments of the Constitutional Court on state 
financing of political parties. The basis of the solution is contained in a judgment which addressed the 
issue of the contribution for election expenses (Pl. ÚS 30/98), the second judgment addresses, among 
other things, the issue of a contribution for votes (Pl. ÚS 42/2000), and finally there is a judgment 
concerning primarily the issue of a contribution per seat and the issue of a regular contribution (Pl. ÚS 
53/2000).
     In all these cases, the Constitutional Court did not evaluate the specifically contested form of 
financing political parties separately; it always viewed it in the context of other instruments for state 
financing of political parties. So, for example, in judgment Pl. ÚS 30/98, after putting the contribution 
for payment of election expenses into context with other methods of state financing, it stated: “The 
accumulation of a number of financial burdens on small parties (and thus financial advantages for 
larger parties) is presently so extensive that there is a priori “suffocation” of these small parties which 
do not have sufficient financial resources to conduct an election campaign and pay deposits. With 
awareness of that, potential voters for these parties in actual voting turn their votes otherwise if “their” 
party does not have enough funds to make itself visible in competition with others. The higher the 
threshold for small parties, the less number of votes cast for them express their true significance and 
the weaker the reliability of election results. However, voters’ votes are supposed to be an expression 
of free decision in free competition among parties and the integrative factor is supposed to have an 
effect only after completion of free election competition.”
     The level of a contribution per seat was evaluated equally markedly in context. Judgment Pl. ÚS 
53/2000 states: “However, it is precisely comparing the amount of the contribution per vote cast with 
other forms of funding political parties, that is, in particular, the contribution for a deputy or senate 
seat discussed in this matter, as well as with the amount of a contribution for a seat in a regional 
representative body (which is not questioned in the adjudicated matter but we cannot abstract from it) 
supports the opinion of the Constitutional Court that there is a clear tendency against free competition 
of all political forces, as increasing the support of parliamentary parties is accompanied by 
simultaneous restriction of less successful parties. Thus disproportions arise which are inconsistent 
with the purpose and aim of financing political parties from public resources, i.e. with facilitating their 
free competition.”
     I completely agree with this contextual method for evaluating individual forms of financing 
political parties. The majority opinion abandoned it, shielding itself behind the doctrine which forbids 
deciding “ultra petitum,” which, however, the contextual method respects and does not exceed.

Re 2.
The majority opinion states that the in the past the Constitutional Court searched for the threshold for 
state financing of a political party in terms of two principles, the principle of integration and the 
principle of representation. These were supposed to have been found in judgment Pl. ÚS 3/96, which 
denied a petition to cancel election deposits. This reference is irrelevant to me for two reasons. For one 
thing this was a judgment which expressed the majority of only a minority of seven judges (which is 
called a “relevant” minority), while in 1996 eight judges were of the opposite opinion. The later, and 
in my opinion only, relevant opinion, which overruled the cited minority opinion, was expressed in 
judgment Pl. ÚS 42/2000, which cancelled the deposits. Its reasoning states, among other things, that 
since the Constitutional Court’s last decision-making social changes have occurred, e.g. characterized 
by strong pressure in the direction of integrationist stimuli.” However, I consider it an important fact 
that when addressing the issue of a regular contribution one can not rely on opinions expressed on the 
issue of deposits, because, after all, deposits were not an issue of direct state financing of political 
parties.
     Of course, what appears most important to me is the fact that the present majority opinion has not 
dealt at all with the quite fundamental opinion of the Constitutional Court expressed in judgment Pl. 
ÚS 30/98, under which: “In a representative democracy, integrative stimuli are permissible in a limited 
extent only after the end of the process of free competition between legally equal political parties, i.e., 
after adding the votes for the parties, in a certain differentiation in allocating seats, not, however, by a 
priori financial stimulation of certain parties and disadvantaging of other parties, as this would lead to 
modification and stylization in a number of votes cast for political parties.” At that time the 
Constitutional Court also said: “Any direct or indirect restriction of the equality of parties in election 
competition may not individually or cumulatively, in provisions which differentiate the detriment or 
advantages a particular party, a priori suppress the very participation of political parties in election 
competition. The accumulation of financial support for only certain parties is, in its consequences, also 
an accumulation of de facto financial sanctions for other parties. Therefore, it is necessary to consider 
carefully whether the purpose of such measures has not been exceeded. This purpose must be only the 
seriousness of the efforts of the competing parties, which is not aimed at goals other than participation 
in political representation and promotion of their own program in it.” 
     It must be pointed out that the Constitutional Court expressed these considerations in connection 
with evaluating the contribution for payment of election expenses. In the issue of state financing of 
parties it thus clearly and distinctly shifted the deliberation on the competing principles of integration 
and representation from one side to the level of the principle of equal opportunity in elections, which 
is to be provided to all electoral parties who have demonstrated the seriousness of their programs and 
proposals through election results of about 1% of votes cast, i.e. distinctly lower than are the 3% of 
votes cast on the other side. On the contrary, the integration principle was expressly rejected as 
inapplicable for the phase which precedes allocation of the seats obtained in elections.
     In my judgment, the generality in the cited judgment requires that it also be “brought into the 
game” when evaluating the current matters today, i.e. the regular contribution to the activities of a 
political party. Where the majority opinion today evaluated the threshold of 3% of votes received in 
elections, it certainly did not use the criterion of seriousness, defined by receiving about 1% of votes 
cast. It refuses to break the 3% threshold, referring to the demands on the state budget. Moreover, it 
adds that such a shift would contradict the principle of political parties being rooted in civil society. In 
other words, of course, it thereby justifies, inconsistently with the cited case law of the Constitutional 
Court, an upward shift of the percentage for acknowledging the seriousness of political parties’ 
activities, without providing principles to justify this shift. I will add peripherally that, of course, 
nothing prevents the total amount provided to political parties from being limited for fiscal reasons. 
However, the topic for evaluation now is the fair allocation of that amount so as to respect the 
principle of equal opportunity for those parties which are seriously competing in elections. 
Incidentally, the German Federal Constitutional Court proceeded analogously (decision BVerfG of 9 
April 1992).
     Moreover, it is evident that all activities of political parties, including in the period between 
elections, is ultimately aimed at seeking success in elections. Similarly, the decision of the German 
Constitutional Court, BVerfG of 19. 6. 1966, which even cancelled the contribution for activities of 
political parties on the grounds of that form of financing being in conflict with the principle of a free 
and open process of formation of opinions and the will of the voters, i.e. with out state contributions. 
Thanks to this decision, state financing of political parties shifted to merely compensating elections 
expenses, understood, of course, in the abovementioned broad sense.

Re 3.
The majority opinion tried to differentiate in defining the purposes (aims) of individual forms of state 
financing of political parties. I can not agree with this fragmentary view of the purpose of state 
financing of political parties, because, particularly when defining the purpose of the state-provided 
contribution per seat, this is obvious mixing of the state and political parties, which is forbidden by 
Art. 20 par. 4 of the Charter. In my judgment, Parliament’s legislative activity is sufficiently secured 
by financing that state institution and compensating the political representatives who are active in it. 
As regards work on legislative proposals performed within individual political parties, there is no 
reason to distinguish between parliamentary and non-parliamentary parties, as this is an activity 
which, in my judgment, can not be mixed with the activities of deputy and senate factions. Otherwise, 
the difference between a political party as a component of civil society and the parliamentary 
chambers as state bodies would be erased. In other words, there would be impermissible state 
interference in political parties, moreover only in some, that is, those which are represented in 
Parliament. However, in my opinion the purpose of state financing of political parties is to enable and 
support the formation of plural opinions in society with the aim of effectively presenting them in 
elections. In my eyes, the individual forms of financing are only a technique which reflects, or should 
appropriate reflect, the support for individual opinions presented by the parties in society.
     The fragmentation of the aims of individual forms of state financing in reality completely erases the 
ability to verify whether the difference between financing parliamentary and non-parliamentary parties 
is proportionate, because the majority opinion implicitly removes state support for non-parliamentary 
parties in their preparations for electoral jousting in the form of preparing legislative programs. All 
this despite the fact that, as I mentioned above, the Constitutional Court recognized the seriousness of 
election intents of parties which achieved election results around 1% of votes cast, and there are no 
reasonable grounds to differentiate between parliamentary and non-parliamentary parties.
     If we consider that the contribution per seat (set at 900,000 CZK in a curious and, I do not hesitate 
to say, constitutionally quite incorrect process), has remained practically at the level which the 
Constitutional Court described as conflicting with the purpose of a state financial contribution to 
political parties (Pl. ÚS 53/2000), the difference thus established between parliamentary and non-
parliamentary parties, which, of course, benefit from the bonus of “seriousness of election intentions,” 
appears to me to be quite unjustifiable. This evident disproportion makes parliamentary political 
parties into parties rooted in the state, not in the society. Insofar as the majority opinion then states that 
breaking the threshold of 3% of votes received for provision of a regular contribution would mean 
increased demands on the state budget, yet does not taking into account the quite inappropriate 
disproportions between the over-financing of parliamentary parties and non-financing of non-
parliamentary parties which, however, have proved the seriousness of their programs and thus their 
being rooted in society, this is a self-serving position, lacking a constitutional law dimension which 
consists precisely in reviewing the justification of differences, or in reviewing the proportionality of 
differences thus established.
     The situation created by the amount of the state contribution per seat is not only inconsistent with 
Art. 20 par 4 of the Charter, but is fundamental for evaluating the quality of democracy in the Czech 
Republic. As a state body, the Parliament is supposed to be the result of serious election competition 
of private entities (political parties) representing various interests in society. It is incompatible with 
democracy for the state, by giving financial preference to certain entities, to eliminate other, authentic 
entities rooted in the society, with results of about 1% of votes cast in elections, from real and fair 
election competition. It is no accident that the Constitutional Court (Pl. ÚS 53/2000) appealed to the 
legislature to, after the Constitutional Court canceled the contribution per seat, use the space created to 
implement a new model for state financing of political parties “in such a way that the proportion 
between positions attained through subsidies and subsidies for success in election campaigns will 
change markedly in the favor of valuing the number of votes gained in the elections.”
     In my opinion, it is also necessary to interpret from the viewpoint of this appeal the absence of 
comment by the Constitutional Court in the cited judgment to the threshold of 3% of votes cast for 
entitlement to a regular contribution, which the majority opinion points out, and thereby considers that 
threshold to have been unquestioned by the Constitutional Court in the past. However, I do not share 
this conclusion, because in the cited judgment the Constitutional Court went farther, in terms of its 
opinion on state financing of political parties, than just to the 3% threshold for entitlement to a regular 
contribution. The fact that it was disregarded, just as in the case of the contribution per seat, is 
testimony to the internalization of constitutional values by members of political elites, here, members 
of Parliament, both if I consider the clarity of the constitutional imperative that decisions of the 
Constitutional Court are binding (Art. 89 par. 2 of the Constitution), and if I take into account the 
reality abroad. For example, in Germany, decisions of the Federal Constitutional Court on the 
financing of political parties were always accepted by the legislature in their entirety, or statutes on 
financing of political parties were formed on the bases of those decisions, including, of course, their 
reasoning (see, e.g. Stationen der Parteienfinanzierung im Spiegel der Rechtsprechung des 
Bundesverfassungsgerichts, Sebastian Lovens, Zeitschrift für Parlamentsfragen 2/2000, p. 284-299).
     In any case, the binding nature of the Constitutional Court’s decisions, including the material 
grounds stated in the reasoning, has heightened significance in the case of judgments on financing of 
political parties generally, and especially financing by the state. This is because reality indicates that 
parliamentary parties, when passing statues on the financing of political parties, are deciding “in their 
own case,” although the constitutional construction of a deputy or senate seat is different (deputies and 
senators have an unrestricted mandate, which they exercise in the interest of all the people, according 
to their best knowledge and conscience, and they also commit to respecting the Constitution – Art. 23 
par. 3 of the Constitution). On the contrary, however, the Constitutional Court, institutionally and in 
terms of personnel demonstrates elements of impartiality (the prohibition on membership in political 
parties for judges of the Constitutional Court – § 4 par. 4 of the Act on the Constitutional Court). 
Therefore it appears to be the appropriate body to determine the principles on which the financing of 
political parties should be based. In doing so it draws from the Constitution and the constitutional 
order as a whole. The test of the contested provision applied by the Constitutional Court should be 
stricter; it should not threshold itself merely to a mathematical comparison of the 5% closing clause 
with the threshold of 3% of votes received in elections and be satisfied with the finding that 3 is less 5.

Re 4.
On the one hand the majority opinion states that there is no legal definition of a political party. I see 
this fact as a plus, because of the previously mentioned dynamic interconnection and smooth mutual 
influencing of law and reality in the area of financing of political parties. Materially, constitutional 
references to political parties (in particular Art. 5 of the Constitution, Art. 20 of the Charter) can be 
understood, from a constitutional law viewpoint, as an institutional guarantee for the exercise of 
individual political rights, in particular the right to vote (Art. 21 of the Charter, Art. 6 of the 
Constitution). In any case, if there is no legal definition of a political party as such, it is only logical 
that there is also no legal definition of a regional party. However, one can not conclude from this 
without anything further (as the majority opinion does), that “the constitutional and legal system does 
not recognize a special category of regional political parties; their functioning is connected to the 
formation of all representative assemblies.” Such a claim contradicts reality and the material 
understanding of a political party (e.g. Strana pro otevřenou společnost – SOS [Party for an Open 
Society], Volba pro město - VPM [Choice for the City], and others). The fact that such a political 
party is not state financed is another, in my view problematic matter; nonetheless there is no doubt that 
it is still a political party.
     The majority opinion develops from a construction of the what is called the “real” position of a 
political party in the constitutional system of the state, which it ties exclusively to the presence of the 
party in the Chamber of Deputies. This construction seems artificial to me. If it uses the functional 
interconnection of the Chamber of Deputies with the government to conclude that the lower chamber 
is more important compared to the upper chamber – the senate (apparently thanks to the real power of 
the government), in my opinion this deliberation has no support in the Constitution. Art. 15 par. 2 of 
the Constitution describes the Parliament as one entity. In other provisions of the Constitution the 
powers of both chambers of Parliament are developed in such a way that, if the Chamber of Deputies 
is a “partner” to the government, the Senate, apart from the exercise of safeguards in relation to the 
Chamber of Deputies (e.g. in terms of the legislative process, continuity of the legislative power, etc.), 
is characterized by its position of “partner” to the other branch of the dually-established executive, i.e. 
to the President of the Republic and with him also to the Constitutional Court. This position of the 
Senate is evident in particular in granting consent with the naming of a judge of the Constitutional 
Court by the president. The fact that this is a very real Senate power (if I apply the logic of the 
majority opinion on the real position of the parliamentary chambers in the constitutional system of the 
state), is proved by the efforts, now on-going for more than a year and a half, to appoint judges to the 
Constitutional Court, as well as the role of the Constitutional Court in the constitutional system. 
Finally, it is the Constitutional Court, in whose formation the Senate participates, which is the 
guarantor of the constitutional exercise of all state power, regardless of which state body exercises it. 
The position of the Constitutional Court in the constitutional system (although it governs neither by 
sword nor by purse) is undoubtedly strong thanks to the integrative constitutional guiding and 
influencing of the uses of power of individual elements which exercise power in the state. Insofar as 
the Senate take part in creating it, this testifies to its real, equal status with the Chamber of Deputies. 
The majority opinion overlooked this aspect.

Brno, 19 January 2005