Strasbourg,
11 August 2009 CDL-UD(2009)005
Engl.
only
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
in co-operation with
THE CENTRE
FOR POLITICAL AND CONSTITUTIONAL STUDIES (CEPC)
UNIDEM SEMINAR
“SUPERVISING ELECTORAL PROCESSES”
Madrid, Spain, 23 – 25 April 2009
|
A COMPARATIVE ANALYSIS OF THE BODIES
IN CHARGE OF ELECTORAL SUPERVISION, ESPECIALLY THE JUDICIAL ONES –
THE CZECH CASE
by
Mr Milan PODHRAZKY (Czech Republic)
Chancellor of the Supreme
Administrative Court
To
define the judicial control of elections in the Czech Republic, it is necessary
to begin by mentioning several general points relating to the Czech
constitutional system and the position of the courts within this system. In my
opinion, the Czech experience in the field of election control could represent
a suitable model of a country where electoral cases are primarily tried by the
administrative courts, in spite of the existence of the Constitutional Court.
As a representative of the Supreme Administrative Court of the Czech Republic,
I will, of course, deliver my report specifically from this court’s point of
view, although the Constitutional Court and the regional administrative courts
will also, to some extent, be within the scope of this report.
As the legal
regulation of election control in the Czech legal system is not very detailed,
the role of the Supreme Administrative Court and the regional administrative
courts in this context is really indispensable. I would therefore like to
divide my report into two separate parts. In the first part of my report, I
would like to present you with some general information about election control
in the Czech Republic and especially about the role of the Constitutional Court
and the Supreme Administrative Court within this system of control. The second
part of my report will give concrete examples of judicial decisions in the
field of election control (leading cases).
I. JUDICIAL
CONTROL OF ELECTIONS IN THE CZECH REPUBLIC - PRELIMINARY NOTES
The
judicial power in the Czech Republic is exercised by the ordinary (“general”)
courts on the one hand and the Constitutional Court on the other. It is
necessary to point out that the Constitutional court in the Czech Republic is a
specialised judicial body responsible for the protection of constitutionality.
In contrast to the situation during the Czechoslovak period prior to the Second
World War (law No. 125/1920 Coll.), no specialised electoral courts in the
Czech Republic exist at present.
Before
January 2003, justice in electoral matters was significantly fragmented. There
were no specific and detailed regulated judicial proceedings in the field of
electoral matters and also the general regulation in several electoral acts was
incomplete. The highest court in electoral matters was the Supreme Court of the
Czech Republic. Since 1 January 2003 (the date the new Code of Administrative
Justice – law No. 150/2002 Coll. - came into force), administrative courts have
been competent to hear all disputes relating to elections. Although electoral
disputes are not strictly speaking administrative law issues per se (they do
not involve judicial review of public administration), electoral matters are
issues of so called public law, so competence in this area was conferred upon the
administrative courts. Consequently, justice in electoral matters as well as
justice in matters concerning political parties, became a part (it is necessary
to point out - a very specific part) of newly conceived administrative justice
in the Czech Republic.
It
was the Constitutional Court which, in its decisions from the 1990s, repeatedly
pointed out the deficiency of administrative justice in the Czech legal order
and eventually – through its decision of 27 June 2001 (published as No.
279/2001 Coll.) – annulled in its entirety Part Five of the Civil Procedure
Code, which had been the legal basis of administrative justice in Czech law.
However, the Constitutional Court deferred the effect of its ruling until 1
January 2003, thus providing the legislature with sufficient time to pass the
necessary legislation. The Court’s ruling became the necessary impetus for the
new framework of administrative justice to be adopted by both chambers of the
Parliament. The Supreme Administrative Court was re-established on 1 January
2003, nearly fifty years after its dissolution.
Today,
the Supreme Court is the highest judicial body in the Czech constitution for
matters that fall within the jurisdiction of courts, with the exception of
matters that come under the jurisdiction of the Constitutional Court, or the
Supreme Administrative Court. This means that the highest judicial body on
electoral matters within the justice system today is the Supreme Administrative
Court.
II. THE
SUPREME ADMINISTRATIVE COURT, THE CONSTITUTIONAL COURT AND JUSTICE IN ELECTORAL
MATTERS
Under Czech law,
the authority competent to certify the electoral results is the State Electoral
Commission. This means that responsibility for election control lies primarily
with this authority. This commission issues a certificate of election during
the elections for both chambers of the Parliament (the Assembly of Deputies and
the Senate). In municipal and regional elections, the municipal office and the
regional authority issue the certificate of elections. Bodies competent to
decide on complaints against the certification of election results are the
regional administrative courts (in municipal and regional elections) and the
Supreme Administrative Court (in parliamentary elections and elections to the
European Parliament).
The Constitutional
Court is a competent body in electoral matters firstly as it makes decisions
about complaints against the certification of election results as a court of
second instance in parliamentary elections, and secondly because it operates as
a court for extraordinary relief in other matters. A remedial action against a
decision concerning the certification of the election of a deputy or a senator
may be brought by a deputy, a senator, or the electoral party for which the deputy
or senator stood as a candidate, against a decision claiming (s)he was not
elected. A remedial action may also be brought by a person against a decision
of the appropriate chamber of the parliament, or a body thereof, concerning the
certification of the validity of a deputy's or senator's election. If the court
grants the remedial action, it shall declare in its judgment that the deputy or
senator was validly elected. Upon the announcement of such judgment of the
Constitutional Court granting the action, the decisions of other authorities,
which are in conflict with the judgment, shall lose force and effect. As a court of extraordinary
relief the Constitutional Court then decides about the constitutional
complaints. A constitutional complaint (which, under certain circumstances,
could also relate to election control) may be submitted by a natural or legal
person, if (s)he alleges that his/her fundamental rights and basic freedoms
guaranteed by the constitutional order have been infringed as a result of the
final decision in a proceeding to which (s)he was a party, or through a
measure, or some other encroachment by a public authority.
Furthermore it is
necessary to mention that, under Czech law, no specific constitutional
provisions stipulating the judicial control of elections exist. Article 20 of
the Czech Constitution lays down solely that other conditions of exercising the
right to vote, the organisation of elections and the scope of judicial review
shall be set by law. The only constitutional provision related
to judicial control of elections regulates the above-mentioned jurisdiction of
the Constitutional Court over remedial actions concerning the certification of
elections of a deputy or a senator (article 87).
The Czech electoral
courts are not involved in certifying electoral results. Consequently, the
electoral court trying a case (with the exception of the Constitutional Court
dealing with the review of a certificate of election of a Member of Parliament)
only makes a decision in response to an election complaint and then its
decision only cancels the challenge decision. From the point of view of
proceedings in electoral matters, it is also important to mention that the
electoral courts can collect evidence which they judge to be necessary in order
to make a decision. The parties can present evidence as well but the courts are
not bound by the scope of the evidence presented by the parties. Administrative
courts in election cases decide in principle on an ex tunc and not on an
ex nunc basis, therefore if they cancel the election results, the
apparently elected candidate is apprehended as though s/he had never been
elected, even if s/he were already installed or taking part in any activities
of the body to which s/he had apparently been elected.
As will be stated
in more detail below, under the Code of Administrative Justice, administrative courts are competent to hear disputes relating to
the keeping of the electoral register, the registration of a candidate list for
the election, the removal of a candidate from the candidate list, or challenges
to the registration of a candidate list. Administrative courts may furthermore
hear actions concerning the validity of elections, the validity of individual
ballots and, finally, protection in matters relating to the duration of the
mandate of a member of a municipal council. In electoral matters,
administrative courts are required to decide within strict time limits. Four
statutes regulate various types of elections in the Czech Republic and other
conditions relevant to the judicial control of elections. More precisely, law
No. 491/2001 Coll. applies to elections to municipal representative bodies (councils);
law No. 130/2000 Coll. applies to regional representative bodies (councils); law
No. 247/1995 Coll. applies to Parliament (the Chamber of Deputies and the
Senate); law No. 62/2003 Coll. applies to the European Parliament. Each statute
also stipulates its own terms for dealing with electoral control.
In the Czech
Republic, courts in electoral matters not only assess the activities of
individual candidates or political parties, but also take into account the
activities of others.
III. TYPES OF JUDICIAL CONTROL OF ELECTIONS
Under the Code of
Administrative Justice, it is possible to distinguish several types of
proceedings focused on the judicial control of elections. These types differ
with respect to the subject competent to submit a complaint, or with regard to
the various time points of the election process and so on.
As mentioned above, electoral disputes are not strictly
speaking administrative law issues per se. Consequently, there are several specific
provisions dealing with the judicial control of elections that are common to
all types of that control,
but that differ from the traditional type of protection granted by
administrative courts (action against a decision of an administrative
authority), for example:
- the
petition whereby the proceedings in electoral matters are initiated (or acts by
which the proceedings or their subject matter are dealt with) can be made only
in writing or orally by transcription at a court competent locally and
according to subject-matter (in my opinion this rule is in fundamental
discrepancy to modern trends relating to e-Justice),
- no party
is entitled to reimbursement of costs of proceedings in electoral matters,
- the
courts also post their resolutions in electoral matters upon the official
notice board of each court. Such resolutions come into force upon the day of
posting.
III.1. PROTECTION IN THE MATTERS OF THE REGISTER OF
ELECTORS
The first type of
judicial control of elections, relating to the opening part of the election
process (pre-election stage) deals with the registers of electors. It applies when an
administrative authority which keeps a regular electoral register under a
special law fails to correct errors and shortcomings in the regular electoral
register and its addendum. In that case, an affected person may address the
court competent, according to the seat of the administrative authority, with a
petition for the correcting or the supplementing of the register or its
addendum. In such cases, the court shall decide in without a hearing within
three days of the petition being submitted.
III.2. PROTECTION IN THE MATTERS OF REGISTRATION
While the
protection mentioned in the previous section (III.1.) concentrates on the
electors, this type of judicial control of elections favours the candidates.
Under Czech law it is also possible to seek judicial protection in a case where
the administrative authority under the special laws (that is the election laws
mentioned above) has rejected a list of candidates or
an application for registration, deleted a candidate from the list of
candidates, registered the list of candidates or the application for registration.
The court shall decide in such cases within fifteen days from the date the
petition was submitted. It is possible to distinguish the following sub-types
of this protection:
1. The
administrative authority has rejected a list of candidates, or rejected an
application for registration. Under these circumstances a political party,
political movement, or their coalition, independent candidate or association of
independent candidates, could seek a decision for registration by the
administrative authority.
2. The
administrative authority has deleted a candidate from the list of candidates.
In such cases, the subjects mentioned above may seek a decision on keeping the
candidate on the list.
3. The
administrative authority has registered the list of candidates, or application
for registration. In such cases, the subjects mentioned above may seek a
decision on cancellation of registration of other candidates.
III.3. INVALIDITY OF ELECTIONS AND VOTING
Under conditions
provided by special laws (that is the election laws mentioned in section II.) a
competent person may file a petition for the invalidity of elections or
invalidity of voting or the invalidity of a vote for a candidate. This type of election
control is related to the election act itself (casting a ballot). Following a
judicial decision could, under certain circumstances, result in the
cancellation of election results. This type of election control could therefore
be considered the most important.
The Supreme
Administrative Court pointed out that election results may be cancelled only if
three cumulative conditions of election review are fulfilled. The first
condition is a violation of law and the second condition is a causal nexus
between the violation of law and the election results. The last and most
important condition for cancelling the election results
is the fundamental intensity of the violation of law, which could have
influenced the election results. The Czech legal system does not distinguish
between the compulsory and the facultative cancellation of the election
results. The cancellation of election results is not the only possible
consequence of a violation of law. In its review of the election results, the
court proceeds with regard to the individual circumstances of each case. The
invalidity of the elections, the invalidity of voting or the invalidity of
voting for a candidate may only be declared if the violation of law influences
the election results.
The Supreme
Administrative Court also noted, in one of its significant judgments on
electoral matters, that a court makes a decision in electoral matters not only
on the basis of a violation of the electoral laws, but also taking into account
the violation of other laws related to the elections. The Supreme
Administrative Court named this theory “relevant unlawfulness”. The cases which resulted in
the cancellation of electoral results were generally based on two separate
cancellation reasons. One reason was errors in the voting procedures (for
example, incorrect calculation of election results, or fundamental errors in
the organisation of elections), the second was breach of
the pre-election campaign rules (for example, a dishonest and unfair campaign
or abusing the state-owned media, or by the self-governing units in campaign).
III.4. PROTECTION IN MATTERS CONCERNING THE TERMINATION
OF A MANDATE
This specific type
of protection in electoral matters is relevant only to elections for local or
regional representatives.
Under conditions provided by special laws (covering municipal and regional
council elections) a councillor (or political party, or association of
independent candidates...) whose mandate has been terminated may seek a
cancellation of a council’s or administrative authority’s decision on the
termination of the mandate of the councillor. The court shall decide in such
cases within 20 days from the petition’s submission.
IV. ELECTION CONTROL IN PRACTICE OF THE COURTS
The system of the
judicial control of elections in the Czech Republic, as described above, led in
several cases to some discrepancies in the adjudication of the election courts
in recent years. Such discrepancies mostly lie in different approaches to the
legal interpretation of particular issues of election law. It is necessary to
comment that such discrepancies are not very common; however, to achieve
understanding of the entire concept of the election control under Czech law, it
is useful to mention at least two cases that are of cardinal importance
(leading cases).
Those cases could
also cast light on the specific situation in the Czech Republic in the field of
judicial control of elections where, under certain circumstances, both the
Supreme Administrative Court (previously the Supreme Court) and the
Constitutional Court deal with election matters. I would like to point out
cases that were decided by the Supreme Administrative Court (the Supreme Court)
but where these decisions were ultimately – for various reasons – revoked by
the Constitutional Court. It is also not coincidental that the cases described
in the following sections of this report deal with issues relating to the
pre-election campaign. These issues are without doubt in the scope of election
control (amongst the most frequent and most important ones).
IV.1. JUDGEMENT
OF THE CONSTITUTIONAL COURT - CASE LASTOVECKA, (CASE No. I. ÚS 526/98)
In this case, the
Constitutional Court decided in the matter of the petitioner, the Civic
Democratic Party (Občanská demokratická strana), on the appeal
against the decision of the Senate of the Parliament of the Czech Republic and
the Mandate and Immunity Committee of the Senate of the Parliament of the Czech
Republic in the matter of verification of the election of the senator and
against the decision of the Supreme Court of 3 December 1998 (case No. 11 Zp
54/98). The Constitutional Court decided that D. Lastovecka was a validly
elected senator (so the Constitutional Court concluded that the appeal was
justified).
The petitioner
appealed against the decision of the Supreme Court. In the appeal he defined
the points which the Supreme Court decided incorrectly: that the election of
the above-mentioned senator in Parliament elections was invalid and the
petitioner could not be given a certificate of election as senator. The
petitioner in the proceedings before the Supreme Court (the Czech Social
Democratic Party, Česká strana sociálně demokratická), in the
adjudicated matter identified five events as evidence of violation of the
Election Act (No. 247/1995 Coll.): on the first day of the second round of
elections a daily newspaper published an article on the front page with the
headline “Brno mayor Lastovecka has a chance to become chairman of the Senate”.
On the same day, the above-mentioned newspaper published a pre-election poll,
in which it designated D. Lastovecka as the clear favourite. One day later, the
same newspaper published in an article dedicated to the electoral campaign a section
with the sub-heading “ČSSD candidate Božek acted immorally”. In the first
round of the senate elections, D. Lastovecka allegedly had access to the
district election commission, before the protocol on the termination of its
work was signed. During the first day of the elections, D. Lastovecka appeared
in a television news programme, where she allegedly spoke about and evaluated
her election campaign. Her election materials were allegedly distributed on the
second day of the elections. In this context, the Supreme Court pointed to § 16
paragraph 2 of the Election Act, under which an election campaign must take
place honorably and honestly. In particular, untrue information may not be
published about candidates and political parties, or coalitions on whose
candidate lists they stand. Paragraph 5 of this provision specifically forbade
election campaigning for political parties, coalitions and candidates in the
period of 48 hours prior to elections and on election days (this provision was
changed later). It also banned the publication of the results of pre-election
public opinion polls, “provided that they may be published no later than the
seventh day before election day”.
In my opinion, it
is useful to remember that in this case, in the opinion of the Supreme Court,
the Election Act was violated, specifically § 16 concerning regulation of an
election campaign. The violation was to have occurred for the following
reasons: (1) On the first day of the second round of elections (20 November
1998) the daily newspaper Lidové noviny published an article on the
front page with the headline “Brno mayor Lastovecka has a chance to become
chairman of the Senate”. On that same day, the same daily paper published a
pre-election poll, in which it identified D. Lastovecka as the clear favorite.
(2) On 21 November 1998, the same daily paper published, in the article
“Commissions discussed campaign” a section with the sub-heading “ČSSD
candidate Božek acted immorally”. (3) On 20 November 1998, that is during the
first day of the elections, D. Lastovecka was able to appear on the television
news programme Jihomoravský večerník, where she allegedly spoke
about and evaluated her election campaign.
Concerning the
objection about the alleged interference of D. Lastovecka with the work of the
district election commission, the Supreme Court stated that this fact had not
been proved in any way. With regard to the complaint about the distribution of
election materials from D. Lastovecka on the second day of the elections, the
Supreme Court stated that if this did actually occur, it could have been a violation
of the Election Act, nonetheless, “in view of the conclusions cited above and
the shortness of the time available to the Supreme Court for decision making,
it no longer considered it useful to deal with this question”. The Supreme
Court stated that, in terms of the degree and seriousness of the violation of
the Election Act, it is of course important whether the violation occurred
through the active actions of the candidate or her party, or through another entity
without her knowledge. In the case of isolated, less significant interference
of third entities with the election, there would clearly not be such violation
of the law leading to the invalidity of the elections. Nonetheless, if such
interference is committed by the mass media (a national daily considered
“trustworthy” and state-wide public television) “the question of some sort of
fault or participation by the candidate in such election campaigning in these
cases is irrelevant”. At the same time, the obligation to refrain from election
campaigning in the statutorily defined period cannot allegedly be considered to
be interference with freedom of speech and the right to information, as it is
in the interest of the free decision-making of voters just before elections and
during elections to have an opportunity to consider their decision in peace.
Likewise, the absolute ban on publishing results of pre-election public opinion
polls during the specified period cannot be circumvented in the way that Lidové
noviny did, as this would cast doubt on its very purpose. Thus, although in
the opinion of the Supreme Court “there is no discussion” about the fact that
D. Lastavecka did not subjectively cause violation of the rules of elections –
with the exception of the television appearance – (and there is no evidence
that she instigated the articles or the television programme), the Election Act
is based on the fact that it is to be objectively observed, and, if it is not
observed, it can have only one consequence – invalidity of the elections. The
media are also required to observe the law, and if they violate it, they should
bear the liability, including criminal liability.
The Constitutional
Court’s described decision primarily expressed that in these proceedings this
court decided on an appeal against a decision in the matter of verifying the
election of a deputy or senator, and because it acted as a – sui generis
– appeal level, it had to evaluate the particular case not only in terms of
protection of constitutionally guaranteed rights or freedoms, but primarily in
terms of the trustworthiness of the democratic election process. The argument
concerning objective or subjective violation of the Election Act is
considerably misleading. Generally, it should not be exclusively under the
jurisdiction of the Constitutional Court whether the Election Act was violated
objectively or subjectively, but it is necessary to take into account the
circumstances of the specific case and the degree and manner in which the
Election Act was violated. Thus, it cannot be generally stated that each
violation of the Election Act results in the invalidity of the election, or
that the penalty of invalidity of the election cannot be applied to the
violation of the Election Act at all.
In my opinion, it
is also useful to point out that, under this ruling of the Constitutional
Court, it is clear from the nature of the matter that in the “moratorium
period” of 48 hours before elections begin and during the election itself, it
is not possible to completely ban any election campaigning whatsoever.
Therefore, section 16, paragraph 5 of the Election Act must be interpreted
rather restrictively, in the sense that the legislature intended to ban active
election campaigns, that is intentional and purposeful campaigning,
specifically targeted to political parties, coalitions and candidates. In this
ruling, the Constitutional Court also added that, although proceedings on an
appeal in the matter of verifying the election of a deputy or senator are
specific proceedings – whose primary task is to protect the function of elections
in a democratic society, in terms of the “objective” constitutional law, it is
necessary for them to reflect the protection of fundamental rights and freedoms
of natural persons and legal entities. Although the Election Act bans active
election campaigning in the statutorily defined period, the intended aim of
this restriction may not violate other fundamental rights and freedoms, in
particular freedom of expression and the right to information. Thus, even in
the statutorily protected period, the media have the right to provide
information, and may present their own opinions; they are only forbidden to
campaign actively for any particular candidate. Freedom of expression and the
right to information are among the main pillars of a democratic society, which
the media, in particular, naturally use in their work. This fundamental right
and its exercise are necessarily a prerequisite for their free existence. The
right to freedom of expression and the right to information are cornerstones of
a democratic state, as only free information and its exchange and free
discussion make a person a citizen of a democratic country. It is the press,
radio and television, which spread and provide the information; in this
context, freedom of information has extraordinary importance. Thus, the
principle of honorable and honest election campaigns and the ban on campaigning
in the period of 48 hours before elections and during them cannot be
interpreted so widely that the act would create a social vacuum making the
existence of freedom of expression and the right to information (in connection
with elections) impossible.
In the case
described here, the Constitutional Court concluded that consideration of the
predictability of the law (its consequences) cannot be restricted only to its
grammatical text. It is judicial body which – although it does not have a
classical precedential nature – interprets the law, or completes it, as the
case may be, and its relative constancy guarantees legal certainty and also
insures general confidence in the law. This applies particularly to the Supreme
Court, which is the supreme judicial body in the field of the general
judiciary. This, of course, does not contradict the fact that judicial case law
can develop and change with regard to a number of aspects, in particular with
regard to changes in social conditions. According to this decision, the purpose
of section16 paragraphs 2 and 5 of Act No. 247/1995 Coll. was undoubtedly the
protection of honorable and honest elections. It can be agreed that –
institutionally speaking – it would generally not be appropriate to concentrate
exclusively on the question of whether it was only a candidate (political
party) who violated the cited provision. On the other hand, however, it is
difficult to accept a strictly objective criterion comprehensively and to ignore
the fact that the candidate did not subjectively cause the violation of the
election rules. The opposite interpretation would necessarily lead, under this
decision of the Constitutional Court, to a situation in which any subject could
achieve the invalidity of the election of any candidate completely without his
fault, which could significantly interfere with elections.
IV.2. JUDGEMENT
OF THE CONSTITUTIONAL COURT - CASE “NADVORNIK” (CASE No. Pl. ÚS 73/04)
In this case, the
Constitutional Court decided on an appeal filed by the Civic Democratic Party.
The Constitutional Court eventually decided that J. Nadvornik was a validly
elected senator in Senate elections.
According to the
resolution of 3 December 2004,
the Supreme Administrative Court decided on a petition from A. Zapotocky, that
the Senate elections held in election district Prague 11 were invalid. In
proceedings before the Supreme Administrative Court the petitioner, A.
Zapotocky, claimed that the election campaign in that election district was not
conducted honorably and honestly, because untrue information was repeatedly
published about him in the local press.
The Supreme
Administrative Court granted the petition to annul the elections. It relied on
its case law, which, in order to grant a petition in election matters (see also
chapter III.3. of this report), requires firstly unlawfulness, secondly a
relationship between this unlawfulness and the election of the candidate whose
election is contested by the election complaint and thirdly a fundamental
intensity of that unlawfulness, the consequences of which must, at least, cast
considerable doubt on the election of the candidate in question. It concluded
that section 16 of the Election Act (No. 247/1995 Coll.) does not exhaustively
regulate election campaigns, but applies only to their final, or “hot” phase.
An election campaign is one of the ways of exercising fundamental rights,
including primarily freedom of speech, the right to information, freedom of
association, freedom of assembly, and so on. The provision of section 16 of the
Election Act makes these fundamental rights and constitutional principles
concrete – above all, the principle of free competition of political forces in
a democratic society and the principle of equal entitlement to the right to
vote. Although section 16 paragraph 1 of the Election Act mentions only the use
of surfaces for posting election posters, in the Supreme Administrative Court’s
opinion it is clear, without any substantial doubts and in view of the cited
constitutional principles, that this is only one example of a generally valid
approach to the means of communication which a municipality has at its
disposal. It follows that the principle of equality of candidates must be
observed in the use of all means of communication owned by the municipality. In
this particular case, however, the Supreme Administrative Court believes that
this principle was not observed. It was violated by the publication in the Uhříněves
Reporter No. 10/2004 and the special issue of the Petrovice Reporter
directly before the first round of the senate elections. In the Supreme
Administrative Court’s opinion, the nature of the information published in
these publications was such that it was capable of significantly harming the
petitioner, A. Zapotocky, in the eyes of potential voters. The particular
circumstances of the case, the publication of these periodicals just before the
elections, the clear one-sidedness of the opinions presented, the manner of
distribution, the significantly higher print run of the special issue of the Petrovice
Reporter, and so on, persuasively show that this was the intention of the
publisher of these periodicals.
The Supreme
Administrative Court also concludes that the nature of the information
published in these periodicals does not meet the requirements for fairness in
an election campaign formulated in section 16, paragraph 2 of the Election Act,
whereby it has in mind specifically the printing of the anonymous letter from
2001, especially as it was presented without any commentary whatsoever, as a
letter from members of the representative body of Prague-Petrovice,
although the authorship of these members was not verified. The Supreme
Administrative Court also concluded that there was a relationship between the
violation of the Election Act and the election of J. Nadvornik. What is also
important here is that in the case in question, the petitioner ended in third
place in the senate elections, by a margin of 325 votes behind the candidate
who was in second place. In the Supreme Administrative Court’s opinion, the
narrow margin of votes, which meant that the petitioner did not advance to the
second round, could in fact have been caused by circumstances which the Supreme
Administrative Court sees as violating the Election Act. If this unlawfulness
had not occurred, the petitioner could realistically have advanced to the
second round of elections, in which the possibility that he might have been
elected could not be ruled out; therefore, a “certain relationship” exists
between the violation of the Election Act and the election of the candidate.
Finally, the Supreme Administrative Court considered the issue of evaluating
the intensity of the unlawfulness. It said that in a situation where the
petitioner did not advance to the second round of senate elections because of a
relatively narrow margin of votes, the degree of unlawfulness necessary for declaring
the elections invalid is naturally lower than in a case with a large margin of
votes.
As mentioned above,
the Constitutional Court in this case did not share the opinion of the Supreme
Administrative Court dealing with the issue of the pre-election campaign. The
Constitutional Court pointed out firstly that, with regard to the content of an
election campaign, arguments are often presented to voters in a very emotional
and heightened form, and are intended to influence their electoral behavior and
their decision on whom to vote for. However, the purpose of an election
campaign in a pluralistic democracy is undoubtedly also to evaluate the most
controversial issues in the manifestos of political parties and candidates
generally, as well as their personal qualities and capability to hold elected
public office. Only then will voters be able to make informed decisions, and
only thus can the fundamental constitutional principle that the people are the
source of all state power be fulfilled. Insofar as the Election Act under this
ruling speaks of the requirement for honorable and honest conduct of an
election campaign, it is pointing to what was previously called the cleanness
of elections. However, these concepts cannot be interpreted in terms of private
law and general morality, because they are being applied in the context of an
election campaign, which is nothing more than a fight for voters’ votes. Its
negative effects can be regulated, but cannot be ruled out by law. The lack of
effective protection in the Election Act for the conduct of elections will
always lead to an effort to resolve such disputes through election complaints.
The Constitutional Court concluded in this chapter, however, that the
protection of individual rights in these proceedings can only play a supporting
role in terms of guaranteeing and observing the rules for the proper conduct of
an election campaign.
The essence of
proceedings before the Constitutional Court in this case lies in guaranteeing
protection for the fundamental provisions of the constitutional order, which
give rise to the principle that the people are the source of all state power,
and in this role, among other things, they share the aim of establishing the
state through free and democratic elections. The statutory framework for the
election judiciary disputes and verification of elections corresponds to this.
In terms of the procedural regulation of the election judiciary disputes and
the conduct of such proceedings, this gives rise to the presumption that
election results correspond to the wishes of the voters. Presenting evidence to
rebut this presumption is the obligation of the person who claims that there
was an error in elections. According to the Constitutional Court, our election
judiciary does not recognise absolute defects in election proceedings
(so-called “absolute confusion of election proceedings”), that is, such
violation of a constitutional election regulation which would result in the
automatic annulment of elections, the election of a candidate, or voting. In
this sense, all possible defects and doubts must be considered relative, and
their significance must be measured by their effect on the results of elections
to a representative body, as such, or on the result of the election of a
particular candidate, or on the result of voting, according to the
proportionality principle. Proceedings are thus based on the constitutional
principle of protection of a decision which resulted from the wishes of the
majority, manifested in free voting and taking into consideration the rights of
the minority, as the Constitutional Court has already pointed out in another
context. The framework for verifying elections is based on the prerequisite of
an objective causal connection between an election defect and the composition
of a representative body, or at least a possible causal connection (the
principle of potential causality in the election judiciary disputes). However,
this possible cause, as established in section 87 of the Election Act, must not
be interpreted as a mere abstract possibility.
The Constitutional
Court derived from the Charter of Fundamental Rights and Basic Freedoms the
right of an elected candidate to uninterrupted exercise of his office during
the specified period, which emphasised the right of candidates, if elected, to
exercise these offices without obstacles. The judicial branch can change the
decision of the voters, as a sovereign, only in exceptional cases, where
defects in the election process resulted in or could demonstrably result in
voters having made a different decision and a different candidate having been
elected. However, the essential thing is that the annulment of elections cannot
be seen as a punishment for violating election regulations, but as a means to
ensure the legitimacy of an elected body. It is the probability of influence of
an election defect or an election offence on the election result in particular
elections, with particular voters, that is decisive. A mere abstract possible
causal connection is not sufficient. In such a case, the threat of annulling
the result of elections as the only possible consequence is inconsistent with
the constitutional principle of proportionality of interference by public
authorities. This certainly does not rule out disqualifying a candidate who
committed a serious election offence. In this regard, the Constitutional Court
is obliged to say that, compared to other countries, the legal regulation of
defects in the election process, election offences, and the rules for
conducting an election campaign in general, is, for one thing, very
fragmentary, and for another, basically rooted in conditions which correspond
to “elections” during the previous regime. Therefore, the legislature will have
to weigh up whether the election culture of voters, candidates and public
officials is on such a level that regulation of these issues is unnecessary, or
whether it will guide electoral behavior through pre-set rules that will create
a situation of legal certainty for the subjects of the election process and which
will be at least a prerequisite for electoral economy.
The Constitutional
Court concluded that neither an objective nor potential causal connection was
proved between the content of the cited publications and their distribution
among voters and the election of J. Nadvornik. Under this ruling, the Supreme
Administrative Court only considered the question of whether A. Zapotocky could
advance to the 2nd round of senate elections. However, in terms of the
aforementioned presumption that election results are valid, it was not proved
that the elements of the fundamental substantive law of our election judiciary
were present, that is, whether under section 87, paragraph 4 of the Election
Act the provisions of the Act were violated in a manner which could influence
election results. Therefore, the data provided does not lead to any logically
or statistically documentable conclusion that, applying the principle of an
absolute majority, there was a high degree of probability that anything would
have changed in the election results of the second round and that J. Nadvornik
would not have been elected senator. Therefore, the presumption that the
voters’ decision in an election is valid was not cast in doubt. There is no
dispute that the printed materials published as municipalities’
newspapers because they are in the hands of the public authorities, must remain
correct and neutral. Elections can be annulled only as a consequence of
fundamental and substantial violation of state neutrality in the course of
elections.
