![PDF ikona](fileadmin/Default_theme/Images/filetypes/pdf.png)
HEADNOTE
The
deadline for submitting a petition for review of a decision under Act
No. 130/2000 Coll., on Elections to the Representative Bodies of the
Regions and on the Amendment of Certain other Acts, can be given a
constitutionally conforming interpretation such that the moment of its
fictional delivery (the third day following the display on the bulletin
board) is important for calculating the objective endpoint of the period
for the submission of the petition, not however its beginning.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court, in a senate composed of JUDr. Vojen Güttler, its Chairperson, and Justices, JUDr. František Duchoň and JUDr. Ivana Janů, on the constitutional complaint of the complainant, U.S. – D.E.U. . . . against the 27 September 2004 ruling of the Regional Court in Pilsen, file no. 57 Ca 20/2004-36, with the participation of the Regional Court in Pilsen as a party to the proceeding and the the Regional Office of the Karlsbad Region . . . as a secondary party to the proceeding, decided as follows:
I.
The 27 September 2004 ruling of the Regional Court in Pilsen, file no.
57 Ca 20/2004-36, resulted in the violation of the complainant’s
fundamental right to seek court review of the legality of a decision of a
public authority (Art. 36 para. 2 of the Charter of Fundamental Rights
and Basic Freedoms).
II. The 27 September 2004 ruling of the Regional Court in Pilsen, file no. 57 Ca 20/2004-36, is quashed.
REASONING
In
its timely submitted constitutional complaint, the complainant contests
the above-mentioned decision of the Regional Court in Pilsen
(hereinafter „Regional Court“). As regards formal matters, the
complaint also meets further requirements laid down in Act No. 182/1993
Coll., on the Constitutional Court, as amended (hereinafter „the Act on
the Constitutional Court“). In its constitutional complaint, the
complainant requested that its matter be heard as a priority matter.
Therefore, the Constitutional Court considered first the urgency of this
matter and, after due consideration of all circumstances, came to the
conclusion that the requirements of § 39 Act on the Constitutional Court
have been met. The matter is urgent as, in the proceeding preceding
the submission of the constitutional complaint, the Regional Court
adjudged whether there is an obligation to register the candidate list
for the election to the Representative Body of the Karlsbad Region,
which is to be be held on the 5-6 November 2004. A decision on the
merits as regards that obligation could affect the course of the
preparations for the election.
In
its submission, the complainant stated that it has an interest in
engaging in the competition of political parties, both at the national
and at the regional level. For this reason, it prepared a candidate
list for the elections to the Representative Body of the Karlsbad
Region, but this list was rejected on formal grounds by the secondary
party’s 16 September 2004 decision, file no. 4587/LS/KJ/PI/04. On 16
September 2004, this decision was displayed on the official bulletin
board; on the day the decision at issue was announced, that is 16
September 2004, the complainant took delivery of it. In order to
protect its rights, on 17 September 2004 the complainant submitted to
the Regional Court a petition requesting that it impose upon the
Regional Office of the Karlsbad Region the duty to register the
submitted candidate list. In the ruling that is contested in this
proceeding, the Regional Court rejected the complainant’s petition on
formal grounds with the reasoning that the petition was submitted
already before the time period to seek the court’s protection had begun
to run. The complainant objects to the Regional Court’s interpretation,
whereby it is appropriate to dismiss as prematurely initiated a
remedial procedure which, although submitted prior to the time period
for its submission has begun to run, was still submitted after the
actual in person delivery of the decision. The complainant considers
this interpretation as so formalistic and dogmatic, that the
positivistic approach contained therein predominates over fundamental
legal principals to such a degree that these principles are entirely
refuted, which results, in its view, in the contested decision being
unconstitutional.
The
complainant objects that, as a result of the Regional Court’s means of
proceeding and of the contested decision, it was denied, in particular,
the rights enshrined in Art. 36 paras. 1 and 2 of the Charter of
Fundamental Rights and Basic Freedoms (hereinafter „Charter“) and that
there was also a violation of its rights established in the
constitutional order in the area of the exercise of political rights in
the broad sense of the word. The contested decision purportedly also
resulted in the infringement of Art. 4 of the Constitution of the Czech
Republic (hereinafter „Constitution“), since the complainant was
allegedly denied the protection of the judicial power, and Art. 5 of the
Constitution, as the complainant was not able to engage in the
competition of political parties.
The
wording of the relevant Articles of the Charter and Constitution which
regulate the fundamental rights to whose infringement the complainant
has objected, is as follows:
Art. 36 para. 1 of the Charter:
Everyone may assert, through the legally prescribed procedure, his rights before an independent and impartial court or, in specified cases, before another body.
Art. 36 para. 2 of the Charter:
Unless a law provides otherwise, a person who claims that her rights were curtailed by a decision of a public administrative authority may seek court review of the legality of that decision. However, judicial review of decisions affecting the fundamental rights and basic freedoms listed in this Charter may not be removed from the jurisdiction of courts.
Art. 4 of the Constitution:
The fundamental rights and basic freedoms shall enjoy the protection of judicial bodies.
Art. 5 of the Constitution:
The political system is founded on the free and voluntary formation of and free competition among those political parties which respect the fundamental democratic principles and which renounce force as a means of promoting their interests.
Art. 36 para. 1 of the Charter:
Everyone may assert, through the legally prescribed procedure, his rights before an independent and impartial court or, in specified cases, before another body.
Art. 36 para. 2 of the Charter:
Unless a law provides otherwise, a person who claims that her rights were curtailed by a decision of a public administrative authority may seek court review of the legality of that decision. However, judicial review of decisions affecting the fundamental rights and basic freedoms listed in this Charter may not be removed from the jurisdiction of courts.
Art. 4 of the Constitution:
The fundamental rights and basic freedoms shall enjoy the protection of judicial bodies.
Art. 5 of the Constitution:
The political system is founded on the free and voluntary formation of and free competition among those political parties which respect the fundamental democratic principles and which renounce force as a means of promoting their interests.
Pursuant
to Art. 42 para. 4 of the Act on the Constitutional Court, within the
framework of the evidence taking carried out by the Constitutional
Court, it is necessary to request the parties, or even secondary
parties, to give their views on the constitutional complaint.
In
its statement of views, the Regional Court emphasized that § 52 para. 1
of Act No. 130/2000 Coll., on Elections to the Representative Bodies of
the Regions and on the Amendment of Certain other Acts (hereinafter
„Electoral Act“), lays down the right of parties to seek protection
against a decision rejecting its candidate list and also sets the
conditions and details for the assertion of this right, where it
provides that protection can be sought within two days of the delivery
of the decision, while it is stated in § 22 para. 4 that a decision
rejecting a candidate list is considered to be delivered on the third
day following its display upon the regional office’s official bulletin
board. It draws attention to the fact that the term, „delivery“, is
defined entirely unequivocally and that, in light of § 65 of the
Electoral Act, which excludes the application of the Administrative
Procedure Code, any other interpretation of this term is ruled out. In a
further passage of its statement, the Regional Court draws attention to
the fulfillment of the procedural conditions for the assertion of the
right in question, which flows from Act No. 150/2002 Coll., the
Administrative Court Procedure Code (hereinafter „ACPC“). In this
respect it stated that the court must review whether the petition was
submitted prematurely or late, for in either case it is obliged,
pursuant to § 46 para. 1 lit. b) of the ACPC, to reject the petition on
preliminary grounds. The court determines whether the submission is
premature or late in reference to the day it was submitted. In the
Regional Court’s view, the complainant was entitled to submit the
petition either on 20 or 21 September 2004. In view of the fact that it
was submitted on 17 September 2004, it was submitted prematurely;
therefore, pursuant to § 46 para. 1 lit. b) of the ACPC the court
rejected it on preliminary grounds. The Regional Court added that the
two day time period for performing an act is in no sense unusual in the
Electoral Act. In its view, the Electoral Act cannot be interpreted in
any other way, for the Act is worded unequivocally. In reviewing the
timeliness of a petition, a court proceeds from § 52 para. 1 of the
Electoral Act, which delimits the moment in which an electoral party is
authorized to submit a petition to the court. Should an electoral party
submit it earlier, then it was a prematurely submitted petition. The
Regional Court affirms that the complainant was represented by an
attorney already on 16 September 2004. It is solely the electoral party
who, cognizant of the Electoral Act and the ACPC, the enactments which
lay down the conditions for political parties to assert the right of
judicial protection against decisions rejecting a candidate list,
decides at which time to submit a petition to a court. In the Regional
Court’s view, it could not accept the complainant’s arguments based on
the 18 September 1973 judgment of the Supreme Court of the SSR [the
Slovak Socialist Republic], case no. 1 Cz 84/73, as the Civil Procedure
Code did not then, and still does not now, contain the concept of a
premature application. The Regional Court is convinced that the
complainant was not affected in its constitutional rights, in a case
where it did not yet have the right to seek the judicial protection
against the decision rejecting its candidate list. On those grounds the
Regional Court proposed that the Constitutional Court reject the
complaint as manifestly unfounded.
The Constitutional Court did not consider it necessary to ascertain the secondary party’s position.
The
Constitutional Court ascertained from the Regional Court’s file that on
17 September 2004 the complainant had submitted against the secondary
party a petition (complaint) seeking a declaration of its duty to
register the candidate list. It stated that it had prepared the
candidate list for the election to the Karlsbad Region Representative
Body, and submitted it, in the statutorily prescribed form and before
the deadline therefor, to the registry of a contributory organization,
the Directorate of Freeways and Highways of the Czech Republic, the
Karlsbad Administrative Office. On 16 September 2004, the secondary
party issued a decision rejecting the complainant’s candidate list, in
principle due to the fact that it was submitted late. In its statement
of views on the complaint, the secondary party proposed it be dismissed
as unfounded with reference to § 22 para. 3 of the Electoral Act, which
provides the basic conditions for the registration of candidate lists,
namely their submission to the regional office (not merely their
preparation). It further remarked that the candidate list was submitted
at 10:30 a.m. on 1 September 2004 and that the Electoral Act does not
intend for the submission of the candidate list to some other subject
(i.e., Directorate of Freeways and Highways of the Czech Republic, the
Karlsbad Administrative Office) to have any legal effect. In taking
evidence, the Regional Court ascertained that the secondary party’s
decision was issued and displayed on the official bulletin board on 16
September 2004; the complainant took delivery of the decision on the
same day. In conformity with the legal fiction contained in the last
sentence of § 22 para. 4 of the Electoral Act, the decision rejecting
the candidate list was delivered on the third day following its display,
that is, on 21 September 2004; therefore, the complainant was entitled
to submit the petition on either the 20th or 21st of September 2004. In
view of the fact that the complainant submitted its petition on 17
September 2004, thus earlier than the time period for the possibility to
seek judicial protection had begun to run, the Regional Court concluded
that the petition was submitted prematurely; thus, in the contested
ruling it rejected the petition on procedural grounds, without
considering the merits of the matter.
After
taking evidence, the Constitutional Court has come to the conclusion
that the complainant’s petition is well-founded. In a proceeding before
the Constitutional Court the condition for a complaint to be
well-founded is that the complainant’s fundamental rights or basic
freedoms were infringed in the contested decision.
In
its jurisprudence, the Constitutional Court has repeatedly emphasized
that, in principle, it is not authorized to intervene into the ordinary
courts‘ decision-making, as it does not stand at the summit of their
court system (compare Art. 81 and Art. 90 of the Constitution). As long
as the courts proceed in accordance with the content of Part Five of
the Charter (Art. 83 of the Constitution), the Constitutional Court
cannot arrogate to itself the right of review over their activities. On
the other hand, it has repeatedly acknowledged that quite often the
interpretation and application of legal enactments by ordinary court can
be extreme to such a degree that it oversteps the bounds of Part Five
of the Charter and intrudes upon one of the constitutionally guaranteed
basic rights. In such cases, however, the Constitutional Court has
jurisdiction.
With respect
to the content of the constitutional complaint, the Constitutional Court
dealt primarily with the constitutionality of the manner in which the
court interpreted and applied § 46 para. 1 lit. b) of the APC in
conjunction with §§ 52 para. 1 and 22 para. 4 of the Electoral Act, that
is, the norms regulating the procedure for the registration of
candidate lists and the rules for judicial review of decisions by the
competent bodies of public administration. According to these
provisions, it applies that the regional office shall without delay
prepare decisions on the rejection of candidate lists for formal reasons
and send them on to the person who is authorized to seek protection
before a court, for example, the political party. At the same time, it
shall without delay display the decision on the regional office’s
official bulletin board. The decision is considered to be delivered on
the third day following its display on the bulletin board (§ 22 para. 4
of the Electoral Act). Pursuant to a separate act (§ 52 of the
Electoral Act), the political party may, within 2 days of the delivery
of the decision, seek protection before a court against the decision
rejecting the candidate list on formal grounds. With effect from 1
January 2003, that separate act has been the Administrative Procedure
Code. One of the conditions for granting judicial protection is the
submission of a complaint within the designated time period as, pursuant
to § 46 para. 1 lit. b) of the APC, the court shall reject the petition
on formal grounds if it was submitted either prematurely or late.
The
purpose of the institute of untimeliness rests on the aim of limiting
the submission of petitions in situations where the complainants could
not as yet become sufficiently familiar with the statement of decision
and its reasoning; equally, the content of the remedial procedure (that
is, also a complaint) might not be of sufficient quality, and the court
would be excessively burdened with the procedure laid down for the
curing of defects.
The
electoral process, including the preparation for elections, represents
an extraordinarily complex set of interlaced stages and transactions.
Accordingly, in framing the legal regulation of the electoral process,
it is appropriate for the legislature to make use of such institutes as
are expected to exclude doubts, delays, obstruction, etc. Such
institutes include the institute of delivery by display on the official
bulletin board, the laying down of precise deadlines for subjects to
take action and for relevant state bodies to take decisions, or the
inadmissibility of cassational complaints in electoral matters.
Emphasis on precision, however, does not give free rein to an excessive
attachment to limiting formal conditions; in particular, the possibility
for subjects effectively to seek the protection of their individual
rights cannot be excluded. Among the features peculiar to the Electoral
Act is the fiction of delivery of a decision with a parallel „sending“
of it to the party. It is evident that such a decision is written up,
is binding on the deciding body, and is addressed to the parties. The
function of the fiction of delivery is to act as an impediment to any
possible difficulties with the decision becoming final and enforceable.
At the same time, regardless of finality, it is clear that the body
which issued such a decision may no longer on its own revise it. This
certainty gives to the parties the opportunity to formulate their
objections to the decision and duly to assert them. The legislature is
authorized to limit the period for submitted objections, made within the
formal framework of a remedial procedure. This can be done by
designating the time line for submitting such a petition. In the case
under consideration, the legislature limited the period for submitting
the petition by designating a deadline „within two days“ of the delivery
of the decision. In conjunction with the fiction of the delivery, this
deadline expires at the end of the second day following the end of the
third day from the date of the decision’s display on the bulletin
board. Thus, the deadline for the submission of the petition to review a
decision under the Electoral Act can be given a constitutionally
conforming interpretation such that the moment of the fictional delivery
(the third day following the display on the bulletin board) is
important for calculating the objective endpoint of the period for the
submission of the petition, not however its beginning. In consequence
thereof a party to the proceeding pursuant to the Electoral Act has the
opportunity to seek judicial protection within the time interval between
the delivery of the petition by „posting“ up until the second day
following the third day after its display on the bulletin board. The
formalistic interpretation adopted by the Regional Court, namely, that
the petition could be submitted after the completion of the fictional
delivery at the earliest, leads in consequence to the restriction of the
complainant’s right to petition a court for review of the decision of a
public administrative body. In the matter under consideration, this
could lead to the consequent restriction of its right enshrined in Art.
22 of the Charter. The Constitutional Court recalls the significance of
this provision, according to which, any statutory provisions relating
to political rights and freedoms, as well as the interpretation and
application of them, must make possible and protect the free competition
among political forces.
For
the given reasons, due to the violation of Art. 36 para. 2 of the
Charter, the Constitutional Court has, pursuant to § 82 para. 2 lit. a)
of Act No. 182/1993 Coll., on the Constitutional Court, as amended,
granted the constitutional complaint and, pursuant to § 82 para. 3 lit.
a) of that Act, quashed the contested ruling. It reached its decision
without an oral hearing, as the parties to the proceeding consented
thereto and it is evident that further clarification of the matter
cannot be expected from such a hearing (§ 44 para. 2 of the cited Act).
The Constitutional Court did not seek the consent of the secondary
party to dispensing with the oral hearing, since the grounds upon which
the contested ruling are being quashed are different from those for
which the secondary party refused to register the complainant’s
candidate’s list.Notice: Decisions of the Constitutional Court cannot be appealed.
Brno, 25 October 2004