a)  Czech Republic / b)  Constitutional Court / c)  Plenary / d)  27-02-2001 / e)  Pl. US 53/2000 / f)  Political party - finance / g) / h)  CODICES (Czech).
Keywords of the systematic thesaurus:
Institutions - Legislative bodies - Political parties - Financing.
Institutions - Public finances - Principles.
Fundamental Rights - Equality - Scope of application - Elections.
Keywords of the alphabetical index:
Political party, parliamentary / Political party, non parliamentary / Political party, competition, freedom / Political party, contribution, mandate / Venice Commission, political parties, financing, report.
The constitutional order contains the basic principles of the political system, among which free competition of political parties is the guarantee of political pluralism. It prohibits discrimination, in particular the preferential treatment of some political parties over others. It seeks to maintain equal opportunities in political competition, especially in elections, and influences the conditions and structure of the financing of political parties, including forms of direct state funding.
Free competition of political parties is based above all on the fact that all political parties are governed by the same rules specified in advance, which are based on these basic principles. At the same time, there is no doubt that direct state funding is in the hands of the legislature, which directly influences its amount and direction. But its decision-making may not be arbitrary, it must respect the constitutional principles that are part of the basic principles of the constitutionally guaranteed political system. If the risk of arbitrariness were not ruled out, and even mere circumvention of these regulations were possible, this would undoubtedly always lead to a violation of the constitutional order, its purpose and meaning. This would force the intervention of the Constitutional Court, which is, under Articles 83 and  87 of the Constitution, the judicial organ for the protection of constitutionality and legality.
The Court received a petition from the President of the Republic for the annulment of some provisions of the Act on the Association in Political parties and Political Movements and on Elections to the Parliament of the Czech Republic. The contested provision of the Electoral Act has already been annulled by a Judgment of the Constitutional Court of 24 January 2001, file no. Pl. ÚS 42/2000 [CZE-2001-1-001].
The Chairman of the Chamber of Deputies had given an opinion on the constitutional complaint. He stated that the current legal regulation of the financing of political parties and movements does not give preferential treatment to any political entities, nor does it increase the differences between parliamentary and non-parliamentary parties in favour of parliamentary ones. The President exercised his right under Article 50 of the Constitution concerning both Acts, but the Chamber of Deputies insisted on them.
The Senate left it to the Constitutional Court to judge and decide this question. The government proposed that the petition be rejected. The Court has analysed the petitions above all in terms of the principles enshrined in the Constitution and in the Charter of Fundamental Rights and Freedoms.
Determining a contribution and its amount undoubtedly belongs to the legislature. It is responsible for assessing the adequacy of these funds in view of the principles established by the Constitution. The funding of political parties is also partly regulated by the Electoral Act. Although the Court annulled the part of the Electoral Act which regulates the contribution per vote cast, it clearly stated in the reasoning of its judgment that this contribution cannot restrict the free competition of political parties. Comparing the amount of the contribution per vote cast with other forms of funding political parties supports the opinion of the Court that there is a clear tendency against free competition of political forces, as increasing the support of parliamentary parties is accompanied by simultaneous restriction of less successful parties. Thus disproportions arise which are in conflict with the purpose and aim of funding political parties from public resources, i.e. with facilitating free competition.
The inequality of division of financial resources to political parties can be demonstrated by the situation where one political party receives 2% of votes cast in elections to the Chamber of Deputies (e.g. 100,000) and another party 6% (300,000). While the first party receives from the state a contribution for votes cast for the entire subsequent electoral period of only 3 million crowns, the other party, with three times the success, receives roughly 77 million crowns in the same period (contribution for votes 9 million crowns, regular annual contribution 5 million crowns, i.e. a total of 20 million and a regular contribution for mandates which, given the probable count of 12 seats, is 12 million a year, i.e. a total of 48 million crowns). Compared to its less successful competitor, this party receives roughly 25 times more from the state budget.
The reasoning for increasing the contribution for a mandate, in the opinion of the Chamber of Deputies, is inconsistent with the purpose of state financial contributions for political parties. Parties should be anchored in the society, not in the state. A state contribution is only intended to facilitate the task which the parties fulfil for the state by their participation in the elections, because a democratic state is based upon the political will arising from free electoral competition. Under Article 22 of the Charter of Fundamental Rights and Freedoms, any statutory regulation of all political rights and freedoms must make possible and protect free competition among political parties in a democratic society. The free competition among political parties is thus undoubtedly a value which must also be given priority by the statutory regulation of the financing of political parties by the state and which is under the protection of the Constitution and the Charter.
The opinion of the Chamber of Deputies recognises that the legislature cannot be arbitrary, but insists that "...the amount of this contribution must correspond to the realistic and appropriate costs of political parties, necessary to ensure their activity". In fact the opposite should hold true - the amount of the contribution must not fully correspond to the real and appropriate costs of political parties, because the real and appropriate costs of political parties may not be financially covered by the state, but it must have its basis in the support of members and voters.
In the amendment of the Act on Political Parties, the reduction of the electoral contribution per vote cast from 90 crowns to 30 crowns was accompanied by an increase of the contribution per mandate, which, in contrast, gave greater value to positions achieved and occupied in the state, and indirectly strengthened the disproportion in the basic criterion.
Annulment of the electoral contribution by Court Judgment Pl. ÚS 42/2000 [CZE-2001-1-001] created a situation in which keeping the contribution of 1 million crowns for each mandate of a senator or deputy would further increase the existing disproportion. Therefore by annulling the contribution per mandate the Court is also creating room for parliament to apply a completely new approach to the funding of political parties by the state in such a way that the proportion between positions attained through subsidies and subsidies for success in electoral campaigns will change markedly to the favour of appreciating the number of votes gained in the elections.
The current increase of the contribution per mandate was aimed at financial support of big parties already established in parliament at the expense of small ones. The concentration of state financial assistance only for parties represented in parliament restricts the economically equal participation of parties in electoral competition and does not respect the principle contained in Article 20.4 of the Charter of Fundamental Rights and Freedoms regulating the separation of parties from the state. Raising the threshold for a contribution for a mandate neglects the basic criterion for state support, i.e. the number of votes received by parties, and concentrates public funding for parliamentary activity in a constitutionally unacceptable way.
Under the original wording of the Act, a political party was entitled to a regular contribution if it reached 3% of votes cast in one election. Under the amendment the party does not receive the contribution if it does not exceed the closing clause for entrance into the Chamber of Deputies. This leads to discrimination against some parties compared to other parties or movements and a fundamental negative influence on the free competition of political parties, intended in Article 5 of the Constitution and Article 22 of the Charter of Fundamental Rights and Freedoms.
The overall concept indicates a fundamental intention to strengthen the role of big parties which could easily form coalitions after the elections and promote their programmes without taking into account the opinions of other parliamentary parties, which is hidden under the concept of increasing stability in the decision making process of the legislative and executive powers. Of course, increasing stability here need not result in a higher degree of democracy, but also weakening its principles and reducing its efficiency. If the free competition of political parties under equal conditions is not respected and if there is the attempt to create different conditions for big or bigger parties and thus directly or indirectly form the parties with a better or worse position, and thus also citizens with different conditions for movement within the political system, such steps cannot be described as constitutional. The Court cannot overlook the fact that a democratic society is characterised by the free competition of political parties, whose activities in the administration of public affairs is derived from the free election performed by voters.
The Court also pointed to the Report on Funding Political Parties prepared by the Venice Commission of the Council of Europe in Strasbourg, which states that there are countries where the financing of political parties relies mainly on members contributions and this concept is observed. In the older democracies political parties are an enormous machine constantly requiring considerable staff, extensive premises and increased operating expenses which cannot be covered by the often low membership contribution. (In the Federal Republic of Germany, state assistance is inversely proportional to the financial capacity of each party and it is determined by what is necessary to ensure the proper functioning of public power.)
The report of the Venice Commission favourably evaluates the countries which also tie state assistance to parties to their success in elections and to revenues from membership contributions. In this sense standards are formulated for the distribution of state contributions. In the first place these are the successes which a party had with voters in the elections, then the total sum of party contributions and to a limited degree the extent of gifts which the party received. The results of the Commission's work are directly related to current legislative themes in the Czech Republic and should not be overlooked.