U-I-367/96

Reference no.:
U-I-367/96
Objavljeno:
Official Gazette RS, No. 24/99 and OdlUS VIII, 56 | 11.03.1999
ECLI:
ECLI:SI:USRS:1999:U.I.367.96
Act:
Political Parties Act (Official Gazette RS, no. 62/94) (ZPolS, first paragraph of article 23
Operative provisions:
It is in conflict with the Constitution that the first paragraph of article 23 of the Political Parties Act restricts the financing of political parties from the state budget to parties whose candidates were elected at the last election to the National Assembly. The National Assembly must remove this discordance within six months of the promulgation of this decision in the Official Gazette RS.
Abstract:
The exclusion of political parties who did not obtain mandates at elections to the National Assembly from state financing signifies an impermissible discrimination against these parties and thus a violation of the equality of voting rights (article 43 of the Constitution). The legislator may determine a threshold for obtaining funds from the state budget but this threshold may only be such that it excludes from state financing political parties who have proposed lists for which at the elections it was shown that they did not have a realistic chance of obtaining at least one mandate. The legislator thus prevents only candidating for the purpose of obtaining funds from the state budget.
Password:
Constitutional Court, determining a time limit for the legislator to rectify a conflict of a statutory norm with the Constitution.
Political parties, financing.
Elections, equality of voting rights.
Dissenting opinion of a constitutional judge
Legal basis:
Constitution, para. 1 of article 43
Constitutional Court Act (ZUstS), article 48
Note:
By resolution of the Constitutional Court of 17.12.1998 cases no. U-I-4/98 and no. U-I-6/98 were joined to the case being heard because of common treatment and decision.
Document in PDF:
The full text:
U-I-367/96
11.3.1999


DECISION

At a session held on 11 March 1999, in a proceeding for assessing constitutionality commenced on the initiative of Nacionalna stranka dela, Ajdovščina, represented by its president, Marjan Poljšak, Nova stranka, Ljubljana, represented by the secretary Blaž Babič, the political party Republikanci Slovenije, Velenje, represented by its president Adolf Štorman, Stranka enakopravnih dežel, Ljubljana, represented by its president Jožef Jarh, the Constitutional Court

reached the following decision:

It is in conflict with the Constitution that the first paragraph of article 23 of the Political Parties Act (Official Gazette RS, no. 62/94) restricts the financing of political parties from the state budget to parties whose candidates were elected at the last election to the National Assembly. The National Assembly must remove this discordance within six months of the promulgation of this decision in the Official Gazette RS.

Reasoning

A.

1. The initiators impugn the provisions of article 23 of the Political Parties Act (hereinafter: ZPolS) which regulate the financing of political parties from the state budget. The initiators believe that a provision that restricts budget financing to parties whose candidates were elected to the National Assembly at the last election (hereinafter: parliamentary parties) is anti-constitutional. In their opinion this provision improperly discriminates against all other (extra-parliamentary) political parties. The initiators believe that the impugned provision is in conflict with article 14 of the Constitution and with the constitutional principle of a democratic state. They state that "the money signifies the possibility of operation of a political party, so by taking away funds of a party earned at elections, it takes away the opportunity of an equal appearance in the political space". In their opinion, because of the impugned arrangement, the political activities of extra-parliamentary parties wither away, and new political options do not develop.

2. The National Assembly did not respond to the initiative.

B.

3. The impugned article 23 ZPolS determines:

"A party whose candidates were elected to the National Assembly at the last election has the right to funds from the budget in relation to the number of votes obtained in all election units at the last elections to the National Assembly.

A party under the previous paragraph has the right to funds from the budget for each vote obtained from a registered voter to a level of 30 tolars. The amount shall be allocated to the party monthly.

The amount under the previous paragraph shall be adjusted monthly with the retail price index according to the most recent known data from the Institute for Statistics of the Republic of Slovenia."

4. The Constitution determines in the first paragraph of article 43 that the right to vote shall be universal and equal.

The principle of equality of voting rights relates to the right to vote (active voting right) and the right to be elected (passive voting right). The principle of equality of the passive voting right prohibits the state from discriminating against or privileging particular candidates, political parties or other political groups in the competitive fight for the votes of the electors. The same competitive possibilities must be legally guaranteed to political parties in relation to determining candidates, in relation to the election campaign, in relation to state financing and in relation to the reimbursement of the expenses of election campaigns. The essence of the principle of equal opportunities is that the state (and similarly local communities) operates neutrally in the competition among political parties for obtaining or retaining political authority at elections.

5. Distinguishing among political parties in relation to state financing signifies a violation of the principle of equal competitive opportunities of political parties and thus of the principle of equality of the passive voting right. This distinction is a violation of the constitutionally guaranteed equality of voting rights. Such a violation is constitutionally permissible only in a case in which it protects some other constitutional value, that it is necessary (unavoidable) for the achievement of the aim and that the gravity of the violation is proportional to the harm which would be done to this constitutional value, if there was not such an encroachment.

6. No constitutionally grounded reason can be seen for the distinction among political parties whose candidates have been elected to the National Assembly (parliamentary parties) and other (extra-parliamentary) political parties which the impugned arrangement creates. The discrimination cannot be grounded on the reason of preventing exaggerated fragmentation or ensuring the normal functioning of the legislative body; the impugned solution is not urgently required to achieve this aim since the same aim could be achieved with a voting threshold. Similarly, the impugned arrangement cannot be grounded on ensuring the seriousness of candidating at elections and excluding candidatures which have no possibility of success or on preventing candidating only in order to obtain funds from the budget; the exclusion of all extra-parliamentary parties from state financing is an exaggerated measure to achieve this aim.

7. By the impugned arrangement, the state creates a distinction among political parties and does not retain a neutral role in the competition among them. The distinction signifies a violation of the principle of equality of voting rights. In view of the fact that there is no constitutional ground for this encroachment, the provision of the first paragraph of article 23 ZPolS is in conflict with article 43 of the Constitution.

8. By annulling part of the provision of the first paragraph of article 23 ZPolS, the Constitutional Court would actually supplement the Law, since it would extend state financing of parties. Since the Law regulates the disputed matter in a way which cannot be annulled (article 48 of the Constitutional Court Act, Official Gazette RS, no. 15/94 - hereinafter: ZUstS) the Constitutional Court decided that it would only find the anti- constitutionality and charge the legislator to remove it. 9 The legislator must, within the time limit determined in the judgement proper of this decision, adopt or supplement the anti- constitutional arrangement such that it will remove the discrimination between parliamentary and extra-parliamentary parties. Although it can erect a specified threshold for obtaining funds from the state budget, this threshold may only be expressed in the number of votes obtained in the elections, or on some other measure. However, this threshold may only be such as to prevent parties who have submitted candidatures for which it is shown at the elections that they had no real chance of success (of obtaining at least one delegate mandate) from obtaining funds from the budget. It is thus permissible to exclude from state financing only those political parties of which it is shown at the elections that they did not have any real chance of obtaining at least one mandate. By such a restriction, the legislator prevents candidating at elections only with the intention of obtaining budget funds. The threshold for obtaining funds from the state budget can be larger than the required number of signatures with which it is necessary to support a candidature. The legislator thus has the right , in determining the necessary conditions for candidating, to choose a lower threshold, and in determining conditions for obtaining money from the state budget, a higher one; in the first case, greater care is required since forecasting the success of individual lists at elections is uncertain. In the second case, it is possible to judge the seriousness of the candidature by the actual result of the election.

C.

The Constitutional Court adopted this decision on the basis of article 48 of ZUstS, composed of: president Franc Testen and judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Dr. Miroslava Geč- Korošec, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr Lojze Ude and Dr. Dragica Wedam-Lukić. The resolution was adopted by eight votes against one. Judge Čebulj voted against, and gave a dissenting opinion.


P r e s i d e n t:
Franc Testen


Note:
1. This principle is known as "Recht auf Chancengleichheit" in German constitutional legal theory and constitutional court practice.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Nacionalna stranka dela, Ajdovščina
Date of application:
22.11.1996
Date of decision:
11.03.1999
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Document:
AN01692