Senate elections were held at the end of September 2022, which means that one third of the Parliament’s upper house was to be replaced. Which party is left with only one mandate even though it enjoyed a majority in the Senate just twelve years ago? And can defamation against a candidate lead to the nullity of elections?
Summary of Senate Elections
Voters across the Czech Republic went to the polls on Friday, 23 September and Saturday, 24 September 2022 for the local elections. Additionally, the first round of the Senate elections took place in 27 constituencies.
Three candidates secured an absolute majority in the first round, Jiří Růžička (independent candidate) in Prague 6, Petr Fiala (Společně pro kraj) in Ústí nad Orlicí, and Ladislav Václavec (independent candidate) in Bruntál. These three candidates secured a senatorial seat and saved their voters a trip to the polling stations for the second round.
Nevertheless, a second round had to take place in the remaining 24 constituencies one week later, on 30 September. The turnout for the second round was 19.44%, which made it the highest turnout in a Senate runoff election since 2010.
A thrilling duel in Jihlava (constituency no. 52) managed to mobilize double the average number of voters. Miloš Vystrčil (ODS), the President of the Senate, faced his rival Jana Nagyová (ANO) and confirmed his mandate by winning a 60% majority.
Overall Results: ANO May Have its First Caucus while ČSSD is Left with Just One Senator
Although ANO did not win a senatorial seat in Vysočina, three other candidates from the party succeeded in the elections. As a result, a total of five senators from Andrej Babiš’s political party (ANO) appeared in the Senate and were able to form their own caucus for the first time. The overall winner of the elections was ODS, which won eight seats, while SPD remained in the losers’ camp and will have to wait for its representation in the Senate.
Klub Starostů defended only one of its six seats. However, the most crushing defeat was experienced by ČSSD, which did not secure a single seat despite having boasted a Senate majority twelve years earlier. After the 2022 elections, it is left with a single senator, Petr Vícha.
Only Four Complaints to the Supreme Administrative Court
As is common after elections, complaints were filed with the Supreme Administrative Court (hereinafter “the SAC”). A seven-member Chamber for the Electoral Manners has jurisdiction over these complaints and it received a staggering 210 complaints after the 2021 Chamber of Deputies elections. The 2020 Senate elections brought about nine complaints, but the SAC dismissed them all.
After the 2022 election, four complaints were filed with the SAC. Three of them had a really short journey through the Court - they were rejected. One was rejected as untimely, another complaint did not indicate which constituency it concerned and the third had been filed by a person who was clearly not entitled to do so.
Libel as a Reason for Invalidating an Election?
The only complaint that was not rejected on formal grounds concerned Karlovy Vary (constituency no. 1). The petitioner complained that he had allegedly lost his senatorial seat because of libel. An unknown person had posted false information on social media with the alleged purpose of harming the petitioner. The petitioner objected to these defamatory statements in paid advertisements in regional newspapers and also filed a criminal complaint. None of this helped and he lost the first round.
In his motion to the SAC, the petitioner sought a declaration that the election was invalid because of a dishonest and unfair campaign. He also pointed out that he had been only 580 votes away from advancing to the second round.
Potential to Influence Elections is Not Enough
According to the SAC, the amendment to the Election Law changed the perception of campaign violations. It is now necessary that the violation of the Election Law actually affect the outcome of the election; a mere possibility of influencing the results is insufficient.
The SAC, citing a finding of the Constitutional Court, emphasizes the principle that the decision of the electorate can be overturned by the judiciary only in exceptional cases where the defects in the electoral process have demonstrably caused the electorate to decide otherwise and elect a different candidate.
In its findings, the SAC did not dispute that the documents provided by the petitioner demonstrated a campaign against his person, specifically against his re-election to the Senate. In any event, it pointed out that the courts must distinguish between the concepts of honesty and integrity in everyday life and in the case of electioneering. The SAC cites another finding of the Constitutional Court, which states that a campaign “is nothing more than a struggle for the votes of the electorate, which it seeks to win at all costs”.
An important point emphasized by the SAC is the petitioner’s opportunity to comment on, respond to and refute the allegations made against his person. This gives him the opportunity to leave the decision to the electorate “to be the arbiters of the persuasiveness of the allegations contained in the negative campaign against him”, not the Supreme Administrative Court.
The Court also noted that the results could not be considered close, as the plaintiff finished only fourth by a margin of almost 2% behind the second-place finisher.
The Supreme Administrative Court ultimately decided to reject the complaint. The Senate election is thus definitely valid. All that remains is to observe the work of the newly elected senators and anticipate the next election.
Review of Presidential Elections
In January 2023, the voters were invited to the polls once again - this time to vote for the new president. The elections were won by Petr Pavel and the SAC received around 400 motions from the citizens challenging the results. The SAC stated that the vast majority of the submissions were virtually identical in form and content.
However, the Court had to deal with some of the motions. These included complaints regarding the presidential candidates’ election campaigns and a faulty recount of votes in a district where the commission mistakenly assigned votes to the opposing candidate in the second round.
The majority of the complaints were rejected in their entirety, except two complaints challenging the wrong recount of votes. The Court determined that both petitioners correctly identified the errors in the recount. Where possible, it counted the missing votes and corrected the figures. It ordered the Czech Statistical Office and the State Electoral Commission to re-publish the corrected figures. Nevertheless, it dismissed the motions for the annulment of votes in the districts concerned since such intervention would not have been proportionate to the degree of defect found. As a result, the outcomes of the presidential election remain valid.
Sources
Brno/Praha. (2021). Správní sound dostal 210 volebních stížností, víc než před čtyřmi lety. Stěžují si i Pirátí se STAN. Retrieved from https://www.irozhlas.cz/zpravy-domov/stiznosti-na-volby-snemovni-volby-2021-soud_2110222122_ako.
Czech News Agency. (2022). Vítězem senátních voleb je ODS, místo obhájil i šéf Senátu Vystrčil. Retrieved from https://www.ceskenoviny.cz/zpravy/vitezem-senatnich-voleb-je-ods-misto-obhajil-i-sef-senatu-vystrcil/2263606.
Czech News Agency. (2020). Volby do Senátu definitivně platí. Soud zamítl všechny stížnosti. Retrieved from https://www.seznamzpravy.cz/clanek/volby-do-senatu-definitivne-plati-soud-zamitl-vsechny-stiznosti-127968.
Dostálová, S. (February, 2023). Volební senát rozhodl všechny stížnosti na volbu prezidenta republiky [press release]. Retrieved from https://www.nssoud.cz/aktualne/tiskove-zpravy/detail/volebni-senat-rozhodl-vsechny-stiznosti-na-volbu-prezidenta-republiky.
Klabenešová, T. (2022). Senátní volby a přezkum NSS: čtyři návrhy na neplatnost, volby přesto definitivně platí. Bulletin of the Center for Human Rights and Democratization, No. 10, vol. XIV, p. 43-46.
Kračmer, M. (2023). Aktuality české sekce. Bulletin of the Center for Human Rights and Democratization, No. 2, vol. XV, p. 43.
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Supreme Administrative Court. (October, 2022). Senátní volby v Karlových Varech platí. Retrieved from https://www.nssoud.cz/aktualne/tiskove-zpravy/detail/senatni-volby-v-karlovych-varech-plati.
Supreme Administrative Court. (October, 2022). Skončila lhůta pro podávání stížností na volby do Senátu. Retrieved from https://www.nssoud.cz/aktualne/tiskove-zpravy/detail/skoncila-lhuta-pro-podavani-stiznosti-na-volby-do-senatu.
Supreme Administrative Court. (October, 2022). Volební senát rozhodoval o stížnostech na volby do Senátu. Retrieved from https://www.nssoud.cz/aktualne/tiskove-zpravy/detail/volebni-senat-rozhodoval-o-stiznostech-na-volby-do-senatu.
Resolution of the Supreme Administrative Court, case no. Vol 4/2022 - 22
Volby 2022. Czech Statistical Office, official website. Retrieved from https://www.czso.cz/csu/czso/volby-2022.