Proposal To Repeal The Provisions Of The Act. On The Protection Of Classified Information

Original Language Title: návrh na zrušení ustanovení zák. o ochraně utajovaných skutečností

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51651&nr=322~2F2001~20Sb.&ft=txt

322/2001 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court decided on 12 July 2001 in plenary on the draft Mgr. J.
T. and lawyer. VR to repeal certain provisions of Law no. 148/1998
Coll., On protection of classified information and amending certain laws, as amended
Act no. 164/1999 Coll., Act no. 18/2000 Coll., Act no. 29/2000
Coll., Act no. 30/2000 Coll., Act no. 363/2000 Coll. and Law no. 60/2001
Coll.

Follows:

Day 30. 6. 2002, the Act no. 148/1998 Coll., On protection of classified
facts and amending certain laws, as amended, repealed
§ 23 para. 2 in the word " especially "
provisions of the third sentence of § 36 para. 3 and § 73 para. 2nd

For the annulment of the first sentence of § 73 para. 1 of Law no. 148/1998
Coll., On protection of classified information and amending some laws,
amended, is rejected.
Reason


I.

Decision of 24. 11. 1999 ref. No. 780/1999-BIS-1
Director of the Security Information Service (hereinafter the "BIS") examined the deputy -
security director of BIS 4. 11. 1999 ref. no. 242-13 / 1999-BIS-37
which the complainant Mgr. JT was not in accordance with § 36 par. 3 of Law no.
148/1998 Coll., On protection of classified information and amending some laws
, certified for contact with confidential information, and
found that the contested decision was reasonable and in accordance with the law.
Therefore, the complaint against him dismissed.

II.

Complainant Mgr. JT in the constitutional complaint alleges that
contested decisions violated Art. 26 paragraph. 1
Charter of Fundamental Rights and Freedoms (the "Charter"). This decision was published in
result in the header of the cited provisions of Act no. 148/1998 Coll., And
because the complainant seeks their removal, because apparently the word "especially"
specified in § 23 para. 2 Act no. 148/1998 Coll. It is inconsistent with Article
. 26 paragraph. 2 of the Charter and the provisions of § 73 para. 2 of Act no. 148/1998 Coll.
Is inconsistent with Art. 4 of the Constitution of the Czech Republic (hereinafter "Constitution") and Article.
36 para. 2 of the Charter.

The complainant alleges that as a result of the contested decisions
lost opportunity further pursue his profession that chose freely. Under the provisions
§ 17 paragraph. 1 of Act no. 148/1998 Coll. Indeed classified information
can acquaint individual when the conditions are met, one of which represents one
issue. The fulfillment of these conditions is thus
prerequisite for the exercise of such professions where it is necessary to acquaint
classified information. Among the conditions for issuance of the certificate [§ 18
point. f) of the Act no. 148/1998 Coll.] is the fact that it is a reliable person
safety, the safety for reliable
is not considered a person, which was found a security risk (§ 23
no. 148/1998 Coll.). Paragraph 2 of this provision provides a non-exhaustive list
security risks, which "allows the Authority or
intelligence absolutely unlimited expansion essentially a
any further action or fact". In doing so, the complainant considers
already problematic wording of some of the security risks and the concept
'interest in the Czech Republic "for the purposes of the Act no. 148/1998 Coll. (§ 2 para. 1).
The decision to issue or not to issue a certificate is thus simultaneously
deciding on access to the profession and § 23 para. 2 of Act no. 148/1998 Coll
. It is contrary to Art. 26 Sec. 2 of the Charter, under which the law
may impose conditions and restrictions on certain professions or activities
. The contested provision expressly assumes the existence
other conditions that are not in the law expressly established.

The provisions of § 73 para. 2 of Act no. 148/1998 Coll.
excludes decisions under this Act (except decisions on penalties)
from judicial review. The complainant sees this as inconsistent with Art. 36 para. 2 of the Charter, because
according to the provisions of the court's jurisdiction should not be excluded
review of decisions affecting the fundamental rights and freedoms,
and the right to freedom of occupation as a fundamental right unquestionably belongs.
Therefore, it is apparently the contested provision also in conflict with Art. 4 of the Constitution, according
which are fundamental rights and freedoms are protected by the judiciary.

For all these reasons, the complainant Mgr. JT proposes to abolish the header
those decisions, as well as abolish the word "particularly" in §

23 paragraph. 2 and the repeal of § 73 para. 2 of Act no. 148/1998 Coll.

III.

A notice of 5. 9. 2000 ref. No. 896/2000-NSA / PFO-1
director of the National Security Office (hereinafter "NSA"), the complainant JUDr. VR told
in accordance with § 36 par. 3 of Act no. 148/1998 Coll.
was to his person undergo security clearance III. degree, which was
verified that does not meet the conditions for issuing a certificate in accordance with § 18 of Act No.
. 148/1998 Coll. At the end of this announcement, the complainant was advised to
that "against this decision within the meaning of § 75 para. 1 of the Act
possible complaint could be filed within 15 days of receipt of this notice
" .

Decision of 19. 10. 2000, ref. No. 896/2000-NSA / PFO-1 NSA director
examined the above-referenced notice and dismissed the applicant
against him. In the preamble to the decision that
security review was launched on 22. 6. 1999 5. 9. 2000
complainant sent a notice of failure to meet the conditions for issuing certificates
. Because apparently the conduct and evaluation of security clearance
correspond to the detected condition, complaint, dismissed.

IV.

Complainant JUDr. VR in the constitutional complaint
highlights the fact that both contested decisions are signed by the Director of NSA, which
considers absurd, because the notice telling him
same person as the one who decided on his complaint as an appeal body.
The complainant allegedly worked in government since 1982 and before the issuance of Law no. 148/1998
. He was for many years a person designated to contact with
state secret. Not aware that it would be in his life occurred
any security risks within the meaning of § 23 of Act no. 148/1998 Coll
. The complainant worked as the director of the Department
internationally-financial relations of the Ministry of Finance and the function was
with effect from 25. 11. 2000 was canceled due to the issuance
safety certificate. The complainant states that in addition to being unable to carry out his earlier
job is harmed a human level, even
knows the reason for which the certificate in question had not been issued.

The complainant believes that § 36 par. 3 of Law no. 148/1998
Coll., Under which the NSA is not obliged to state reasons for not issuing a certificate
is contrary to Art. 36 of the Charter. The complainant is the fact
removed from the right to any legal protection because he does not know why it was about his rights
decided negatively. Conflict with Art. 36 of the Charter sees complainant in
provisions of § 73 Act no. 148/1998 Coll., Under which the decision
under this Act shall not apply to administrative procedure and not a possible review by the court.
Failing to issue certificates were allegedly violated his right to free choice of profession
according to Art. 26 Sec. 1 of the Charter, and in this situation can not be ruled
nor the application of Article. 36 para. 2 of the Charter. The process is said to be in conflict with Article
. 6 paragraph. 1 European Convention on Human Rights (hereinafter
"Convention"). The complainant was of the opinion that if
security clearance requirement for the exercise of any profession, it is given legal claim
whom it is denied the exercise of such profession solely because
failure to meet the conditions of the safety certificate, to get acquainted with the reasons
its issuance. They must also have the possibility of judicial review of whether those
reasons are given or not and whether the competent national authority in his case
decided objectively and fairly.

Why the complainant JUDr. The CoR proposes that those decisions and
contested provisions of Act no. 148/1998 Coll. Cancelled.

V.

First

According to § 74 Act no. 182/1993 Coll., On the Constitutional Court, may be
together with a constitutional complaint filed for the annulment of a statute or other legal
regulation or individual provisions whose
led to the fact that the subject of the constitutional complaint
if the complainant alleges is inconsistent with constitutional law
or international agreement under Article. 10 of the Constitution, respectively. the law,
if it is a different legal regulation.

Given that the complainant Mgr. JT together with a constitutional complaint filed by
this statutory provision for cancellation
word "particularly" in § 23 para. 2 and an annulment of § 73 paragraph
. 2 that the complainant JUDr. VR filed a petition to cancel the third sentence

Provisions of § 36 para. 3, to annul the first sentence of § 73 para. 1
and § 73 para. 2 of Act no. 148/1998 Coll. and that the Constitutional Court's opinion
application of these provisions, the facts that are the subject
both constitutional complaints, the Constitutional Court, under § 78 para. 1
Act no. 182/1993 Coll. Resolution of 16. 3. 2000 sp. . I. ÚS 102/2000
proceedings on the constitutional complaint Mgr. JT and the order of 10
first 2001 sp. . I. ÚS 738/2000 proceedings on the constitutional complaint JUDr. VR
interrupted, for the reasons specified in more detail in the aforementioned resolutions.
Proposal complainant JUDr. VR the annulment of § 73 para. 2 of Act No.
. 148/1998 Coll. The Constitutional Court resolution dated 10 sp 1, 2001. . I. ÚS 738/2000
because of lis pendens refused (§ 35 para. 2 of Law no.
182/1993 Coll.), because in this case the Constitutional Court with respect to the submission of the draft Mgr
. JT same provision to repeal it.

Second

BIS in its response to the petition Mgr. JT has argued that this
complainant before filing a constitutional complaint exhausted all procedural
means to protect their rights because they filed a constitutional complaint
even before it was decided to release this objection is not || | justified. In this case, the constitutional complaint directed against a decision by
dismissal from the service, but against a decision not to issue a certificate
into contact with classified information and against the decision
rejecting a complaint against this decision.
Although you can not overlook the fact that the decision to release the applicant from the service
member of the BIS ratio could actually be causally related to the issuance
contested decision not to issue a certificate for contact with
classified information, it is necessary to respect the fact that is
two separate procedures. If the complainant Mgr. JT
filed a constitutional complaint against the decision which was no longer possible to challenge any
procedural means to protect its rights, this constitutional complaint
by Act no. 182/1993 Coll. admissible and can not successfully argue that
complainant all the procedural remedies to protect their rights exhausted, if
filed a constitutional complaint even before it was completed
Second, de jure independent, the procedure for dismissal from the service.
Therefore Rapporteur constitutional complaint Mgr. JT for that reason refused
[§ 43 para. 1 point. e) a contrario and § 75 para. 1 of Law no.
182/1993 Coll., as amended].

Third

Both proposals aimed at repealing the cited provisions of Act no. 148/1998 Coll.
been forwarded to the Plenum of the Constitutional Court for a decision under Article. 87 paragraph. 1
point. a) of the Constitution. Since both proposals relate to the same law, and therefore
together they pertain, the Constitutional Court found that in the interest of procedural economy
there are grounds to link the two cases under § 112
paragraph. 1 of Civil Procedure (hereinafter "CPC.") In connection with §
63 of the Act no. 182/1993 Coll. Therefore, resolution of 6. 2. 2001 sp. Nos. Pl.
US 11/2000, Pl. US 3/01 joined the cases to joint proceedings and ordered
This joint management will continue under file. Nos. Pl. US 11/2000.

VI.

The petition to annul the cited provision, the participants expressed
management, which according to § 69 par. 1 of Act no. 182/1993 Coll., As amended
Chamber of Deputies and the Senate of the Parliament of the Czech || | Republic.

Deputies in its response to the petition Mgr. JT said that
choice illustrative list of possible security risks
legislature dealt with the difficult task generalize possible forms of activities that are
security risk "that were not published case
and on the other hand, is too general and uncertain ". Their interpretations belong
competent state authorities. Can be said to admit doubt that
these interpretations are too broad, and therefore has created
governmental and parliamentary draft amendment to Act no. 148/1998 Coll., Which, inter alia
modifies the provisions of § 23. regarding the provisions of § 73 para. 2
Act no. 148/1998 Coll. However Deputies opposes the proposal, because
judicial review in such matters is not possible because it would be "hacked
overall meaning and concept of the law in a situation where the
item of classified information subject to special treatment regime was
subject of legal proceedings. " According to the explanatory memorandum to this Act shall

Provisions of the Administrative Procedure applies only to proceedings on fines, including
possibility of judicial review. For other measures and actions with the Administrative Procedure
and exclude judicial review with regard to the fact that
acquainted with classified information no legal entitlement, and taking into account
national security.

The draft JUDr. VR to cancel the third sentence of § 36 para. 3 and
provisions of § 73 para. 1 of Act no. 148/1998 Coll. Deputies
stated that the alleged inconsistency with Art. 26 paragraph. 1 of the Charter is not given because
pursuant to paragraph 2 of that article, the law may impose conditions and restrictions
certain professions or activities. Because apparently in this case
not violated the petitioner's right JUDr. VR on career choices,
"can not apply the prohibition of expulsion decisions review concerning
fundamental rights and freedoms under the Charter." The fact that
administrative order and judicial review applies only to proceedings on fines, and not
other measures and actions, is reportedly determined that on familiarization with
classified information no legal entitlement, and also with regard to
national security.

Act no. 148/1998 Coll. was approved by the necessary majority of deputies
Legislature, the law was signed by the appropriate constitutional authorities
and was duly published in the Official Gazette.

Conclusion Deputies states that it is up to the Constitutional Court to
in connection with the petition to annul the cited provisions
assess their constitutionality and has made a relevant decision.

The Senate, in its response to the petition Mgr. JT said that the present law
discussed at its fourth session I. election period of 11
6th 1998, when the government showed interest to his rapid adoption because
fulfill the necessary conditions for the implementation of the exchange of classified information
with partners in NATO and the EU. To promote the adoption of this law
representative of the Government in the Senate said that "the cost of this bill is higher than its partial
shortcomings". The construction of the Act in matters of auditing and certification of security
reliability persons is said to be programmatically
based on the principle that the question testifies to the detriment of positive screening
people and the legitimacy of decisions in these matters, including the procedure for laying
they mature, they are kept secret. Acquainted with classified information
nor the performance of the civil service with associated
allegedly not the right person or especially the right to free choice of profession. To
demonstrativnímu list of security risks according to § 23 para. 2
Act no. 148/1998 Coll. Appeal stated that any further dangerous
fact directly unnamed law can not be recognized as a risk
based on "mere chance or arbitrariness", since its application is "bound
term security risk", the content of which is inferred from
explicitly mentioned types of risks.

The draft JUDr. VR to cancel the third sentence of § 36 para. 3 and §
73 para. 1 of the first sentence of Act no. 148/1998 Coll. The Senate further stated that
explanatory memorandum to the Government these provisions were based on the position that
access to classified information is a citizen's right.
Performing professions or activities requiring acquainted with classified
realities on the contrary be subject to the law by obtaining a special permit
, which is primarily due to the security interests of the state. Among them
based and exclude the general rules of administrative proceedings and exclusion
judicial review. That argument apparently the Senate during the debate on the matter
majority accepted, however, also expressed concern about the possibility of failure
"secret" decision. In connection with the discussion of the amendment to Act no. 148/1998 Coll
. the debate has repeatedly sounded the problem of inadequate protection
people against the possibility of erroneous (subjective, unreasonable, affected
) NBU decision not to issue a certificate which apparently can be
has given itself the definition of security risks according to § 23
Act no. 148/1998 Coll. The debate indicated that the solution should not lie
typical judicial review, but the "scope of remedies"
special independent committee (the tribunal) "credible professionals, while
while maintaining the secret nature of the process and rationale of || | decision. " Senate regarding an amendment to Act no. 148/1998 Coll.
adopted the accompanying resolution asking the government to future
prepared amendment to Act no. 148/1998 Coll. proposed solutions to the problem of insufficient

Protect people against the possibility of faulty NBU decision not to issue a certificate or confirmation
conditional authorization to classified
facts, respectively. against a decision on termination of validity of the certificate
because that person ceased to fulfill the conditions for their release,
"ie. the problem of the lack of opportunities to receive a correction in the matter
appeal to an independent and impartial institution." This resolution was at
participation of 68 senators adopted by a majority 59 votes in favor and no votes against
. Although apparently the Senate returned to the Chamber of Deputies a draft
cited Act, and the amendment to the amendments "
intervened directly in the issue of an independent review of the decision of the NBU with the knowledge that this is a question
requiring extensive preparation solutions, which
rather correspond to the tools of executive power. "

According to § 48 par. 2 and § 49 para. 1 of Act no. 182/1993 Coll.
further asked the Constitutional Court for a response to the given draft BIS
Interior Ministry and the NBU.

BIS in its response to the petition firstly stated that the use of the word
"especially" in the introductory clause of § 23 para. 2 of Act no. 148/1998 Coll.
Is a general problem inherent in whether a statutory provision has
be so rigid, "that does not permit any explanation," or will
so "loose" with him applying authorities will be able to work
and it is probably necessary to find a compromise. If it was said
exhaustive enumeration of the risks, "it would not necessarily have to be almost no end
and would surely experience appeared more risks not captured
law". This bill would have lost its fundamental meaning, ie.
Would cease to protect classified information.
Exhaustive list of security risks supposedly lets you "was a security risk something
what would otherwise be forgotten law". It is therefore necessary to proceed from concept
"security risk", which is to determine the intensity level of exposure
external or internal environment, including the phenomena and processes taking place in it
which significantly negative, real or potential effect on
protected interest, and he then applied to each specific case
. Anyone who applies the law must have some leeway in assessing
"which is of course limited by the spirit, the concept of law as a total adjustments
certain relations". BIS also argues that the term "in particular" is
in Czech law the concept of frequent and discharged
wherever it occurs, would cause considerable problems.

The alleged infringement of Art. 26 of the Charter (the right to free choice of profession
) BIS states that this right is not the career choice
must be implemented with guaranteed results, but only that the citizen may
be discriminated against when choosing a profession. In any case, however
violation of this provision of the Charter, if the law provides for certain professions
conditions that must be met; This is also true of Act no.
148/1998 Coll., under which for a certain job classification, where
is necessary to socialize with classified information, the appropriate set
conditions. In the specific case, the complainant said although
freely chosen their profession, however, failed to meet the legal requirement for his performance.

Regards any judicial review of BIS takes the view that his exclusion
not eliminated the right to free choice of profession because
not always have to have the issuance of a certificate for contact with classified information
in the inability to exercise a particular profession.
Decision of a state authority, supposedly because in this case there is no violation of freedom of choice
profession, but it is concluded that the person does not meet the statutory
conditions for the issue to come into contact with classified information, from which then
it follows that it can not hold the profession in which they would be with
classified information does not necessarily have to get acquainted.
Exclusion of judicial review is based on the idea that a protected interest is the interest of the state. Only
executive body therefore supposedly can decide whom witnesses and determine
into contact with what is in the interest of the state is protected. This authority can not be
independent court, which "can not order the state to the individual
had to familiarize themselves with classified information, if the person whom
protected interest concerns (state represented here state executive authority)
intend secrets to disclose to such person. " This would apparently contradict

Principle of separation of powers. Judicial review in such matters would - in practical terms
- could lead to a considerably lengthy litigation
between employee and employer, as well as mistrust of allies (eg. In
NATO), "in whose interest we certain secrets pledged to protect "and
ultimately, threats to national security. Therefore, the BIS believes that
to exclude any arbitrariness on the part of the directors of the intelligence services
would or could serve to review their decisions
special body set up by the Government Committee on Intelligence, or directly by
Committee, which is however, the theme for the bodies of legislative power.

BIS finally submitted that the applicant Mgr. JT filed a constitutional complaint and
exhaust all remedies to protect their rights, since
filed a constitutional complaint even before it was decided to
dismissal, which occurred until day 13. 7. 2000. || |
Interior Ministry in its statement notes that during
consultation process on a draft law on the protection of classified information and comments
applied in the sense that the security conditions
reliability must be exhaustively defined, clearly differentiated and
depending on the level of security vetting because of the requirement of legal certainty
should be cleared person identified as a security
unreliable only on statutory grounds. Also, it was
disagreement with the exclusion of judicial review. These comments
NSO said that will be applied to the processing of so-called. "Major" amendment
Act in 2000.

NSA to draft Mgr. JT said that the current wording of § 23 of Act No.
. 148/1998 Coll. is not inconsistent with Art. 26 paragraph. 2 of the Charter.
Free access to career choice is in fact possible legislation to restrict and
practice this is done in a wide range of professions, and the specific design and evaluation
proficiency must be carried out by the competent authority.
In this case, however, they said at the grant or refusal of the certificate is not a
relationship comparable to the relationship between employees and employers because BIS
in these cases follows the lex specialis, and not
according to § 22 of the Act no. 154/1994 Coll., on the Security information service
. The relationship subject to the requirements relating to service
go up when the Intelligence evaluates the result of the previous
evaluation process. The actual security clearance based on the specific facts
evaluation of a person in terms of the risks threatening
Czech Republic's interests and the interests of foreign powers, to which the Czech Republic
committed, and always with respect to a specific job or | || status and the circle of classified information with which they would
person had come into contact. Now in view of these risks is apparently
needed their demonstrative and not an exhaustive treatment.

The application for annulment of § 73 para. 2 of Act no. 148/1998 Coll.
NBU says that the only possible judicial review would be
procedure in part five of the CPC. Ie. in the administrative courts (§ 244
paragraph. 3 and § 245 paragraph. 2 of the CPC.). It would be said to have a "partial"
reviewable where the Court assessed whether a particular decision
government bodies came within the limits and criteria set by law.
Such a decision could be challenged only in breach of the principle of material truth
imposing administrative authority to determine accurately and fully the true state
things, so it would be the task of the court and examine whether the administrative authority for decision capped
appropriate documentation. Judicial review of that in the area
not interfere with the veracity of the act, since "it is not and can not be
for the court to decide on the merits, namely that the person is or is not entitled to
handling classified facts in a particular instance
confidentiality ". Judicial review is therefore limited only to determine whether
facts of the case is complete and true, while "very
assessment of security risks has not subject justice."

The provision of access to classified information (ie. On the issue of the relevant certificate
) can not be legally entitled. The determination
personal qualifications must be decided by the employer and the objectivity of the assessment
is supposedly secured and the procedure under § 75 of Act no. 148/1998 Coll
.

The NSO also highlights the fact that the factual findings, which are

Basis for the issuance or non-issuance of a certificate may itself contain
classified information and details strictly personal nature, and it also
third parties. "The judicial review of whether these data gathered
may be considered a sufficient basis for a decision to issue or not to issue a certificate
would be the rights and legally protected interests of third parties
irretrievably broken." In the case of judicial review
court would have to examine and process intelligence services and methods, which themselves
itself subject to certain classification levels. This would apparently again been
unwanted disclosure, and thus endangering sources of information, disclosure
forms and methods of work of the intelligence services, which could cause irreparable
violation of the rights of third parties, and especially in those | || where the issuance of a certificate to the person concerned is directly related to
established knowledge to this third party. Because the subject of judicial review were actually
varying degrees of secrecy, he would have said
eventual legal counsel before the court hearing the matter to be left alone entity
security clearance if it was not a person to whom this
obligation under the Act does not apply.

NBU believes that any judicial review in this area was
meaningless, because it would not lead to protect the interests of the person concerned.
If it is not certified, it can not be included in the relevant
work or business place and ultimately unable to perform even
specific profession or. They must be reassigned to another job.
This situation allegedly constitutes a completely legal instrument of the state to protect
classified information and can not be considered a violation of the Constitution or the Charter
. Any judicial review can only lead to new design
security clearances, whose outcome is highly uncertain and "can not provide any assurance
previous or desired job or
job or business function." Certificate itself is not
separated from determining the person who carries out a statutory body
relevant institutions, and not the authority conducting security clearance.

NSA finally states that access to classified information can not be
a fundamental human right and admit of judicial review in such cases, although
"may be considered to extend beyond the
provisions of § 248 paragraph. 1 2, in particular point. h) of the CPC., such excess
is not justified and required "because the priority is the protection of the Act
relevant classified information, which is important both in national and international
.

The draft JUDr. VR to cancel the third sentence of § 36 para. 3
Act no. 148/1998 Coll. NSO said that in assessing whether an applicant
will or will not be issued a certificate, it is a concrete assessment of the matter
based on the facts of the specific rated entity (or.
Persons close), and also about the environment in which it moves.
Evaluation of acquired knowledge is carried out with respect to a specific job or
status and the particular circuit classified information with which
this person has come into contact with the priority in the evaluation must be
security protection. The risk of safety hazard exists even
case of doubt about the reliability of the security screening of a person who allegedly
may arise eg. A lack of openness, etc.
untrustworthiness. This person when providing data. In this case
supposed to be decisive authority's discretion
security clearance. NBU also points to the fact that very
specific facts that are the basis for the decision in this case
may contain classified information or information of a personal nature, and
including on third parties, and while giving reasons
issuance of certificates should, therefore, may cause serious interference with their rights. Additionally, specific
detection is often the result of practices of the intelligence services and
intelligence methods which themselves are subject to certain degrees
secrecy, and therefore can not allow threats to sources of information and disclosure
forms and methods of work of the intelligence services. Therefore, the NBU believes that
provision of Act no. 148/1998 Coll.
is unconstitutional and represents a "completely legal part of the legal instruments that are used to
ensure the protection of classified information, and thus to ensure
national security".


The draft JUDr. VR to annul the first sentence of § 73 para. 1
Act no. 148/1998 Coll. NSO said that the Czech legal order
knows the number of cases where a special law precludes application of the Administrative Procedure Code and a series of procedures
public authorities stand outside the rules contained in the Administrative Procedure
. "The reasons are mainly those of their peculiarities,
conditional discussed things that prevent
based on an administrative order as a whole." Protection of classified information is supposed
specific issues - with regard to the priority that protection - and this
fact is said to be respected.

VII.

Even before the Constitutional Court considered the petition on the merits,
focused on the question of whether such consideration given to all
formal prerequisites.

The Constitutional Court found that in this case justify the initiation of proceedings so.
Specific control standards in accordance with § 64 para. 1 point. d)
in conjunction with § 74 of Act no. 182/1993 Coll. was given because
contested statutory provision was convicted matters relevant authorities
state power actually applied, therefore, applying them occurred
fact that it is subject to both constitutional complaints.

The Constitutional Court also considered the question of whether the Act no. 148/1998 Coll.
was adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
according to § 68 par. 2 of Act no. 182/1993 Coll
. In this regard, the stenographic report on the meeting of the Chamber of Deputies
(second term, vol. 25, part 2, p. 572) found that the Chamber of Deputies
Act no. 148/1998 Coll. approved at its meeting on 20
fifth 1998, when the 174 deputies present for the approval of the proposal
140 deputies voted in favor and 33 voted against. From the stenographic reports of
fourth Senate meeting held on 11, 12 and 18. 6. 1998
further demonstrated that the Act no. 148/1998 Coll. was approved by majority vote of 51 senators
(for) and five senators voted against its adoption by the presence
73 senators.

The Constitutional Court therefore finds that the Act no. 148/1998 Coll.
was duly adopted and issued by the Parliament of the Czech Republic within its
constitutionally provided jurisdiction and in a constitutionally prescribed manner in accordance with § 68 para. 2
Act no. 182/1993 Coll. After the adoption of the Act no. 148/1998 Coll.
signed by the President and duly published in Volume 52 of the Collection of Laws of
2. 7. 1998. This Act came into effect on the first day of the fourth
calendar month after its publication, ie. day 1. 11. 1998.

The Constitutional Court also found that administration of the constitutional complaints related
proposals to repeal certain provisions of the Act no. 148/1998 Coll.
this Act was amended by Act no. 363/2000 Coll. and no. 60/2001 Coll. (Note:
earlier amendment, which took effect before filing a constitutional complaint
, are cited in the headline). However, since this change
contested provisions of Act no. 148/1998 Coll. touched, not forfeited
(the contested provision) before the end of the proceedings before the Constitutional Court force
so there was no reason for stopping proceedings under § 67 of Act no. 182/1993 Coll
.

VIII.

When considering whether the contested provisions of Act no. 148/1998 Coll.
are constitutional, the Constitutional Court proceeded mainly from the following
ideas of a more general nature.

A.

Purpose of the Act no. 148/1998 Coll. is the definition of a reality that must be in the interest of the Czech Republic
secret, to protect their interests, powers and jurisdiction
state bodies of state administration in the protection
classified information, the duty of the state, the rights and obligations || | natural and legal persons and liability for breach of obligations stipulated by law
(§ 1). This means that when assessing
individual provisions and legal institutes in this Act contained
must respect their purpose and meaning in terms of purpose and meaning
this law as a whole, not just in isolation.

B.

In some of its previous decisions, the Constitutional Court has repeatedly
ruled that the individual's fundamental rights - in general -
needed to evaluate the principle of balance because in the particular case
absolutisation one fundamental rights could also be
a current infringement of the fundamental rights of another (typically.
relationship between the rights of privacy and the right to freedom of expression).
Principle of mutual balance of certain fundamental rights and freedoms is a reflection

Need to balance various individual and collective interests,
between which there is (or can be) potential or open
voltage and whose expression may be accentuating the protection of either of
fundamental rights. In this case, the Constitutional Court also found that there is a relationship
certain tension between the interests of the individual on the one hand
(eg. Between the right to protection against unauthorized interference
private and family life and the right to protection against unjustified
collection, publication or other misuse of his person
under Article. 10 paragraph. 2 and 3 of the Charter) and the interest of the state to the other.
The Czech Republic's interest is defined in the provisions of § 2 para. 1 of Act no. 148/1998 Coll
. as "preserving constitutionality, sovereignty, territorial integrity
, ensuring national defense, public safety, protection
important economic and political interests, rights and freedoms of natural and legal persons and
protection of life or health of individuals."

C.

The Constitutional Court is of the opinion that the conflict of these two values ​​can not be
naturally abstracted from the national security interests that must be respected
. It is obvious that the above-defined national interest
poses an existential interest that legitimizes certain restrictions
private sphere of the individual; moreover, ultimately it is the state that protects individual
position. If the Constitutional Court ruled that the Constitution
modern democratic rule of law constitutes
social contract, based on the minimum value and institutional consensus
(cf. Judgment file. Nos. Pl. US 33/97, the Constitutional Court of the Czech Republic :
Collection of Decisions, vol. 9, p. 407), this term can be, among other things
understand how the interest of the state, and it protected persons on its own
secure existence; to protect that interest must have become
relevant instruments. One of them is the protection of classified
reality.

D.

From these ideas, the need to respect the security interests of the State,
however, can not be inferred that the state towards its citizens can behave
arbitrarily and that it can access the restriction of fundamental rights
absolutely necessary extent. Here, in fact, the general principles enshrined in the Charter that
everyone can do what is not prohibited by law and nobody may be forced
do what the law does (Art. 2 par. 3) that, in violation of provisions | || on the limits of fundamental rights and freedoms must be preserved
nature and purpose and that such restrictions must not be misused for purposes other than those for which
was determined (Art. 4 par. 4). This means that when
restrictions on fundamental rights and freedoms must become respected as a formal condition
restrictions (ie. "Act"), as well as material conditions (ie. The essence and meaning of fundamental rights
).

E.

Conception Act no. 148/1998 Coll. is based on the principle that the
classified information may be familiar only natural person who is
necessarily needs to conduct its business, and has been issued
certificate or safety authorization (unless stipulated
otherwise) and determined person. The fulfillment of these conditions is a precondition for
profession where it is necessary to classified
facts (§ 17). This means that access to classified information
state allows only a very limited group of people, always by
functional criteria, ie only if a competent person
needs to conduct its business. Given the importance of classified
, it is therefore natural that the law puts these people
certain requirements which must be met. In other words, by limiting access to
classified information only to persons who meet the statutory
conditions, the state seeks to (a must try) to protect their own interests above
defined. This objective considers the Constitutional Court as fully legitimate.

F.

It can therefore certainly be inferred that the actual determination of reasonable legal
requirements for persons having access to classified information, can not be
considered unconstitutional. As the example. Ruled - in a somewhat different context
- and the European Court of Human Rights ( "the Court")
state employees are holders of sovereignty, which has
"legitimate interest to require those servants a special bond of trust and loyalty
". Therefore, in the opinion of the Court is the scope of Art.
6
paragraph. 1 of the Convention exclude disputes of state employees, "whose job
is characterized by specific activities of the public administration, in so far
what this administration is acting as a holder of public power entrusted with protecting
general interests of the State or other public community.
obvious examples of such activities are the armed forces and the police. "(cf.
Pellegrin against France, list of judgments of the European court of human rights
no. 1/2000, p. 7 et seq.).

G.

However, the Court has repeatedly held that national law must
provide some protection against arbitrary interference by state authorities, while
risk of arbitrariness arises particularly clearly where
any executive powers exercised secretly. "The law would be directed against the privileged position
law if the discretion granted to the executive
power knew no bounds. Therefore, the law must define the scope and conditions for the exercise of such powers
sufficiently clearly, with regard to the legitimate aim
, individuals to provide adequate protection against arbitrary interference "(see judgment
Malone v United Kingdom, cited in the judgment
Rotaru against Romania, Summary judgments of the European court of human rights
no. 5/2000, p. 211; Amann against Switzerland, ibid, no. 3/2000,
p. 128).

H.

In interpreting Art. 26 of the Charter, the violation of the petitioners rely primarily
, it should be borne in mind that under Art. 41 paragraph. 1 of the Charter
possible the rights enshrined in Art. 26 claim "only within laws,
implementing these provisions. " The legislature has therefore relatively wide
available for a specific definition of the content and method of implementation
this article. However, even in this case we are bound by constitutional maxims, of which the main
In this sense, the Art. 4 par. 4, according to which
"In applying the provisions of the limits of fundamental rights and freedoms must be preserved
essence and meaning. Such limitations shall not be
misused for purposes other than those for which they were enacted. ".
Otherwise stated or referred to the relative freedom of the legislature under Article. 41
paragraph. 1 can lead to a statute violated the essence and meaning of Article
. 26 of the Charter which guarantees everyone in paragraph 1
right to a free choice of profession and training for it, as well as the right to operate the business and
other economic activity.

Mentioned more general considerations, the Constitutional Court was also conducted in the evaluation
constitutionality of the contested provision of the Act no. 148/1998 Coll.

IX.

The draft Mgr. JT the annulment of § 23 para. 2 of Act no. 148/1998 Coll
. in the word "particularly" The Constitutional Court states the following:

First

The text of § 23 para. 2, in force at the time of the contested
decision reads: "The safety risk is considered especially

a) work against the interests of the Czech Republic and against interests to
whose protection the Czech Republic pledged

b) activities aimed at suppressing human rights and freedoms, or
support such activities

c) intercourse with a person who, after 1 . January 1990 has developed or is developing
action against interests of the Czech Republic, possibly in an environment of people
such activity evolve,

d) behavior and way of life that can affect the suggestibility
credibility or ability to conceal the fact

e) facts that could lead to intimidation,

f) final conviction not mentioned in the excerpt from the Register
punishments
| || g) the ongoing prosecution or

h) use of another identity. "

The text of § 23 para. 2, as amended by Act no. 363/2000 Coll., Added: "To
safety risk is considered especially

a) work against the interests of the Czech Republic and against interests , whose
protect the Czech Republic pledged

b) activities aimed at suppressing human rights and freedoms, or
support such activities

c) intercourse with a person who after 1 January 1990 has developed or is developing
action against interests of the Czech Republic, possibly in an environment of people
such activity evolve,

d) behavior and way of life that might affect suggestibility
credibility or ability to conceal the fact

e) facts that could lead to intimidation or

f) use of another identity. "

Second

From the above it is clear that the aforementioned amendment to the Act on Protection of Classified Information

Fact contested the word "particularly" in § 23 para. 2 of Act No.
. 148/1998 Coll. not changed and that a fundamental change was not a
terms of the content of this provision, or in terms of its context.
The essence of the cited provision, the list of individual
security risks. Meaning of the word "especially" in the introductory part of this provision
obviously means that the list of individual security risk
not exhaustive, but illustrative. The complainant Mgr. JT therefore argues that
with regard to the word law expressly presumes the existence of other
conditions that are not in the law expressly established.

Third

The Constitutional Court notes that one of the fundamental principles that must
law in a democratic legal state under Art. 1 of the Constitution
fulfill the principle of foreseeability of the law. In other words, only
law, whose consequences are clearly foreseeable
meets the conditions imposed on the functioning of the substantive conception of democratic rule
state. In the adjudicated case, however, it is not.

The Constitutional Court is aware that, with regard to the situation
legislature had the daunting task of generalization possible forms of activities that are
security risk, so that on the one hand not too
case reports, but to on the other hand, they were too general and vague
(cf., cited the Assembly of Deputies and to some extent
expression BIS). The statutory definition of security risks because unquestionably
must be general enough to allow proper
discretion of the competent state authority and in particular any overtaking the particular case under
a security risk. In contrast, it can not ignore
fact that the sense of security clearance is currently determining whether
at the suspect's some of the security risks actually occur
. It is therefore clear that the definition of security risks
directly related and focused security clearances and above
with its scope, while its actual execution constitutes interference in
personality rights under Article. 10 of the Charter. It is therefore not possible to accept
a statutory provision which allows the existence of any review,
even alleged, and not a real security risk, which is not mentioned
law.

Constitutional Court respects the fact that the definition of security risks
must be fairly general, since it is clear that the importance of individual
specific security risks may change over time and it is even
conceivable that some security risks appears completely new and
contrary, some of its importance recede into the background. The legislature this
certain dynamism of these processes must take into account a generality
definition of security risks is therefore fully appropriate and in accordance with the aforementioned
interest of the state. At the same time, however, the interest of the state can not reach so far
that would legitimize the creation of space for the security risks that would
constituted not legislative power, but only
relevant state bodies covered by its nature to the executive power. In other words,
constitutionally permissible only lawful general definition
security risks in the broader framework will be sufficient space for
discretion of the competent authorities but not
statutory provision of space for the creation of entirely new security risks,
nesankcionoval the legislature. The unpredictability of the consequences of the Act cited in the reference sense
opening the possibility for potential arbitrariness
authorities, which is the democratic rule of law inadmissible.

Thus, if the NSO in its response to the petition argues that the assessment of the security risks
must match the diversity of risks for individual
people depending on their function, or if the BIS in its statement
states that any exhaustive list of security risks "would necessarily have to be
almost without end" (because the practice would supposedly keep showing
security risks), in the opinion of the Constitutional court to infer that
proper individualized assessment of security risks may || | acceptably secure their already common law definition, but not
only their exhaustive list, which contradicts the principle
predictability and certainty in the law.

The Constitutional Court therefore concludes that part of § 23 para. 2 of Act no. 148/1998 Coll
. the word "mainly" is inconsistent with the provisions of Art. 1
Constitution.

Fourth


The Constitutional Court, however, especially points out that the contested provision is
in the word "especially" - for similar reasons as mentioned above -
in conflict with Art. 26 paragraph. 2 of the Charter. Under that provision, the law
may impose conditions and restrictions on certain professions or activities
. The meaning of this provision therefore lies mainly in the fact that
allows lawmakers certain professions or activities to limit
respectively. conditional, through the law. It is clear, however, that the legal
conditioning or restrictions on the exercise of certain professions or activities must be
stated clearly and predictably, and that can provide a space for possible
arbitrariness by the state body that could determine
further, the law explicitly stated condition or restriction.
Necessity of defining transparent and predictable conditions for the exercise of certain professions
already in the law is mainly due to the fact that the cited article of the Charter
uniquely empowers only the legislature - not the other state bodies -
to determine the detailed conditions and restrictions
certain professions or activities. In this case, the legislature
demonstrative list of security risks opened up space for the fixing of the other, and
delegated de facto right to determine other conditions of executive power,
which is clearly in contradiction with the essence of the cited article.
The Constitutional Court therefore found that the contested provisions set out a non-exhaustive list
security risks - in a situation where the existence of security risks
its consequences may mean the impossibility to perform a specific function or profession
- created space for (possible) arbitrary and not
clear pre-determined restrictions on the exercise of certain professions and activities which
contradicts the essence and meaning of Article. 26 paragraph. 2 of the Charter.

For completeness, the Constitutional Court also points to Art. 1 paragraph.
2 of the European Social Charter, according to which the Parties undertake to effectively protect
right of the worker to earn his living in an occupation freely entered
on Article. 15 paragraph. 1 of the Charter of fundamental rights of the European Union
( "Everyone has the right to engage in and pursue a profession that
freely chosen or accepted.") and its Article. 52 paragraph. 1 ( "Any restrictions
exploitation rights and freedoms proclaimed in the Charter must be based only
of law that respects the core of these freedoms and rights.
While respecting the principle of proportionality, limitations may be mentioned
conducted only if necessary and correspond, if indeed the general interest of the Union or
arise if the need to protect the rights and freedoms of others. ").
From the provisions cited it is clear that no free choice of employment
is not part of a national catalog of human rights, but that is
strongly reflected at the level of international law.

X.

The draft JUDr. VR to cancel the third sentence of § 36 para. 3
Act no. 148/1998 Coll. The Constitutional Court stated as follows:

First

The text of the entire § 36 para. 3 reads:

"In the event that the State security clearance will verify that the proposed
person does not meet any of the conditions specified in § 18 par. 2
certificates issued and this result suggested notifying the person. If it does not meet the proposed
individual conditions for issuing the certificate required degree
secrecy, the Office shall issue a certificate for a degree of secrecy, for which
proposed person fulfills the conditions. the reasons for not issuing a certificate in Office
does not notice. "

Second

The contested provision governs cases where the Authority on the basis of security screening carried
concludes that the cleared person satisfies
any of the conditions specified in § 18 par. 2 of Act no. 148/1998 Coll., On | || Therefore, the proposed person shall not issue, and this result
notify her. The complainant contests the third sentence of the cited provision, according to which
reasons for not issuing a certificate in Office announcement stated.

Under § 18 par. 2 Act no. 148/1998 Coll.
conditions for issuance of the certificate the person proposed for the grade "Confidential", "Secret"
or "Top Secret" meets a person who satisfies the conditions cumulative
under paragraph 1; ie. is a Czech citizen is eligible
legal capacity has reached the required age and criminal record (
fulfillment of the conditions cited by paragraph 1 are sufficient for grading
"Restricted"); to issue the certificate for the classification level in accordance with paragraph 2

Cited provisions (ie. "Confidential," "Secret," "Top Secret")
It is also necessary that the person personally competent and reliable security
. It is therefore clear that failure to meet any of these conditions
according to the current rules can not be proposed
person issued a certificate, taking notice of issuance of the certificate had no grounds
communicated that decision.

Third

As is clear from the foregoing considerations, the Constitutional Court in the case under review
fully respecting the need to preserve the balance between the protection of fundamental
rights and freedoms of citizens on the one hand and the interests of the Czech Republic
(defined by law no. 148 / 1998 Coll.) on the other. The Constitutional Court
is also fully aware that proper and detailed justification
notice of issuance of the certificate in some cases might state interests
or interests of third parties seriously threaten. However, even in this
- very specific - if not to protect the fundamental rights of individuals
resign. The current wording of the contested provision in its consequences
leads to the fact that the reasons for not issuing the certificates are proposed
person communicated in any event, even if
would obviously not be damaged or important interests of the State or
interests of third parties. The reason for not issuing a certificate in accordance with the cited legal provisions
may in fact be eg. The fact that the proposed
person is not a citizen of the Czech Republic does not have legal capacity,
reached the required age or is irreproachable, which is obviously not || | information that would have been justified (prior to the proposed entity)
conceal. Indeed, according to the Constitutional Court is not always necessary
proposed person or divulge the reasons why the person was not found
personally unsafe or unreliable safety, because not always
- the nature of things even more rarely - communicate these reasons
can lead to a real threat to those interests (see. eg.
personality eligibility under § 22, consisting of
psychological examination of the proposed persons, and in some cases safety
reliability according to § 23 of Law no. 148 / 1998
Sb.). It can not overlook the fact that due to the current
statutory regulation proposed is virtually impossible to remove a person
reasons for which it is not certified, even in those cases where
would have to remove and when they would notice nor the interests of the state, nor
not compromise the interests of third parties. It is clear that the consequences of failure to reply
certificate in the personal sphere suggested people show a very perceptibly,
both from a legal perspective (eg. Dismissal, the reason for notice
etc.) And de facto ( eg. the negative reactions of co-workers and relatives of people
).

As already stated above, the Constitutional Court, one of the fundamental principles
substantive law must respect the principle
predictability of law and the exclusion area for potential arbitrariness of executive power
side. According to Art. 26 Sec. 2 of the Charter, the law may
impose conditions and restrictions on the exercise of certain professions or activities
it is clear also that these conditions and restrictions must be
transparent and predictable and that everyone, whose rights are decided
should be able to against interference in their rights properly
defend. However, as to the contested provision of the Act
executive administrative body (ie. Office) never stated reasons for not issuing certificates, and
proposed person therefore does not have to know or even suspect whether and why
eg. A person personally found incapable or incompetent person
security, and do so in a situation where the legal formulation
security risks remain (ie. even after the abolition of
§ 23 par. 2 Act no. 148/1998 Coll., Constitutional court) remains quite general,
Constitutional court had concluded that the contested provision is a
aforementioned principles of the substantive law and therefore with Art. 1
Constitution and Art. 26 paragraph. 2 of the Charter of the conflict. For all these reasons, it can not admit
- which lays down the law today - an absolute and unconditional prohibition
marketing reasons in the notice of issuance of the certificate. On the other hand
naturally must reflect the legitimate public interest in protecting
classified information and non (to notification of issuance of the certificate)

Especially those reasons, the disclosure of such interest be affected
respectively. would involve the legitimate interests of third parties. It is up to the legislature to
- in view of these considerations - the new statutory framework
found a suitable way that would constitutionally consistent manner the private interest (applicants)
i reflect the public interest and reconcile.

XI.

The draft JUDr. VR to annul the first sentence of § 73 para. 1
Act no. 148/1998 Coll. The Constitutional Court states:

First

The text of § 73 para. 1 reads:

"The decisions under this Act shall not apply Law no. 71/1967 Coll.
On administrative proceedings (Administrative Procedure Act), except for decisions on fines
according to § 71 and 72. The decision on fines is
apply the provisions of part Four of section two and three and the fifth part of Law no. 71/1967. "

Second

Petitioner JUDr. The CoR believes that the contested provision excluding
decisions under the Act no. 148/1998 Coll. Scope of the Administrative Procedure Code
contrary to Art. 26 Sec. 2, Art. 36 of the Charter and Art. 6 Sec. 1 of the Convention.
This is because, given the situation said there is a possibility of withdrawal
(petitioner) to practice their profession, and because security clearance
is a precondition for the exercise of certain professions, must be provided to the proposed entity
efficient space for defense her rights.

Third

The Constitutional Court notes that in the administrative law process
there are many cases in which the administrative procedure does not apply, which in my opinion correctly states
and NSA. Administrative Procedure constitutes a general
procedural legislation, which by their nature may not respond to all forms
administrative proceedings; in a particular case, therefore it may appear -
according to the case - as useful to edit some types of administrative proceedings
special way. The Constitutional Court states that -
constitutional point of view - is fundamentally the disposal of the legislature
forms of administrative proceedings keeps adjusting the Administrative Code and that
administrative proceedings will regulate specific manner.
Task of the Constitutional Court is not to evaluate the appropriateness or effectiveness of selected legislation
but only its constitutionality.

Also, the present matter, the Constitutional Court found that the way the
security clearances of individuals and other proceedings under the Act no. 148/1998 Coll
. For obvious reasons, they are regulated in a specific way and that
on them because - except for decisions on fines under §
71 and 72 of Law no. 148/1998 Coll. - Administrative Procedure apply. In the case
security clearance of an individual's procedural rules
done in such a way that the Office proposed either party delivers the certificate (§ 36
par. 1) or it will issue a notice stating that it does not meet any of the conditions || | pursuant to § 18 of the Act (§ 36 par. 3). This announcement represents a special kind
administrative decision, a proposed party within 15 days
attack in the form of a written complaint to the Director of the Office, which will review it and either
complaints suit or reject it. The decision of the Director of the Office
will also notify the complainant in writing (see § 75 para. 1 et seq. Of the Act).
According to settled case-law of the Constitutional Court is not decisive, as
with the decision to sign but that actually intervenes in the legal sphere
individual. "Decision" is the technical name, and
naříkatelnosti prerequisite therefore is not the form but the content (cf..
Eg. Resolution file. Ref. III. ÚS 16/96, the Constitutional Court of the Czech Republic: Collection
findings and Rulings, Vol. 7, pp. 327-328; also, by analogy
Bures / Drápal / Mazanec, Civil procedure - commentary, 5th ed., CH Beck
2001, pp. 1041-1042).

It is clear that the Act no. 148/1998 Coll. determined where the implementation
security screening of individuals (as was the case two
plaintiffs) special administrative procedure, which differs from
proceedings under General Administrative Regulations. However, as already mentioned
considerations alone exclusion of this type of administrative proceedings
general regulation under the Administrative Procedure can not be considered inconsistent with the cited constitutional
the safeguards, because as decisive - from a constitutional point of view - is
must be considered only whether the special procedure saves
constitutionally guaranteed fundamental rights of the persons concerned or not. It is in this direction
However, the Constitutional Court found the petitioner's objections JUDr. VR to be justified,

Because the exclusion of this type of proceeding from the general procedural regulations
right to a fair trial, the right to free choice of profession, eventually.
another is contrary to constitutional principles. Indeed, if the Constitutional Court reached the opposite conclusion
would have to be based on opinion - its consequences
patently absurd - that any adjustment of administrative proceedings
deviating from the scope of the Administrative Procedure is for that reason unconstitutional. Also
conflict with Art. 26 paragraph. 2 of the Charter in this case can not be revealed because
contested provision provides "only" exemption regime proceedings under Act No.
. 148/1998 Coll. Scope of Administrative Procedure, while Art. 26 paragraph. 2
Charter states that the law may set conditions and limitations for the exercise
certain professions or activities. It is obvious that the two provisions
no direct continuity of content and therefore for that reason among them
not exist - the petitioner JUDr. VR hardened - a contradiction.

XII.

The draft Mgr. JT and JUDr. VR the annulment of § 73 para. 2
Act no. 148/1998 Coll. The Constitutional Court states:

First

Text of the contested provision reads:

"The decision, action and other action under this Act
not subject to judicial review, except for the decision on fines."

Second

The complainants alleged that the cited provision is inconsistent with Art. 26
as Art. 36 para. 2 of the Charter, Article. 4 of the Constitution and Art. 6 Sec. 1 of the Convention.
According to Art. 26 Sec. 1 of the Charter everyone has the right to free choice of profession and
training for it, as well as the right to engage in commercial and economic activity
. Paragraph 2 of the same article states that the law may
impose conditions and restrictions on the exercise of certain professions or activities
(paragraphs 3 and 4 on the applicants' case clearly do not reach). According to Art. 36
paragraph. 2 of the Charter can anyone who claims that his rights have been shortened
decision of the public authority to go to court to review the legality of that decision
, unless otherwise provided by law.
From the jurisdiction of the court shall not be excluded judicial review of decisions concerning
fundamental rights and freedoms under the Charter. According to Art. 4 of the Constitution
fundamental rights and freedoms are protected by the judiciary. Do the same area
directed and Art. 6 Sec. 1 of the Convention which guarantees the right of everyone to his
a fair and public hearing within a reasonable time
independent and impartial tribunal established by law, which decides
his civil rights and obligations or of any criminal charge
against him.

Third

The Constitutional Court first notes that Art. 36 para. 2 of the Charter (and also, by analogy
Art. 6 Sec. 1 of the Convention) constitutes a general guarantee
right to a fair trial and, therefore, judicial review of decisions
bodies of public administration, but also provides space legislators, that judicial review of the legality
administrative decisions ruled by law.
Neither form of a law, however, can not be ruled
review of decisions concerning fundamental rights and freedoms under the Charter. Also Art. 4 of the Constitution
refers to the fundamental rights and freedoms, in the sense that
guarantee their protection by the judiciary.

The Constitutional Court therefore found that the essence of adjudication of the matter is whether
decision to issue or not to issue a certificate for handling classified
realities decisions relating to fundamental rights and freedoms under the Charter
or not . Conform to the Constitution is merely a statutory
treatment to eliminate judicial review of decisions of public administration, which by their nature
in fundamental rights and freedoms under the Charter
not fall. If the bill would exclude judicial review, even those
decision that the constitutionally guaranteed fundamental rights or freedoms
intervene clearly would have already crossed the boundaries of constitutionality.

Fourth

The petitioners claim that as a result of the contested decisions
lost the opportunity to continue to exercise their previous profession and that a decision on
or not to issue the safety certificate is currently deciding on
access to certain jobs that should not be
excluded from judicial review. The content of both proposals is therefore evident that for the fundamental right
which, according to Art. 36 para. 2 of the Charter should not be excluded from
judicial review, the applicants consider Art. 26 paragraph. 1 of the Charter, according
which everyone has the right to free choice of profession and training for it,

As well as the right to engage in commercial and economic activity.

The fact that the issuance of a security certificate can lead to loss
certain professions arises from the provisions of § 17 para. 2 of Act no. 148/1998 Coll
., From which it is clear that a prerequisite for the profession where
necessary to get acquainted with classified information, the issue of the certificate
or security permissions. If the person
certificate or a security clearance is issued, it is the nature of things apparent that already
longer able to perform his original profession, and that it can cause.
To shift this person to another place (where it is possible), in an appeal
functions or, eg. as well as its dismissal from service or to
termination of the employment relationship. It is therefore obvious that the decision not to issue a certificate
into contact with classified information constitutes an appreciable adverse
into appropriate work (or. Staff) ratio, and thus - in their
consequences - even the fundamental right to freedom of choice
professions under Art. 26 paragraph. 1 and 2 of the Charter. Under paragraph 2 of that provision
law may impose conditions and restrictions on certain professions or activities
. Just such a condition, and also the limitations in performance
certain professions need security clearance, so it may
clear that even this - very specific - the area under the guarantee of the right to a fair trial falls
(cf. Art. 36 para. 1 and 2 of the Charter).

Fifth

In the Constitutional Court (and in accordance with the above
more general bases) may constitute
protection of classified facts and conditions imposed on persons who these realities
will dispose of enough specific area that neither
from a constitutional point of view it is not possible to guarantee all the procedural rights of the persons in
such an extent as is the case with other professions and labor disputes
their employees. On the other hand, neither the specifics of classified
facts can lead to a conscious resignation of constitutional protection of the rights of persons
examined. Thus, if Article. 36 para. 1 and 2 of the Charter and Art. 6
paragraph. 1 of the Convention guarantee everyone the fundamental right to a fair trial and
if the judicial review can not be excluded
review of decisions concerning fundamental rights and freedoms under the Charter, the legislature must
in this case guarantee an independent review of administrative decisions || | judicial authority, although it is possible but not common type of governance that
sufficiently differentiate individual cases. The Constitutional Court considers that
these cases is obviously necessary to address the specific procedural rules as
specifics of the case clearly does not correspond to the general procedural rules
made in the existing Rules of Civil Procedure, or in an administrative order
.

6th

The current legislation does, in effect, means that in the process of implementing
security clearance there is considerable concentration of power in the executive branch
single body, and its decision can severely
intervene in individual spheres of the verified person.
Office conducting a security clearance, the task of verifying the conditions for issuing certificates
- and which therefore in this direction implements certain "service"
state and it clearly represents its interests - namely, at the same time decide on the issuance of an administrative
decision also appeal against it.
For situations where there is no review by an independent and impartial body, is
cleared person will undergo virtually the only institution that has
by definition can not be considered independent and impartial (cf. Also
eg. Provision § 7 para. 2 and 3 of Law no. 148/1998 Sb.).
It is therefore evident that the contested legal rights (ie. § 73 para. 2 of Act no. 148/1998 Coll
.) Essentially defeats the meaning of Article. 36 para. 2 of the Charter (and indeed even
Art. 6 Sec. 1 of the Convention and Art. 4 of the Constitution), which lies in the fact that
decisions on major issues regarding the individual sphere
individuals conducted an administrative authority, must be subjected to review by an independent and impartial
body, which is usually the court.
The Constitutional Court is therefore not - in general position - agree with the legal opinion of the BIS
contained in its response to the petition, according to which any judicial review
in this area was in contradiction with the principle of separation of powers.
According to the opinion of the Constitutional Court is necessary to carefully distinguish between
decisions about who will be certified and designed for handling classified

Information, which indeed belongs to the executive power, and the eventual
judicial scrutiny of this process, which - from a constitutional point of view -
can perform only an independent judicial power.
Constitutional Court respects the fact that with regard to the specifics and importance of decisions in matters
classified information, which is a very clear security interest
state is not always possible to guarantee all the usual procedural guarantees of a fair trial
(eg . public hearing). However, even in this type
management is the task of the legislature to allow the legal form
implement reasonable safeguards to protect the court (or another independent and impartial tribunal within the meaning
Art. 6 Sec. 1 of the Convention) even if - as the case with
into account the nature of the relevant functions - to protect considerably
special and differentiated.

Constitutional Court in assessing the constitutionality of the exclusion of judicial review by
contested provision can not overlook the overall context of the Act no. 148/1998 Coll
. This means that the exclusion of judicial review must be from a constitutional perspective
feel more sensitive as existing legal
situation when deciding on the issue of the certificate is governed by specific procedural
nonstandard way than if the individual has had
other possibilities for protection of their rights.

7th

Therefore the Constitutional Court concludes that the exclusion of judicial review
all decisions under the Act no. 148/1998 Coll. contrary to Article. 36 para. 2
Charter, Art. 4 of the Constitution and Art. 6 Sec. 1 of the Convention.

XIII.

Constitutional Court - collectively - the issue of annulment of § 36 para. 3
third sentence of Act no. 148/1998 Coll. ( "Reasons ... Office ... does") and
provisions of § 73 para. 2 of Act no. 148/1998 Coll. ( "The decision ...
subject to judicial review ...") adds:

Under Article. 88 paragraph. 2 of the Constitution of Constitutional Court judges are in their
bound solely by constitutional laws and international treaties
under Article. 10 of the Constitution and the law under paragraph 1. This means Act no. || | 182/1993 Coll., on the Constitutional court. It follows that the Constitutional Court is in principle bound
and various kinds of statements that the Act no. 182/1993 Coll.
Regulates. (Reject the proposal or law or. Its individual provisions
canceled - § 70 para. 1 and 2 of the Act no. 182/1993 Coll.). In the case under review
Constitutional Court had no choice but to § 36 par. 3, third sentence, and
provisions of § 73 para. 2 of Act no. 148/1998 Coll. cancel. In spite of this, however
Constitutional Court points out that in preparing new legislation will probably need
- on its merits and taking into account the position held
citizen - distinguish between cases in which the abolition of the cited provisions
turns out, the other, although in exceptional cases, where possible exclusion
judicial review (or. failure to state reasons for not issuing the certificate)
continue to be considered constitutional (eg. for some workers
specific categories in the armed forces,
by certain members of the intelligence services).

XIV.

Constitutional Court - beyond this text - adds that objections may
against the law no. 148/1998 Coll., On protection of classified information and
amending certain laws, as amended, as a whole.
In this respect, however, the relevant proposal was submitted. The Constitutional Court, however
assumes that the Czech Parliament will deal with law no.
148/1998 Coll., As amended, comprehensively, and not only
contested provisions that this finding deleted.

XV.

The Constitutional Court concludes that the immediate cancellation of some
contested provisions of the Act no. 148/1998 Coll. the potential benefits resulting from the
could be overshadowed by its disadvantages, especially with regard to the security interests of the state
certain specified in the law in question.
The new legislation is necessary to provide the necessary time and space,
particularly with regard to their demands. Therefore, the Constitutional Court uses
option which offers them the provisions of § 58 para. 1 and § 70 para. 1
Act no. 182/1993 Coll. and suspends the enforceability of that judgment on 30
6th 2002

XVI.
Conclusion


A.

For all the foregoing reasons, the Constitutional Court in the Act no. 148/1998 Coll., On
protection of classified information and amending certain laws, as amended
annulled on 30 6th, 2002:

- § 23 para. 2 of the word "especially"

- Provisions of the third sentence of § 36 para. 3

- § 73 para. 2nd

B.


For the annulment of the first sentence of § 73 para. 1 of Act no. 148/1998 Coll
. The Constitutional Court dismissed.

Chairman of the Constitutional Court:

JUDr. Kessler vr