On The Proposal To Repeal § 42 Para. 1 Of Act No. 148/1998 Coll.

Original Language Title: ve věci návrhu na zrušení § 42 odst. 1 zákona č. 148/1998 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=57527&nr=98~2F2004~20Sb.&ft=txt

98/2004 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court ruled on 28 January 2004 in plenary on the proposal
District Court in Prerov the annulment of § 42 para. 1 of Act no. 148/1998 Coll., On
protection of classified information and amending certain laws, amended
amended,
Thus


I. The petition is denied.

II. Screening advocates in criminal proceedings for the purpose of familiarizing with
classified information security clearance
National Security Authority is in conflict with Art. 37 par. 3, Art. 38 par. 2, Art. 40 paragraph. 3
Charter of rights and freedoms and Art. 6 Sec. 3 point. c)
Convention for the Protection of Human Rights and Fundamental Freedoms.
Reason


I.

Definition matter and recapitulation draft

District Court in Prerov under Art. 95 para. 2 of the Constitution and § 64 par. 3
Act no. 182/1993 Coll., On the Constitutional Court, as amended,
submitted to the Constitutional Court for the the annulment of § 42 para. 1
Act no. 148/1998 Coll., on protection of classified facts and change
certain laws, as amended.
Proposal to repeal that part of the Act petitioner relies on the following grounds:

Act no. 310/2002 Coll. with effect from 12 July 2002 to change
Act no. 148/1998 Coll. This was in Art. I, Section 4, amended the provisions
§ 42 para. 1 of Act no. 148/1998 Coll. so that the provision was
deleting the word "lawyers", as a consequence, the petitioner's opinion,
lawyers were excluded from the list of persons whose security clearance
performed. Mentioned Act no. 310/2002 Coll. however, no longer
amended Criminal Procedure Code and, therefore, § 35 para. 4 tr. Regulations apply in unchanged form
enshrined by law no. 265/2001.

According to § 35 para. 1 tr. Regulations defense counsel in criminal proceedings can only be
lawyer. According to the petitioner's view, however, the amended version of § 42 para. 1
Act no. 148/1998 Coll. ultimately means that
criminal proceedings in which they are discussed classified information protected
special law, is no longer sufficient for defense lawyers - lawyers only learned
within the meaning of § 35 para. 4 tr. order, but lawyers must be
adequately vetted by Act no. 148/1998 Coll.
For this conclusion is the fact that lessons Lawyers under § 35 para. 4 tr.
Order was no longer necessary under the previous legislation, which still
lawyers were exempt from security screening. From this it follows that if
now lawyers who are familiar with classified
facts must undergo security clearance in accordance with Law no.
148/1998 Coll., The criminal proceedings in which they are discussed classified
fact, protected by a special law is not sufficient for them no longer lessons
according to § 35 para. 4 tr. Regulations. With this legal opinion of the petitioner
fully corresponds to the Opinion of the National Security Office (hereinafter
"NSA"), at no. L. 2275 file no. Ref. 1 T 312/2001 District Court in Prerov
.

The petitioner argues that the currently applicable provisions of § 42 para. 1 of Law no.
148/1998 Coll., As amended by Act no. 310/2002 Coll., Is in conflict with Art. 37
paragraph. 2 and Art. 40 Sec. 3 of the Charter of Fundamental Rights and Freedoms (
"Charter"), which guarantees the accused's right to a free choice
advocate. It should also be borne in mind. Article 6, paragraph. 3 point. c)
European Convention on Human Rights ( "the Convention")
according to which everyone charged with a penal offense has the right to a minimum
defend himself in person or through legal assistance of his own selection. Furthermore
petitioner also pointed out during the legislative process
consultations on the amendment to Act no. 148/1998 Coll., Where
Senate of the Parliament of the Czech Republic (the "Senate") is currently considering exempting
lawyers from the circle of persons whose security clearance was not carried out, this amendment
returned Chamber of Deputies of the Parliament of the Czech Republic (hereinafter
"Chamber of Deputies") with amendments, but subsequently
Deputies did not accept.

The reasons for filing the petition, the petitioner further stated that
considered criminal case no. Ref. 1 T 312/2001 defendants (V.
H., MD. Ch.) exercised their right to chose their own and advocate on their choice
insist and do not intend to elect another advocate. None of the elected
defenders yet undergone appropriate security clearance. according to opinion

Court of the circumstances, taking into account the applicable legislation
that none of the chosen attorneys can continue to act as an advocate
in the criminal proceedings. The District Court noted, however
provisions of § 2 para. 4 tr. Code, under which a criminal case must be dealt with as quickly as possible
and full investigation of rights and freedoms guaranteed
Charter and international treaties on human rights and fundamental freedoms
. When deciding a judge under Art. 95 para. 1 of the Constitution bound
law and international agreements, which is part of the law. According to Article
. 95 para. 2 of the Constitution If the court concludes that a statute which should be
in resolving the matter, is inconsistent with the constitutional order, submit the matter to the Constitutional Court
. Article 95 para. 2 of the Constitution is for the criminal proceedings
further elaborated in § 224 paragraph. 5 tr. Regulations according to which the court suspends
prosecution, if it considers that the law, which is also used in a criminal case
decisive for deciding on guilt and punishment is inconsistent with the constitutional law or international
contract, which takes precedence over the law; in this case
submit the matter to the Constitutional Court. The petitioner further added,
in such cases does not matter whether the court of
doubts concerning the legal norms of substantive or procedural, or whether it is the norm
criminal law or the law of any other branch of law.
According to the petitioner's opinion is yet in this matter beyond doubt that
Act no. 148/1998 Coll., As amended by Act no. 310/2002 Coll., The court must apply for their
procedural steps, because this legislation
directly interferes with the rights of defendants to a fair hearing, which guarantees them
particular Article. 37 paragraph. 2 and Art. 40 Sec. 3 of the Charter, Art. 6 paragraph.
3 point. c) of the Convention, and then also the provisions of § 2 para. 13 of the Criminal Procedure Code.
Defendants in fact have the right to participate in their chosen advocates
acts carried out in the context of criminal proceedings, particularly when conducted
evidence at the trial. The Act, however, the realization of the constitutional rights of defendants
virtually impossible. Only for completeness
still petitioner added that at one of the defendants (VH)
are given as the reasons for compulsory defense under § 36 par. 3 of the Criminal Code. Regulations, since in this case
no longer possible to hold the trial without the presence
counsel (§ 202 paragraph. 4 of the Criminal Code. Code).

The petitioner also pointed out some of the broader aspects and links
subject of legal issues. Above I mentioned the fact that the present state attorneys
undergone security screening apparently nobody
because they did not do so yet. Additionally, you can not overlook the fact that according
any legislative or regulatory lawyers can not bring themselves to
subjected to security screening; It can lead to a situation that if
lawyers refuse to voluntarily submit to security checks, will not be available
no proven advocate who could provide legal
assistance in matters relating to classified information.
Czech Bar Chamber and also does not even keep a separate list of attorneys who
may be acquainted with classified information, because it
such an obligation does not impose any legal regulation. That said, inter alia, that
currently not only the accused can not advocate such things
choose, but neither court was not in cases of so-called.
Any necessary defense advocate appoint, even though such a requirement by law a.
Petitioner further pointed out that the lawyer provides legal assistance
outside the realm of criminal or civil proceedings, not only in the Czech Republic
, but also abroad. In all these cases, it may be
client acquainted with the facts, which are subject to confidentiality.

The petitioner added that the Czech Republic are all lawyers are entitled to exercise
legal aid without restriction. In this respect they are comparable
all European legislation. Offeror is not aware of any
foreign legislation which would establish the obligation of lawyers to submit to security checks
for representation in matters
classified information. The introduction of some kind of special lists of attorneys
its way evokes a return to the times of oppression, when during the 2nd World War
had its own list of lawyers authorized to represent before
imperial courts, or in the days before 1990, when there was also | || special list of attorneys authorized access to classified

Facts, which is certainly undesirable and incompatible with the principles
democratic rule of law. Granting exceptions lawyers who
next to deputies and senators do not have to undergo security screening,
was a de facto expression of the fundamental principles of practicing the legal profession.
Disclosure of classified information while in principle there is no longer considering
absolute confidentiality obligation stipulated by law and lawyers
irrevocable instruction to any third person except the client itself.
In this context, it should be respected and one of the fundamental principles
practicing the legal profession, ie. On the state independence of the lawyer so that the lawyer could
advocacy freely exercise, thus acting as legal counsel
against the state without fear of state sanctions against each other. If, in these cases
was discussed classified information, it could be a lawyer
government's intervention excluded from the provision of legal services precisely because it would
appropriate clearance has not been granted. The state would thus gained the possibility of de facto
decide who will be against him in a dispute speak. Now
repeal of the exemption from security checks and were not unfounded
a privilege or a sort of unjustified privilege of the lawyer but
served to benefit the consumers of legal services.

Finally, the petitioner stated that he is fully aware of the fact that Act no. 148/1998 Coll
. expires on 31 December 2003 and therefore will
Czech Parliament adopted a new comprehensive legislation in this area.
He added that he is aware that the Constitutional Court as a negative legislator
can within their powers to decide only the repeal of laws or
individual provisions if they are inconsistent with the constitutional order,
and thus does not decide to re-incorporation into the circle of lawyers
persons whose security clearance was performed. Should the Constitutional Court
reached after the management concluded that there are no reasons to cancel
§ 42 par. 1 of Act no. 148/1998 Coll. and rejected the proposal,
it is necessary that at least in the decision stated its legal opinion
outlined the legal issues relating to security clearances lawyers.
Concluded by proposing that the Constitutional Court ruled that the provisions of § 42 paragraph
. 1 of Act no. 148/1998 Coll., On protection of classified information and
amending certain laws, as amended, repealed on
this judgment in the Official Gazette.

II.

Recap essential parts of the response of the

At the Constitutional Court filed pursuant to § 69 of Act no. 182/1993 Coll., On
Constitutional Court, as amended (hereinafter the "Law on the Constitutional Court
") statements of Deputies. In its statement said
:

The provision § 42 par. 1 of Act no. 148/1988 Coll.
underwent changes in 2002, when they were law no. 310/2002 Coll. advocates exempt from the circle
persons who are not subject to security clearance. Discussions about whether
defenders (and only those) are among these people cross the history-making
law from the outset and were characterized by intense clashes
both ideological groups, in particular the Committee for Defense and Security | || Deputies. Already in May 1998, was seriously considered for
creation of a special list of lawyers proven NBU, which would be
kept by the Czech Bar Association. It finally came together thanks argument
then interior minister and a group of MPs on the committee
constitutional rule, according to which the obligation of confidentiality, which the lawyer is bound by
Legal Profession Act and liability for violation of the law, are sufficient
guarantee its reliability. Legislature this view when voting
promote and advocate left in the circle of people
not subject to security clearance.

Another situation occurred in March 2002 when in discussions
amendment to Act no. 148/1998 Coll. occurred in the aforementioned Committee
again making the request to withdraw the advocates of the above
circle of people. The discussion, however, concerned mainly Constitutional Court judgment no.
322/2001 Coll., Under which a review of the decision of the NBU is needed and
security risks as defined in § 23 shall be expressed exhaustively.
Controversy about the status of defenders and did not work during individual
reading in the Chamber of Deputies, but marginally during committee meetings that
this change of Deputies for approval recommended. Chamber

House in III. reading on 27 March 2002
voted on this amendment so that the 171 present, 89 in favor and 58 against,
so the proposal was adopted.

The law was approved by the required majority of members of the Chamber of Deputies and 13
June 2002 after being outvoted the Senate version, which previously
bill Deputies returned.

Conclusion of Deputies expressed the opinion that the legislature
Czech Republic acted in the belief that the law is in line with
Constitution, the constitutional order and laws of the Czech Republic.
Is the Constitutional Court, in connection with the petition
assess the constitutionality of this law and issue the appropriate decision.

At the Constitutional Court filed pursuant to § 69 of the Act on the Constitutional Court's
expression and Senate. The statement said:

By the contested provisions of the amendment, the Senate debated
in adopting the Act no. 310/2002 Coll., Amending Act no. 148/1998 Coll
. This proposal was forwarded to the Senate Chamber of Deputies on
9th April 2002 and the Senate came before the prescribed manner
at the 17th meeting of the third term on May 3, 2002. In her own conduct
diapers were manifested in particular the following opinions: News
constitutionally legal committee, it was stated that approval of the amendment to § 42 paragraph
. 1 in its proposed form would mean the paralysis of the criminal proceedings in
experiencing discussing classified information. In its proposals for solutions
committee did not incline to postpone the effect of the change, it would automatically
it did not guarantee that the thus formed in time decided
sufficient number of lawyers for passing security screening.
There was, however, will not hinder the improvement of the level of protection of classified
facts in the provision of legal aid that are not connected
with ensuring the rights of defense; therefore constitutionally legal committee decided to recommend
temporary solution, according to which the lawyers in the position
advocate consistently stretch mode called. the determination to become familiar with the specific
classified information (discussed in criminal proceedings) on a case-by-case | || and such cases will be filed with the NBU.

The Senate debate was also significantly presented opinion calling for "complete elimination
changes to § 42 para. 1 of Act no. 148/1998 Coll.".
This opinion was based on the principle of categorical protection not only of the rights of defense
but also to all other kinds of lawyers provided legal assistance in
sense of free choice of legal assistance, the citizen's right to this
assistance and lawyer's independence on state administration.
Arguments to this view coincided with the contents of the preamble of the proposal to repeal part of the law cited
. Senate to that opinion, further added that
inclusion of lawyers (along with deputies and senators) between persons who
may be inspected by Act no. 148/1998 Coll., Is the de facto
expression of the fundamental principles of practicing the legal profession . On the first page stands
independence of the lawyer to the state, so that the lawyer could perform
advocacy, thus acting as legal counsel to the State
without fear of sanction against him. On the other hand, there is the fact that many lawyers
dedicated obhajobám or legal representation of clients in matters
are to become uncomfortable. Should such a thing
discussed classified information, could be easily removed from
providing legal services for their discomfort lawyer that he would
review was not granted (resp. Authorization would have been withheld) .
State would therefore qualified for a de facto decide who will be against him
act as a representative. All rights lawyers have not in fact
their prerogative, but the privilege of their clients.
Client has a right to a lawyer who can freely perform legal services and provide
his assistance in all areas of law, to cater to the evidence and get to know them
. In a democratic legal state it is therefore possible that the profession of lawyer
was state-regulated differently than academic requirements and
moral integrity. That view plédující for the immutability of the provisions of §
42 para. 1 of Act no. 148/1988 Coll. it also contained a practical consideration
nature; If the legislature limited the validity of the entire Act on Protection of Classified Information
by the end of 2003, there is an opportunity, both in
reasonable amount of time to solve the problem factually and legally qualified, without

Rashness and using a comprehensive approach.

In the Senate was finally presented and opinion (
Intelligence Committee on Foreign Affairs, Defence and Security) in favor of approving the amendment
§ 42 par. 1 of the Act. This view was based on the interest
priority to enhance the protection of classified information.
In his reasoning was highlighted that 6,500 lawyers in the Czech Republic
too high "liberated" people and the fact that many current
lawyers was examined former State Security
totalitarian regime State secrets before 1989.

In the Senate prevailing opinion that the proposal to amend the provision in question was not well
discretion in all factual and legal context, and there is therefore no reason
express to him amendments. Minority opinion remained
approve parliamentary artwork. Senate to vote no. 93
approved by an overwhelming majority (out of 65 senators present voted for 60 senators, there was no
against) Resolution no. 372 dated 3 May 2002
comply with the recommendation of its committee on constitutional affairs to return
bill the Chamber of Deputies with proposed amendments. With regard to the above it is
Constitutional Court to review the constitutionality of the contested provision and
to decide.

III.

Recap essential parts of the statement according to § 49 of Act no. 182/1993 Coll
.

At the Constitutional Court lodged its statement and the Czech Bar Association (hereinafter referred
"CBA"), and pursuant to § 49 of Act no. 182/1993 Coll., On the Constitutional Court
. He stated that it fully supports the proposal to District Court in Prerov
and added the following:

The crucial question is to be considered a denial of the possibility of free choice of lawyer
(arising from the contested provision of the Act).
Free choice of lawyer is one of the fundamental principles of the rule of law, which has
reflection in the constitutional order of the Czech Republic. Denial of this possibility by
that either there will be no lawyer, whom he could subscriber
(defendant, victim) to choose, having confidence in him, or it will be (perhaps
best) to select few individual attorneys who will represent
power in matters concerning the protection of classified
fact, it is the opinion of CBA in flagrant contradiction with the principles
law.

CBA pointed out that although the proposal of the District Court in Prerov
logically applies particularly to criminal proceedings can not be overlooked nor other legal
areas in which "also performs quite markedly deficit legal changes especially
in those areas that relate to the so-called.
mandatory representation in ordinary courts "(appellate proceedings on the cassation appeal in administrative justice
). In these cases, only that participant has hindered
if not impossible, choice of a lawyer as a representative;
in the same situation he finds himself and the court, if the party is to appoint a lawyer as a representative.

CBA simultaneously avail itself of the provisions of Art. 38 par. 2 of the Charter, under which
everyone has the right to have his case heard without undue delay.
Pointed to similar provisions of Article. 6 Sec. 1 of the Convention.
In this context, notes that - as is evident from a specific case
District Court in Prerov, and how it can reasonably be inferred from other things
subject to criminal, civil proceedings and proceedings in administrative justice
- "unnecessary delays" and did not discuss the decision '
reasonable time "is necessary in these cases, paradoxically, attributed
lawmakers.

At the invitation of the Constitutional Court's observations complement the CBA more expertise, drawn
Christian Wisskioschenem, director of international relations
The Law Society of London, the issue of application of § 42 paragraph
. 1 of Act no. 148/1998 Coll., As amended by amendment no. 310/2002 Coll., On
advocate, in comparison with the solution of this problem in England and Wales, and a brief description
solutions to similar situations in France in Austria.

At the Constitutional Court also lodged a
National Security Office (hereinafter "NSA"), in which he stated:

It is necessary to agree with the District Court in Prerov, after amendment
Act no. 148/1998 Coll., By Act no. 310/2002 Coll., Has not at
lawyers who act as advocates in criminal proceedings, insufficient
mere instruction according to § 35 para. 4 tr. Regulations. This provision refers to
instruction executed by a special law that regulates the way

Protection of classified information, that according to the Act no. 148/1998 Coll.
Here it should be noted that the Act no. 148/1998 Coll. understands the lessons especially as
Institute registered shock. Its main purpose is to educate people with
involving contact with classified information are non
persons designated, all obligations, especially the obligation to maintain confidentiality
. The lesson, therefore, can not replace
meet the conditions for access to classified information pursuant to § 17 para. 1 of Act no. 148/1998 Coll
. To fulfill the meaning of the Act no. 148/1998 Coll.
while it is desirable that the activities where it is necessary to get acquainted with
classified information, carried out by persons who meet the conditions according to §
17 paragraph. 1 of the Act, mainly held, a valid certificate
and under him they were intended to come into contact with classified
facts. Even when practicing the legal profession is to be respected
state interest in protecting classified information. In a conflict between the principle of protection
human rights and freedoms with the principle of protecting the interests of the state and international
interests in the security area has become a particular statutory law and
while primarily determined by international treaties
obligation to provide certain information, thus classified facts
special protection, is therefore obliged to use them in a special way and is
obliged to prevent their publication or other disclosure. This protection
implements a number of ways, but especially so. Personnel security
So the fact that the state itself elect persons who are authorized with such familiar
classified information.

In addition, the NBU said that in accordance with the principle of free choice of profession,
that every individual himself decide whether he is willing to seek input from the
suitable candidates and whether it is willing to allow the State to its appropriateness | || or vice versa impropriety in relation to access to classified information
decided. It is therefore also a free choice of each lawyer whether
accede to certain professional "increase" their qualification and therefore
able to accept even such an agency, which will have access to classified information
discussed in the case. Persons who
require the state to be acquainted with classified information -
because they voluntarily decided to exercise a profession or hold
such a function with which the state has the possibility of access to classified information
together - the must necessarily be subjected to those limitations that state for access to classified information
down; it is not only state law, but
especially its obligations under international treaties.

If you should have lawyers who act as defense counsel in criminal proceedings
specific position in access to classified information
it would represent the opinion of the NSO also a certain disproportion
due to the requirements for law enforcement authorities in criminal proceedings, including
prosecutors, in which the conditions for familiarization with
classified information under Act no. 148/1998 Coll. required.
In the case of lawyers providing legal aid in civil proceedings and administrative
is also necessary to point out the fundamental principle of protection of classified
facts, namely that the access of persons who do not hold a valid certificate
may be exceptional and justified. Attorneys general, however, this condition
'uniqueness and reasonableness "do not.

The objection that the current wording of the Act no. 148/1998 Coll.
prevents continuation of criminal proceedings, the NSO said that if either of
lawyers who are in the position of counsel for the defendant (H.)
meets the conditions under which it may be acquainted with classified information should
District court in Prerov ex officio establish an ad hoc basis to implement those
operations, which will be discussed classified information, such
lawyer who meets the necessary qualifications. To be in the position
advocates, however, the two lawyers elected may continue, not only
participate in the procedure in which it will be necessary to discuss classified
reality. In this way, there can be no violation of the rights of the accused
nor inconsistent with the Czech constitutional order.

NSO added that the mere fact that the Czech Bar Association does
special list of lawyers who are also holders of a valid certificate
does not mean that such a person exists. and may therefore be
accordingly to represent established. The District Court in Prerov

He had apparently mainly to make an inquiry to the NSO, whether it is possible to carry out the provisions
advocate and not just assumed that "apparently none of the lawyers
yet undergone security clearance."

In addition, it can be assumed, according to the NSO opinion that, even if the Constitutional Court
upheld the District Court in Prerov and annulled § 42 para. 1
Act no. 148/1998 Coll., Would not it apparently achieved the intended
goals - namely to achieve legislative status prior to the amendment made by
Act no. 310/2002 Coll. Any repeal this provision
will have no effect on the position of lawyers in general and thus no lawyers
who act as defense counsel in criminal proceedings.

NSO is aware that the current legislation to classified
facts in various types of judicial and administrative proceedings is
for the protection of classified information was insufficient and that does not respect
enough specifics of this area. Future legislation should therefore
provide that in cases in which they discussed classified
fact, it will be necessary for all persons in such proceedings will be
classified information in any way acquainted with || | exception of the party were holding a certificate for the relevant level of secrecy
. Procedural rules should in these cases also provide
stricter rules than in proceedings where classified information
not discussed. It is not desirable to protect fundamental human rights and freedoms
legislation allowed - only on the basis of lessons learned -
virtually unlimited access to classified information, which will be discussed in
management, eg. The results of the investigation, intelligence services.

Conclusion the NSO stated that even the new draft legislation on protection of classified information
does not envisage that lawyers should be
included among persons who fulfill the conditions stipulated by law
for access to classified information required. It is proposed
conversely group of persons who will have access to classified information
outset, only with regard to the position held, narrow, which is also
fully comply with NATO requirements. In this context, the NSO also referred to
Constitutional Court published under no. 322/2001 Coll., Under which
protection of classified information is so specific that it is legitimate
certain limitations of standard procedural rights of persons with
which shall examine whether they are eligible for access to classified
facts.

At the Constitutional Court completed the National Security Agency's
statement in which he described and presented regulations under the European Communities
govern the issue
protection of classified information. They are:

- EU Council Decision no. 2001/264 / EC of 19 March 2001 adopted
Safety Directive. Under that provision
condition for access to information classified EU CONFIDENTIAL is
checking persons requiring access to information.
General rules are not weakened by any exceptions for persons who would have access to classified information
allowed only with regard to the position.
In Part I of Art. 9 Safety Directive provides that "all persons
which require access to information classified EU CONFIDENTIAL or higher
must be before allowing access
adequately explored" . Furthermore, in Part II, Section V, paragraph 1 stipulates that
'access to EU classified information may be granted only to persons who
with them must be familiar in performing their tasks. Access to information
classified EU TOP SECRET, EU SECRET and EU CONFIDENTIAL
be granted only to persons who have appropriate security
certificate ";

- EU Commission decision no. 2001/844 / EC of 29 November 2001
adopting Safety Commission regulations. Also under this Regulation
persons who require access to information classified EU CONFIDENTIAL and higher
must be adequately before allowing access
accordingly examined. There were no rules for access to such information
weakened by any exceptions. In Part II, Art. 19 section 1 stipulates that
'access to EU classified information may be granted only to persons who
, they must be acquainted while performing their duties or in connection with your job title
. Access to information at the level of EU TOP

SECRET, EU SECRET and EU CONFIDENTIAL may be permitted only with relevant persons
security certificate. "

The NSO also said that the obligation to comply with international obligations follows from
Czech membership in the North Atlantic Treaty Organization.
standards for the protection of classified information are contained in the present document
CM (2002) 49 - Security within the North Atlantic treaty Organization.
According to the rules set forth herein, any person,
which require access to information on level "Confidential" or higher
or persons who may be in respect of their duties or functions
created space for access to this information, be pre
duly screened and counseled.
|| | IV.

text of the contested legal provision

Constitutional court finds that the wording of § 42 para. 1 of Law no.
148/1998 Coll., which was in force and effect until 11 . July 2002 was as follows
:

"§ 42

(1) For MPs and senators, with the exception of members of inspection bodies under special laws
^ 12) and lawyers with security clearance does not. "

12) § 18 of Act no. 154/1994 Coll.

the provision was affected by Act no. 310/2002 Coll., which
amends Act no. 148/1998 Coll., on protection of classified facts and change
certain laws, as amended Act no. 101/2000 Coll.
on the protection of personal data and amending certain laws, as
amended, Act no. 18/1997 Coll., on peaceful use of nuclear
energy and ionizing radiation (atomic Act) and amending and supplementing
certain laws, as amended, Act no. 38/1994 Coll., on
foreign trade in military material and supplementing law no. 455/1991
. on Trades (Trade Act), as amended
amended, and Act no. 140/1961 Coll., criminal Act, as amended
amended, Act no. 283/1993 Coll., on public prosecution ,
amended, and Act no. 42/1992 Coll., on
property relations and settlement of property claims in cooperatives,
amended (hereinafter "law no. 310/2002 Coll. "). Act. No. 310/2002 Coll
. with effect from 12 July 2002 enshrined in Part One, Article
. I, paragraph 4 of the new wording of § 42 para. 1 as follows:

"4. § 42 para. 1, including footnote no. 12) reads:

" (1) For MPs and senators, with the exception of members of inspection bodies under special laws
^ 12) security clearance does not.

12) § 18 of Act no. 154/1994 Coll.

§ 23a of Act no. 67/1992 Coll. "

A result of this amendment to Act no. 310/2002 Coll.
Text is therefore the contested provision of § 42 para. 1 of Law no. 148 / 1998 Coll., as amended
this:

"§ 42

(1) For MPs and senators, with the exception of members of inspection bodies under special laws
^ 12), the security clearance performed.

12) § 18 of Act no. 154/1994 Coll.

§ 23a of Act no. 67/1992 Coll. "

According to Art. IX of the Act no. 310/2002 Coll., Act no. 148/1998 Coll., On
Classified Information and Amending Certain laws
expires on 31 December 2003.

In Act no. 436/2003 Coll., amending Act no. 555/1992 Coll., on
prison service and judicial guard Czech Republic, as amended
amended, and certain other laws in Art. VI: "in § 89 of Act No.
. 148/1998 Coll., On protection of classified information and amending some laws
, the present text becomes paragraph 1 and paragraph 2
, added:

(2) This Act shall expire on 30 June 2004. "

amendment to the Law on Classified Information, implemented Art. VI of the Act no. 426/2003 Coll
. Was therefore extended until 30 June 2004. In

.

Terms of locus standi of the petitioner

Constitutional court first addressed the question whether the petitioner - the general
court - authorized the application for annulment the contested provisions of the lodge. It held
positive opinion. It is not clear how the petitioner correctly stated that the general court of
contested provision must be applied to your progress in the
criminal proceedings, and that the current legislation directly affects
rights of accused persons to a fair hearing. that proposal, even though it basically touches
procedural law related to the decision-making of the general court, which
is therefore authorized petitioner (ust. § 64 par. 3 of law no. 182 / 1993
Coll., as amended).

VI.


Constitutionality of the legislative process

Constitutional Court in accordance with § 68 para. 2 of the Constitutional
Court then examined whether the contested provisions of Law no. 148/1998
Coll., As amended by Act no. 310/2002 Coll. , adopted and issued within the bounds
provided jurisdiction and in a constitutionally prescribed manner. He concluded
positive.

The Constitutional Court found the relevant stenographic reports
Chamber of Deputies and the Senate, the bill amending the Act no. 148/1998 Coll
., Was adopted at the 47th meeting of the Chamber of Deputies on March 27, 2002
3rd term, and Resolution no. 2201. When voting on the proposal
was attended by 170 MPs voted for the adoption of the 152 deputies
against the adoption of the proposal 18 deputies, no abstentions.
Proposal was duly accepted.

The proposal was also discussed in the Senate, at its 17th session in the
third term on 3 May 2002. Resolution no. 372 Senate after substantive discussion
decided to return the proposal to the Chamber of Deputies in the version adopted
amendments. For the adoption of this proposal voted 60 senators,
against nobody. Proposal to return the bill back to the Chamber of Deputies with
amendments were properly adopted.

Deputies again discussed the draft law amending
Act no. 148/1998 Coll., On his 51st meeting on 13 June 2002
third term. During the vote on the draft law with amendments
Senate's proposals were present 182 deputies for adoption in favor
76 deputies voted against the adoption of 98 deputies. The bill, as amended
amendments the Senate has not passed and so
Deputies endorsed this proposal in the original version adopted at the 47th meeting on 27 March 2002
(resolution no. 2319).

The bill was signed by President of the Czech Republic on 28 June
2002 the Prime Minister was delivered for signature on July 2, 2002.
Act was promulgated on July 12, 2002 in the Official Gazette, in | 114 || amount under number 310/2002.

The above-mentioned law no. 436/2003 Coll. was discussed in the Chamber of Deputies
4 November 2003 and approved by resolution no. 750. It was attended by 168
Members; 149 deputies voted in favor, 5 against MPs.
Law was debated in the Senate on December 3, 2003 in the presence of 58 senators;
for 49 senators voted against a senator. President of the Republic Act
signed on 9 December 2003. The Act was promulgated in the Official Gazette of
16th December 2003.

VII.

Defining the subject of proceedings under the judgment in the petition

Text of the contested provisions of § 42 para. 1 of Act no. 148/1998 Coll., On
Classified Information, as amended, as already
stated as follows: "For MPs and senators except
members of inspection bodies under special laws with security clearance
does not. " The wording of the statutory provision to
law on classified information embodied his amendment, implemented
Act no. 310/2002 Coll., With effect from 12 July 2002, when the previous
wording of the provision enshrined amendment Law on classified
facts made Art. IX of the Act no. 30/2000 Coll., was
following: "for MPs and senators, with the exception of members of supervisory bodies
under special laws and lawyers with security clearance || | not performed ". The original wording of § 42 para. 1 of Act no. 148/1998 Coll. then
Czech Parliament adopted the following text: "Deputies and senators
with the exception of members of inspection bodies under special laws and
u advocates a security clearance does not."

Constitutional Court assessed the wording of the Law on Classified Information
been adopted in the wording of the amendment deputy Jan Klas on the proposal
deputies František Ondruš, Petr Nečas and Ivan Langer to release
Act amending Act no. 148/1998 Coll., on classified
facts and amending certain laws, as amended by 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 Act no. 60/2001 Coll. Said
amendment proposal was presented in the second reading at the 47th meeting of the Chamber of Deputies of the Czech Parliament
22 March 2003, and its purpose was
presenter explicitly clarified. This was just to complete the draft amendment
Guarantee Committee for Defense and Security Council on 15 March

2002 adopted Resolution no. 206, who presented the House following
wording of § 42 para. 1 of the Act: "Deputies and senators
security clearance does not." In the ensuing debate, none of
MPs on the issue in question did not, as it did in the third reading
held in continuation of the 47th meeting of the Chamber of Deputies on
27th March 2002.

Senate Resolution no. 372 dated May 3, 2002, after substantive discussion
returned the petition to the Chamber of Deputies, as amended
proposals, which included the new wording of § 38 para. 7 of the
classified Information "method of determining a person to the extent necessary to
acquaintance with classified information in civil proceedings,
criminal proceedings and in administrative justice establishes special rules."
In footnote no. 11a) to a given provision is the Senate these regulations and
called: "11a) § 40a of the Civil Procedure Code, as amended by Act no.
30/2000 Coll., § 35 para. 4, § 50 para. 3, §198 and § 201 paragraph. 3
criminal Procedure Code, as amended by Act No. / 2002 Sb. " As is clear from the debate of the 17th session
Senate on May 3, 2002, the Senate considered conditional access to a lawyer
executing defense in criminal proceedings, security clearance for
restrictions on the right of the accused to a fair hearing within the meaning of the right to free
choice of lawyer.

Deputies at its 51st meeting on 13 June 2002 Resolution no.
2319 bill in the wording of the amendments the Senate has not adopted a
remained on his approval as adopted at the 47th meeting on 27 || | March 2002.

VIII.
Ratio decidendi


VIII and /

Assessment of the level of ordinary law

Arguments contained in the Draft District Court in Prerov
repeal of § 42 para. 1 of the Law on Classified Information, implicitly contains
measure the public interest to ensure the protection of information
(classified information) on one side and
public interest in ensuring the rights of the defense in criminal proceedings involving the accused
right to free choice of a lawyer on the other side.
Priorities based on the protection of the rights of the defense and of emphasizing the principle
lawyer's independence from the state, which contradicts government approvals
eligibility for access to classified information and unacceptable inequality
ie. Unacceptability categorization Advocates group | || entitled to become acquainted with classified information and to any group that does not have this right
. For those in the contested statutory provisions
sees a gap in which to fill the democratic legislature (ie. To form
wording of the law before the amendment made by Act no. 310/2002 Coll.)
Is seen as the fulfillment of the constitutional principles .

Assessment of that argument by the Constitutional Court assumes
reconstruction purposes and wording of those provisions of ordinary law, on which
issue of access to classified information lawyers in position
defense lawyers in criminal proceedings fall.

Under § 1 of the Law on Classified Information subject to its
regulation is to define the factors which must be in the interest of the Czech Republic
secret, to protect their interests, powers and responsibilities of state bodies in
state administration in protection of classified information,
obligations of the state, the rights and obligations of natural and legal persons
, liability for breach of obligations under this Act and
anchoring position of the National security Office. In other words
subject to adjustment in the Act is prescriptive definition
classified information, procedural regulation-setting process
degree of confidentiality conditions acquainted with classified information, classified information protection
and powers of state bodies in the exercise | || government in the area.

According to § 1 para. 1 tr. order a criminal proceeding is to modify
procedures of law enforcement so that crimes were
properly detected and their perpetrators according to law
justly punished. Among the principles of the criminal proceedings is the principle
rights of the accused to defense, including the right to choose a defense counsel (§ 2 para. 13
Criminal Code. Code). The Criminal Procedure Code while a number of its provisions respond to a possible collision
public interest in the protection of classified information with the constitutional order and the law
guaranteed right of the accused to defense, including

Right to respond to all criminal proceedings and the evidence presented
right to freely choose a lawyer. These provisions include § 35 para.
4, § 50 par. 3 and § 198a of the Criminal Code. Regulations governing instruct and reporting
obligation of authorities involved in criminal proceedings related to matters
protection of classified information, as well as special conditions for access to classified information
by Commissioner stakeholders and
damaged further § 200 of the Criminal Code. order to exclude the public from the main trial
if it would endanger public hearing
classified information protected by special law, § 8 and § 99 of the Criminal Code.
order of questioning witnesses about the circumstances concerning classified information. With
designated provisions of the Criminal Procedure Code to ensure the protection
classified information in criminal proceedings is also linked to the provisions of §
5 and § 21 of Act no. 85/1996 Coll., On Advocacy, as amended
regulations and § 6 of the Act no. 36/1967 Coll., on experts and interpreters,
governing the confidentiality obligation of lawyers, experts and interpreters
§ 105, § 106 and § 107 of the Criminal Code in particular. Act., which lays down the criminal treatment
protection of classified information, and finally, the provisions of § 21, § 24, § 39,
§ 44, § 51, § 86, § 132, § 139, § 162, § 166, § 183, § 188, § 192
instructions of the Ministry of justice no. 1/2002 dated December 3, 2001, ref. no.
505/2001-Org, which issues the internal and office order for district,
regional and high courts, which provide for measures to ensure the protection of classified information
in the management of litigation.

Only indirectly, for the purpose of systematic interpretation, it falls on
issues under consideration and § 38 para. 7 of the Law on Classified
facts. According to him, the method of determining a person to the extent necessary to
acquaintance with classified information in civil proceedings and in administrative court proceedings
down specific prescription. This regulation is
civil proceedings to § 40a paragraph. 1 of the CPC., According to which the
proceedings in which they are discussed classified information protected
special law, the presiding judge is obliged assessors, participants | || persons authorized to act for them (§ 21 to 21b of Civil Procedure.)
representative participants, including lawyers, interpreters, persons mentioned in § 116 paragraph.
3 and others who are required by law to attend management previously learned
under this special law on criminal consequences of violating secrecy
classified information, the instruction shall be carried out in
Protocol; signing of the protocol was instructed people become persons designated
to the extent necessary to become familiar with classified information.
The judicial administrative proceeding is this regulation of § 45 of the Administrative Procedure Code
, which governs the authority of the party and its representative
inspect the parts of the file that contain classified information and which has been or will be implemented
evidence court. Furthermore, this provision
§ 64 of the Administrative Procedure Code, which even in administrative justice establishes reasonable
application of § 40a paragraph. 1 of the CPC.

At the level of ordinary law then must answer the question of whether to advocate
issue of access to classified information in criminal proceedings
impact of the law on classified information or criminal procedure, ie.
Which of these laws are interrelated compared lex generalis and a lex specialis
.

The suggested complex norms of simple law allows double interpretation:

According to the first issue of access to lawyers in the role of defending
to classified information in criminal proceedings falls § 38 para. 7 and § 42 paragraph
. 1 of Act no. 148/1998 Coll., As amended, pursuant to which
because the law failed to provide for criminal procedures similar link
as he did for civil proceedings and administrative proceedings and
further contrario because lawyers are not included in the list of persons exempt from security screening
is a condition of access to lawyers
classified information in the role of defense lawyers in criminal proceedings
passing security screening. This interpretation follows from the interpretation of language, ie
. the literal wording of the provision.

If it follows also from the anticipated subjective teleological interpretation, ie
. a reconstruction of the original intention of the legislature, can not say with certainty
.

Original intention of Deputies can not be inferred either from

Explicit rejection of the argument Senate brojící against conditional access
lawyers to classified information in criminal proceedings
completing safety checks and proposing in this regard, adding
referring norm contained in § 38 par. 7 of the Act. no. 148/1998 Coll., as amended
when on the adoption of the Act, as amended
proposed Senate Chamber of Deputies voted on as a whole (Art. 47
paragraph. 2, 3 of the Constitution).

Finally, this original intention can not be inferred a contrario process of draining
categories of people - lawyers - from the wording of § 42 para. 1
Act no. 148/1998 Coll., Implemented the Act. no. 310/2002 Coll.
This is so because replacing the term "advocacy" by "lawyers" in § 42 paragraph
. 1 of the Law on Classified Information, which the legislator has made Art.
IX of the Act no. 30/2000 Coll., Has been associated with the current anchoring new
provisions of § 40a of the CPC. (Art. I, section 53 of Law no. 30 / 2000 Sb.)
governing familiarizing participants in civil proceedings
and their representatives, as well as other persons with classified information, and
thus enshrining special arrangements acquainted with classified realities lawyers
not only in the role of defense lawyers in criminal proceedings, but also
representatives in civil proceedings. If passed before the amendment to the Act on
classified information, made by the Act. no. 30/2000 Coll.
exemption from the obligation to undergo security clearance for defense counsel to the law
on classified information, and from the Penal Code, can only assess this fact as
superfluum relying on interpretation
maxims superfluum night nocet it (see judgment No. Pl. ÚS 6/02).

If it has been hypothesized original intentions of Deputies
amendment to the law on classified information, made by the Act. no. 310/2002 Coll., introducing
security clearances defense lawyers in criminal proceedings, from the perspective of
second possible interpretation of complex ordinary law relevant
intention of the legislator was not adequately expressed, ie. there was a contradiction between the intentions || | legislator and the wording of the statutory provision.

According to the second interpretation of the protection of classified information in criminal proceedings
around the circle of the issue of protection of classified information
is a special area and therefore the regime is governed by the Criminal Code
and not by the law on classified information, ergo the Criminal Procedure Code
in the context of lex specialis and its treatment before the law has a
classified information, such as general law - legi generali -
priority. The conclusion is caused not only by comparing the subject matter of both
laws, but also other arguments:

Relating the law on classified information in the specific issue
reductionism ad absurdum argument leads to a barely sustainable
consequences.

The position of defense counsel in criminal proceedings, ie. Especially his procedural
authorization depends on the position (rights) of the accused.
Eventual anchoring exceptions lawyers leaves open the fundamental question of the accused
access to classified information, which are included
evidence in criminal proceedings. Limitations of such an approach
terms of Art. 37 par. 3 and Art. 38 par. 2 of the Charter, as well as Art. 6 Sec. 3
point. c) of the Convention is difficult to imagine. Similarly, it is hardly conceivable
"scans" accused the National Security Agency to permit
his access to classified information (hyperbolic
example cavorting those consequences would be absurd idea
security clearances accused for offenses under § 105 and § 106 of the Criminal
. Code.). This interpretation would lead also further
absurd result: Led would have to be a situation where an attorney in criminal proceedings
would need to familiarize yourself with the means of proof
containing classified information requiring security graduation
review, in civil proceedings, or in administrative proceedings
same attorney in the position of representative of a party but would
completion of this review for familiarization with identical evidence
identical formulation containing classified information were not required
.

At this point must refer to the fact that the Constitutional Court in a number of its decisions
(II. ÚS 315/2001, II. ÚS 326/98, Pl. ÚS 2/99, II. CC 221
/ 98) progressed interpretation per reductione ad absurdum, which represents
form of purposive interpretation (teleological reduction) in the case

Plurality of interpretive alternatives according to him, excluded those leading
from the perspective of the meaning and purpose of the standards to unacceptable consequences.

Another argument is a conclusion stemming from the objective teleological interpretation
ie. The principal differences of roles, which according to the Law on Advocacy and
according to process orders filled Advocate may, if its content on one side
be authorized attorney to manage foreign assets, including the exercise of the function
bankruptcy trustee, on the other hand, it may be legal
representation of parties, usually in civil proceedings,
criminal proceedings or in administrative court proceedings.
In this context, reference should be made to the amendment of the Act amending the Act. no. 85/1996 Coll., on
Advocacy, as amended, and Act. no. 6/2002 Coll., on Courts and Judges
(which was adopted on May 9, 2002 and published under
no. 228/2002 Coll.). The provisions of § 56 of this Act, the amended Act on
advocacy grounded in fact authorized the lawyer to manage foreign assets
including acting as trustee in bankruptcy when
about the facts he has learned in connection with the duties of administrator
bankruptcy has set for him exemption from the obligation of confidentiality
according to § 21 of the legal Profession Act, while preserving the confidentiality obligation
trustee in bankruptcy under the provisions of special legislation.
Authorization to manage foreign assets, including authorization to exercise the function
bankruptcy trustee is higher in relation to the nature of the assets managed
associated with the eventual necessity to classified
facts.

Based on these suggested teleological modulation can reach
conclusion, according to which, precisely with regard to § 56 of the
Legal Profession Act, as amended. no. 228/2002 Coll., attorney pursuant to § 42 para. 1 of the Act.
No. 148/1998 Coll., As amended, for familiarization with
classified information subject to security screening, unless
special law. According to this law referring norm contained in §
38 par. 7 of the Law on Classified Information the Civil Procedure Code and the Administrative Procedure Code
. Moreover, special, since the Law on Classified
facts differing conditions acquainted with classified facts
lawyer, who performs the role of defense counsel in criminal proceedings
are enshrined in the Criminal Procedure Code (especially § 35 para. 4 and § 198a of the Criminal Code.
order): "arises when the conflict between the general and the specific rule can be
believe that the legislature through a special law wanted to deviate
general rule." (Ch. Perelman, Logique Juridique.
Paris 1976; cit. According to the German translation: Juristische Logik als
Argumentationslehre. Freiburg-München 1979, p. 65). The actual link
standard while special priority to the generality does not constitute, merely fulfills the function
information (in this context, it must also be pointed
fact that despite the wording chosen by the legislature is not the case
§ 38 par. 7 Act. no. 148/1998 Coll., as amended, by
delegation, but the terms of reference - delegation is conceptually linked to the hierarchy of legal force
norms and standards enabling delegated). The absence of standards
referring to § 38 para. 7 of the Act. no. 148/1998 Coll., as amended
, the special rules of criminal procedure
therefore prefer a contrario general changes in the Law on Classified
facts before special treatment approach lawyer in the role of advocate || | criminal proceedings to classified information contained in the criminal procedure Code,
can not be derived.

Conclusions drawn from objective teleological interpretation and the interpretation per
reductionem ad absurdum argument is also supported, which is based on the maxim
internal consistency of the legal system (in other words
based on the axioms of rational legislator -
current when applying a purposive interpretation of the theoretical concept of "rational legislator"
based eg., the Constitutional court of the Republic of Poland - see A. Kozak, types
wykladni prawa w uchwalach Trybunał Konstytucyjnego. in: from zagadnieň
wykladni prawa. Ed. S. Kaźmierczyk, Wroclaw 1997, p. 57-60). Edited
If a legislator in the Law on Classified Information
obligation of lawyers in familiarizing themselves with classified information
in the role of defense lawyers in criminal proceedings to undergo a security clearance, he would then
consistently consequences of this adjustment reflected in specific facts

Founding principle reason for excluding the chosen defense counsel pursuant to § 37a of the Criminal Code.
Order and waiver appointed defense counsel defending pursuant to § 40a of the Criminal Code. Regulations.
Did not do so, you can only deduce unfulfilled implied premise.

I level methodology for the interpretation of ordinary law, namely proceeding
especially from reductionism ad absurdum argument and maxims
internal consistency of the legal system, it can be concluded about the merits of the second
interpretation of the suggested alternatives § 38 par. 7
and § 42 para. 1 of the Act. no. 148/1998 Coll., as amended.
That conclusion is supported by the doctrinal opinion according to which for
crucial aspect tertium comparationis, in cases of conflict between
interpretations are drafted by various methods, considered
teleological reduction (ie interpretation per reductione ad absurdum ): "argues
reductione ad absurdum is used either alone or when frolics if
interpretation by several other arguments contradictory (inconsistent)
conclusions." (V. Knapp, Theory of Law. Prague 1995, p. 173. Argumentum ad absurdum
, or teleological reduction, then called Neil MacCormick
"golden rule" of interpretation: N. MacCormick, Argumentation and Interpretation in
Law. Ratio Juris, No. 1, 1993, p. 26).

For the reconstruction thus interpreted the relevant applicable law
simple conclusion, according to which the lawyer acquaintance with classified
facts in the role of defense counsel in criminal proceedings is regulated by the Criminal Procedure
and not by the law on classified information and, therefore,
according to current legislation Czech legal order for the purpose, ie. for familiarizing
defense in criminal proceedings with classified information,
does not require a security clearance, the National security Agency.

VIII / b

Assessment constitutional

Constitutional collision interpretive assessment of alternatives relevant
simple law is based partly on the application of the principle of proportionality and, secondly
principle priority
constitutional interpretation over derogation.

Based on the fact that the position of defense counsel in criminal proceedings
derived from the accused, the core of the adjudicated matter in the plane
constitutional collision is a public good (for the concept of a public good
see Decision Ref. Nos. Pl . US 15/96), which is the security of the state as an element of its sovereignty
(Art. 1 of the Constitution), the component is also providing protection
classified information is a fundamental right of the accused to a fair hearing under Article
. 40 paragraph. 3 of the Charter and Art. 6 Sec. 3 point. c) of the Convention, its basic
right to respond to any evidence in the proceedings conducted pursuant to Art. 38
paragraph. 2 of the Charter, as well as his fundamental right arising from the principle of equality
"weapons" under Art. 37 par. 3 of the Charter.

Similarly, as in all democratic constitutional courts, the Constitutional Court of the Czech Republic
for resolving a conflict between fundamental rights or constitutional
protected public goods, in control proceedings
standards in management on constitutional complaints, applies the principle of proportionality
(it first comprehensively analyzed when assessing
constitutionality of the confidentiality of personal data of witnesses in a criminal trial -
Pl. ÚS 4/94).

The principle of proportionality is based on three steps:

The first is the evaluation of simple law in terms of suitability, which
evaluating the selected normative measure in terms
possible fulfillment of the aim pursued. Unless the normative measure
capable of achieving the objective pursued, it is the legislature of
manifestation of arbitrariness, which is considered inconsistent with the principle of the rule of law
.

The second step is the application of the principle of proportionality assessment
simple law aspect of necessity, which involves an analysis of pluralism
possible normative means in relation to the intended purpose and their
subsidiarity in terms of restricting constitutionally protected values ​​- basic
right or public good. If it can be pursued by the legislature purpose
attained by alternative normative measures, then
constitutionally consistent one, which limits the constitutionally protected value to the smallest extent
.

If you watch evaluated simple law on the one hand, the protection of certain
constitutionally protected values, on the other hand, restricts another third
aspect of the principle of proportionality, balancing, is
methodology for weighing these conflicting constitutional values.


To draw a conclusion in the case of conflict of fundamental rights or
public good, as principles, unlike the case of conflict of norms
simple law, the Constitutional Court guided by the optimization, ie.
Postulate of minimizing restrictions fundamental rights and freedoms, if necessary.
Public good. Its content is the maxim that, if it is concluded
merits priority to one of two conflicting fundamental rights
respectively. public goods is a necessary condition for the final decision
also use all possibilities to minimize interference in one of them
. The optimization can be normatively derived from Art. 4
paragraph. 4 Charter, under which the fundamental rights and freedoms must be preserved
when applying provisions on limits of fundamental rights and freedoms, thus
analogy also if they are limited as a result of their mutual
collision.

Based on these aspects of constitutional evaluation
given issue, it must say that from the perspective of the postulate of suitability, ie.
Relationship between the legal means and objectives of the legislature
passing security screening is an efficient attorneys || | means of achieving the objective - a public good. From the perspective of subsidiarity
possible alternative instruments which ensure that
purpose, ie. In terms of the criterion of necessity, but it can be concluded that
security clearance is not a proportionate means, as the purpose can be
in criminal proceedings reach a sum of partial instruments (
lesson by a court on the responsibilities arising from the Law on classified
facts and criminal sanctions, as well as the obligations of confidentiality under
Legal Profession Act, etc.), which while not touching and no limitations in
given context in conflict with the public good (state security)
standing fundamental right to defense, equality of arms and the right to comment on all the evidence
. The regulations contained in the Criminal Code not only guarantees the protection of fundamental rights
pursuant to Art. 37 par. 3, Art. 38 par. 2, Art. 40 paragraph. 3
Charter and Art. 6 Sec. 3 point. c) of the Convention, but also the number of its norms
well as a number of other related norms of ordinary law satisfies the requirement to minimize restrictions
protection in the case in the collisions standing
public good (concerning national security protection of classified facts
), and that respects the constitutional order optimization.

In this context, the arrangements contained in the Criminal Procedure Code considered as a
harmony with the consequences that follow from the interpretation of Art. 6, paragraph. 3 point. c)
Convention by the European Court of Human Rights. According to the legal opinion of the Court in the case
Meftah and others against France, 2002: "The Court recalls that the right of the accused to
assistance of a lawyer of their choice (see Pakelli
against Germany, 1983) can not have an absolute character, and that it therefore
national courts may disregard if there
relevant and sufficient reasons to believe that the interests of justice so require (see
Croissant against Germany, 1992). " The interpretation of the term "relevant and sufficient reasons
interests of justice required that lead to restrictions
absolute nature of defendant's right to choose his own lawyer"
in the context of the case decided by the Constitutional Court to close the European Court of Human Rights
Chazal expressed in the case against the United Kingdom in 1996, and
Tunelky and others against the United Kingdom admits 1998. If
English law in certain types of proceedings appointment of a special advocate,
who has access to classified information relating to
national security in relation to the Mandator but is bound by a duty of confidentiality
, found the European court of human rights in this circumstance
concerned Article. 6 Sec. 1 of the Convention. According to the doctrinal interpretation of these decisions
"But it does not seem that special lawyer could be appointed
a lawyer registered in a special list or lawyer separately from proven
státobezpečnostního terms" (B. Repík, Attorney in light || | European court of human rights. part I, advocacy
Bulletin, no. 10, 2002, p. 19).

Leads if the order to optimize achieve two conflicting constitutional order
guaranteed values ​​for a finding of constitutional unacceptability
security clearances lawyers for the purpose of admissibility
acquainted with classified information in the role of defense lawyers in criminal proceedings
while on the acceptability of those conditions, acquaintance with defense attorneys classified

Realities enshrined in the Criminal Code and to restrict
fundamental rights of defense, equality of arms and the right to comment on all the evidence
for evaluating the constitutionality of § 42 para. 1 of the Act. no. 148/1998 Coll
., this follows from the need to apply the principle of priority
constitutionally conforming interpretation over derogation. The Constitutional Court on this principle
volunteered in a number of its decisions. He first did so in judgment Pl.
US 48/95, in which he stated that in a situation where certain provisions
legal regulation permits two different interpretations, one is in accordance with
constitutional order and the other is inconsistent with it, not given
reason to repeal this provision; while its application is the task of the courts to interpret the provisions
constitutional manner.
Priority principle constitutionally conforming interpretation applied before repeal the Constitutional Court in a number of other
decision in proceedings to review norms (eg. Pl. US 5/96; Pl.
US 19/98, Pl. US 15 / 98; Pl. US 4/99; Pl. US 10/99, Pl. US 17/99).

Forgoing conclusions about optimal solutions collision constitutional
guaranteed values ​​based content and purpose of the investigation
simple law, coupled with a priority
constitutionally consistent interpretation of the Act before the repeal of the constitutional arguments reviews the constitutionality of §
42 para. 1 of the Act. no. 148/1998 Coll., as amended
regulations, which fully correspond to the conclusions arising from the interpretation methodology
simple law, based teleological reduction, interpretation
objectively teleological and systematic interpretation, which is a component
and the rule of lex specialis derogat legi generali. For, the Constitutional Court denied the petition
District Court in Přerov to annul § 42 para. 1
Act. no. 148/1998 Coll., on protection of classified facts and change
certain laws, as amended, rejected.

Constitutional Court in a number of its decisions ruled on the interpretation of Art. 89
paragraph. 2 of the Constitution, in the latest its case especially, in its judgment in the case
Pl. US 03/02, under which "is not only binding verdict finding but also
justification, resp. Those parts which contain 'carrier' reasons' (and similarly
judgment file. Ref. III. US 200/2000). In these conclusions, the Constitutional Court also
continues.

Specific situation arises in this connection with the findings in proceedings
control standards, which the Constitutional Court for the annulment of the law, other legislation
respectively. individual provisions, rejected
taking its decision based on the principle of giving priority
constitutionally conforming interpretation before the repeal of the law, other legislation or
provision according to which in a situation where a legal provision
regulation allows two different interpretations, one being
in accordance with the Constitution and the other is inconsistent with them, there is no reason
repeal this provision; in the application of the Act in another
legislation, if necessary. their provisions is the responsibility of the public
authorities, especially the courts, to interpret the provisions of the Constitution
consistent manner (Pl. US 48/95 and others). Different interpretation of Art. 89 para. 2 of the Constitution would
u findings, rejecting proposals to repeal legislation
reasons priority to a constitutional interpretation made decisions
Constitutional Court legally meaningless, or even misleading, and would force | || while the Constitutional court procedure, which appears in its consequences
absurd and untenable: not relying on the possibility
constitutionally consistent interpretation abandon the principle of judicial self restraint and in the case
slightest possibility constitutionally contradictory interpretations of the contested provision | || cancel it. For those in the norm control proceedings in the case of adoption
negative opinion with interpretative reasoning, the Constitutional Court set
supporting reasons stemming fundamental constitutional principle included within the scope
operative part of the judgment.
Chairman of the Constitutional Court


JUDr. Own hand

Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, was delivered to the plenary decision Judge JUDr.
Vojen Güttler.