220/2005 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 26 April. April 2005 in plenary in the composition of JUDr.
Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.
Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří
Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Výborný, JUDr. Eliška
Wagner (Judge-Rapporteur) and JUDr. Michael April on the proposal
Regional Court in Brno on the repeal of section 77k paragraph. 6 of Act No. 148/1998 Coll.,
on the protection of classified information and on the amendment to certain acts, as amended by
amended,
as follows:
Paragraph 77k paragraph. 6 of Act No. 148/1998 Coll., on the protection of classified
facts and amending certain laws, as amended,
cancelled date of publication of this finding in the statute book.
Justification
I. recap of the proposal and its admissibility
The proposal, which was delivered to the Constitutional Court the day he asked 19.2.2004
Regional Court in Brno in article 42(2). 95 para. 2 of the Constitution of the United
Republic (hereinafter referred to as "the Constitution") repealing paragraph 77k paragraph. 6 of law No.
148/1998 Coll., on the protection of classified information and on amendments to certain
laws, as amended (hereinafter "the ZOUS"), because when deciding things
claim Ing. P. p. against the College in the field of the protection of classified
the facts when the Supreme Public Prosecutor's Office (hereinafter referred to as "the College"),
conducted under the SP. zn. 36 Ca 9/2003, came to the conclusion that the
the provision is in conflict with the constitutional order of the Czech Republic. On this
the design of a regional court remained, even though in the meantime (since the release of action
of the contested decision), part of the repealed Act on the State
the Prosecutor's Office, dictating the proficiency assessment
prosecutors (part nine of Act No. 283/1993 Coll., on the State
the Prosecutor's Office, in the then-as amended), the existence of which was first
the reason for the request for the initiation of the procedure pursuant to § 64 para. 3 of Act No.
182/1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as
"the law on the Constitutional Court"). Now, according to the regional court it cannot be argued that the
evaluation of the competence of the public prosecutor may have an effect on its
career advancement, however, there are reasons for more (referred to in
the original proposal). In addition, the College has decided the matter for
the original legislative terms.
The Constitutional Court first noted that the petition was filed by authorized
entity in accordance with § 64 para. 3 of the law on the Constitutional Court and the
This is a proposal for admissible (section 66 of the Act on the Constitutional Court per
eliminationem).
The essence of the proposal of the regional court are his doubts about the College
as an independent and impartial tribunal with lead
a fair trial within the meaning of article 87(1). 6 (1). 1 to the Convention for the protection of human
rights and fundamental freedoms ("the Convention") and the article. paragraph 36. 2 of the Charter of
fundamental rights and freedoms ("the Charter"). The College shall decide on
appeal against a decision of the Director of the national security
Authority (hereinafter "NSA") and Minister of the Interior, the Director of intelligence
services or police President (section 77a of the ZOUS), decision on complaint
the safety of people against refusing (termination of validity)
certificate or certificate (section 75 and section 76 and paragraph 1, 2 and 5 of the ZOUS) about
the fulfilment of the conditions allowing the review of classified information
the level of classification. The possibility of reviewing the above decisions
an independent body originally legislation at all she was. It was only after
the intervention of the Constitutional Court was their first explicit judicial
lockout [as to the finding of the long SP. zn. PL. ÚS 11/2000,
published in the collection of the findings and resolutions of the Constitutional Court (hereinafter referred to as
"The decision"), vol. 23, p. 105; promulgated under no. 327/2001
SB.; in electronic form at URwww.judikatura.cz]. It was subsequently adopted
Amendment of the ZOUS laws no 151/2002 Coll., amending certain laws in the
the adoption of the code of civil procedure of the administrative, and no 310/2002 Coll.
amending Act No 148/1998 Coll., on the protection of classified information
and amending certain laws, as amended, law No.
101/2000 Coll., on the protection of personal data and on amendments to certain laws, as
as amended, Act No. 18/1997 Coll. on peaceful uses of
of nuclear energy and ionizing radiation (the Atomic Act) and on the amendment and
to certain laws, as amended, law No.
38/1994 Col., on foreign trade with military material and
Act No. 455/1991 Coll., on trades (Trade Act),
in the wording of later regulations, and Act No. 140/1961 Coll., the criminal code,
as amended, Act No. 283/1993 Coll., on the State
the Prosecutor's Office, in the wording of later regulations, and Act No. 42/1992 Coll., on the
modify the property relations and the settlement of property claims in cooperatives,
as amended, which was based on the one the right
to challenge a decision refusing the issue of a certificate by an action (article 73, paragraph 2, ZOUS)
on the other hand, then this decision (along with other decisions of the
referred to above) to challenge whether or not the remedy to a formation (section 77a-
§ 77k ZOUS). Pursuant to section 77k paragraph. 6 then the final decision of the College ZOUS
is not subject to judicial review. These legislative interventions was very
cluttering the situation, in particular as regards the possibility of an independent
review of the decision refusing the issue of a certificate (article 75, paragraph 5, ZOUS) that can be
You may challenge the claim in the administrative judiciary (article 73, paragraph 2,
ZOUS) and appeal to the College (section 77a of the Act);
all decisions of the College (including therefore the decision on correction
against the next decision, as described above)
explicitly are not subject to judicial review (section 6 of the cited 77k
of the Act). Moreover, according to the regional court, the situation is complicated by the lack of clarity in the
the question of whether you can sue to challenge a final administrative decision issued by the
under section 75 para. 1 and 5 of the Act on protection of classified information,
because only this individual administrative act issued in the matter of the release
the certificate may be considered the decision-a decision refusing the
the certificate is issued.
The Regional Court drew attention to the judgment of the European Court of human rights
(hereinafter "ECHR") on the Incal against Turkey, where they were in the case of
military judges acknowledged doubts about their independence, regardless of
on the legislative prohibitions on interfering with their powers. Doubts
cover also the four-year renewable mandate. A regional court in conclusion
the proposal drew attention to the amount of the judgment of the Constitutional Court, in which the
finding the need to enable the realization of adequate guarantees for the protection of
the Court (or another independent and impartial tribunal), even though, according to
the nature of the case and taking into account the nature of the function was
protection of highly specific and differentiated.
Proceedings of the design was submitted by resolution of the plenum of the Constitutional Court of the
23.3.2004 discontinued due to the lack of the cast of the Constitutional Court.
Obstacle to the hearing on 6 June 1999 dismissing the proposal, President
the Republic was named the twelfth constitutional court judge. The Constitutional Court on the date of
22.6.2004 continue the proceedings and the judge-rapporteur has requested, in accordance with
the provisions of § 42 para. 4 and § 69 para. 1 of the law on the Constitutional Court, in
as amended, the expression of both houses of the Czech Parliament
Republic and the representation of the person whose rights were without prejudice to the application
provision whose annulment is sought.
II. recapitulation of the representation
The Chamber of deputies of the Parliament and the United States, represented by the President of the
PhDr. Lubomír Zaorálkem, in its observations dated July 26, 2004 stated,
that the appellant's arguments cannot put right. In the first place on the
consider whether the claimant acted in accordance with art. 95 para. 2 of the Constitution,
According to which it can be exercised only if the General Court
the conclusion that a law that is to be applied, is in conflict with the constitutional
policy. The concept of constitutional order is exhaustively defined in the Constitution and
the international treaty does not include. The appellant, however, has repeatedly requested
assessment of the question whether the College meets the requirements laid down by the Convention. Without
regardless of the foregoing circumstances, the Chamber of Deputies, however, disagrees with the
In conclusion, the applicant, according to which the College is not impartial and independent
the Tribunal, as it has in mind article. 6 of the Convention. The case-law of the ECTHR in accordance with
The Chamber of Deputies shall be assessed the independence of a tribunal according to the
individual circumstances and any conclusions cannot be paušalizovat, which has
i certify the complainant referred the case against Turkey Incal, when
the judges narrowly went to the conclusion about the lack of independence
Court composed of active military officers, which was judged by deeds
committed by civilians. The Chamber of Deputies stated that there is no reason
questioning the subjective independence of the members of the College, with the College
meets the objective criteria of independence.
Even if it wasn't from the law on the Prosecutor's Office released the so-called.
assessment of professional competence, it would not be possible from the mechanism of the implementation
reviews should be inferred conclusion about the violation of the independence of the College. Performance of the tasks
Member of the College could not be the subject of an assessment of professional competence.
The legal wording, according to which a member of the College considers it
the performance of the functions of the public prosecutor, be regarded as a legal
guarantee recognition of the activities carried out by the public prosecutor in the College ... If
This formulation was not, he would be forced to perform the functions of the Prosecutor
Member of the College in your spare time ". The Chamber of deputies also pointed out
on the absence of a business to which a member of the College in relation to
the Supreme Public Prosecutor (in particular, Section 7a para. 4 of the Act on the State
the Prosecutor's Office). The criteria of independence of the Tribunal formulated the ECTHR cannot be
apply mechanically. The very fact of appointment by the Executive
the authority cannot be considered a threat to the independence and impartiality of the Court.
Ultimately, the selection and appointment of judges and ensure they carry out Executive
authorities.
It is true that the term of Office of the members of the College shall be two years, which would
It could be interpreted as an existential character and decision-making based his
members. In the specific case of the members of the College, it is not. His
Members, as representatives of the State acting in the Supreme State
the Prosecutor's Office, are the persons enjoying the general esteem,
stable employment neodvislým from their duties in the College. The performance of the
the function does not add any material benefits or other benefit. The Member is not
materially motivated, that he remained in his post, and on the contrary, membership
means an additional workload and restrict the ability to pursue normal
agenda. If a member of the College shall exercise his functions, "it does so only from
a sense of responsibility for the fulfilment of the law on the protection of classified
of the facts ". The Chamber of Deputies stressed that fundamentally rejects the
the idea that the Executive branch could be from Parties in individual cases
pressure on the members of the College to decide cases in a particular way.
There is no way to develop an effective pressure on Member of the College to
in a certain way the decider. The eventual non-renewal of the term of Office
a member of the no harm, by contrast, is rather relieved the workload.
Membership in the College is more of a moral choice than an act that would improve
career or material status. You cannot reasonably believe that should
a member of the College was to influence the performance of his duties or
podvoloval any coercion. Therefore, you cannot talk about objectively
justified doubts about the independence of the College, as required
the case-law of the ECTHR.
At the conclusion of his observations of the President of the Chamber of Deputies added that valid
the legislation is marked by a feature of temporariness, when the very existence of
The College is dependent on the decisions of individual prosecutors to
become members of, respectively, remained in the College, which is forced. In
the time of the adoption of the adjustment will be expected to pay permanently. Law
should cease to be valid the date 31.12.2003 and at present is the validity of
extended until the day of 30.6.2005. Provisional adjustment has been dealing with a situation that
occurred after the adoption of the award pl. TC 11/2000, when it was supposed to be after the cancellation of part of the
ZOUS provided government sufficient time for the preparation of a completely new
law of protection of classified information and procedure security
scans. And therefore, it was a two-year term of Office of the members of the College.
Despite the possible material shortcomings of the Chamber of Deputies does not share the view,
that the adjustment position of the College and of the proceedings before him, is not in accordance with the constitutional
policy, or with an article. 6 of the Convention.
(B). The Senate of the Czech Parliament, represented by its Chairman doc. JUDr.
Petr Pithart, in its observations dated 30.7.2004 stated that in
Chamber, who was well acquainted with the Constitutional Court, SP. zn. PL.
TC 11/2000, eventually offset the view that the proposal for the establishment of the appellate
the resource to the College is legally sufficient and efficient solution to collision
interest on security and guarantees of a fair trial. Some doubts
about the suitability of this dispersed solution advocates of either the opinion
pointing to the limited validity of the law, saying that in the period of the year and
half will be able to be improved or replaced, the maintenance of the construction
another. The Bill was returned to the Chamber of deputies of the Senate
for other reasons.
On the edge of the Senate noted that the rate of assessment criteria of independence and
the impartiality of the Tribunal (the Tribunal) set theory of constitutional law and
the case-law of the ECtHR and the Constitutional Court considered the Foundation of independence
the courts of the democratic environment, distribution of power and the necessary existential
(material) security of judges. Independence of judges is guaranteed
their exclusive appointment without a major influence of the Government and legislation
(in the Czech Republic by the President of the Republic), time to many years of
(unlimited) mandate of the judge, guaranteeing resilience options
to receive instructions for the exercise of judicial functions (nonrepudiation,
nepřeložitelnost, etc.). The impartiality of the judges is then associated with the
exclusion bias (people and things), the incompatibility of the function of the judge
with other functions and other gainful activities and with the guarantees to the exclusion of
all legitimate doubt about the neutrality. In the subjective plane
impartiality is required credibility and autonomous decision making
(the promise the judge agrees to decide according to their "conscience").
From the outside, the impartiality of its challenges to the ban provides (eg.
the prohibition of sending petitions to the courts). When matching the given criteria with
by modifying the security requirements of independence and impartiality of the College and
the status of the public prosecutor, Supreme Public Prosecutor's Office as a Member
The College has not been found to be quantitatively significant differences by the Senate.
Some qualitative lack of independence of the College is based on the Senate
appointment in the scope of Government and of the framework integration into the relations of the State
the Prosecutor's Office, and thus the Executive Branch, "Although in other relevant links
This requirement may be somewhat understated. "
The Senate said that, according to the case-law of the Constitutional Court includes the Charter
some basic rights, which are by their nature social values
the charging function rather just ideally typical categories representing
destination imagination. The right to free the profession belongs to these rights.
While the right to a safe life and health are fundamental rights without
further, the right to free choice of profession, it is assumed
It is pursued by the law. From this perspective, the Senate appears to be restricting access
the general courts in matters of security screening constitutionally conformal,
If it can be protected by higher ad valorem law. The properties of the
the Materia are not compatible with the normal judicial practice. Safety
verification is not always based on the uncontested evidence, there is often a
the basis of the very loose reasoning according to the rules "in case of doubt, to the detriment
relationships ". Review of the decision to exclude rude
subjectivism or zlovůli "in essence of decision." Classified
the facts discussed in the review must be effectively protected.
The Senate has warned that if the ECHR subject to the infringement of article 81(1). 6 (1). 1 of the Convention in
requirements on the independence and impartiality of the Court, it was, in principle, always
on the criminal courts or authorities that apply the criminal law (cf. Incal
against Turkey, the Findlay v United Kingdom). Review of decisions
refusing the issue of a certificate to work with classified information is not in the
a comparable position.
C. to express was invited and Ing. P. p., whose rights have been affected
the application of the contested provisions and the thing defined and specific subject
proceedings before the Constitutional Court. Ing. P. p. in its statement said that for
the exercise of their profession as a soldier had to have security clearance (II).
the degree to which it could not, his commitment has not been extended and when
the inability to get a seat corresponding to his qualifications was at the date of
at 31 December 2003 removed from service in the army of the Czech Republic.
D. without prompting, or on the basis of activity of the Chamber of Deputies posted by
The Constitutional Court representation and the Director of the National Security Office Mgr.
J. m., Constitutional Court is out of control in case SP. zn. PL. ÚS 41/02 unknown
the Government of the Czech Republic in the field of legislative process templates
classified information is inserted into the hands of the NSA (see e.g. the proposal for a new
legal provisions, sent to the Constitutional Court in case SP. zn. PL. ÚS 41/02
or the resolution of the Government No. 88 of 2003 No. 618/2003-NSA/80 or
No. 293 of 31.3.2004, see document portal-www.vlada.cz
comment procedures therefore have opinions NBU vital). In the light of
these circumstances, the Constitutional Court considered relevant to deal with and
This unwanted representation. The Director of the NSA in particular stated that
the appellant mistakenly considers the College for administrative authority. The College is
by a body independent and judicial review of its decision is therefore appears to
superfluous. This authority in itself as far as possible include both
independence from the powerful administrative apparatus (that is, whether the NSA,
the Director or the intelligence service), the independence of the
other organs of the State, where it is necessary to include the highest State
the Prosecutor's Office ("GAP"). The only guaranteed objectivity
decision-making and does not occur that would be classified information
She could meet the person that decides, or his legal representative.
Protection of classified information is exported in relation to procedural
position of the person, which will be decided. The negation of "the principle of confidentiality" can
be participating in fact presented to the person to discern. May occur as the
the disruption of international cooperation in the field of intelligence and
investigative bodies, as well as in theory to a direct threat to life for example.
intelligence agents, witnesses, etc. This is in contradiction with the international
commitments of the Czech Republic. "The standard of judicial proceedings in matters of
security screening including unlimited taking of evidence threatens to
a serious compromise of classified information. In theory, it would be even
possible that the lawsuit was guided by certain persons purely for the purpose of
uncover the classified information legally. "
In the next part of the observations of the Director of the NSA said the similar arguments put forward in the
proceedings of the award SP. zn. PL. ÚS 11/2000, that ended with the abolition of
the ban on judicial review of decisions in matters of security
scans. Ruling on the release or refusing the issue of a certificate does not
According to the NSA for any intervention in the field of fundamental rights. Indeed, neither
The Constitutional Court apparently concluded that such decision making directly
it violated the right to free choice of profession. The certificates as positive
the result of the security screening is nothing more than proof of certain
specific qualifications. To have access to classified information is not a legal
claim, the holder of the certificate may be, again only in cases where it is
the reason indicated for access to classified information. Only the State to determine the
What is and is not classified facts, and "it should be therefore only
State (i.e. State Administration), which allows for such facts
access. ". Only the State should assess the suitability of the person may be
given this approach. The College is a kind of builds by State
Administration and informs the Court's position entirely. The NSA also stated that
collision of plane of national security and human rights are part of the plane
(sic) dealt with the Constitutional Court in its finding, SP. zn. PL. ÚS 11/2000, where
He admitted that a very clear security interest of the State may be
a legitimate justification for a certain degree of interference with the rights of the individual.
The Constitutional Court, however, according to the NBU this conflict only very lightly touched,
rather it only noted, did not give him yet a deeper theoretical
analysis. The NSA believes that the College clash. On the contrary to judicial review
raises the fundamental objection, because according to § 45 para. 5 Act No. 150/2002
Coll., the administrative court rules, as amended, (hereinafter also "with the row with.")
disclosure of classified information to the person by the State is not considered
acceptable to get familiar with the classified facts (article 45, paragraph 5, s.
r. s.: "The parts of the file ... which ... will not be excluded from public inspection, may
inspect the only participant and of his representative, where appropriate, the person who is
the certificate proves for the classification level of the present
the facts "; § 45 para. 4. r. s.: "it cannot be excluded from inspection of parts
the file ... which has been or will be carried out in evidence by the Court. Of inspection cannot be
Furthermore, excluded or those parts of the file to which the participant had the right to inspect
in the proceedings before the administrative authority. "). This situation prevents § 36 odst. 8 ZOUS
("They are some of the reasons for refusing or withdrawing certificates classified
facts, the announcement only a reference to supporting documents, from which
The Office was coming. "). Classification is according to the NBU in this case is legitimate.
Legislation relating to the vetting of individuals is in the EU and
NATO is entrusted exclusively to national adaptations. Still, the NSA said that a full
judicial review is not common. Even where there is the highest examination authority
the Court is not allowed to the person concerned or his representative, to familiarize themselves
with the results of the investigation, which has been the basis for refusing the permission, or
even for the decision on the termination of privileges. In France, the Court
become familiar with the classified information. If the basis of the decision,
only with no additional State. In Denmark, the Ministry shall examine the matter
Justice and the person is given the opportunity to get acquainted with sensitive
facts. The court action is not admissible. In the Dutch dvojinstančním
court proceedings are the procedural rights of persons investigated significantly limited. To
classified or sensitive information has access exclusively to the judge. Slovak
the adjustment has established judicial review (as previously in the Czech
the head of the Fifth Republic by the code of civil procedure) without the full
jurisdiction and without any assessment of the merits. Assesses only the lawfulness of the
procedure without the Court familiar with classified information.
Adjustment limits the procedural rights of Lithuania as well as an adjustment to the Dutch.
In Turkey and Spain does not have the opportunity to intervene cleared person
in the course of examination, does not have the ability to learn the reasons for the decision "and
of course it does not have the possibility of applying any objection or appeal
resource ". A similar trend is now applicable in Italy. These countries are
bound by the Convention and, even in these countries the provisions are similar to the article. paragraph 36.
2 of the Charter. In these countries it was accepted that the relevant legislation
do not conflict with the right to a fair trial guaranteed by the Convention.
The NSA said that although it is impossible to obtain a comprehensive international comparison
the fabric, but the principle outlined in the abovementioned finding of the Constitutional Court
Therefore, the limitation of the procedural rights of individuals with (allegedly) a clear priority
protection of classified information, is generally considered to be in Europe
legitimate. There is a different approach to the subject matter. The development of the Western
democracy historically did not bring a fundamental distrust in Government
Administration, respectively. in the activities of the security forces, or the citizens in
due to the different perception of the correctness of the official decision of the show
distrust in such an important area, which is to ensure safety, which
shows the number of appeals. In the United Kingdom, France or
Belgium goes several submissions per year statistically (up to ten), in Czech
Republic only last year was about one hundred. In conclusion, the NSA said that the provisions of the
§ 77k para. 6 of the Act deems it concurrent with the constitutional order and the
international treaties by which the Czech Republic is bound.
The Constitutional Court, the Director of the NSA asked (1) whether there have been cases already,
When in the same case, the College decided to appeal (§ 77a-
77k ZOUS) otherwise than on the application before the Court pursuant to § 73 para. 2
ZOUS, and (2) in the event that already happened, how the NSA also progressed,
or that accepted the decision. The first question was answered that
so has happened in one case where a court decision to annul,
While the College Appeal rejected. In the other four
cases, the Court dismissed the action. However, the NSA also protested against the fact that
the Court "disregarded the obstacle became" since the College
be considered impartial and independent authority of the type. In the case of
different decision said the NSA knows that it has to respect. On the other
the question, the answer to the NBU could not, because the decision which established the
the disparity, he still has not arrived. Pointed out, however, that the decision
The College is explicitly bound by law (section 77j (1) ZOUS). Without additional
the argument also pointed out that the annulment of the contested provisions opens
the path to the damage to the interests of the Czech Republic in the field of Cryptography. In conclusion, the
clarifying the procedural issues of the safety of the interview from which the
prepared by the Protocol. Investigated person. and his successor
representatives are informed of the reasons for the refusal of the screening. The NSA said it is in the
principle no matter what authority will review the decision, but must
be prevented from the cleared person or its representative met
classified facts, and it is desirable that the management was carried out in fixed
the time limit. He noted also that the smaller number of persons when
review of learn the file material, this is less of a risk disclosure
and thus are less the cost of secrecy.
The Constitutional Court requested the parties to consent to the abandonment of the oral
negotiations (article 44, paragraph 2, of the law on the Constitutional Court), since from the oral
the negotiations could not be expect to receive further clarification of the matter. Then it was possible to
to proceed to the hearing of the case meritornímu.
III. The constitutionality of the legislative procedure and the legislative history
the Bill under consideration
Before the Constitutional Court to assess the content of the contested
provisions of the law from the perspectives of its compliance with the constitutional laws, had to
pursuant to § 68 para. 2 in fine of the law on the Constitutional Court to deal with the fulfilment of
the adoption of the relevant formal requirements, the legal standards. Legislative
the process of the adoption of the Act No. 312/2002 Coll., Constitutional Court, however, was found to be
constitutionally Conformal already in the report dated 28.1.2004 SP. zn. PL. ÚS 41/02
(A collection of decisions, volume 32, pp. 61; declared under no. 98/2004 Sb.).
Paragraph 77k paragraph. 6 was the law on the protection of classified
the facts inserted by Act No. 312/2002 Coll., which originated as a
the House initiative responsive "on practical issues that are
appeared in the context of its current applications, and that the impossibility of
independent review of, respectively, the examination of the negative decision
National security authority in the context of security clearance
ongoing under this Act "(explanatory memorandum from the Ecofin Council on 10.7.2001). In
during the discussion of this proposal was issued to find the long-
The Constitutional Court, SP. zn. PL. ÚS 11/2000, which with effect from the date
set aside the original wording of § 30.6.2002 73 para. 2 ZOUS that judicial review
It was prohibited. Group of the proposal by inserting section 77a to § 77k to the ZOUS solved
the problem of the absence of an independent review of the establishment of the College and the definition of
procedural rules in the procedure before the College. Then, what was Lost
the proposal approved by the Chamber of Deputies, 27.3.2002 decided the Senate the day
the return Of 3.5.2002 sněmově with amendments, from the
one proposed cancellation in the meantime set up (see below) of the Court of
Review (cf. point. (C) the Senate resolution No. 372 of 3.5.2002).
By order of the Chamber of deputies of 13.6.2002 remained the main
the draft law, which was published in the collection of laws of the day, when 12.7.2002
also took effect.
In the meantime, the Government has submitted to Parliament a proposal to amend a law
Some laws in connection with the adoption of the code of civil procedure (law administration
No 151/2002 Coll.) This Act (the Chamber of Deputies approved it day
15.2.2002, Senate date of 12.3.2002, and in the collection of laws was published on
17.4.2002) was inserted into the ZOUS provisions of § 73 para. 2, according to which the
You can appeal against a decision refusing the issue of a certificate may bring an action within 15 days from the
the date of receipt of the decision, when in control of the action with the participation of people
involved in the management. This adjustment took effect the day
However, the date of 1 January 2003 has been circulated 27.9.2002 collection of laws, which was
on the basis of the mandate contained in the Act No. 312/2002 Coll., the Chairman of the
the Government under no. 418/2002 Coll., published the full text of Act on the protection of
classified information in which not section 73 divided into paragraphs and
mention of the possibility of judicial review.
IV. definition of the subject-matter of the proceedings
The proposal, which is assessed by the Constitutional Court, arose from the proceedings before the General
the Court in which the person is satisfied (NSA) filed an administrative action against
decisions of the College. In the lawsuit, argues that the provisions of § 77k para. 6
the Act on protection of classified information is almost identical with the constitutional
the Court cancelled the wording of § 73 para. 2 of the Act. While the day
1 January 2003 entry into force of the new wording of the provisions of § 73 para. 2 of the cited
the law, which admits the possibility of judicial review of the decision refusing the
the certificate.
The impact of the security screening into the realm of fundamental rights and freedoms,
The Constitutional Court has on several occasions [cf. findings in matters SP. zn. PL.
TC 44/02, SP. zn. PL. ÚS 36/01 and SP. zn. I. ÚS 573/01 (see below), sp.
Zn. I. ÚS 752/02 (ECR, volume 30, page 65) or SP. zn. II.
TC 241/01 (ECR, Volume 27, page 73), SP. zn. II. TC 28/02
(see below) and SP. zn. II. TC 142/03 (collection of decisions, volume 31, pages.
45)]. However, in that Particular finding SP. zn. PL. ÚS 11/2000
the Court held that "respects the fact that with regard to the specifics and
the importance of decisions in cases where classified information is a very
a clear security interest of the State, it is not always possible to guarantee all
common procedural guarantees of a fair trial (e.g., public meetings).
However, even in this type of control is the job of the legislature to allow the legal
by the implementation of adequate guarantees for the protection of a court (or other
an independent and impartial tribunal within the meaning of article 87(1). 6 (1). 1 of the Convention)
-According to the nature of the case and taking into account the nature of the function-based
protection of highly specific and differentiated. " (cf. Collection of decisions,
Volume 23, pp. 105, or No 322/2001 Coll., or an electronic version of the award
on URwww.judikatura.cz).
Cited by discovery of the Constitutional Court. set aside as a constitutionally-conformist
the statutory exclusion of judicial review of the decision of the authorities of the Executive power in the
matters of security screening. The legislature on the situation
responded by admitting both the General judicial review (section 73, paragraph 2,
ZOUS) and the introduction of the proceedings before the review authority of the sui generis
which became the College of (section 77a of the ZOUS to 77k). In the present case as to the
the right to verification of the relevant procedures, rather than on "the right to obtain
security clearance ", which, of course, is not guaranteed.
The Constitutional Court's case-law shows that, in terms of the protection of fundamental
rights and freedoms cannot be public interest in secrecy in the review
the decision that as a direct result limits the ability to perform certain
specific professions to their exclusion from the application of this decision,
engagement article. paragraph 36. 2 of the Charter and article. 6 (1). 1 of the Convention, which contains a
the right to judicial protection. Although the Constitutional Court accepted that judicial
review of security screening has a specific nature, yet it is
When assessing the constitutionality of § 77k para. In addition to the provisions of article 6, the ZOUS.
4 (4). 4 of the Charter and to take into account article. 1 (1). 1 of the Constitution, which the Czech
Republic declared the democratic rule of law based on respect for
rights and freedoms of man and citizen, to mj. provides both basic
the way the exercise of public authority, so principled judicial rights attributes
the protection. However, in the case of judicial review of the safety data
scan an area capable of sustaining certain restrictions of the fundamental
rights, the Constitutional Court notes that in the present matter is the need to
looked at from the standpoint of the enforcement of the constitutional prohibition of discrimination (article 1
paragraph. 1 of the Constitution, article. 1 and article. 3 (2). 1 of the Charter), from which at least
It follows the right to examine whether the progress and result of the safety
the screening, which is fully in the hands of the Executive power with a wide
discretion, should not be discriminatory and whether they have been marked by
libovůlí. In addition to the right to choice of profession, modified in the above
that sense, certainly for some categories of
also applied to article. 21, art. 4 of the Charter, which provides that "citizens have the
equal conditions of access to elected and other public functions. "
The College is considered to be a court?
A. the contested provision § 77k para. 6 ZOUS that judicial review
the decision of the College which forbid, is contrary to the provisions of § 73 para. 2
ZOUS, that judicial review of the guarantees. Regional Court in Brno presented
The Constitutional Court case based on the conclusion that the relationship of these two to each other
conflicting provisions without stating which management has to take place
previously, giving the ambiguities and the relationship between the College and the decision by decision
the Court is not addressed, even when those decisions together
do not correspond. Prior to the assessment due to conflicts of both provisions had to
be odpovězena the question of the nature of my College.
The constitutional order of the Czech Republic (articles 81 and 82 of the Constitution) provides that
the judiciary shall exercise only the independent and impartial courts, respectively
independent and impartial judges, who are governed by basic rules
a fair trial (article 1, paragraph 1, of the Constitution, chapter five of the Charter). This
provisions can be interpreted as the institutional guarantees of the material
so perceived the exercise of judicial power, and, therefore, in terms of the right to a fair
the process is not necessary in all cases to the Court within the meaning of § 36
paragraph. 2 of the Charter solely authority incorporated into the system of general courts,
However, this must be an independent body, whose members have the autonomy
and impartiality in its decision. Additionally, you must have nepodmiňovaný
access to the examination of all the relevant aspects of the case (the facts and
legal) and must respect the fundamental principles of a fair trial
(e.g. policy, no one shall be a judge in your own case or principle heard
must be both sides), with an enforceable decision can no longer be the next
Power Act to reverse (the definition of Justice in material terms).
The existing case law of the Constitutional Court's independence and impartiality
as mentioned above, the necessary attributes, whose fulfillment is typically guaranteed
in the judiciary, saying that they cannot fill the various organs of the Executive
[cf. e.g. award of judgment given on 23.11.1999 SP. zn. PL. ÚS 28/98 (collection
the decision, volume 16, p. 185; promulgated under no. 2/2000 Coll.) in respect of
the nature of the decision of the President of the Supreme Audit Office, or find
of 17.1.2001, SP. zn. PL. ÚS 9/2000 (collection of decisions, volume 21,
p. 55; promulgated under no. 52/2001 Coll.) in relation to the decision of the police
the offense]. To your own content attributes of independence to Constitutional Court
expressed in particular assessment of the laws governing the organisation of
judicial power (cf. e.g. award of 18.6.2002, SP. zn. PL. ÚS 7/02
(A collection of decisions, Volume 26, page 273; declared under no. 349/2002 Coll.).
The plenary of the Constitutional Court for the first time comprehensively assessing the impartiality and
the independence of the General Court sui generis, although it does so with a natural support,
already provide the below findings of the Constitutional Court, as well as (also below
referred to) decision of the European Court of human rights.
Independence and impartiality are the ideal types that can never be
populate the absolutely-you can only zoom in to them – which is determined by their
social nature. Independence means exclude the possibility of effectively
Act on the freedom of the will, the impartiality of the judges of the formation (independence from
side) represents the absence of a relation to one of the parties to the court proceedings, in which
the concept of the party can be understood both in General and in the specific plane.
Independence is the relationship categories, which is closely associated with the concept of power
understood as the ability to impose the will of the other (Weber, m., authority, ethics and
the company, Mladá Fronta, 1997, p. 49; originally in Wirtschaft und
Gesellschaft, Mohr Siebeck, Tübingen, JCB 1972, pp. 541-544).
Long-term legal and political developments generated by the liberal democracies
the experience of the independence and impartiality of indicators, from which you can
shape the objektivizovaná criteria for assessing the fulfillment of characters
independence and impartiality because of the subjective position of psychological
(conscious or unconscious) state the deciding entity (at this level
just experiencing an undesirable effect on the free judgement) is unable to
the legal instruments to grasp. Impartiality and independence in the objective
the position will be considered at a general level in terms of relation to the other
course folders (the principle of the separation of powers), in terms of the ability of the actors (with the
potential interest in a specific outcome or course of a dispute) affect
the emergence, duration and termination of the functions of a member of a judicial body (the Tribunal). The judges of the
and members of the institutions of the type must therefore be sufficiently independent
status, which excludes direct or mediated by effects on decision-making
activity. The existence of the protection against external pressures is being examined for example. How
in terms of the existence of potential options to affect the career judge
bring on the demise of his options function. The status of independence indisputably
include the guarantee of financial independence. Only if he receives a formal
command not taking foreign material content guidelines and ensures
neutrality and distance from the parties.
For completeness should be added that the ban on judicial decision making
(forcing another to do something, neglect or suffered) is supported as
by limiting the rights of Assembly and petition, where would their realization
could affect judicial decision-making at the level of the criminal law, where
such action is classified as a criminal offence (section 169a of the criminal
of the Act). The lack of independence or impartiality may be recorded as
in General (type-) plane and the plane of the specific (a particular relationship
judge to a particular thing or person). Therefore, the rules of procedure shall lay down the
the options float bias objection, if one of the parties
doubt as to the impartiality or imposing mandatory exclusion of a judge of the
the case for the ratio to the case or to the participants, which is
ensured the impartiality, where there already are based on specific
the facts of reasonable doubt.
In the case of administrative justice, where they are most often settled disputes
among the Executive forces of the State and by private persons, which runs
in the present case, now require the maxims of independence and impartiality
the existence of effective and credible guarantees amounted to a potentially
unwanted links to the Executive, which is the case of the judges. was
determination of the incompatibility of the exercise the function of judge with the performance of a wide range of
activities, which are strongly affecting the free judgment, assumed
because the performance of these activities follows the interest which is incompatible with the
ability to fairly decide the dispute, in which each party defends
opposed interest. When assessing the impartiality and independence cannot be
completely look through or from the site with things, when there is a valid
criteria considered. the appearance of independence and impartiality for the third
persons, as this aspect is important for ensuring confidence in judicial
decision making. This criterion reflects the social nature of the
decisions, from which it follows that, even if in fact there is
(as in the subjective and objective position) the real reason for
doubts about the impartiality and independence, not overlook the possible
the existence of a collective belief that there is such a reason (cf. the
the below cited decision of the ECTHR on 23rd June 1981, Le Compte, Van
Leuven and de Meyere against Belgium, no. 6878/75). In relation to the judiciary
This is because the general sociological observation. The Thomas theorem (cf.
for example. The team, a great sociological dictionary, i., Prague, Karolinum, 1996,
page 171), by which, if a particular situation-here the absence of
independence or impartiality-the people defined as fair, then it is
real and, in effect,-the lack of general confidence that the decision is
in a fair an impartial independent decision of the Tribunal. In doing so,
trust in the law is among the basic attributes of the rule of law mimoprávní
(cf. e.g. among others find dated news SP. zn. IV. TC 525/02,
Collection of decisions, volume 31, p. 173).
B. the Constitutional Court proceeded to analyze the independence and impartiality of the College
the protection of classified information, set up when the highest
the Prosecutor's Office.
The Constitutional Court notes that (from a formal point of view) decisions of the College
prima facie, it is not a judicial decision. The State Prosecutor's Office is constitutionally
in the Executive Branch (article 80 of the Constitution is the third in her mind,
defining the Executive power) and is constitutionally established to represent the criminal
the indictment. Having regard to the specificity of the konstatovanou area
security screening the Constitutional Court dealt with the question of whether the
The College shall be considered by the Court in material terms. Regard to the need to
objections that the law on Prosecutor's Office actually contains warranty
independence of the members of the College. However, it should also examine whether there are
These formal guarantees populated and materially, or whether it is sufficient for the
defense against potential external pressures and whether they are eligible to create
General beliefs about independence.
Not to be overlooked, that membership in the College is binding, incidentally on the allocation of
to the Supreme Public Prosecutor's Office; the Minister decides on the allocation of
Justice (article 19, paragraph 2, of the law on the Prosecutor's Office).
The Attorney General, which are members of NSZ (cf. section
18 paragraph 1. 2 of the law on the Prosecutor's Office, as amended), also
her name and without having to give reasons (sic!) revokes the Government (section 9 (1)
and 2 of the law on the Prosecutor's Office). Members of the College shall be
Security-vetted by NSA (§ 7a, paragraph 2, third sentence, of the Act on the State
the Prosecutor's Office), the examination is limited to five years [§ 37
paragraph. 1 (b). (d)) and at any time odňatelné ZOUS] [§ 37 para. 2 (b))
ZOUS]. The relationship of the Director of the NSA for Government is defined as well as in the Supreme
the State Prosecutor (article 7, paragraph 2, and 3 of the ZOUS). The Director of the NSA is directly
responsible to the Prime Minister, who is responsible to him for work and
supervises the activities of the Office (article 7, paragraph 3, ZOUS). Bringing a disciplinary
proceedings against a public prosecutor assigned to GAP the highest State
representative or the Minister of Justice [§ 8, paragraph 3 (a)) of law No.
7/2002 Coll., on proceedings in cases of judges and prosecutors, as
version]. These legal instruments objectively created the line of allowing
the potential influence of the free judgment of the members of the College, of which cannot
change anything in the Act contained guarantees formal independence.
The mandate of the members of the College's two-year (which was, according to the Chamber of Deputies
combined with the fact that the adjustment was considered to be temporary). The approval of
members of the College carried out the Government on the proposal of the Minister of Justice, the ad hoc
(cf. e.g., resolution of the Government No. 704 of 14.7.2004, whom the Government
approved by the President of the College with the expectation that this decision
changed resolution No. 898 of 15.9.2004, when approved by the President of the
another-CF. on URwww.vlada.cz). After all, the Chamber of deputies in its
the observations stated that "the very existence of the College is dependent on the
decisions of individual prosecutors to become members, respectively.
that remained in the College, which is not forcing. ". From this perspective,
The College does not meet the demands of the relative stability of their composition, that has
to prevent affecting the outcome of decisions by changing the composition of the College,
which implies that it cannot meet the demands on the stability of the decision-making
the choir, which find expression in principle lawful judge (article 38, paragraph 1,
Of the Charter).
Essential fact should also be considered that the members of the College must
be security vetted, while this decision may be amended (section
paragraph 36. 5 and 7, the ZOUS). In the selection of members of the authority controlling the proper
the progress of the security screening can very effectively interfere with the NSA,
the activity to check, despite the fact that the chosen design
creates a potential threat, the continuous line selection, which is completely in
the hands of the Executive authority. The conclusion that there is no effective way to
put pressure, is contrary to the very rationale of the scan, which is
MJ. verifying that there are no facts which would be an unethical person
could affect future decisions of people. In a situation where
the law is on the General experience of unproven presumption of fitness
the work of the administrative authorities (NSAS), not from the standpoint of the principle of checks and
balances in proceedings for review of the standards ignore the fact that the NBU as
Executive authority has, thanks to the concentration of sensitive personal information
the character, a remarkable power potential. It only adds to the urgency of the
truly independent control to allow an examination of how the proper administration
powers of security vetting, so for example. determine whether there are
classified matters that do not need to hide (i.e. whether the taxonomy is not
excessively strict secrecy, and that it is restricting the rights really necessary).
In the context of the present case, which is seen from the perspective of the necessary
to balance the public interest in safety with the protection of individual rights
and freedoms, cannot be ignored either, that the prosecutors are the law and promise
personally committed to the protection of the public interest (section 18, paragraph 3, of the law on
the Prosecutor's Office), which can lead to legitimate doubts as to their
impartiality in the judging conflicts of fundamental rights and freedoms with the public
interested in safety, protected in the case of utajováním. Indeed,
public prosecutors in criminal proceedings (in particular in the case of preliminary proceedings
and for bindings) process benefits from confidentiality because they have compared the defence of
access to those parts of the file, which are reserved. Their
the attitude to the benefits and the extent of confidentiality is not neutral. These aspects of the
the possible conflict of interests in the application of the principle of judges commonly eliminate
the incompatibility of the exercise of the function. For tribunals is covered by the sui generis right
the composition of the Tribunal, such that the application of different, mostly
neuvědomovaných, the interests of its heterogenností (for neutralizing the US eg. §
5 of law No 7/2002 Coll., on proceedings in cases of judges and prosecutors).
Also from the explanatory memorandum to the Act No. 312/2002 Coll., it follows that the review
The College was incorporated into the Act so as to ensure judicial review of the
administrative decisions issued at the security screening of persons, but
to increase the credibility and objectivity of the Executive
security screening: "... the negative decision of the NBU has a very
serious impacts on the professional, but also personal life investigated persons
the appellants believe that the entire system
security clearance to bring external control element in the form of
an independent appeal body that will be authorised to the decision of the NBU
review. In addition, the establishment of an independent supervisory body be placed in the
security clearance process for a higher degree of trust and
objectivity than it was before, without at the same time the entire process
time or otherwise hindered significantly. " (Explanatory memorandum of the proposal for members
F. O., p. n., and i. l. from the Ecofin Council on 10.7.2001; CF.. even Prince, "a review of the
the decision refusing the issue the safety certificate "in Tislav Dančák, b., Prince,
In the Czech Republic, Safety, IIPS, London, 2002, p. 150).
On the question of whether the College authority, that is, even while respecting the
the specifics of the security screening still able to lead a fair
the process, he had to the Constitutional Court in the light of the above, answered in the negative.
(The Constitutional Court therefore found unnecessary to deal with the quality of the process
guarantees in proceedings before the College). You cannot conclude that doubts about the
independence and impartiality of the College consisting of prosecutors are not
legitimate. Members of the College are not institutionally created conditions
for the proper distance from the bodies of executive power. This conclusion is valid
objectively and no need to specifically demonstrate how can the members of the College
effective pressure develop. For completeness should be added that the decision-making freedom of
members of the College is not supported by the same criminal-law protection, such as
the case for judges (section 169a of the Criminal Code) if the Senate and the House
the Chamber of Deputies consider the review by the College as sufficient (or NSA considers the
judicial review unnecessary), it should be recalled that article. paragraph 36. 2
The Charter guarantees a review of an administrative decision of the courts, which do not necessarily
in all cases represent institutions incorporated into the judicial system,
However, it must be the institutions which meet the basic guarantees
impartiality and independence, and that comply with the principles of fair
process. The College, however, the Court cannot be considered, even in the material
the concept, as doubts arise about independence structurally in
the objective plane, thus at the same time, however, in no way not
the independence of prosecutors charging tasks of public action, and
in no way calling into question the professional and human qualities of existing or past
members of the College.
Vi. judicial review Is necessary?
A. Constitutional Court is further dealt with the argument that judicial review of the NSA
decisions of the Executive in the area of security screening is not
usually, the NSA supported the reference to the foreign arrangements. Therefore, even
The Constitutional Court has used the comparative method to the interpretation and examined the access to
judicial review of security screening in countries that have undergone
similar legal development and take upon themselves the same international legal
commitments to the protection of classified information as the Czech Republic.
The Constitutional Court of the Slovak Republic finding of 11.2.2004 set aside those
under the law on the protection of classified information (Act No. 241/2001 Z.z.,
on the protection of classified skutočností), which allowed the Court of
a review of the decision to end the security vetting, but without
the fact that the person concerned may request a judicial review of the decision on the
the basis of knowledge of the specific reasons. their safety
the screening without comment, and deleted a provision that did not allow the affected
the person to ask for a judicial review of the decision. termination of validity of the
expression (cf. an electronic version of the award Ústavného súd Slovenskej
Republic of 11.2.2004 SP. zn. Pl. ÚS. posted on 15/03
URwww.concourt.sk). The Constitutional Court of the Slovak Republic noted that
recognises nepominutelnost security interests of the State and recognizing and
resources for achieving this purpose chosen by the law on the protection of
classified information, but he did it, to the purpose of the
the law was the negation of the principle of the rule of law, or at the expense of
fundamental rights of the individual. Part of the rule of law is also based on
The Constitutional Court of the Slovak Republic subjecting interference of the public
can the rights of the individual effective control which must ensure
at least in the last instance of the judicial power, as it provides the best guarantees
independence, impartiality and fairness of the proceedings (p. 15 of the cited
the award). The Constitutional Court admitted a certain possibility to limit (page.
16 of the cited Award), but only so as to ensure the fair and not
fictional realization of the fundamental right to judicial protection, and that they are
given sufficient guarantees protection against arbitrary decisions (page 17 and 18 of the cited
the award). The Constitutional Court of the Slovak Republic decided to make explicit
the conclusion that neither an interest in security cannot justify denial of the right to
review before an independent and impartial tribunal, which occurs by
cleared person does not know at least the basic information about the reasons
decision. For completeness, it should be added that the Constitutional Court of the Slovak
the Republic has rejected their application the thing up right to free
access to the profession, which two judges disagreed in their different
opinions. One judge did not agree with the rejection of the examination of the case
under the field of the right to information.
Similarly, the Constitutional Court of the Republic of Poland of 10.5.2000 set aside the finding of the
the part of the law on the protection of classified information (ustawa z 22 stycznia
1999 r. o ochronie informacji niejawnych), which did not allow the Court
a review of the decision on security vetting, and that conflict with the
the constitutional right of access to a court and the right to access to the public
the service, as well as conflict with. 13 of the Convention (cf. an electronic form
decision of 10.5.2000, Sygn. To 21/99 issued on
http://www.trybunal.gov.pl). The Polish Constitutional Court stated that, in itself,
security screening, as well as its outcome may be immediately
interfere with fundamental rights and freedoms of individuals (p. 36 of the cited
the award).
Trybunal Konstytucyjny, based on analysis of its administrative case law,
case-law of the ECTHR (page 25-27 and 29 of the cited Award), as well as on the basis of
comparison of foreign law submitted by the expert editing (p. 24-25
of the cited Award), said, with reference to its stable interpretation of the law
to a fair trial (p. 33-35), that the rights of security of
people, in the context of the guarantee of the right to equal access to government service (article.
60 of the Constitution of the Republic of Poland) are subject to the constitutional prohibition denying
access to a court (article 77, paragraph 2, of the Constitution of the Republic of Poland), because
fall within the framework of constitutionally protected rights and freedoms. Therefore, it was
the provisions of the Act on protection of classified information (§ 42 paragraph 1) that
Supreme Administrative Court did not allow the review without these things
at the same time expressly confers the jurisdiction of general courts, found in the
contrary to article 45 paragraph 1. 1 and paragraph 77. 2 of the Constitution of the Republic of Poland,
enshrining a right to judicial review of decisions affecting the fundamental
rights or freedoms (page 38 of the cited Award). The Polish Constitutional Court
It stated that international standards guarantee the right of access to court
are the minimum standards that are lower than in the area of standards
the Polish law (page 29 of the cited Award).
The Constitutional Court could not have regard to the objection that the NSA from foreign comparison
It follows that the judicial review of the security screening is not common.
Indeed, the NSA itself pointed out examples of countries in which a review of the permit is
(Netherlands, Lithuania). The absolute figures on the number of appeals,
that said, the NSA should be added that no average number of seats, the representation of the
subject to the need to review these details are irrelevant.
B. Regional Court its proposal. He sat back and the case-law of the European Court
for human rights, but from the expression challenged its relevance.
In particular, you cannot accept the objection based on the finding that the Convention
on the protection of human rights and fundamental freedoms is not part of the constitutional
order of the Czech Republic, and therefore is not fitted to argue the case law
ECTHR, which interprets the Convention binding. The Constitutional Court has already, in its award of
the date of 25.6.2002 SP. zn. PL. ÚS 36/01 (ECR, Volume 26, pages.
317; promulgated under no. 403/2002 Coll.), as well as in other [cf.
SP. zn. PL. ÚS 19/02 (ECR, volume 29, page 279; announced
under Act No. 101/2003 Coll.), SP. zn. PL. ÚS 44/02 (ECR, volume
30, p. 417; promulgated under no. 210/2003 Coll.) or SP. zn. PL. ÚS 41/02
(A collection of decisions, volume 32, pp. 61; declared under no. 98/2004 Sb.)]
He stated that the Convention has gained in the constitutional order of the Czech Republic landline
instead. The nature of the contested provision, moreover, each individual
If getting into conflict with kautelami guaranteed by the Convention, which must
be applied in relation to the law as a priority. In addition, the District Court
argued and infringement of article 81(1). paragraph 36. 2 of the Charter and the Constitutional Court, with
the developments that brought the extension of national standards
judicial protection, sees no reason why the guarantees of a fair trial
upínající to the article. 6 (1). 1 of the Convention did not apply on the basis of article. 36
paragraph. 2 of the Charter. Also, you cannot identify with the caveat that the case of Incal
against Turkey (Grand Chamber decision of 9.6.1998, searchable
in the electronic version of under the SP. zn. 22678/93 in the official database of the ECTHR
HUDOC http://www.echr.coe.int) cannot argue, for the assessment of
impartiality and independence must respect the individual circumstances
the case and the conclusion of the ECTHR has therefore limited validity. Here, the Constitutional Court
notes, and only on the edge, that the adoption of such a general position
the case-law would effectively preclude its use and interpretation as a result of
would lead to a reduction in legal certainty, since it would in particular opened up
the actual path to the different courts deciding in principle the same
cases, namely, to arbitrárnosti or discretionary power in decision making. The courts,
If they are to make decisions fairly, must assess the same cases as well.
Furthermore, it should be noted that the Court decision is a judicial decision
No matter how slim majority was adopted. Indeed, the same
the principle is applied in relation to the other decision, the public authority
(Parliament, Government, etc.). the achievement of the Constitution or statutory
of the majority.
The Constitutional Court considers that the ECtHR has already commented on the whole range of aspects
that are highly relevant in assessing the human rights dimension
security scans.
In the case of Incal against Turkey (cf. this decision in the HUDOC in
http://www.echr.coe.int, § 65, § 67-8; Editor's note. all electronic versions of
the ECHR decision cited in this finding was obtained in the English version of the
broken down into numbered paragraphs) was mj. affirmative odpovězena the question of whether
doubt as to the impartiality of the judges may be given in terms of their
institutional relationship to the subject of the dispute and whether judges should
Professional Special ratio to protect the public interest, which
violations of the should judge whether they were disponováni mainly to protect
the interest of the State to safety rather than to administer justice. The Constitutional Court
It also notes that the principle applied to the ECTHR in the case of Incal, by
which in the assessment of independence cannot be content with the formal
guarantees, is so tightly bound up with the idea of a fair decision that
It cannot be limited to criminal proceedings. Indeed, this principle is
tightly associated with our ústavností, which is located on the concept of material
the rule of law [cf. e.g. find dated 21.12.1993 SP. zn. Pl. ÚS
19/03 (collection of decisions, volume 1, p. 1; promulgated under no. 2/1994
SB.]. The Senate argued that the ECTHR expressed violations of the article. 6 (1). 1 of the Convention in
requirements on the independence and impartiality of the courts, it was always, in principle,
on the criminal courts or authorities in application of criminal law. Review of decisions
refusing the issue of a certificate to work with classified information is not in the
a comparable position. However, the frequent citation of this decision in
other cases decided in addition that the ECTHR case Incal
is ranked among the so-called. leading cases and, therefore, cannot be contained in it
principles to ignore the reference to the fact that they have been mentioned in the assessment
the criminal case. However the distinction is the severity of the interference with the fundamental
the rights of the legitimate, Constitutional Court cannot disregard that for example. alone in the
the past, considered it a violation of "right to a court" legal exclusion, the
judicial review in matters of the so-called. minor offences for which it was
possible to impose a fine in the amount of CZK 2000 [cf. findings of 17.1.2001 sp.
Zn. PL. ÚS 9/2000 (collection of decisions, volume 21, p. 55; promulgated under the
No 52/2001 Coll.)].
The ECTHR applies (and found a violation of) article. 6 (1). 1 of the Convention, even if
a review of the decision of the administrative authority (decision of plenum
22.10.1984, Joana against Austria, 8790/79: section 34). The concept of the Court was
lined in material terms, and ECTHR, in considering the independence and
impartiality has highlighted as an important criterion and appearances, which may
arouse doubts about independence, when it is necessary to have a guarantee of protection
against external pressures (§ 42 of the cited decisions, or whether Berger, in:
The case-law of the ECTHR, Prague, IFEC, 2003, p. 193, or Sudre, f.:
International and European human rights law, Brno, MU, 1997, p. 177,
or Capek, j.: the European Court and the European Commission of human rights,
Prague, Linde, 1995, p. 395). Mrs. Sramkové ruled on the matter
the Tribunal, whose member was hierarchically subordinate to one of the parties, thereby
violated article. 6 (1). 1 of the Convention. As well, the ECTHR followed even if
Tinnelly & Sons and ost. against Britain (decision of the Grand Chamber
10.7.1998, 20390/92: section 72 and 78), the restrictions on the right of access to
the Court, which was to examine the fairness of the allocation of public contracts in the
Northern Ireland (section 12), for reasons of the public interest in safety.
The Court submit to a test of proportionality this limitation (§ 76 of the cited
decision) and decided that the article. 6 (1). 1 of the Convention said the complainants
the right to access to court.
The Constitutional Court in case SP. zn. PL. ÚS 11/2000 stated that the ECTHR in
the case of the special groups of civil servants (only) admitted that the
are out of the scope of the article. 6 (1). 1 of the Convention excluded disputes employees
of the State, "whose employment is characterized by specific activities
public administration in the extent to which this Administration is acting as the winner of the public
can the designated protection the general interests of the State or other public
the community. A telling example of such activities represent the armed
forces and the police "(cf. the decision of the Grand Chamber of the ECHR 8.12.1999,
Pellegrin against France no 28541/95: section 66; also an overview of the judgments of the
The European Court of human rights, no. 1/2000, pp. 7 et seq., or
Berger, op. cit., p. 280). The ECTHR took into consideration even to the previous case law,
that did not question certain discretionary prerogatives of the State administration, but
point out that exceptions to the application of the article. 6 (1). 1 of the Convention should be
interpreted restrictively.
However, in the case of Wille against Liechtenstein (decision of the Grand Chamber
of 28.10.1999, 28396/95: § 41) the ECTHR held that "the right to
access to public office was in the Convention deliberately left out. Denial of
appoint someone to a public function, therefore, cannot in itself be the basis
the complaint based on the Convention. However, it does not imply that the person
established to function was unable to challenge their removal from Office, if it
It has been violated any of the rights guaranteed by the Convention. People in public
features nevymykají the scope of this instrument. Convention in their
articles 1 and 14 States that ' anyone who is subject to (...) the jurisdiction '
of the Contracting States shall recognize the ' without discrimination based on any
because ' the rights and freedoms referred to in title I, article. 11 (1) 2 in fine,
which States to impose specific restrictions on the exercise of the freedoms
Assembly and Association ' members of the armed forces, the police and the
Government ', confirms that the guarantees of the Convention apply generally
to persons in the public "(see also the decision of the plenum of
28.8.1986, Glasenappová and Kosiek against Germany, 9228/80: § 49, respectively.
9704/82: section 35, or Berger, op. cit., p. 518; or even the decision
The Grand Chamber of 26.9.1995 Vogtová against Germany, 17851/91: § 43,
or Berger, op. cit., p. 521).
Indeed, the concept of civil rights, the ECTHR and the commitments contained in the article. 6 (1). 1
The Convention does not incur a strictly, but includes any proceedings under it,
the result is indicative of the rights and obligations of a private nature (cf.
the decision of the plenum of 28.6.1978, König against Germany, 6232/73: section 90;
also, Sudre, op. cit., p. 174, or Berger, op. cit., p. 270). There,
where the decision taken by the administrative authorities that make decisions on civil
rights and obligations do not meet the requirements of article itself. 6 of the Convention, it is
necessary that such decisions be subject to subsequent review by the Court of
authority with full jurisdiction, which provides a guarantee of protection for this article
(cf. decision of the plenum on 23rd June 1981, Le Compte, Van
Leuven and de Meyere against Belgium, 6878/75, § 41 et seq., or in Berger,
op. cit., p. 185). In the case of Kingsley against VB (decision of the Senate of the
the date of 7.11.2000, 35605/97, which was what the merits of the day 28.5.2002
confirmed by decision of the Grand Chamber) was below the article. 6 (1). 1 of the Convention
by virtue of an administrative decision concerning the withdrawal of a certificate to operate casinos (§
15 and section 45 decisions of the Chamber or section 18 of the decision of the Grand Chamber) and
The ECTHR under the concept of full jurisdiction is clearly ranked (in the case that it is
called into question the impartiality of the General Court) jurisdiction of the court administrative decision
Cancel and order the thing by an impartial court for decision (Kingsley against
VB: § 32 of the decision of the Grand Chamber). In the decision whether a specific authority
may be considered to be independent of the Executive power, it is necessary to take into account the
the method of appointment and the length of the mandate of its members, to the existence of safeguards against
external pressures and to ensure that the Authority gives the semblance of independence (see Le
Compte, § 55, or the decision of the Chamber of 28.6.1984 Campbell and Fell
against the UK, 7819/77: section 78; or even Sudre, op. cit., p. 176). The ECTHR
naturally does not consider designing a judges decision or recommendation
public authorities or Parliament for a fact without further questioning
their independence. In that case, the Committee was Cambell & Fell
prison inspectors (which is guaranteed to be a heterogeneous composition of both
the professional point of view, and in terms of the relationship to the Executive Branch, as well as from the
aspects of non-CF. cited decision, § 32) is found to be eligible
lead to a fair trial (cf. also Čapek, op. cit., p. 395).
Not forgetting that the ECtHR in the case of a conflict of fundamental rights of the interested
the safety often recalls the need for ensure the possibility to rebut the
possibly false information about private life, even if they were
secret information (decision of the Chamber of 26.3.1987, Leander against
Sweden, 9248/81: § 48), when it is necessary to ensure the independent monitoring,
that best ensure the Court, as stated in the decision, Rotaru
against Romania (Grand Chamber decision of 4.5.2000, 28341/95 §
43, § 46 and section 72, Czech collection of judgments of the European Court
human rights in Strasbourg 1/2003). The ECTHR held that it is necessary to
to make sure about the existence of adequate and sufficient guarantees against
abuse collected by false information, because the system of secret
monitor, designed to protect national security, carries with it the risk of
undermining or even destroying democracy on the ground that it protects
(cf. also the decision of the Assembly, dated 6.9.1978, Klass and others v Germany,
5029/71:49-50 or Berger, op. cit., pp. 449-450). To the system
secret monitor was compatible with article. 8 of the Convention, must include the law
guarantees provided for therein, that are applicable to the control of the activities of the
the relevant services. Control procedures must as closely as possible
respect the values of a democratic society, especially a privileged
the position of the law, which expressly refers to the preamble to the Convention. "It's outside the
other means that the Executive branch from interfering with the rights of the individual must
be subject to the effective control of, you must normally ensure at least
in the last instance, the judicial power, as it offers the best warranty
independence, impartiality and fair procedure (see Klass and ost.
Germany, § 55, retrieved from Rotaru, § 59).
The Constitutional Court notes that the case-law of the ECTHR pays particular attention to
the need to ensure an independent and impartial control of classified data on the
your own person. (You cannot leave unnoticed, nor the fact that, although the Swedish
the Government in the dispute, and the Court has succeeded Leander gave priority to the public interest, after
the opening of the archives should determine the ECTHR-assurance
the Swedish Government-that secret information concerned the only political
the complainant's activities, rather than national security. The Swedish Government in
1997 the complainant publicly apologized and provided compensation (Töllborg
D. in Greenwood, d., Huisman, the Transparency and Accountability of:
Police Forces, Security Services and Intelligence Services, George C.
Marshall Association, Sofia, 2004, pp. 119, or Mendel, t.: Freedom
of Information: A Comparative Legal Survey, UNESCO, 2003, pp. 11-12).
To be further pointed out that even the Constitutional Court in case SP. zn. PL. ÚS 11/2000
confirmed (as well as the Polish Constitutional Court), that the standard of judicial protection
provided by the Constitution and the Charter is wider in this area. In connection with the
progress and result of the security screening may be affected
and the other fundamental rights than the rights contemplated in the case of Pellegrin,
because of the potential interference with the right to information about yourself, the rights
not to be discriminated against, or right to privacy extend beyond
to a labour dispute, which was confirmed by the Leander case (para. 76), when the ECTHR
assess the case and the prejudice to the article. 13 of the Convention, which confers the right to
on effective remedy (cf. also the way this
the decision in the case law of the ECTHR).
VII. Provizornost ZOUS
In proceedings before the Constitutional Court was again pointed out the makeshift
the nature of the Act on protection of classified information, which should probably be
explain its shortcomings
Act No. 312/2002 Coll., on your article. IX. provided: "Act No. 148/1998 Coll.,
on classified matters, shall expire on 31 December 2006. December
2003. ". Since the amendment of the House Defense Committee on the law
No 310/2002 Coll. (resolution No. 206 of 15.3.2002, which the Chamber of Deputies
accept delivery 25.3.2001, contained the sentence: "this Act shall take
effect on the date of its publication and shall expire on 31 December 2003. " (see
House print 1000/4), one can reasonably suspect that the original intention of the
It was only the amendment to limit the validity of ZOUS who responded to find
The Constitutional Court, SP. zn. PL. ÚS 11/2000 (cf. appearances in the House
debate of the day 22 March 2002 "... in the Act on protection of classified information
There is a whole series of bottlenecks and will absolutely must be
undergo a thorough review after the elections. The Committee therefore proposes to limit the
into force of this amendment on the date 31. in December 2003, and thus motivate the next
Government to accelerated work on the very thorough amendment (in www.psp.cz-
Chamber of Deputies: 1998-2002: House printing 1000: progress
the hearing), but adopted the Act No. 312/2002 Coll., limit
the validity of the whole of the Act on protection of classified information (identically
Prince v., p. 150). Then the legislature by Act No. 441/2003 Coll.,
amending Act No. 555/1992 Coll., on the prison service and of the judicial
the guard of the Czech Republic, as amended, and certain other
laws, with effect from the date of entry into force of the Act on 1.1.2004 extended
protection of classified information up to 30 June 2004. It was a proposal adopted on
the basis of the resolutions of the Committee for defence and security (No. 89 of
day 1.10.2003). In the parliamentary debate it was noted that in real terms
There is a risk that it would from 1.1.2004 in the legal order of the Czech Republic for at least the
a period of absence provisions for the protection of classified
the facts (see record of the House debates the day 22.10.2003). Finally,
Act No. 386/2004 Coll., amending Act No. 148/1998 Coll., on
protection of classified information and on the amendment to certain acts, as amended by
amended, with effect from the legislature published: 29.6.2004 shifted
the validity of the law on the protection of classified information for one year
with this justification to 30.6.2005: "was prepared by the design of the new law on
the protection of classified information and the security of the eligibility ...
The Legislative Council of the Government at its meeting on 12.2.2004 decided to
return the ... presented by petitioners for reprocessing the material along the lines of
her opinion. This will require a period of time.
Subsequently, should the proposal be submitted again to the legislative process,
thereby realistically threatened. .. from the 1st, 2004 by the rule of law did not contain
no legislation of protection of classified information. To be able to
responsibly edit both original proposals along the lines of the comments
The Legislative Council of the Government, and at the same time to ensure the existence of a legal regulation
governing the protection of classified information after 30 June 2004 "
(see the explanatory memorandum to the law no 386/2004 Sb.).
The Constitutional Court, the plenum is assessed by Act No. 148/1998 Coll. for the third time,
has always been that we will soon be taken to the new adjustment. To do this, however, still
did not occur. The draft law prepared the Government (NSA) was submitted to the
The Chamber of Deputies the day 27.01.2005. The Chamber of Deputies the date 30.3.2005
extended the validity of the Act on classified facts to 31.12.2005
(resolution No 1619, 42. meetings of the Chamber of Deputies, parliamentary print 735;
Editorial Note: in the meantime from the decision of the Assembly, to the publication of this
the award was approved by the Senate, this law on its 5. meeting-see
resolution No. 113, dated April 28, 2005). The Constitutional Court notes that
the uncertainty surrounding the extension of provisional measures is sensitive or the protection of
fundamental rights and freedoms or the interest of the security of the State. From the other side
It is certain that the Chamber of deputies presented a draft Bill has not yet been
actually accepted, and that will be continued in the provizoriu.
VIII. Conclusion
After it was found that the College does not meet the demands of the material
In addition, the Court perceived article. paragraph 36. 2 of the Charter, the Constitutional Court in the
the intentions of the proposal examined the relationship of the provisions of § 73 para. 2
ZOUS that permits judicial review of decisions in the field of
security vetting, with section 77k paragraph. 6 ZOUS that
excludes decisions of the College from the scope of judicial review. In terms of the article. 36
paragraph. 2 of the Charter provides that the decision of the College was subject to judicial
review.
The law indicated the possibility of process concurrency raises uncertainty in
the question of which resources to protect their rights, the person concerned must
run out before the General Court. This is a means of
undesirable uncertainty incompatible with the principles of a fair trial as,
so with the General principles, one of which must be based on the laws of each
the rule of law. From this perspective, the mere existence of the provisions of § 77k
paragraph. 6 side. The Director of the NSA's argument that the decision of the College
res iudicata represents, from the constitutional point of view is untenable. Edit
interfering with the constitutional principles of legal certainty and predictability in the law.
The Constitutional Court concluded that the ban on judicial review provided for still
the applicable provisions of section 77k paragraph. 6 of the Act on the protection of classified
the reality is in conflict with the constitutional order, because it is contrary to the constitutionally
guaranteed the right to judicial protection (article 36, paragraph 2, of the Charter) and on
is contrary to the principles of legal certainty and predictability in the law arising
the concept of the rule of law (article 1, paragraph 1, of the Constitution). This finding
It is not an expression of underestimating the security interests of the United States, whose
ensure the end allows the peaceful realization of the fundamental rights and
freedoms, but is an expression of respect for the fundamental rights and freedoms, including
the right to judicial protection occupies a unique place. The Constitutional Court
not to participate in the legislative process and cannot anticipate
the form of the scheme, which takes effect after 2005, still, even given
on the objections contained in the observations, zrekapituluje some reasons (excluding
the above) that it led to the release of the earlier findings.
In the matter of SP. zn. PL. ÚS 16/99 of the Constitutional Court stated that the Convention
"clearly requires that on the right (that is, on the merits, and not just about
the legality of a previous administrative act, the Court or Tribunal) ruled a similar
authority. In our adaptation, therefore, the Court can only delete decision
illegal, but not materially defective. In other words, decided. cannot be an administrative
discretion replace the independent judicial body dependent consideration.
If that is so in matters of ' civil rights and liabilities ' and ' administrative
punishment ' within the meaning of the Convention, this condition is unconstitutional, in other matters
will stand "(collection of decisions, Volume 22, p. 329; promulgated under no.
276/2001 Coll.).
The Constitutional Court is aware of the delicacy of the issue, and to some extent means
concerns about the NSA from thwarting the purpose of the ZOUS, which is to protect the safety of the Czech
of the Republic. Indeed, in the matter of SP. zn. PL. ÚS 11/2000, it was found that the
the area of the security screening is so specific, that "neither of the
the constitutional point of view it is not possible to guarantee all the procedural rights of
These people to such an extent as is the case with other professions and work
disputes of their employees. On the other hand, however, nor the specifics of protection
classified information cannot lead to a conscious resignation to constitutional
protection of the rights of people. So if the article. paragraph 36. 1 and 2
Of the Charter and article. 6 (1). 1 the Convention shall guarantee the fundamental right of everyone to the
a fair trial and if the judicial review may not be excluded
review of decisions concerning fundamental rights and freedoms referred to in
Of the Charter, the legislature must in this case guarantee review
administrative decisions by an independent judicial authority, even if it cannot be excluded
not a common type of control that will be individual cases sufficiently
differentiate. Existing legislation had, in effect,
means that in the process of implementing the security clearance leads to a significant
the concentration of power at the single authority of the Executive Branch, with its decision
can significantly affect the individual policy of the realm of the person "(a collection of
the decision, volume 23, p. 105; promulgated under no. 327/2001 Coll.). Later
However, the procedure before the formation of the nedostálo these demands. Due to the
Note the regional court in Brno, the Constitutional Court considers it appropriate to add
that the notification refusing certificates or notification of the withdrawal of an examination, is
to be regarded as an actionable decision administrative action (by analogy,
the discovery of 25.11.2003 SP. zn. I. ÚS 573/01, ECR, volume
31, p. 223). In the matter of SP. zn. II. TC 28/02, it was concluded that the
"Decisions about the NSA, is satisfied that the person no longer meets the conditions
referred to in the provisions of section 18 of Act No 148/1998 Coll., is by its nature
also by decision affecting article. 26 paragraph 2. 1 of the Charter. " (find from
the date of the decision of 25.6.2003, collection, volume 30, page 446).
As regards the concern about the NSA of the expansion of the circle of the persons in the judicial
familiar with the classified management of the facts, it can be stated that in the case
SP. zn. PL. ÚS 41/02 (cf. find dated 28.1.2004, collection of decisions,
Volume 32, p. 61; promulgated under no. 98/2004 Sb.) was comprehensively addressed
the question of the disclosure of classified information to the accused person and his lawyer.
The Constitutional Court recalled the address this issue in the code of civil procedure and
administrative judicial procedure and did not find the reason, why would these intentions should not
pay for all court proceedings. It is also common ground that the judge
must maintain confidentiality, and therefore, you cannot talk about the fact that introducing
in fact, the management of classified violation occurs or threats
safety.
From these findings, the Constitutional Court has no reason to deviate, and notes that the
considers that judicial review of the security screening process for
compatible with the interest of the security of the United States and interested in its
international credibility, and you can imagine that when you
restriction of access to classified information by the judicial review in
accordance with the principle of proportionality, it chooses a differentiated approach to
any restriction on a fundamental right range in a specific case in
as far as possible correspond to severity of the protected
interest. Classified information is discussed in the review must be at the same time
effectively protected, but from the inaccessibility of classified information
judicial review can hardly make a rule.
IX. Obiter dictum
Only in the context of the obiter dicta of usable initiated parliamentary
the adoption process of the Government's draft law on the protection of classified
information and security printing (No 880-cf.
www.psp.cz, Parliament of the Czech Republic Chamber of deputies since 2002)
It remained to be assessed whether the proceedings before the College required. It was therefore necessary to
subject to the provisions of § 77a to 77k ZOUS proportionality test.
The test of proportionality, which belongs to both the continental and Anglo-Saxon
the legal field to the standard tools, which the courts use. When
assessment of the conflict of public interest with the individual rights and freedoms,
The Constitutional Court drew in many of their findings (cf. also the decision
the Polish and Slovak Constitutional Court, as well as numerous decisions of the ECHR).
In the award of the day on 13 August 2002 SP. zn. PL. ÚS 3/02, the Constitutional Court, citing
the preamble and the first article of the Constitution stated that, in cases of conflicts of
fundamental rights and freedoms with the public interest, or other essential
rights or freedoms: "... it is necessary to consider the purpose of the (target), such an intervention
in relation to the resources used, with a yardstick for the assessment
is the principle of proportionality (the proportionality in the broader sense), which can be
also known as the prohibition of interference with the more rights and freedoms. This General
the policy includes three criteria for evaluating the admissibility of the intervention. The first of the
one is the principle of the eligibility of the fulfillment of the purpose (or fitness), by
which must be appropriate measures at all able to achieve the intended
the objective is the protection of other fundamental rights or public good.
Furthermore, the principle of necessity, then acts according to which it is allowed to use
only the most environmentally-friendly-in relation to the fundamental rights and freedoms
-from multiple possible resources. The third principle is the principle of proportionality
(in the strict sense), according to which the injury is on the basic law may not be
disproportionate in relation to the intended destination, i.e., measures restricting
basic human rights and freedoms shall not, in the case of the collision of the basic
rights or freedoms with the public interest, their negative consequences
exceed the positives, which represents the public interest in these
the measures "(a collection of decisions, Volume 27, page 177; promulgated under no.
405/2002 Coll.).
The Constitutional Court also notes that ensuring the security of the State is of course
a legitimate aim. However, the proceedings before the College constituted does not meet
the eligibility criteria requirements fulfill the purpose (or fitness), by
which must be appropriate measures at all able to achieve the intended
the objective is the protection of other fundamental rights or general interest.
However allows to achieve the protection of the interests of safety, it is not
eligible to live up to the demands of the article. paragraph 36. 2 of the Charter and to ensure that judicial
the protection of rights, which could be related to security
largely affected. This target allows you to best achieve the Court
the review, whose role is not to review the College to replace.
In a situation where decisions of the College must be subject to judicial review, it is
apparent that the procedure before the College does not hold water even in terms of the criteria
the need, because it must be further reviewed by the Court, and the introduction of
This control extends the number of people who are familiar with both the
classified facts (see also the above response, the Director of the NSA
the questions referred), so with the private details of the person (article.
10, paragraph 1. 2 and 3 of the Charter). Necessary to add, that even from the article. 7 (2). 1 of the Charter,
garantujícího integrity privacy, follows as the maximum limit
people who are familiar with the information on the investigated person (often
highly intimate nature) as well as the need to ensure an independent review of the entire
process. According to the principle of necessity is permitted to use only
most environmentally-friendly-in relation to the fundamental rights and freedoms-of
more possible resources. Proceedings before the College in such a means is not.
Because the Constitutional Court concluded that the proceedings before the College does not meet the
criteria of suitability and effectiveness, lost its meaning to examine whether the proceeding
meet the principle of proportionality in a strict sense. The Constitutional Court only
recalls that, according to information from the NSA security screening from November
1998 to February 2002 touched 15 352 individuals and 563 "organization"
(cf. resolution No. 274 national Security Council of 27.3.2002
available at URwww.vlada.cz). Proceedings before the College is redundant, while
with regard to non-compliance with the criteria of proportionality, it cannot be argued that this
redundancy is not harmful.
Of all of the above reasons, the Constitutional Court in the Act No 148/1998 Coll., on
protection of classified information and on the amendment to certain acts, as amended by
amended, set aside the date of publication of this finding in the collection
laws (see statement) the provisions of § 77k para. 6. Whereas, in the other
the existing provisions of the Act fulfills the purpose of the provision and the law emitted
itself will cease to have effect on 30.6.2005 (Editor's Note: respectively, 2005-see
the editorial note in the last paragraph of part VII of this finding and the law
No. 190/2005 Coll., amending Act No. 170/2002 Coll., on war
Veterans, and Act No. 148/1998 Coll., on the protection of classified information
and amending certain laws, as amended, that was in the
the time between the public announcement of this finding and its publication in the collection
the laws published in the amount of 70 of the laws sent out by 23.5.2005)
the Constitutional Court did not find reason to postpone the enforcement of the award.
The President of the Constitutional Court:
JUDr. Rychetský in r.
