In The Matter Of The Application For Revocation Of Section 77K Paragraph. 6 Of Act No. 148/1998 Coll.

Original Language Title: ve věci návrhu na zrušení § 77k odst. 6 zákona č. 148/1998 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60154&nr=220~2F2005~20Sb.&ft=txt

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of the contested decision), part of the repealed Act on the State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.