In The Matter Of An Application For Annulment Of Point 18 Of Annex A. # 3 Of The Regulation. Vl. 246/1998 Coll.

Original Language Title: ve věci návrhu na zrušení bodu 18 příl. č. 3 nař. vl. 246/1998 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=57544&nr=105~2F2004~20Sb.&ft=txt

105/2004 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court decided on 11 July. February in plenary on the draft of the public defender

rights, JUDr. Otakar Motejl, on abolition of the provisions of point 18 of Annex No. 3

Government Decree No. 244/1998 Coll., laying down the lists of classified

the facts, as amended,



as follows:

The proposal is rejected.



Justification



(I).



The day was the Constitutional Court 26.6.2003 served Ombudsman

("petitioner"), which seeks the annulment of the provisions of section 18 of the

Annex No. 3 of Decree-Law No. 244/1998 Coll., laying down the lists of

classified information, as amended by Decree-Law No 89/1999 Coll.

Government Decree No. 152/1999 Coll., regulation of the Government No. 17/2001 Coll., regulation

Government no 275/2001 Coll., regulation of the Government No. 403/2001 Coll. and regulation of the Government

No 549/2002 Coll. (Government Decree No. 244/1998 Coll.) for its

conflict with the provisions of section 3 of Act No. 148/1998 Coll., on the protection of classified

the facts, as amended ("Act No 148/1998

SB. "), and the conflict with the provisions of the article. 1 and article. 78 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution") and the provisions of the article. 4 (4). 2 and article. 17

paragraph. 1 and 5, of the Charter of fundamental rights and freedoms ("the Charter").

The applicant States that it turned Petr Uhl, a resident at the English 8,

Prague 2, with the stimulus, aiming against the Ministry of Foreign Affairs,

that utajovalo its conception of human rights in 2000, and against

certain provisions of annex 3 of Decree-Law No. 244/1998 Coll., on

Ministry of Foreign Affairs that the secrecy of the concept of human rights

rested. The Ombudsman pursuant to the provisions of § 18 para. 2 of law No.

349/1999 Coll., on public defender of rights, as amended,

took the initiative after the end of the investigation of the final opinion, in

which, inter alia, concluded that the provisions of point 18 of Annex No. 3

Government Decree No. 244/1998 Coll. (hereinafter ' the contested provisions ') is in

contrary to some of the provisions of Act No. 148/1998 Coll., some

the provisions of the Charter and the Constitution. On the basis of the opinion given

the present proposal.



The petitioner notes that Act No. 148/1998 Coll. on the assumption of,

that can only conceal the fact that she was like a secret

the fact to the competent authority of the marked classification.

The substantive definition of classified information is according to the law No.

148/1998 Coll. two-step. The starting point is the definition of classified material

in fact, the provisions of section 3 of Act No. 148/1998 Coll., according to which the

classified facts such as the fact that would be unauthorized

the waste could cause prejudice to the interests of the United States or interests, to

the protection of the Czech Republic has committed itself, or it could be for these

interests, together with the provisions of section 4 of Act No. 148/1998 Coll., which

provides for demonstrativním listing areas in which EU classified

fact may be present. The law expressly assumes that it will be

to be specified by regulation of the Government, which explains in detail for each

family lists of facts, which can be subject to confidentiality.

According to the article. 78 of the Constitution, the Government is authorised to issue regulations to

implementation of the law and only in its limits. It cannot, therefore, by regulation

included in the list of classified information other than those

that meet, and can meet the legal definition of classified

the facts.



The Government is therefore required to by regulation a list of classified information

issue. Without a detailed list would not be possible to act at all

apply. The legislature's supposedly realizes that secrecy of information is

intervention into fundamental rights and freedoms (freedom of expression and the right to

information according to art. 17 of the Charter) and that the secrecy is in the nature of things quite

easily exploitable. In this context, refers the claimant to find

The Constitutional Court, SP. zn. PL. ÚS 11/2000. The list must each

really, in substance, to specify, because otherwise he would instruct the Government to completely

wasted. It would therefore be in circumvention of the law, or by exceeding his limits,

If the Government would formulate a list of classified information were so vague

and, in General, should its provisions virtually did not differ from the base

the definitions contained in the Act. Request for substantive instantiation

concealed the fact podzákonným legislation is also in accordance

with the principles of legal certainty and predictability to the acts of public authority, that

constant case-law are the Constitutional Court, according to one of the fundamental

components of the democratic rule of law (article 1 of the Constitution). Government

a list beforehand and bindingly gives what will be removed from the outreach

the fundamental right to freedom of expression and information, even under

the threat of criminal sanctions (§ 10 and § 107 of Act No. 140/1961 Coll., the criminal

the law). In terms of the substantive law can thus conceal a

the fact that their properties meet the basic material

the definition under the Act, and is also listed in the Decree-Law on the list

classified information, provided that the definition of EU classified

fact on the list is factually substantive and degree of generality more specific

than the statutory definition.



According to the contested provisions can be within the competence of the Ministry of foreign

things kept secret "sensitive political, security and economic information from the

the field of international relations ". The criterion of the "sensitivity" of the information

the Ombudsman considers it unnecessary since the provisions of the

Act No. 148/1998 Coll., the assessment of the "sensitivity" is applied only when the

deciding on the confidentiality of certain facts in the context of whether unauthorized

the handling of such facts may or may not cause prejudice to the interests of the

The United States, or how. This procedure prescribed by itself

the law on the provision of section 5 in connection with the provision of section 2 (2). 1 and 2 of the Act

No 148/1998 Coll., the result of such an assessment is the determination of a specific

classification according to the degree of "sensitivity" of the classified information.

The adjective "sensitive", so from that perspective, seems like a duplicate.

The duplicate is the definition of the field of international relations in the contested

the provisions, as it is in annex No. 3 of Decree-Law No. 244/1998 Coll.

means of course. Repeat the provisions of greater legal force in

regulations of lower legal force is usually not considered a desirable phenomenon.

However, without more cannot lead to the conclusion that the regulation below legal

force is therefore defective. In the case of the contested provision is, however,

the unveiling of the duplication of epithets "sensitive" and "of the international

the "substantial relationship because of the findings of the actual content of this standard. After

exclusions cited for duplicate attributes, it is obvious that the Ministry of

Foreign Affairs may conceal the "political, security and economic

information ". Such a definition of classified information but apparently

does not meet the requirements of the Act on protection of classified information, which are

on the list published by the Government. The definition is vague, utajitelnou

the fact is no way factually does not specify. Allowing you to

Ministry of Foreign Affairs, even arbitrarily, conceal anything. In addition to the

This item appears to be other provisions of annex 3 of Decree-Law No.

246/1998 Coll. as unnecessary, because in all cases it is the political,

security or economic information. The Government is thus in breach of article. 78

The Constitution has exceeded the inclusion of "sensitive political, security, and

economic information from the field of international relations "to the list of

classified information the limits laid down by Act No. 148/1998 Coll.

(paragraph 3), which can lead to interference with the right to neústavnímu

information according to art. Article 17(1). 5 of the Charter, in the event that this

the provisions applied in a particular case. In addition to the contested

the provisions on the extent to which it allows the Ministry of Foreign Affairs

follow to concealment of facts, arbitrarily, in violation of the constitutional

the principles of legal certainty and predictability to the acts of public authority, that

are indispensable attributes of the democratic rule of law within the meaning of

article. 1 of the Constitution.



II.



The Constitutional Court pursuant to § 69 para. 1 Act No. 182/1993 Coll., on the constitutional

the Court, in the wording of later regulations (hereinafter referred to as the "law on the constitutional

the Court "), has requested from the Government of the Czech Republic, as a party to the proceedings,

observations on the present proposal. Asked for comments pursuant to the provisions

§ 48 para. 2 of the Act on the Constitutional Court also Ministry of Foreign Affairs

and the national security agency.



Prime Minister Vladimír Špidla in its paper of 12.8.2003

the Constitutional Court informed the Government of the United States approved at the meeting of

the date of the resolution of observations 6.8.2003 present design. The Government has

for that, the lists of classified information contained in government regulation,

must be fixed to a certain extent more general formulations so that they are

within the meaning of article 3 (2). 1 of Act No. 148/1998 Coll. necessary

the legal basis for confidentiality of certain information, and at the same time to

they were not, as a result of the eventual kazuistické of legislation, an obstacle to the

such confidentiality. General information was therefore used also in the contested

the provisions of the regulation of the Government. Especially in terms of the Ministry of


Foreign Affairs of the cumulation of the terms contained in paragraph 3 of the

paragraph. 1 of Act No. 148/1998 Coll., the inclusion of a broader provision into

the list of classified information "enforces". When you get the exact

information from abroad which cannot be more specifically specify in advance and

whose disclosure would cause harm to the interests of the United

should otherwise not be such information marked as

classified fact and concealing it, if it was not possible at the same time

for their part, under some provisions list of classified information in the field of

the scope of the Ministry of Foreign Affairs. The risk that will be caused by the

injury to the interests of the United States in the case of neutajování in advance of indefinite

foreign information is considerable. The question of the possibility of clandestine

such information is related to the question of the credibility of the United States against the

foreign partners and with the question of access to those foreign

information at all.



According to the observations of the Government of the contested provisions of regulation the Government helps in the

application practice of protecting a key principle of the whole system of protection

classified information, expressed in the provisions of § 3 para. 1 of law No.

148/1998 Coll., i.e.. protect the interests of the United States, without the possible

to argue that the principle of proportionality is thus threatened by way of providing

information. The criterion of the "sensitivity" of information is used in practice

the expression to be closer to factually outlined and highlighted specific

the character of the relevant classified information, saying that only after the

an assessment of the context resulting from the provisions of § 3 para. 1 and

the provisions of § 2 (2). 1 and 2 of Act No. 148/1998 Coll. will be shown, whether

such sensitive information marked as classified. The limits of the

administrative discretion in the contested provisions may be considered

a wider than normal, but not infinite.



In its observations, the Government admits the duplication in terms of the definition of

the field of international relations, to remonstrate with the Ombudsman, in its

the proposal. Duplication, however, for annulment of the contested provisions

legally irrelevant due to the fact that it is a duplicate expression

contained within Annex 3 of Decree-Law No. 244/1998 Coll. as

such as annex 3 to this regulation is preceded by the heading "list of

classified information in the scope of the Ministry of Foreign Affairs ".

Referred to duplication leads to the fact that even after the deletion of the words "from the

international relations, "according to the Ministry of Foreign Affairs cannot

the contested provisions of regulation the Government kept secret for political,

safety and economic information, but only those

political, security and economic information, that arise in

the scope of the Ministry of Foreign Affairs, namely, in the field of international

relationships. The framework of the said Annex is again closer to the instantiated contents

classified sensitive information, as envisaged in the provisions of § 3 para. 3

Act No. 148/1998 Coll.



The Government further submits that the contested provision on the application of the Ministry of

Foreign Affairs in annex No. 3 of Decree-Law No. 244/1998 Coll.

accompanied by a Government Ordinance No. 403/2001 Coll., whose proposal was prepared by the national

the Security Bureau. This procedure meets the requirements of paragraph 3 of the

paragraph. 2 and 3 of Act No. 148/1998 Coll. cannot, therefore, agree that the

the contested provision does not meet the requirements of the Act, that are on the list of

issued by the Government. The contested provision does not conflict with

the provisions of section 3 of Act No. 148/1998 Coll., nor in breach of article. 78 of the Constitution,

Since the Act does not exceed the limits. According to the article. Article 17(1). 5 of the Charter State

institutions and authorities are required to adequately

to provide information about their activities. Condition and take down

the law. This is Act No. 106/1999 Coll., on free access to information,

that recognizes the limitations of the right to information in the case of classified

the facts. Whereas the inclusion of the contested provisions of the Government

the Government did not exceed the limits set by law, not concealment

the relevant information referred to in the contested regulation the Government lead to the intervention of

the right to information. The Government considers it debatable whether the determination of the

sensitive political, security and economic information in the

the field of international relations as the fact of classified, respectively.

This provision under the limits of the administrative consideration, can nowadays

definitely interpreted as non-compliance with the constitutional principle of legal

certainty and predictability to the acts of public authorities. In recognition of the fact that

Czech Republic belongs for many years into the international democratic

the community, it can be assumed that it is possible in the context of

international events, at least in general terms to infer and predict out

the nature of the classified information covered by the contested provision

can be and what kind of information the value of intensity may have. The contradiction

the contested provision thus does not find it or in relation to the meaning of

the provisions of article. 1 of the Constitution. Points out that the principle of placing the classified

fact on the list, issued as the legislation in other countries

It is not applied. The only condition to a certain fact to be

marked as classified, is that when its disclosure may occur to

threats to the interests of the country or to the injury. The substantive intent of the new legal

Edit the area of classified information, approved by the Government of the Czech Republic,

Therefore, it assumes that the classification of classified information will make the

its the processor only on the basis of a qualified assessment and options

the extent of the injury to the interests of the United States, or to the interests of the

the protection of the Czech Republic has committed itself, in the case of disclosure of relevant

information, its unlawful acquisition or unauthorized use, without

While the list of classified information was published.



Ministry of Foreign Affairs (hereinafter ' the Ministry ') in its

the observations stated that the present proposal is aimed very unilaterally.

Emphasis is only to facilitate the widest possible access to information and

significantly less attention to the obligation to ensure the protection of

of classified information. Also focuses on only one of the conditions for

designation of certain facts by the appropriate security classification-against

specific provisions from the list of classified information in the field of

the scope of the Ministry of Foreign Affairs, the Ministry considers the

as a condition of supporting and essentially formal. In his opinion, it is not

ever considered the possibility that in a particular case did not have to be

the primary and fundamental condition is met, i.e., that there may be only to

improper assessment of whether and to what extent can the unallowed

the information in question cause prejudice to the interests of the United States. The

the problem reportedly is not in the contested provision, but in paragraph 3 of the

Act No. 148/1998 Coll., according to which both those conditions

cumulative in nature. In the conditions of the Ministry's statutory

the provisions of a more general classification provisions into enforces the list

of classified information. When obtaining certain information from abroad (of which

You cannot specify in advance not more specifically), the disclosure of which might

cause prejudice to the interests of the United States, would not be able to mark it as

classified fact, if not at the same time it can be encapsulated

some provisions from the list of classified information in industry

Ministry of Foreign Affairs. The risk that in such cases

caused the injury to the interests of the United States, is significantly larger than the

the risk that some information will not be published, where it was possible

risk assessed incorrectly. The Ministry also stresses the question

trust to foreign partners. If it would not be possible to

guarantee that the information provided about the content at a given time

nothing is known, cannot be protected in the mode of classified information,

It can be assumed that such information will not be provided. The Ministry of

considers that, if it does not endanger the protection of classified information

in the scope of the Ministry of Foreign Affairs, and limit our ability to

to obtain information of a sensitive nature from foreign partners, must

be initially edited the provisions of section 3 of Act No. 148/1998 Coll. of

This provision has been deleted as a formal condition, which requires that the

the fact that is to be marked with the appropriate degree of confidentiality, it was

included in the list of classified information, then it would be possible for regulation

Government no 246/1998 Coll. Cancel completely.



The National Security Office (hereinafter "NSA") in its observations that

the list of classified information has to a certain extent indicative only

character. It is used primarily as a general tool for marking

each of the facts as to the classification of classified and

the various types of classified information to a degree of secrecy. Therefore,

the lists of classified information used in some cases, the General

formulation, as in the contested provision. The NSA does not agree that the

the contested provision was contrary to the provisions of section 3 of the Act No 148/1998

Coll. law itself closer to the requirements for the content of the list. The contested

provision is therefore not contrary to article 78 of the Constitution, as


does not exceed the limits of the law and is not formulated were so vague and General that the

its wording is different from the base of the definition contained in the law, as

suggested in the proposal. The text of the contested provisions is neither contrary to the

the provision of article. Article 17(1). 5 of the Charter, as it confers on the conditions and

the implementation of the right to Information Act, and it is clear that the right to information

is limited, if classified information is involved, as recognized even

the provisions of section 7 of Act No. 106/1999 Coll., the contested provisions, as well as

additional list of classified information in the application practice

help protect the key principle of the protection of classified

facts-protection of the interests of the Czech Republic. In practice, reportedly does not

larger problems. The NSA also adds that the classification of classified

reality depends on the specific cases, since the decision of the

the correct determination and indication of the competent classification is the responsibility

and responsibilities of the Board [section 12 paragraph 2, point l) of law No.

148/1998 Coll.]. Classified facts, however, may be the only such

the fact that is mentioned in the list of classified information. The degree of

Therefore, confidentiality cannot be marked the fact that while content-terms and conditions

classified information meets, but it cannot be classified under any of the

the topics referred to in the list. In other countries, this principle is applied

and the only condition is that the event has been marked as

secret, is the possibility that when its disclosure may endanger the

the interests of the country or to its detriment. The substantive intent of the new legislation, approved by the

the Government, and, by extension, the new draft law on the protection of classified information,

Therefore, it assumes that the classification of classified information will make the

its processor (author), and only on the basis of a qualified

assessment of options for the extent of the injury to the interests (or disadvantages for the

interests) of the Czech Republic, or the interests of the protection of the Czech

Republic has committed itself, in its disclosure, unauthorized acquisition or

any unauthorized usage.



III.



First, the Constitutional Court, in accordance with § 68 para. 2 of the Act on the constitutional

the Court examined whether the Government Regulation, for which the appellant argues

the unconstitutionality of the provisions adopted and published within the limits of the Constitution

set out competences and constitutionally prescribed way. The constitutional mandate to

the issue of regulation, the Government is given by the article. 78 of the Constitution, according to which to perform

within the limits of the law and the Government is authorised to issue the regulation. Regulation

shall be signed by the Prime Minister and the Member of the Government. From Act No. 148/1998

ECR can be inferred that the competent Member of the Government in the present case

the Prime Minister himself. According to the provisions of § 7 para. 1 of the Act is

Indeed, the central administrative authority for the protection of classified

the fact that also handles lists of classified information (section 3

paragraph. 2 of the Act), the national security agency, over which

the Prime Minister exercises supervision (article 7, paragraph 3, of the Act).



In this case, the Constitutional Court found that the resolution No. 678 of 19 May.

10. in 1998 the Government approved the proposal for a regulation of the Government laying down

the lists of classified information. Of the 15 present members of the Government voted

for the approval of all 15 members. The regulation signed by the President of the

Minister ing. Miloš Zeman. The regulation has been published in an appropriate manner in the

The amount of the collection of laws under no. 86 246/1998 Coll. Effectiveness came into the day 2.

11.1998. The contested provisions of point 18 of annex 3 to the contested

Government regulation accompanied by its amendment by Regulation No 403/2001 Coll.

Regulation of the Government No. 244/1998 Coll., laying down the lists of

classified information, as amended. This amendment was

adopted by resolution of the Government No. 1048 of 15 July. 10.2001. From the present 15

members of the Government for its approval of all 15 members voted. Even this

the Government decree signed by ing. Miloš Zeman, and was duly published in the

The collection of laws under the above number.



In these circumstances, the Constitutional Court concludes that the contested regulation of the Government

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner within the meaning of the provisions of § 68 para. 2 of law No.

182/1993 Coll., on the Constitutional Court. Therefore, the Constitutional Court could deal with the

rule.



IV.



The claimant submitted the proposal seeks the annulment of the provisions of section 18 of the

Annex No. 3 of Decree-Law No. 244/1998 Coll. Annex No. 3 of that

the regulation is marked with the "list of classified information within the scope of

Ministry of Foreign Affairs ", and section 18 of this Annex:" sensitive

political, security and economic information from the field of international

relations. " This regulation has been issued for the implementation of Act No. 148/1998 Coll.

According to the provisions of § 3 para. 1 is classified by the fact such

the fact is that would cause the unallowed injury

the interests of the United States or the interests of the protection of the Czech

Republic has committed itself, or it could be disadvantageous for these interests, and that

is listed in the list of classified information. According to paragraph 2(a). 2 and 3 of this

the provisions of the handles lists of National classified information

the Security Bureau on a proposal from the central authorities and the Government shall issue its

by regulation.



The applicant mainly contends that the contested provision, the Government has acted in

contrary to article 78 of the Constitution. According to the first sentence of that provision is to

the Government is authorised to issue regulations for the implementation of the law and its limits.

Must move secundum et intra legem, rather than outside the law

(praeter legem). The Government only distributes or updates

disposition or hypothesis by legal standards, and it is not possible to

This legal norm in fact page expanded or narrowed.

It requires that government regulation was general and on

an indeterminate group of addressees, as the Constitution authorizing it to legislation

not to the issue of the individual administrative act. Before the excesses of the Executive

the barrier protects things dedicated to regulate only the laws (the so-called "reservation

the Act) (cf. Constitutional Court pl. ÚS 45/2000).



The provisions of § 3 para. 1 of Act No. 148/1998 Coll., defines the concept of "classified

the fact "with the help of two cumulatively operating conditions,

the conditions of the material (unallowed such facts may

cause harm to the interests of the United States or the interests of the protection of the

Czech Republic has committed itself, or it could be disadvantageous for these interests) and

the terms of the formal (included on the list of classified information). From

the present proposal, it is clear that the appellant came out in the interpretation

the provisions of section 3 of Act No. 148/1998 Coll., especially of linguistic methods.

Came to the conclusion that the law foresees the existence of exhaustively and specifically

a defined list of classified information. It then concludes that

the Government has vybočila in its activities from the limits of the law, since the list of issued

the Government does not match this requirement.



The interpretation of the law, however, represents a complex multilayered

the intellectual operation, which in itself is complimented by a variety of methodological approaches.

The Constitutional Court shall be considered in the context of a vital method

interpretation (e) ratione legis. Previously in its case law has accepted the principle of

even the relationship between the Act and the regulation that a priority

the constitutionality of the regulation being considered its compliance with the meaning and purpose of

the act as a whole (cf. find pl. ÚS 45/2000). One of the main objectives of the

Act No. 148/1998 Coll., on the protection of classified information, the protection of

the interests of the United States. This is illustrated by the text of the provisions of § 1a already referred to

the law, which is primarily define its subject matters that

It is to be kept secret in the interest of the United States. The stated purpose of the law have

fill even more of its provisions, not least in the provisions of § 3 para.

1. use of teleological interpretation method leads to the important conclusion that

the purpose of the law is legally to ensure that all the facts have been kept secret,

that qualified (§ 2 paragraph 2) conflict with the interests of the United States.

This objective is in the material condition provisions of projects § 3 (1). 1

Act No. 148/1998 Coll., it would be absurd to believe that the legislature

Whilst the second, formal, conditions the provisions of § 3 para. 1 of the law

No 148/1998 Coll., intended to prevent the effective fulfillment of the purpose of the Act.

Just such an absurd conclusion would lead to the acceptance of the proposition that the list

classified information drawn up on the basis of the instruction of the law the Government has

contain only the items and at the same time be entered into the list

the ultimate, an exhaustive. The combination of high specificity and taxativnosti when

drawing up the list of classified information would have made it impossible to fill without

the rest of the purpose of the law and programmatically, in the other the risk that the fact

that meets a material prerequisite to secrecy, secret, will not be

Since it does not fall under any of the specific items on the list established

the Government. Such an "at risk" the Government did not have the mandate of the combination. It is not

authorized by a legal norm in fact narrowed (see page

above). This procedure would not be "making the law and within the limits", but

the procedure which article contra legem. 78 of the Constitution does not allow.



The applicant also considers that the Government Decree No. 244/1998 Coll. to its


a list of nedostálo the principles of legal certainty and predictability of the acts

the public authorities that are inherent to the democratic rule of law (article 1

paragraph. 1 of the Constitution).



Naturally, the Constitutional Court agrees, that the predictability of the law is

one of the essential elements of the principle of legal certainty, without whose

respect for the democratic rule of law cannot be imagined. Also shares

the view of the appellant that "predictability" is associated with a clear

the normative definition of the individual groups of classified information with the

exhaustive nature of their list, established by the Government.



Legal certainty or predictability of the acts of the public authorities, however, are not

absolute categories, that it would be possible to build above the rest

the components that create the concept of a "democratic State". The Constitution of the

the protected value is the protection of the interests of the United States as a sovereign

the State (article 1, paragraph 1, of the Constitution). The law on these classified facts

interests defines as "conservation of the constitutionality, sovereignty, territorial

integrity, ensure the defence of the State, public security, the protection of

important economic and political interests, rights and freedoms of natural and

legal persons, and the protection of life or health of individuals ". The task of the

the legislature and the Government is so you can optimize the dissenting

the action of the protective mechanisms of the two values, in other words, to narrow the

the minimum space for a possible position in the acts of public authorities

while ensuring the protection of the interests of the State. It would not be

"Optimizing", if the Government ensure the perfect legal certainty

and, by extension, the perfect predictability at the expense of the protection of the interests of the State, which would

Thus understood, the predictability of the request had to unconditionally back down.



The Constitutional Court draws attention in this context to the principle of proportionality, which

the other comments the concept of optimization. And it must be weighed against the list in

Annex No. 3 to Decree-Law No 244/1998 Coll., which is the subject of the proposal.

Reasonable limitations of predictability (legal certainty) is such a

necessary restrictions, which can provide more effectively fulfilling the objectives of

Act No. 148/1998 Coll., it is obvious that in the described operation "Optimization"

the Government was forced to in the list of classified information to optimize the

a large extent contradictory requirements for accuracy and specificity of the items on

the one hand, and on the taxativnost of their entire file on the other.



Hypothetically, offered two possible procedures: to vote without specific

representation of individual items in the list, and this list at the same time

defined as a non-exhaustive enumeration. A similar way clearly chosen

the legislature, in section 4 of Act No. 148/1998 Coll. compiled a list of

"areas" in which classified information may occur. Through his

the unusual breadth (27 items) did your word list

"in particular".



The Government could not in a similar situation to choose this procedure due to the fact that the

literal interpretation of the provisions of § 3 para. 1 of Act No. 148/1998 Coll. in relation

to the formal condition (putting facts on the list), the mouth in the request

a positive enumeration in the list. So it had to proceed inversely, preserve

taxativnost list and "optimize" in the degree of generality (specificity)

the provisions of the individual list items i list as a whole.



The Constitutional Court notes that annex 3 of Decree-Law No. 244/1998 Coll.

(The list of classified information in the scope of the MINISTRY of FOREIGN AFFAIRS) contains 18 items.

17 it is relatively specific, while item # 18 is a relatively

General. The list as a whole so it gives space to the public authority

broader factual administrative discretion only under no 18, is already

to be understood as "residual" area by the Nos 1-17.

Only in this residual area (not in the whole field of international

relations) there is objectively a space with respect to acts that would be theoretically

can be described as "unpredictable".



The Constitutional Court, however, points out that the applicant applies its

the idea of legal certainty and predictability to the unacceptably zúženému

the concept of a democratic rule of law. Legal certainty and predictability

the acts of the public authorities is to be maintained in relation to other entities

of international law. According to the article. 1 (1). 2 of the Constitution, "the CZECH REPUBLIC adheres to the commitments

for it under international law. " Czech Republic took over the

against your allies the confidentiality of certain international commitments of the parties

important and sensitive information. Is required to their international

transfer commitments into national law and to ensure its use of secrecy

the relevant facts. "Predictable" for these other States will be

such a legal framework of the procedure of the public authorities of the Czech Republic, which

will be eligible to lead to compliance with its international obligations in the field of

confidentiality. "Unpredictable" on the contrary, such a framework will be that confidentiality

the fact that the protection of the CZECH REPUBLIC internationally legally committed to, will not be

able to in all cases. In so doing, the international of the CZECH REPUBLIC

responsibility to the allies for the "result": its commitment to a breach in the

When not protecting certain individual facts

which is subject to confidentiality under the international treaty. To the CZECH REPUBLIC was able to

to live up to their international obligations in that area, its institutions must

granted permission to judge whether a particular fact is

the international treaty, secret or not. If the CZECH REPUBLIC will not be able to because of the

specific content to its national law, such a specific assessment and

a subsequent undercover fully to ensure it is for the contracting partners to its behavior

"unpredictable" and undermining legal certainty in international legal

relationships. Contractors may not certain sensitive information United

Republic to convey, or to the detriment of its safety or its other

the fundamental interests of the protected article. 1 (1). 1 of the Constitution.



Taking into account the previous reasoning has the Constitutional Court considered that the level of legal

uncertainty, unpredictability, which rezultuje from the list of classified

the facts in the scope of the Ministry of Foreign Affairs as a whole, it is

reasonable in relation to the law, the desired level of protection of the interests of the State and with

regard to the constitutional principle of respect for the obligations for the Czech

Republic under international law.



The applicant also considers that the Government Decree No. 244/1998 Coll. to its

list (by the contested provision) allows you to do Ministry

of Foreign Affairs in the concealment of the facts so that they can be

neústavnímu intervention in the right to information under article. Article 17(1). 1 and 5

Of the Charter. The Constitutional Court does not share his convictions. Act No. 148/1998 Coll.

restricts the freedom of expression and the right to seek and disseminate information. from

to ensure the defence of the State or public security, therefore, for the reasons

that explicitly acknowledges the provisions of article. Article 17(1). 4 of the Charter. The Government of the

the contested provision does not exceed in the implementation of this law, its

limits and a reasonable degree of administrative discretion in the application of the regulation

the Government calls for the purpose of this Act. The application of the contested provisions

in the list, so do not prevent the Foreign Ministry proportionate

way to provide information on their activities in accordance with the law.



The Constitutional Court agreed with the plaintiff's claim or alleged

violation of the provisions of article. 4 (4). 2 of the Charter. The limits of fundamental rights and

freedoms (in the present case, the right to information) are, in the present

things undoubtedly defined by law (both the Act No 148/1998 Coll., which

What is a classified facts, and, secondly, Act No. 106/1999 Coll.

about free access to information that the provisions of section 7 specifies that

the statutory body of the classified information does not provide). As it has been from the top

the limits of the law, the Government elaborated, in the present case had not infringed, and

Thus the constitutionally guaranteed right to confine itself to information more than the law

allows.



The Constitutional Court admits that the application of Decree-Law No. 244/1998 Coll. and

its annexes in specific cases may cause certain problems and

doubts, as was the case in the event that initiated the procedure

the petitioner. Legal space to an administrative discretion may be in

the individual situation of the abused arbitrary classification of a specific

the fact that currently does not meet the material condition of § 3 para. 1

Act No. 148/1998 Coll., in such a situation, however, the law allows

to seek the protection of their right to information, and this means that

defined in Act No. 106/1999 Coll., on free access to information.

According to the provisions of § 16 para. 1 of this Act, namely a decision

the statutory body of refusal of requests for information, submit

the appeal against the decision, respectively, the central body of State administration

decomposition (para. 5 of the cited provision). The decision on the refusal of the application

It is also open to the General Court (section 16 (6) of the Act)

and his decision, consequently, the Constitutional Court.



Any arbitrariness in determining the specific facts which are to be

classified, can be effectively countered. The Constitutional Court therefore considers that the

the contested provisions in a wider context just defined is a process

in accordance with the conclusions that the accuracy of the legal standards and

the predictability of the acts of the public authorities has made the European Court of human

rights. This Court required in cases where the law authorizes


to the discretion of the public authority, so the scope and modalities of the exercise of such

discretion have been defined with sufficient clarity, having regard to the

legitimate aim and to give individuals adequate protection against

discretion or arbitrary decisions [against France Kruslin (1990), sections 27, 29, 30, and m. and

R. Andersson against Sweden, (1992), s. 75].



Having regard to all the foregoing, the Constitutional Court for annulment of the provisions of

point 18 of Annex No. 3 of Decree-Law No. 244/1998 Coll. According to § 70 para. 2

Act No. 182/1993 Coll., on the Constitutional Court, rejected.



The President of the Constitutional Court:



in the z.. Hollander v.r.



Vice Chairman



Under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, the decision of the Assembly, took a different position

judge JUDr. Elisabeth Wagner.