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.
