In The Matter Of The Application For Revocation Of § 58 Para. 6 Of Law No 412/2005 Sb.

Original Language Title: ve věci návrhu na zrušení § 58 odst. 6 zákona č. 412/2005 Sb.

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71462&nr=226~2F2010~20Sb.&ft=txt

226/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 4 April 2006. May 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří

Nykodým, Pavel Rychetský and Michael April about the design of the municipal court in

Prague to repeal § 58 para. 6 of law No 412/2005 Coll., on the protection of

on the security of classified information and competence, as

amended, with the participation of the Chamber of deputies of the Czech Parliament

the Republic and the Senate of the Parliament of the Czech Republic as parties to proceedings



as follows:



The proposal is rejected.



Justification



(I).



The subject of the proceedings and the arguments of the applicant



1. the suggestion that the Constitutional Court was delivered on 23 December 2005. April 2009 according to

article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and by

the provisions of § 64 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, (hereinafter referred to as the "law on the Constitutional Court")

The municipal court in Prague, for which this is JUDr. Luboš Vrba, Chairman of the Senate

(hereinafter referred to as "the applicant"), sought the annulment the provisions of § 58 para. 6

Law No. 412/2005 Coll., on the protection of classified information and on the

security, as amended, (hereinafter referred to as

"the law No 412/2005 Coll.).



2. In the design of the appellant stated that in the context of the consideration of the criminal case of L.

P. and Ing. J. t. under SP. zn. 42 T 22/2008 accused Ing. J. t. had

commit the crime threat to classified information pursuant to section 106 of the Act

No. 140/1961 Coll., the criminal act, as amended, by

as a worker of the Ministry of defence of the Czech Republic told the part content

Directive of the North Atlantic Treaty Organization (hereinafter referred to as "NATO"), which

for the Czech Republic entered into force on 12 June 2006. March 1999 and was

published in the collection of laws under no. 66/1999 Coll., no AEP 54 L. P.,

should use the information in the business activities of the company POHORELEC

s. r. o., dealing with, inter alia, the development and sale of protection

Chemical Defense funds for the army of the Czech Republic. Part of the

reference material are also two annexes, which proposes the implementation of

evidence in the trial in the degree of Dvyhrazené "and" confidential "

classified information in relation to NATO. Advocates of both defendants

They argue their clients right truncation of the defence on the ground that they have been

with reference to the provisions of § 58 para. 6 of law No 412/2005 Coll. rejected

opportunity to get acquainted with the documentary material that makes up the accompanying

part of the reference material, on the grounds that a lawyer or

the defendants are not in possession of a valid certificate of the national security

the Office for access to EU classified information to a foreign power. The applicant has the

that make access of the accused to classified information within the

the ongoing criminal proceedings by holding a valid certificate of the national

the Security Bureau is inadmissible and, in the cases of criminal offences according to the

section 105 and 106 of the Penal Code even absurd. Questions on the Czech

Bar Association, and the National Security Agency found that the applicant

they do not have records of lawyers who are in possession of the relevant

security permissions. It is therefore not possible in the case of necessary defence,

that was established following a proven advocate on the part of the trial where

It will be heard secret the fact, nor the choice of such a

Defender of the accused pursuant to the provisions of § 33 para. 1 and § 37 para. 2 of the Act

No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended.



3. the appellant further stated that under the provisions of section 51b code of criminal procedure, in

amended by Act No. 413/2005 Coll., on the amendment of laws in connection with the adoption of the

the Act on protection of classified information and the security of the eligibility,

If they are in criminal proceedings discussed classified information must be

the interpreter, the accused, the legal representative of the accused, the defence counsel, the

person, the injured victim, agent, agent of the person concerned,

the confidant of the accused, the expert, the person lodging the professional representation,

as well as other persons who are under the law, must take part in the criminal

proceedings, instructed in advance pursuant to the provisions of § 58 para. 5 of law No 412/2005

SB. Persons referred to in section 51b criminal procedure code, if there are

natural persons holding a valid certificate for the appropriate degree of confidentiality,

have the opportunity to be acquainted with the contents of classified information after

are instructed according to the provisions of section 9 of Act No. 412/2005 Sb.

However, you cannot apply to the classified information, which refers to "a foreign power"

within the meaning of paragraph 2 (a). g) of law No 412/2005 Coll., as this

the contested provisions of § 58 para. 6 of law No 412/2005 Coll. conceptually

excludes. In the opinion of the applicant is not possible under the applicable legislation,

in the course of criminal proceedings in which they are discussed

classified information to a foreign power, the defendants and their counsel, if

do not hold a valid certificate issued by the national security

the Office, with documentary evidence. The rapporteur therefore considers the

such an adjustment in the context of criminal proceedings inadmissible, since it is in

contrary to the Charter of fundamental rights and freedoms ("the Charter"), and it

specifically, with art. 38 para. 2, which provides that everyone has the right to his

the matter has been discussed in his presence, and to be able to comment on all

evidence, with art. 40 para. 3 of the Charter, which guarantees the

the right of the accused to be given time and opportunity to prepare

the defence and to defend himself or through an advocate, and also with

article. 37 para. 2 and 3 of the Charter, which States that everyone has the right to legal aid

in proceedings before the courts since the beginning of the proceedings, and all participants are in the

the proceedings are equal. At the same time, the contested provisions of the conflicts in accordance with the conclusions of the

made by the applicant with the European Convention for the protection of human rights and

fundamental freedoms (hereinafter referred to as "the Convention"), which in article. 6 (1). 3 (b). (c))

guarantees to everyone the right to defend himself in person or by Attorney pursuant to

your choice, and with the article. 14. 3 (b). (d)) of the International Covenant on

Civil and political rights [of the declared under no. 120/1976 Coll. (hereinafter referred to

"International Covenant")], which provides that every person who is charged with

criminal offence, is to be tried in his presence and to defend himself in person

or through a lawyer, whom he chooses.



4. the applicant considers that the contested provisions of § 58 para. 6 of law No.

412/2005 Coll., which has to be applied in solving the case, and whose use is

in a criminal case for deciding guilt and punishment, is in

contrary to the constitutional order. The contested provision according to

the appellant makes it impossible both to the right to defence of the accused and, therefore,

to a fair trial as such and, on the taking of evidence

subject to the classification of a foreign power in the main version

their reading. Therefore, the plaintiff by order of 5 May 1999. February 2009, SP. zn.

42 T 22/2008 broke the criminal proceedings of both defendants and the whole thing

submitted to the Constitutional Court for consideration and decision on the annulment of the contested

provisions.



II.



Locus standi of the applicant



5. The Constitutional Court first examined whether the formal conditions are met

the factual assessment of the draft, and he as well as the question of whether the appellant

in the present case is actively open to submit this proposal.



6. According to the article. 95 para. 2 of the Constitution, on which the application is based, if the Court

the conclusion that the law to be applied in solving the case, is inconsistent with the

the constitutional order, refer the matter to the Constitutional Court. The Constitutional Court

notes that, in the case under consideration is necessary direct application

the contested provisions of the complainant. So the proposal was filed by authorized

the complainant.



III.



The diction of the contested provisions of the legislation



7. the contested provisions of § 58 para. 6 of law No 412/2005 Coll., which was

the Act No. 412/2005 Coll., inserted by Act No 119/2007 Coll., which

amended Act No. 412/2005 Coll., on the protection of classified information and on the

Security competence, with effect from 24. May 2007:



"The persons referred to in paragraphs 1 and 4 are, with the exception of the President of the

of the Republic, the President of the Senate, the President of the Chamber of Deputies

Parliament, the Prime Minister and Minister of Foreign Affairs, access to

the classified information to a foreign power. ".



IV.



A description of the legislative procedure, the adoption of Act No. 119/2007 Sb.



8. From the observations of both chambers of the Czech Parliament, attached

annexes and documents available electronically at www.psp.cz

The Constitutional Court found:



-the Government has submitted to the Chamber of Deputies a draft law on 9 April. November

2006



-1. the reading took place on 28 June. on 7 November 2006. a meeting of the

The Chamber of Deputies



-the Committee for the defense of the Chamber of Deputies discussed the Bill and issued

January 23, 2007 the resolution delivered to members such as print 84/1 (amendments

suggestions)



-2. the reading took place on 30 November. on 11 January 2007. the meeting of the

the Chamber of Deputies, filed amendments were processed as print 84/2,

which was sent on 31 December 2004. January 2007



-3. the reading took place on 7 December. on 11 February 2007. the meeting of the

House of Commons, the Bill was approved (vote no. 133, resolution No. 219)




-Refer the Chamber of Deputies on 15 December. February 2007 Senate Bill

as printing 23/0



-the proposal has been discussed on 8. on 4 March 2007. a meeting of the Senate, the Senate

Bill returned by the House with amendments



-on the Bill returned by the Senate were votes on 24. on April 20, 2007

14. the meeting of the Chamber of Deputies. The Chamber of Deputies adopted a law

(vote no. 41, resolution No. 271)



-President of the Republic signed the Act on 11 July. May 2007



-the law was promulgated on 24. May 2007 in the statute book in the amount of 44

under no 119/2007 Sb.



The Constitutional Court notes that, on the adoption and release of Act No 119/2007 Sb.

occurred in the prescribed manner.



9. after the Constitutional Court went to assess the content of the

the contested provisions of law No 412/2005 Coll. with regard to its compliance with the

the constitutional order of the Czech Republic [article 87, paragraph 1 (a)) of the Constitution].



In the.



Recap the essential parts of the observations of the parties to the proceedings, the Ministry of

defence of the Czech Republic, the National Security Bureau and security

information services



10. According to § 42 para. 4 and § 69 para. 1 of the law on the Constitutional Court posted by

The Constitutional Court of the proposal from the Chamber of Deputies and the Senate of the Parliament

Of the Czech Republic.



11. the President of the Chamber of deputies of the Parliament of the Czech Republic-Ing.

Miloslav Vlček in observations of 25 July. September 2009 described the legislative

procedure for the adoption of Act No. 119/2007 Coll. and stated that the assessment of compliance

the contested provisions with the constitutional order of the Czech Republic is a matter of

Of the Constitutional Court.



12. The President of the Senate of the Parliament of the Czech Republic. Přemysl Sobotka in the

representation of 7 November. October 2009 said that in the debate to the amendment of the law No.

412/2005 Coll., on the meeting of the Senate was not the topic, IE. the exclusion of

the defendants and their advocates for access to classified information of a foreign

the power of the taking of evidence in criminal proceedings unless they have a special

the certificate directly at all. The representative of the Government at home consultation

He recalled that the objective of the amendment was a major reduction in people with privileged

access to classified information to a foreign power, that is,. in particular, the

The North Atlantic Alliance and the European Union (exempt only stay

the President, the Presidents of the Chambers of Parliament, the Prime Minister and the Minister of

abroad). In the introduction, it was also recalled that the amendment was a response

on the criticism of NATO'S Security Office after the implementation of inspection

the commitments the United States from the agreement between the Contracting Parties

The North Atlantic Treaty on the information security published notice

Ministry of Foreign Affairs No 75/2001 Coll., m. s. (hereinafter referred to as "the agreement on

information security "). As a result, the Government introduced its response

in the form of legislative initiative as extremely urgent.

News report on the amendment of the law then only referred to in the note

some note that the previous legislative process have appeared

in the opinion of the President of the Legislative Council of the Government of a draft law for sure

comments regarding its constitutionality. In this sense, it was a

a reminder of the rules article. 6 of the Convention, with the caveat that the proposal on the

the exclusion of a judge, an advocate, a party to proceedings, experts, etc. from access to

some foreign power classified information relevant for judicial proceedings

may not be in accordance with this rule. From previous discussions of the Committee on

Foreign Affairs, defence and security, you can then recall the mention of it,

the adoption of special arrangements for classified information to a foreign power may have

problematic consequences. It is mentioned that no "install" the judge

or "exclude" the chosen defence counsel for the particular case by pointing to it,

the first of them has and the other does not have a certificate for access to classified

information on the regulation of the status of the accused, in this sense, not to mention.

There were discussed questions previously from the point of view of the Constitutional Court

for example. If you can submit to lawyers "to consent" (meaning the

special certificates) for the performance of legal representation in cases with

classified information or question the so-called. special courts or judges

for confidentiality, contrary to the principle that no one shall be deprived of his judges.

Note from výborového hearing subsequently found themselves outside the

the main direction of thinking about the Senate Bill. The Senate debated a

the amendment in question of law No 412/2005 Coll., which happened

valid also contested provision, in the belief that they do so within the limits of

The Constitution laid down the competence and constitutional manner. It is on the

The Constitutional Court to examine the constitutionality of the contested provisions and design

decided to.



13. The Constitutional Court delivered in accordance with the provisions of § 48 para. 2 of the law on

The Constitutional Court of the Czech Republic to the Ministry of defence and security

information services to submit their views.



14. In its opinion on the draft submitted by the Ministry of defence

The Constitutional Court on 6. October 2009, stated that the contested provisions of §

58 para. 6 of law No 412/2005 Coll. was complemented by law No. 119/2007 Sb.

on the basis of the inspection findings, NATO Office of Security 2006 (No.

j. D9/2008/DP-2015-NATO), in which it was found that it was possible to

approximately 5 000 individuals to review classified information

foreign power directly from the Act, IE. natural persons without a valid certificate.

The possibility of special access a wide range of individuals without

examination of the classified information, which allowed the NATO the text of § 58

Act No. 412/2005 Coll. before his amendment made by Act No. 119/2007

Coll., was considered to be rozpornou with the wording of article. 3 (2). 1 the agreement on

information security, which reads: "the Contracting Parties shall ensure that all

persons having their nationality and the fulfilment of their official

duties require access, or persons who may have access to

the information allegedly classified confidential and above, were

duties appropriately examined. "that is, with the international

the obligations of the Czech Republic to NATO. Due to the fact that this was for NATO

the situation and the principle of, i.e.. the possibility of a wide range of individuals have

access to classified information to NATO without a valid certificate of physical

person, completely unacceptable, this legislative deficiency was corrected

a radical reduction in the ability to access individuals without examination to

classified information a foreign power (five constitutional factors). In the framework of the

summary the inter-agency disagrees, which was carried out to

the draft law, amending Act No. 412/2005 Coll., was based on the

The Ministry of Defense of the belief that the present proposal is in line with the

the constitutional order of the Czech Republic and its international obligations.



15. the security information service in its statement of 16 December 2004. October

2009, the Constitutional Court said that the purpose of inserting the contested provisions

the Act No. 412/2005 Coll. was to comply with the requirements that the

Republic put the obligation of international law and European Union law. It comes

in particular the agreement on the security of information and security standards

NATO-security directive C-M (2002) 49-security within NATO

April 2002 (hereinafter referred to as "security NATO directive"). Of the regulations of the European

Union are European Union Council decision 2001/264/EC, which

take the safety directive, the Commission, and also of Council Regulation No.

1958/3 implementing article. 24 of the Treaty establishing the European

Atomic Energy Community. Annulment of the contested provisions would

mean that Czech Republic has failed to fulfil these commitments. At the same time

would lead to a reduction in the trust of the State authorities of the Czech Republic,

that are recipients of classified information provided to foreign authorities

power. In the handling of this information because it applies the principle of

the causative agent, which means that the recipient of information respecting the instructions of the originator

about who and under what conditions the granted information

get acquainted. The contested provision an exception from the need to be in possession of

a valid certificate for access to classified information does not allow

not only for natural persons in the framework of criminal proceedings, the code of civil

management and administrative judicial proceedings, but also for persons referred to in section 58

paragraph. 1 of law No 412/2005 Coll. the absence of special access to the

foreign power classified information for these people, but not in any relationship

the alleged infringement of the design to the aforementioned provisions of the Charter, the Convention and the

The International Covenant, as all these provisions protecting the right to

a fair trial. In the event that the Constitutional Court has come to the view that the

the contested provisions, as amended, is in conflict with the protection of the rights of

Parties to the proceedings before the Court, the security information service proposed

that, in the contested provision was cancelled only the words "and 4" and the rest of the

the provision was left in place.



16. the security information service due to the fact that the law No.

412/2005 Coll. falls within the remit of the administrative authority, which is the national

the Security Bureau, requested the observations and this Office. National

the Security Bureau, in its opinion of 14 May 2003. October 2009 stated that

the adoption of law No 412/2005 Coll., by the ability to access to

classified information as follows an extensive circle of individuals without

a valid certificate natural person the appropriate level of classification happened


instantly the target of attention to security authorities (hereinafter referred to as "NOSE

NATO "). These authorities, legislation and practical implementation of protection

classified information in the Member States closely,

since they guarantee a minimum standard of protection of classified

the information is a necessary condition for it to the competent State could

where necessary, without fear of compromise provided classified

NATO'S information, and that this State could fulfil the obligations arising out of its

membership to NATO and to participate in its activities accordingly

so, as laid down by the North Atlantic Treaty. During the security

inspection of the NOSE of NATO, which took place in April 2006, it was the national

the Security Bureau vytčeno the lack of respect for the principle of

the originator, which is one of the main principles of the protection of classified information

assuming that the classified information made available or transmitted to the

the author of this information will be provided to at least this level of

protection, which provides them with the originator (in this case, NATO). In

the case of the United States, however, the security authorities of NATO nespatřovaly

guarantee that the classified information to NATO, or of the Member States

NATO provided to the United States, getting into the hands of individuals

which do not meet the conditions for access, as our rules allow

access to this information not only about 3,000 representatives of

State authorities (under the provisions of section 58 (1) of law No 412/2005 Coll.),

but also unspecified circuit in advance of other unknown persons within the

various control on the procedural arrangements for reference the provisions of § 58

paragraph. 4 of law No 412/2005 Coll. the information security agreement while

the validity of such exceptions be made for access to classified information to NATO

holder of the certificate does not know and do not know them or implementing security

NATO'S rules (see, in particular, NATO'S safety guidelines, annex C-

Directive to issues of personal safety). In practice it is tolerated

access to classified information without a valid certificate of physical persons

the appropriate level of classification only to leaders of the State. From

the above reasons, he came over the national security agency to amend

section 58 of the Act No. 412/2005 Coll. and Act No. 119/2007 Coll. was in this

the provisions of paragraph 6 added. The purpose of § 58 para. 6 of law No 412/2005

Coll. is thus ensure the highest level of protection of classified information

foreign power through a maximum limitation of access to these

information without a valid certificate of a natural person. Precisely because of the

the necessity of translating the international obligations of the United States in the field of

the protection of classified information in the national legislation of the legislature

has access to classified information a foreign power as an exception in the

If access to the "national" classified information. In relation to the

the provision of section 51b para. 1 code of criminal procedure is, therefore, the provisions of § 58 para. 6

Act No. 412/2005 Coll. be regarded as special provisions, as well

as the law is a special law in this regard to the criminal procedure code.

A person who does not meet the condition of access to classified information of a foreign

power provided by law, you cannot access to such classified information

allow. Having regard to the foregoing, the national security agency

believes that the annulment of the contested provisions, as required by the applicant, the

constitute a disproportionate interference with legislation providing for the performance of

the international obligations of the United Kingdom, resulting primarily from the membership

in NATO. Moreover, in case of cancellation of the whole of the contested provisions occurred

the extension of special access to classified information of a foreign power without

a valid certificate of a natural person, not only on the person who performs the procedural

rights, but also to other persons referred to in the provisions of § 58 para. 1 of law No.

412/2005 Coll. on these people is in any case not

the realization of the right to a fair trial, so priority would clearly

should have to fulfil international commitments of the Czech Republic in the field of the protection of

of classified information. The National Security Agency therefore considers that the

application for annulment of the contested provisions, as is filed, you cannot

to comply with the. Such an intervention in the legal regulation would trigger adverse reactions in

sense, and therefore it would be inappropriate. If, then, the Constitutional Court

He found it necessary to deal with the contradiction of namítaný the provisions of § 58 para. 6 of the Act

No 412/2005 Coll. with section 51b code of criminal procedure, and that in terms of

the guarantee of procedural rights of participants in criminal proceedings, it considers National

the Security Bureau that this conflict could be resolved, if the

of the provisions of § 58 para. 6 of law No 412/2005 Sb.

launched only the words "and 4", referring to the provisions of § 58 para. 4

Act No. 412/2005 Coll., that addresses the issues of access to classified

the information in the framework of the implementation of the procedural rights. In conclusion to its opinion,

The national security agency said that, in view of the fact that

carries out pursuant to § 136 paragraph. 1 of law No 412/2005 Coll. on State administration

the protection of classified information and the security of the eligibility,

considers it essential that the Constitutional Court has taken the case and its

separate observations.



17. The challenge of the Constitutional Court said the national security agency on 18 July 2005.

December 2009 their observations, in which he reiterated the opinion already expressed

of 14 July 1999. October 2009 and confirmed that it still lingers.



Vi.



The abandonment of an oral hearing



18. According to § 44 para. 2 of the Act on the Constitutional Court, the Constitutional Court may be

the consent of the participants of the oral proceedings, to refrain from it cannot be

expect further clarification of the matter. Because both the appellant and the participants

management have expressed their agreement with the abandonment of the oral proceedings, it was from the

the oral proceedings in the case dropped.



VII.



The content of the contested legal provisions compliance with the constitutional order



19. After the Constitutional Court considered the arguments of the appellant contained in the

design and confronted them with the contested provisions of § 58 para. 6 of law No.

412/2005 Coll., and with the provisions of section 51b para. 1 code of criminal procedure, came to the

the conclusion that the proposal is not justified.



20. in its application the applicant submits that the contested provisions of § 58 para.

6 of law No 412/2005 Coll. in its application in the context of criminal proceedings is the

inadmissible because the editing makes it impossible to be in law enforcement, in

which are discussed in the classified information to a foreign power, the defendants and

their advocates may consult classified documentary evidence without

special certificate of a natural person, and is therefore in conflict with the law on

defence. Its conclusions the rapporteur supports in particular the statement that

There is no evidence of lawyers with a special certificate. The petitioner thus

is based on the priority of the protection of the rights of the defence, with emphasis on the principle of

the independence of the solicitor of the State, before the public interest in ensuring

the protection of classified information to a foreign power.



21. the right to a defence is one of the most fundamental rights of the

persons against whom criminal proceedings and seeks to achieve

a fair decision given not only in the interest of persons prosecuted

but undoubtedly also in the interest of democratic State, based

on respect for the rights and freedoms of man and citizen. The right to a defence is

edited on all basic international documents dealing with

fundamental human rights and freedoms. According to the article. 37 para. 2 of the Charter of

everyone has the right to legal assistance in proceedings before courts, other State

institutions or public authorities from the beginning of the proceedings. According to the article. 40

paragraph. 3 of the Charter, the accused has the right to be given the time and opportunity to

the preparation of the defence and to defend himself or through an attorney.

According to the article. 6 (1). 3 (b). (b)), and (c)) of the Convention, anyone who is accused of

a criminal offence. the right to adequate time and opportunity to prepare their

the defence and the right to defend himself in person or by Attorney pursuant to

your choice. The above provisions enshrining many basic

the procedural guarantees of the right to a fair trial, which are a vital

part of the concept of the rule of law. The State must therefore ensure such

the conditions to be able to implement the principles listed relevant

procedural safeguards the position of defence counsel and the accused [cf. Constitutional

of the Court of 3 October 2000. April 2008, SP. zn. II. TC 2445/07, a collection of awards and

the resolution of the Constitutional Court (hereinafter referred to as "the decision"), volume 49,

find no 65, p. 15]. The constitutional rights of the defence, the Court dealt with in

a number of its decisions, in which the Court held that constitutionally guaranteed

the right of defence, along with the presumption of innocence (article 40, paragraph 2, of the Charter)

are the basic terms of the fairness of the criminal process, and these

the constitutional guarantees are reflected also in the code of criminal procedure, which is in conformity with the

The Constitution built on the principle of the priority of choice of defence counsel (section 33 para 1, § 37

paragraph. 2 of the code of criminal procedure), which is the accused entitled to invoke in

neskončeného any stage in the proceedings (section 37 (2) of the criminal procedure code).

If they were then made to evidence in criminal proceedings, which should

they were not a barrister and the accused person familiar, could they be for violation of

fair process taken into account.



22. The issue of protection of classified information [previously classified


facts pursuant to Act No. 148/1998 Coll., on the protection of classified

facts and amending certain laws, as amended,

(hereinafter referred to as Act No. 148/1998 Coll.)] the Constitutional Court in its findings

also dealt with, especially in the award of 28 June. January 2004, SP. zn. PL.

TC 41/02 (ECR, volume 32, no. 10, pp. 61, announced

under no. 98/2004 Coll.), on the report of 11 November. February 2004, SP. zn. Pl. ÚS

31/03 (collection of decisions, volume 32, no. 16, pp. 143, declared

under no 105/2004 Sb.) and in the award of 26 March. April 2005, SP. zn. Pl. ÚS

11/04 (ECR, Volume 37, no. 89, pp. 207, declared

under no 220/2005 Coll.).



23. in finding SP. zn. PL. ÚS 41/02, the Constitutional Court discussed a proposal from the

The District Court in prerov on abolition of the provisions of § 42 para. 1 of law No.

148/1998 Coll., the Constitutional Court in the case concerning the safety

audits of lawyers rejected the proposal, as it applied the principle of priority

constitutionally, a conforming interpretation before derogations, and in the operative part II.

held that the screening of defense lawyers in criminal proceedings for the purpose of

familiarizing with classified information security clearance

National security authority is in breach of article. 37 para. 3, art. 38

paragraph. 2, article. 40 para. 3 of the Charter and article. 6 (1). 3 (b). (c)) of the Convention.

The Constitutional Court here dealt with the question of the disclosure of the classified thoroughly

the fact the defendant and his defenders and also reminded the solution here

This question, in the code of civil procedure and administrative judicial procedure, and did not find

the reason why these intentions should not pay for all court proceedings.

The Constitutional Court in this award at the same time stated that "... as a negative

the legislature may in the framework of its competence to decide only on the abolition of

laws or their individual provisions, if they are in conflict with the

the constitutional order. In the present case, there has been a collision of two principles, and it

the principle of the protection of the interests of the State and international interests in the safety

areas, which are in the public interest to ensure the protection of classified

information and the principle of the protection of human rights and freedoms, in particular the right to

defence, thus ensuring the right to defence in criminal proceedings, which

part of it is the right of the accused to get familiar with the documentary evidence and the

the free choice of a lawyer. Pursues a simple right to be assessed on the

the one hand the protection of certain constitutionally protected values, on the side of the

the second, however, a different limits for drawing a conclusion in the case of a collision

fundamental rights, or of the public good, such as principles, unlike the

the possible conflict of norms of a simple law, will be governed by the Constitutional Court

command optimization, IE. postulátem minimize the limitations of the basic

rights and freedoms. the public good. Its content is maximum, according to which the

in the case of the conclusion on the merits of the priority of one over the other from the two

standing in a collision of fundamental rights, or public goods is a necessary

the final decision is also a condition of the use of all possibilities

minimize interference with one of them. Command to optimize can be

arbitrary derive from article. 4 (4). 4 of the Charter, according to which the fundamental rights of the

and freedoms must be preserved when using the provisions on the limits of the basic

rights and freedoms, and therefore by analogy also in case of their limitations in

as a result of their colliding. ". The Constitutional Court therefore came to the conclusion about the

the constitutional neakceptovatelnosti of attorneys for the purpose of security screening

admissibility of familiarizing with classified information in the role of defenders in the

criminal proceedings and at the same time about the acceptability of those conditions dating

advocates of the classified information, which are embedded in the code of criminal procedure

and which do not restrict fundamental rights of defence, equality of arms and the law

comment to all the evidence.



24. the judicial scrutiny of the security screening is then the Constitutional Court

dealt with in finding SP. zn. PL. ÚS 24/02 (see above), in which, on the basis

the design of regional court in Brno to annul the provisions of § 77k para. 6 of law No.

148/1998 Coll. and stated that "... ensure the security of the State is certainly

by a legitimate aim, and the present case is looked at from the perspective of

the necessary discretion in the public interest on security with the protection of

individual rights and freedoms. " The Constitutional Court also found that the

"... considers that judicial review of the process of security screening 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. ".



25. in finding SP. zn. PL. ÚS 31/03 (see above) a proposal was pending

public defender of rights on abolition of the provisions of point 18 of Annex No. 3

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

facts for his conflict with the provisions of section 3 of Act No. 148/1998 Coll.

The Constitutional Court has not complied with the proposal, because, in his opinion the appellant

He walked out of "the unacceptably narrow concept of democratic rule of law.

Legal certainty and predictability to the acts of public authority must be maintained and

in relation to other subjects of international law. [...] , Predictable '

for these other States will be such a legal framework of the procedure of public

the power of the United States, who will be eligible to lead to the achievement of its

international commitments in the area of classification. , Unpredictable ' will

such a framework, that the classification of information to which the protection of the Czech

Republic internationally legally committed to, will not be able to in all

cases to ensure. Meanwhile, Czech Republic international

responsibility towards the allies, until the result of the ' breach of its commitment in:

When not protecting certain individual facts

which is subject to confidentiality under the international treaty. ". The constitutional underpinning for

This interpretation, which did not find that the contested provision

It was in conflict with the constitutional order, the article. 1 (1). 1 and 2 of the Constitution.



26. On the basis of the conclusions set out in the above-cited findings from the

which does not have the Constitutional Court because of stray or under consideration

the case can be concluded that the collision of the rights of the defence and the interests of the State

on the protection of classified information shall enter no constitutional obligation to

provided for in article 4(1). 1 (1). 1 and 2 and in article 3(2). 10 of the Constitution, i.e.. the obligation of the United

States comply with the obligations under international

rights.



27. In the agreement on information security, the Contracting Parties have committed themselves to NATO

to protect and safeguard the classified information to the origin in NATO (article.

1 point I), and to ensure that all persons that have their State

jurisdiction and the performance of their official duties require access,

or persons who may have access to information marked degree of

confidential and above, were duties appropriately

examined (article 3 (1)). Czech Republic, which took over its

allies of the international commitments of the parties and the confidentiality of certain important

sensitive information, has fulfilled its obligation by replicating their

the contested provisions of international obligations into national law, in order to

ensure the confidentiality of the relevant information by a foreign power. In

the present case, it is therefore necessary to balance each other the right to defence and the

the State's interest in the confidentiality of certain information and with the international commitment

The United States, arising from its membership in NATO.



28. From the explanatory memorandum to the draft law No 119/2007 Coll., which was to

Act No. 412/2005 Coll., inserted contested provision, as well as of the above

representation is given that the purpose of the adoption of the contested provision was

limit access to classified information to a foreign power to people without a valid

the certificate. This leads to the conclusion that the purpose of the contested provisions is legally

to provide classified information to a foreign power, and thus to comply with the obligations

arising from international law, and not to cancel the right of defence.

The Constitutional Court has in finding SP. zn. PL. ÚS 31/03 (see above)

He explained that: "the Czech Republic has taken towards its international allies

commitments of the parties the confidentiality of certain important and sensitive information. Is

required to bring these international commitments into national law and

to ensure the confidentiality of the relevant facts by. To Czech

Republic was unable to meet its international obligations in that

the area, the authorities granted permission to judge whether certain

the fact is to be kept confidential, in accordance with international treaties or not.

The Czech Republic will not be able to because of their specific content

the national law of such specific assessment and subsequent classification of fully

ensure it is for the contracting partners to its behavior, unpredictable ' and

undermines legal certainty in international legal relations. The Contracting

partners may not certain sensitive facts the Czech Republic to convey,

possibly to the detriment of its safety or other of its essential interests


protected article. 1 (1). 1 of the Constitution. ".



29. If there was a transposition of parts of the agreement on the security of the information to the

the legal order of the Czech Republic, it is necessary that the Czech Republic was with

it meet its reservations under international law commitments that are in the plane of the

international contract law took over. By allowing access to classified

information to a foreign power to others, than are those which define the contested

provisions (i.e., President of the Republic, the President of the Senate of the Parliament and

the President of the Chamber of deputies of the Parliament, the Prime Minister and the Minister of

Foreign Affairs) without a valid certificate, it may cause a violation of

the commitment for the Czech Republic arises from safety agreement

information.



30. The measurement of both conflicting provisions, when, as

referred to in section 26, to colliding standing constitutional values, i.e.

the principle of the protection of human rights and freedoms, specifically guaranteeing the right to

defence in criminal proceedings, a part of which is the right of the accused to

get familiar with the documentary evidence and to free choice of a lawyer, and

the principle of the protection of the interests of the State to the concealment of certain information,

accesses and international commitment to the United States in security

the area, to take into account the severity of the interference with the existing public

interest in compliance with the mezinárodněprávního commitment.



31. the Constitutional Court may exercise State power only in the cases and limits

laid down by law, and the way that the law provides (cf. Article 2

paragraph. 3 of the Constitution, article. 2 (2). 2 of the Charter). The competence of the Constitutional Court is

given by the article. 87 of the Constitution and the law on the Constitutional Court. The constitutional

the Court has already pointed out many times that the basic methods of argumentačním

the procedure of the Constitutional Court in proceedings for review of the norms include principle

the priorities of the constitutionally Conformal interpretation, according to which, before the derogations in

the situation in which certain provisions of the legislation allows for two different

interpretation, one is in line with the constitutional order and the second is

in conflict with him, is not given a reason for the cancellation of the provision. When the application

the law is the task of all State authorities

interpret it constitutionally Conformal manner. This method is based on the

the principle of the separation of powers and the associated principle of restraint, i.e.,. from

the principle, according to which, if you can ensure the constitutionality of the reach

by alternative means, the Constitutional Court shall elect, legislative

limited in the degree of the smallest (cf. award of the Constitutional Court dated January 29,

2008, SP. zn. PL. ÚS 69/06, collection of decisions, volume 48, finding no 22,

str. 243, promulgated under no. 269/2008 Coll.). The Constitutional Court in this

context, stresses that the reason of unconstitutionality essentially are not

any interpretive difficulties in interpretation of the law.



32. According to settled case-law of the Constitutional Court provides a solution to collision

fundamental rights or constitutional order of protected public

goods, the principle of proportionality. In the award of 1 February. March 2007, SP. zn.

PL. ÚS 8/06 (ECR, Volume 44, finding no 39, p. 479,

promulgated under no. 94/2007 Sb.) The Constitutional Court has repeatedly found that in

cases of conflicts of fundamental rights and freedoms with the public interest, respectively.

other fundamental rights and freedoms: "... it is necessary to consider the purpose of the

(target), such an intervention in relation to the resources used, with

the benchmark for this assessment is the principle of proportionality (proportionality in

broader sense), which can also be called a ban more interventions

to rights and freedoms. This general principle involves three assessment criteria

the admissibility of the intervention. The first is the principle of competence fulfillment

purpose (or fitness), according to which the relevant measures must be

ever able to achieve the intended objective of the protection of another

the basic law or the public good. Second, it is a principle of

the need, which is allowed to use only the most environmentally-friendly-in

relation to the fundamental rights and freedoms-of more possible

resources. The third principle is the principle of proportionality (in the strict sense)

According to which the injury on the basic law must not be disproportionate in relation to the

to the intended destination, i.e.. measures restricting fundamental human rights and

freedom must not, in the case of the collision of a fundamental right or freedom with the public

interested in, its negative consequences extend beyond the positives, which

represents the public interest in these measures. " The obligation to respect

the principle of proportionality does not apply solely to the legislature, but also on the

the public authorities in their decision-making activities.



33. It follows that the assessment is based on the constitutional law

application, first, the principle of proportionality and, secondly, the principle of priority

constitutionally consistent interpretation from the derogations.



34. The Constitutional Court has considered that the provisions restricting access to classified

information to a foreign power to people without a valid certificate is certainly a legitimate

the aim and the contested provision is eligible to live up to the requirements laid down

The preamble and article. 1 of the Constitution.



35. However, it is also necessary to Examine the need for the selected resource from the

the perspective of its economy in relation to fundamental rights, which, according to

the opinion of the applicant, i.e.. the right to defence and the election of the

Defense Attorney. From the perspective of the principle of necessity, according to which it is allowed to use

only the most environmentally-friendly means possible, from more when in relation to the interest

State on the concealment of certain information to a foreign power is accessed by ensuring

respect for international legal obligations, it is possible to conclude that, in the

the subject matter is determined by a rational connection between the objective and the means

selected for its implementation. Resources used to achieve the objectives are

sparing and necessary resources.



36. With regard to the third criterion, that is, the criteria of proportionality (in the strict

sense), according to which the injury is on the basic law must not be disproportionate in the

relation to the intended destination, i.e.. measures restricting fundamental human rights

and freedom must not, in the case of the collision of a fundamental right or freedom with

the public interest, their negative consequences extend beyond the positives, which

represents the public interest in such measures, the Constitutional Court did not find,

that the contested provisions in comparison with other measures enabling

to achieve the same goals of institutional procedure restricted the right of the accused

to a fair trial or be contrary to the constitutional order.

The legislature should, of course, a space for reflection, which enables the persons

access to classified information to a foreign power, and was obliged

that the chosen procedure was based on objective and reasonable grounds for

(a legitimate objective of the legislature) and that between this objective and the means to

the achievement of (legal) existed the relationship of proportionality. The Constitutional Court

recognises that the amendment made by Act No. 119/2007 Coll. marked a substantial

changes in access to classified information a foreign power without a valid

certificate of physical persons, however, these changes are not in any way in the

contrary to the proportionality of the means used in relation to the law

the desired level of protection of the interests of the State and with regard to the constitutional principle of

compliance with the obligations deriving from the Czech Republic

of international law. According to settled case-law of the European Court

human rights is not the point of the article. 6 (1). 1 of the Convention to create new material

lacking a legal base rights in a given State, but to provide

procedural protection to the rights recognised in the national law, the

the article itself does not ensure the rights and obligations provided by the legal

regulations of the Contracting States any specific material content. From the perspective of the third

the principle of proportionality (in the strict sense) it can be concluded that, in the

the case of the measures selected are proportionate in relation to the intended destination.



37. The Constitutional Court found that the provisions of § 58 para. 6 of law No.

412/2005 Coll., the principle of proportionality in relation to all three of the

components, or that would be violated as a result of its application to the

abuse of rights protected by the constitutional order. The Constitutional Court notes

the contested provision pursues a legitimate objective of protection

classified information to a foreign power, namely the protection of the interests of the State and

international interests in the security sphere.



38. On the basis of the constitutional aspects of the assessment outlined

issues in a situation where he was not found to be a contradiction of the contested provisions

with the constitutional order of the Czech Republic, the Constitutional Court came to the conclusion that

that we gladly accept the appellant's interpretation cannot be accepted. By clearing the

the contested provisions would ever opened the space for

disclosure of classified information to NATO, they would have continued under

the protection of applicable international treaty and the resulting commitment referred to in

article. 1 (1). 2 of the Constitution. Be held that, for the present

case applies the principles of a fair trial and the presumption of innocence, so

authorities active in criminal proceedings cannot be used as evidence of anything, what would

deny the Defense access, which by the way is the Court itself, for

that cannot be in the present case with respect to clear diction of the Treaty apply

Neither the provisions of § 58 para. 1 (b). e) Act No. 412/2005 Coll. International

the commitment under the agreement on information security has priority and is on the

law enforcement authorities, whether they are able to conduct criminal proceedings and


when maintaining it, or from such proceedings will have to be waived.



39. The Constitutional Court admits that application of the contested provisions may, in the

specific cases give rise to certain problems and doubts as

in the case of the appellant, however, cannot be ignored in order to

ensuring a fair process must be throughout the criminal

management takes into consideration the fact that the accused did not restrict its

the procedural rights of the defence. In a situation where the right of the accused to

get familiar with the documentary evidence refers to evidence which are

part of the file, they are the authorities responsible for criminal proceedings which

decide, having regard to the nature and gravity of the offence, what evidence

in the file and that excludes, or that perform and whether it is

as for the proceedings or not applicable (article 2, paragraph 5, of the criminal

procedure), so that a collision of the contested provisions with the relevant

the provisions of the code of criminal procedure the accused person has not been granted, and

protection of all of its procedural rights.



40. in the summary above, the Constitutional Court for annulment of the provisions of

§ 58 para. 6 of law No 412/2005 Coll. pursuant to section 70 para. 2

the law on the Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.