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.
