In The Case Of A Proposal To Declare The Unconstitutionality Of The Law On Section Of Bis

Original Language Title: ve věci návrhu na vyslovení protiústavnosti části zákona o BIS

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=70090&nr=5~2F2010~20Sb.&ft=txt

5/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 19. November 2009 in Parliament consisting of the President of the

Paul Rychetského and judges of Stanislav Duchoně, Bumpkin, Vojena

Güttlera, Pavla Holländera, Ivana Janů, Vladimir Crust, Dagmar

Lastovecké, Jiří Mucha, Jan Musil (Judge-Rapporteur) and Jiří

Nykodýma, about the design of the Supreme Administrative Court to declare

unconstitutionality of the provisions of § 139 paragraph 2. 1 of Act No. 154/1994 Coll., on

The security intelligence service, as amended, with the participation of

The Chamber of deputies of the Parliament of the Czech Republic, as a party to the proceedings



as follows:



The provisions of § 139 paragraph 2. 1 of Act No. 154/1994 Coll. on Safety

information services, in the version prior to the amendments made by law No.

362/2003 Coll., if the jurisdiction of the Court in precludes appellate matters

claims under section 124 of the Act No. 154/1994 Coll., was in breach of

with article 1, paragraph 2 of article 36. 1, para. 2, article 37 paragraph 2. 3 of the Charter

fundamental rights and freedoms and article 6 (1). 1 of the Convention on the protection of

human rights and fundamental freedoms.



Justification:



I. draft Recap



1. In the proposal, delivered to the Constitutional Court on 25 April. 5. in 2007, the highest

Administrative Court seeks to ensure that the Constitutional Court held that the provisions of § 139

paragraph. 1 of Act No. 154/1994 Coll., on security and information services

(hereinafter referred to as the "law of BIS '), in the version in force until 31 December 2006. 12.2006, IE. before

the amendment made by Act No. 361/2003 Coll., is in breach of article. 1,

article. 36 and article. 37 para. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"), that is, with the constitutional order of the Czech Republic.



The proposal for the contested provision was:



"The Court does not review the decision of the institution with the exception of decisions

about



and the release of employment) pursuant to § 40 paragraph 2. 1 (b). c) or (d))



b) compensation exceeds the amount of CZK 5000.0 ".



2. the applicant States that the present proposal submitted in the context of its

the decision-making activities in the case at the Supreme Administrative Court under the

SP. zn. 5 As 65/2006. In it the complainant Bc. E. r. attacks the appeal

complaints resolution to the municipal court in Prague of 30 May. 5.2006 no. 8

CA 57/2006-27, which was rejected by its action against decision

the Director of the security and information service (hereinafter referred to as "Director of BIS ') of

day 10. 1.2006 no. 29-7/2005-BIS-1, which was like a delayed

rejected its appeal against the decision of the Director of the BIS of 7 June 2005. 11.

2005 No. 11-31/2005-BIS-1 for úmrtného. Municipal Court in Prague

the action by the resolution rejected as inadmissible because it was filed against the

the decision of the judicial review pursuant to the provisions of § 139 paragraph 2.

1 of the law on BIS.



3. The Supreme Administrative Court, which is to decide on a complaint of Cassation, when

the preliminary hearing of the case, concluded that the provisions of § 139 paragraph 2. 1

the law on the BIS, which has been and will be required to apply in the matter, cannot be

unload the constitutionally Conformal manner, because it is in conflict with the constitutional

policy in the United States. The Supreme Administrative Court proceedings and

within the meaning of the provisions of article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") proposes that the Constitutional Court held the unconstitutionality of section 139

paragraph. 1 of the BIS, in the version prior to the amendment made by Act No.

362/2003 Coll., with the legal opinion of the Constitutional Court will be in

the next control binding.



4. In support of its opinion and referring to the "same process"

the appellant points to the finding of the Constitutional Court, SP. zn. PL. ÚS 33/2000

of 10 June 1999. 1.2001 (N 5/21 SbNU 29; 78/2001 Coll.) ^ *, in which the Constitutional Court

also on the proposal of the General Court, which challenged the legal

the provisions, at the time the decision of the Constitutional Court has already revised.



5. Beyond the proposal on the wording of the applicant points out the provision of section 67

paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, which is in derogation

legislation in proceedings for review of the standards based on the effects of ex

Nunc, not ex tunc. This rule cannot be perceived in its opinion

mechanically, as in this case could be neglected

the essence of normative regulation.



6. In connection with the prohibition of retroaktivního action of the law

the direct consequence of the obligation of all authorities with a right of

the use of such legislation, as applicable at the time in which

There has been a decisive legal facts, the applicant stresses that, even

When the legislation may be, respectively, at the time of deciding the constitutional

the Court changed or even deleted without compensation, but shall continue to be

applied to legal relationships arising during the earlier period of its validity, and

efficiency. The applicant points out that, if the Constitutional Court refused to

his proposal just because of the subsequent abrogation of the contested

the law has evoked such a procedure would be a situation in which there would be

to the violation of fundamental rights and freedoms of the parties. Any protection

constitutional rights of the parties, which would be the Constitutional Court

granted after the decision of the general courts, the applicant appears to be as

"inefficient" and "unsystematic", since it is always necessary to be based on the content

Article 4 of the Constitution, which guarantees the fundamental rights and freedoms, the Court

the protection. For this reason, the rapporteur insists that the Constitutional Court when

their decisions did not track interest in the whole system of general courts

the proper functioning of all its subordinate articles.



7. the applicant is aware that the Constitutional Court when the application

the provisions of section 67 of the Act on the Constitutional Court. Abstract

control standards [within the meaning of § 64 para. 1 (b)), b) of the Act on the constitutional

the Court] stops the proceedings if the contested provisions of the Act shall cease to be

the validity of. The rapporteur emphasises, however, that the second of the cases of control

standards-specific control standards [§ 64 para. 1 (b), c), (e)), para. 3

the law on the Constitutional Court]-is based on a completely different concept, which

the aim is to exclude the application of the contested parts of the law unconstitutional

Regulation in a particular case.



8. In relation to the merits of the case the applicant argues by pointing out

the inability of the judicial protection of fundamental rights of the complainant, since, according to

the contested provision is excluded judicial review of the decision of the Director

BIS, which in his opinion constitutes a flagrant violation of the fundamental

the rights of the complainant within the meaning of article 36 para. 1, para. 2 of the Charter, i.e.

prejudice the basic procedural law have meet the conditions

access to the Court and ask for the protection for their rights, including the right to

a fair trial. From the point of view of the constitutional protection in the area of administrative

the rights of the appellant on the second sentence refers to paragraph 2 of article 36

Of the Charter, which does not allow for the possibility of excluding from judicial review of the matter,

in which the public authority got into conflict with some of the

fundamental rights or freedoms. The exclusion of judicial review is possible in

the case of a decision of a public authority of subjective public

rights, but not when making a decision of a public authority of the essential

rights or freedoms guaranteed by the Charter. In this case, the

prejudice to the social rights as basic rights provided for in article 30 of

paragraph. 1 of the Charter, which States the right of citizens to reasonable physical

security in case of loss of the breadwinner. After the termination of service is

some of the benefits shall be paid by the members of BIS such as výsluhový

post, severance, and will end when terminated by death, it shall be paid

survivors of úmrtné. Úmrtné is in this case a special form

Security survivors for loss of a breadwinner.



9. If such a decision, relating to basic social

the law of judicial review in accordance with the wording of the provision in the text of the

effective 31 December 1998. 12.2006 excluded, was not such an adjustment under

of the applicant in accordance with the right to a fair trial and thus with

Article 36 of the Charter.



10. the applicant expresses doubts as to the real options

objectively independent and impartial decisions of the Director of BIS, if the

be complied with the principles of a fair trial and under the situation in which

the Director of the BIS under the provisions of § 135 para. 1 of the law on BIS decides on

the appeal of a party against a decision of the Director of the BIS.



11. The reasons that led the appellant to the conclusion of unconstitutionality

the provisions of § 139 paragraph 2. 1 of the BIS in the version in force until 31 December 2006. 12.2006,

have previously been used in arguments relating to the decisions of the full

The Constitutional Court of 26 June. 4.2005, SP. zn. PL. ÚS 24/02 (N 161/16 SbNU

185; 220/2005 Coll.) on the proposal to repeal the provisions of § 77k para. 6 of the Act

No 148/1998 Coll., on the protection of classified information (published in

The collection of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 37 under no. 89, page.

207, or in the collection of laws under no. 220/2005).



12. Although the applicant concedes that the achievement of the guarantees referred to in

the provisions of article 36 para. 2 of the Charter does not mean unconditional review

only by a court decision (but it is possible to other Tribunal), it should be

to insist that it was a body, whose members are independent and can

objectively when making decisions, be independent and impartial. This

the issue is dealt with by the Constitutional Court for example. in finding SP. zn.

PL. ÚS 28/98 of 23 November. 11.1999 (N 161/16 SbNU 185; 2/2000),


in the report, where appropriate, SP. zn. 9/2000 of 17 December 1999. 1.2001 (N 8/21 SbNU 55;

52/2001 Coll.).



13. In conclusion, the applicant points out that in the administrative judiciary

most often (as is the case in the present case) adjudicated disputes between

Executive units and persons in private law, which requires

plenty of active conservation of the guarantees of independence and impartiality

decision-making, without concurrent binding to the Executive. These criteria are

fulfilled for judges; not so in the implementation of the procedural rights of defence

the appellant against a decision of the Director of BIS, which finds the appellant

conflicting with article 1, article 36 and article 37 paragraph 2. 3 of the Charter.



II. recapitulation of the previous control



14. From an attached file of the Supreme Administrative Court held under SP. zn.

5 As 65/2006 (to which was attached a statement in municipal court in Prague, SP. zn.

8 Ca 57/2006), notes that Bc. E. r. (in an earlier procedure in the process

the position of the applicant), an action brought against security information

the annulment of the decision of the Director of the BIS 10. 1.2006 no.

j. 29-7/2005-BIS-1, which was dismissed by the appeal of the claimant against the

decision of the Director of the BIS of 7 June 2005. 11.2005 for úmrtného after her

the death of a spouse in the amount of CZK 112,491.0 (under the provisions of section 124 of the Act

about BIS), which was granted to her (and quite divided) and her two

children who are minors. With this distribution of amounts awarded, the applicant

did not agree, since in its view, should be úmrtné in the amount of

granted to each of the survivors, not quite divided.



15. the applicant stated that the takeover of the decision of the Director of the BIS of 7 June 2005. 11.

2005 confirmed by signing up to 7 March 2005. 12.2005, although his wording

has been previously informed. An appeal was lodged to the mail transport

on 22 November. 11.2005, therefore, in its view, by the statutory deadline.



16. the decision of the Director of the BIS 10. 1.2006 no. 29-7/2005-BIS-1

the appeal of the applicant (Director of BIS delivered 28 June. 11.2005)

because of the "limitation of the period of appeal" was rejected.



17. As stated in its preamble, the applicants took the decision

the Director of the BIS of 7 June 2005. 11.2005 No. 11-31/2005-BIS-1 compared to the signature

already the day 8. 11.2005. A 15-day period to appeal it started

run on 9 July 2005. 11.2005 and ended 23. 11.2005. If the appeal

the Director of the BIS delivered 28 June. 11.2005, did so only after statutory

the Board of appeal within the time limit.



18. the municipal court in Prague in its resolution of 30 March 2004. 5.2006 no. 8 Ca

57/2006-27 dismissed (statement I). The reason for the refusal was the fact

that, in this case it is not a decision for the release of the institution

the service pursuant to § 40 paragraph 2. 1 (b). c) or (d)) of the BIS, or

This is not a decision on damages, the amount in excess of the 5000.0.

Because the review of other decisions of the institution is not possible (section 139

paragraph. 1 of the BIS) and the action was brought against the decision of the

the review court ruled out municipal court in Prague found an action

inadmissible [§ 68 (b), (e)) and § 46 para. 1 (b). d) code of civil procedure

administrative].



19. A negative resolution of the municipal court in Prague has challenged the applicant's appeal

because of the complaints referred to in the provisions of § 103 para. 1 (b). (e))

administrative judicial procedure.



III. observations of the participant in the proceeding



20. The Chamber of deputies of the Parliament of the United Kingdom in its observations to the

the proposal, signed by its Chairman Ing. Miloslav Ethiopian, stated that

the contested provisions of § 139 paragraph 2. 1 of the BIS was unchanged

part of this Act, until its cancellation by Act No. 361/2003 Coll. with

effect from 1. 1.2007. The law on BIS (print, 1015) was approved by the

at 21. a meeting of the Chamber of Deputies on 7 December. 7. the 1994 and 27 April 1994. 7.1994 was

promulgated in the collection of laws under no. 49 amount 154/1994 Coll.



21. Act No. 361/2003 Coll., amending the laws relating to the adoption of the

the Act on service relationship of members of security forces in the staff (House

print 257), was approved on 2 February 2005. 7.2003 at 18. the meeting of the

the Chamber of Deputies and was named in the statute book on 31 December 2004. 10, 2003 under no.

362/2003 Coll., and took effect on 1 May 2004. 1.2007 (article. (II)

law no 530/2005 Coll.). The two laws, namely the law on how BIS and the law

No. 361/2003 Coll., were properly received, signed and promulgated. The legislature

was based on the belief that legal legislation adopted is in accordance with the

the constitutional order of the Czech Republic, even if the contested provisions

BIS Act by the legislature later canceled.



22. The Chamber of Deputies does not share the legal interpretation of article 95 para. 2 of the Constitution

The CZECH REPUBLIC, contained mainly in the Constitutional Court, SP. zn. PL. ÚS 33/2000

(to which he attached the highest administrative court). This interpretation was

The Constitutional Court ruled the competency "in article not listed here. 87 of the Constitution of the CZECH REPUBLIC ",

While such a legal interpretation of the supposedly does not take note of the intention of the legislature,

the cited article of the Constitution that he planted a particular constitutional context

on dotvářeného of the law on the Constitutional Court.



23. in other parts of the expression are subjected to criticism of arguments

the appellant, in which he tried to support his opinion about the necessity and

nezastupitelnosti tasks of the Constitutional Court when considering the proposal for the

give the unconstitutionality of the specific provisions of the Act. Participant

management argues that even if the legislature adopts legislation that is

be shown as "inefficient", it is (only) to the lawmakers that the effectiveness

legislation, evaluate it, and then, where appropriate, replace another, better

the legislation.



24. the general courts, however, said no to on its own

the decision of legal decisions, even if they appear as

inefficient. It is not the things to the Court (General), according to their

the internal conviction the judge, "what is and what is not in accordance with the constitutional

policy ". Referenced by the applicant's argument in this context

construction dovozované reduces the direct application of article 95 para. 2

Of the Constitution, i.e.. on the "general courts permission on the consultation of the Constitutional

the Court ". If the legislature such competence of Constitutional Court

It did not give, there is no legal possibility of qualifying general courts her

rely on.



25. the legal situation of the 21st century in the present case compares the participant

control with her similar designed in Constitutional Court SP. zn. Pl. ÚS

33/2000, and concludes that the General Court first examined whether the

challenged provisions cannot be interpreted in a manner constitutionally conformal,

or its application in the present case, the necessary and correct.

The applicant then complains that has chosen a complex procedure, if possible

interpretations of the so-called. the common law, to choose the one that compels him to apply the

the invalid provisions of the BIS on the exclusion of judicial review, to

then he said inconsistency of the contested provisions with constitutional

policy in the Czech Republic and initiated the review of the Constitutional Court with a single objective-

the contested provisions do not apply in a case investigated by him. The applicant apparently

enough to have regard to the fact that the contested provisions already in the time of

his assessment was not true and the new legislation contained in Act No.

362/2003 Coll., effective since 1. 1.2007, already in similar cases, the Court

the review does not exclude.



26. Even though the party is based on the applicable legislation laying down,

the Court in reviewing the decision of an administrative authority is based on the

the factual and legal status, which was at the time the decision of the administrative

the Authority considers that after the abolition of the existing legislation would no longer

the decisive Court not be bound if the "use not saved

even the transitional provisions of the new legislation ". In the framework of these considerations, the

the party advocates his belief that it is not clear what value

the rule of law and fundamental rights and freedoms, what would the applicant has violated,

If, having regard to the new legislation, said the judicial review

decision of the administrative authority, which, according to the existing legislation was not

possible.



27. The appellant considers the proposal of the applicant to declare

unconstitutionality of the provisions of § 139 paragraph 2. 1 of the BIS to be inadmissible.



IV. The abandonment of an oral hearing



28. According to the provisions of § 44 para. 2 of the Act on the Constitutional Court may by the constitutional

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

expect further clarification of the matter. Due to the fact that, as the applicant in the

his proposal, and the President of the Chamber of deputies of the Czech Parliament

the Republic expressed its consent with the abandonment of the oral proceedings, and even

due to the fact that the Constitutional Court had considered that, since the meeting cannot be expected

further clarification of the matter, it was from the oral proceedings in the case

abandoned.



In the Review of constitutionality. no longer valid but applicable legal standards



29. The Constitutional Court first dealt with an assessment of whether it is

discuss the merits brought by the proposal because the appellant relies

annulment of the contested legal provisions, but only voicing his

unconstitutionality. Such a design has influenced the petit, the fact that on 31 December 2007.

10.2003 entered into force and the day 1. 1.2007 entered into force law No.

362/2003 Coll., amending the laws relating to the adoption of the law on

the staff members of security forces (hereinafter referred to as ' law No.


361/2003 Coll.), which was not only a change in the law on BIS, but also the entire

a number of other laws and regulations.



30. Act No. 361/2003 Coll. has abolished the provisions of § 139 of the contested design

paragraph. 1 of the law on BIS (cf. part four, article. IV, section 3). This

the issue is now editing a different law, Act No. 361/2003 Coll.

the staff members of security forces, which in the paragraph

paragraph 196. 1 enables you to review all the decisions that have been issued

in a proceeding under this Act, by a court. According to the claim of the plaintiff was

the contested provisions of § 139 paragraph 2. 1 of the BIS in the proceedings before the municipal

a court in Prague, in the version prior to the amendment, applied, even in the

appellant submitted a complaint will have to be the application of the contested provisions

reviewed, which was a major reason why the petitioner according to the

the provisions of § 95 para. 2 of the Constitution of the CZECH REPUBLIC turned to the Constitutional Court.



31. the Constitutional Court has already in previous judikátech came to the conclusion that, from the

Article 95 para. 2 of the Constitution of the CZECH REPUBLIC shows that his duty is to review

the constitutionality of the contested provisions of the Act, even if already cancelled

(modified), and under the condition that the addressee of the tempered reason

the constitutional public authorities is, therefore, not a body of private law and

provided, that the contested provisions of the Act to be in addressing so far

things used to hedge contingent exposures to the General Court. Such a legal opinion is to be spoken

for example. in the report of 10 January 2006 1.2001, SP. zn. PL. ÚS 33/2000 (see above),

as well as in other [e.g. find SP. zn. PL. ÚS 73/06 of 29 April.

1.2008 (N 23/48 SbNU 263; 291/2008 Coll.), finding SP. zn. PL. ÚS 38/06

of 6 May 1999. 2.2007 (N 23/44 SbNU 279; 84/2007 Coll.)].



32. These conditions are fulfilled in the present case.



33. In the present case, it is necessary to answer the question whether the contested

the provisions at issue were conducted by the municipal court in Prague under SP. zn. 8 Ca

57/2006 actually applied in the scope of which review is sought, and

If this were not so, even in the preamble to the resolution of the municipal court in

Prague of 30 May. 5.2006 no. 8 Ca 57/2006-27 is linked, whether

and to what extent is this really necessary to admit the relevance in

proceedings for review of the standards before the Constitutional Court.



34. as is apparent from the description of the proceedings before the General Court, is

Obviously, the subject of the proceedings on the merits were úmrtné, granted

survivors of a member of the BIS, including with regard to the legal

adjustment referred to in the title of the eighth Act of BIS in the version in force until 31 December 2006. 12.

2006, claims related to the termination of service [§ 124 in

relation to the provisions of § 38 (a). e) of the Act].



35. therefore, the Constitutional Court came to the conclusion that the Supreme Administrative Court is

authorized by the applicant and are thus subject to the conditions of its active

evidence in proceedings for review of the standards in relation to the provisions of § 139 paragraph 2.

1 of the law on BIS.



Vi. assessment of the constitutionality of the contested Content of the legal provisions



36. the Constitutional Court then proceeded to content-related assessment (section)

the contested legal provisions with regard to its compliance with the constitutional

policy in the United States, taking into account that the proposal is a petite

challenged by rather than the entire article 139 BIS of the Act, but only its

paragraph 1, which modifies the exception to the rule that the Court does not examine the

the decision of the institution.



37. the exceptions to the rule not to review an institution's decision to

clearly a matter of claims related to the termination of service

Member of the BIS in its release (section 38 and section 40 of the Act on the BIS); in

with regard to termination of service member of the BIS arise

claims for the payment of certain benefits, such as severance (section 116), payroll

compensation (§ 117), the contribution for the service (article 119); If the business

Member of the BIS ratio of death, shall be paid to the surviving úmrtné (section 124).



38. The issue of the contribution for the service i výsluhového post

The Constitutional Court in its decisions dealt with on several occasions [see for example.

the finding of the Constitutional Court SP. zn. PL. ÚS 9/95 of 28 June. 2. the 1996 (N 16/5

SbNU 107; 107/1996 Coll.], resolution SP. zn. II. TC 164/01 and SP. zn. III.

TC 209/01 (neuveřejněna, available at SbNU http://nalus.usoud.cz) and

find SP. zn. IV. TC 150/01 of 9 June. 10.2003 (N 117/31 SbNNU 57)].



39. In finding SP. zn. PL. ÚS 9/95, the Constitutional Court to give priority to

the opinion of the Ministry of labour and Social Affairs and held that ' in

the legal order of the Czech Republic, such benefits are designed as a

form of financial compensation for work performed in difficult conditions and

certain personal limitations, resulting from the nature of the work in

the armed forces of the State (or the Security Corps). Are

part of a social nature related to the termination of

the service of members of these forces. "



40. Within the meaning of the above can be undoubtedly seen on úmrtné as the

one of the social benefits. Úmrtné is part of the right to adequate material

security when the loss of a breadwinner, a protected article 30 paragraph 2. 1 of the Charter.



41. In accordance with article 4, paragraph 2. 2 of the Charter may be the limits of fundamental rights and

freedoms governed under the terms of the Charter only by law, and

must be investigated, the nature and meaning of fundamental rights and freedoms (article 4, paragraph 2.

4 of the Charter). Investigation on condition of fundamental rights and freedoms is not

compatible such legislation, which excludes judicial review

the decision of the institution of a social character.



42. The amendment of the Act on BIS, carried out by Act No. 361/2003 Coll., with

effect from 1. 1.2007, the provisions of § 22-146a including notes

footnote # 8) to 28) and 30) repealed, including the contested provisions

§ 139 paragraph 2. 1 of the law on BIS. It is therefore apparent that the legislature, aware

the unequal status of members of the security forces with other

public service employees, new legislation allowed the examination of all

final decision of the official authorities, issued in a proceeding under

designated by law, by the Court.



43. While in the area of economic, social, cultural and

minority's State, which is made possible by the preferential treatment

certain groups of otherwise difficult socially, culturally, professionally or otherwise

a stratified society, with the legislature realizes the receiving

laws of your ideas about the acceptable limits of factual inequalities

within the company, it is still more evident effort to guarantee the members of the

security forces the same standard of protection of their procedural rights,

as is the case for other State employees, and provide them the opportunity to

claim the protection of their fundamental rights within the meaning of article 87(1). 1, art. paragraph 36.

1, para. 2 and article. 37 para. 3 of the Charter before an independent and impartial court.

Such a standard in the contested provisions of § 139 paragraph 2. 1 (b). and) of the

BIS was not respected. The new law was expressed the belief

the legislature, for the duration of a different approach in this area

legislation are irrelevant reasons.



44. The Constitutional Court already in the award of 9 June. 10.2003, SP. zn. IV. TC

150/01 (see above), in which he has dealt with the issue of the contribution for the service

and its impact in the legal realm of the complainant, expressed the opinion that if the

the former (i.e., to 31. 12.2006) the legislation does not allow

all decisions of the administrative authorities on civil rights and commitments

subject to review by a court or other independent body, as it has

mean article. 6 (1). 1 of the Convention for the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention"), it can be considered such a procedure

unwanted blip is that.



45. The Constitutional Court dealt with the question of whether the judicial review of the exclusion

a decision of a functional authority in matters of rights to the úmrtné pursuant to § 124

the law on BIS (with the exceptions noted in the contested provisions of § 139 paragraph 2.

1 of the law on guaranteeing the parties BIS) independence and impartiality of the

decision making and therefore the fairness of the proceedings conducted under the BIS and

came to the conclusion that this was not the case. Executive authority which

represents their interests in the field of business relations, published not only

the first instance decision, but at the same time the decider in the second instance of

the appeal against it. In a situation in which there was no review

an independent and impartial body, the decision will depend only

the institution, which by their very nature cannot be considered independent or

the impartial. It is obvious that such a system is contrary to the generally recognised

the meaning and purpose of the article. paragraph 36. 2 of the Charter, as well as the article. 6 (1). 1 of the Convention

on the protection of human rights and fundamental freedoms and article. 4 of the Constitution of the Czech Republic

provides that the fundamental rights and freedoms are protected by the judiciary.



46. The Constitutional Court is aware of the specific characteristics of the deciding official

matters relating to members of the intelligence services.

The information came to light in the course of such decisions, affecting the

the area of the security risks and the interests of the State, which can manifest itself in

limitations of guarantee of some common procedural guarantees proper and therefore

the fairness of the process, such as for example. the public hearing. A similar

situation, the Constitutional Court in finding SP. zn. II. TC 377/04 of 6.

9.2007 (N 1326/46 SbNU 283) in connection with the cases of the constitutional


complaints contesting the decisions in matters of classified information, and

here pointed out that "even in this type of control is the task of the legislature

allow the legal form of the realisation of adequate guarantees for the protection of the Court,

Although by nature of things ... to protect the special and differentiated ". From

the perspective of the protection of fundamental rights and freedoms can the public interest in

the non-disclosure of those particular circumstances mean a complete resignation

on the protection of fundamental human rights and freedoms, in particular for judicial review

administrative decisions.



47. The Constitutional Court, for the reasons above, concluded that the provisions of

§ 139 paragraph 2. 1 of Act No. 154/1994 Coll., on the Security information service,

in the version before the amendment made by Act No. 361/2003 Coll., amending

laws related to the adoption of the Act on the prison service members

security forces, as amended, is in breach of article.

1, art. 36, article. 37 para. 3 of the Charter, article. 6 (1). 1 of the Convention, and therefore the proposal

The Supreme Administrative Court according to the article. 95 para. 2 of the Constitution.



48. With regard to the article. 89 para. 2 of the Constitution of the CZECH REPUBLIC, the public authorities are

required to reflect the consequences of unconstitutionality identified their decision-making

the practice, therefore, do not apply that provision in solving concrete

cases.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 21,

finding no. 5, pp. 29 et seq. promulgated under no. 78/2001 Sb.