160/2008 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided on 13 March 2008 Plenary composed of the Chairman Pavel Rychetsky
court, judge Stanislav Balik, Frantisek Duchon, Vlasta
Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu,
Vladimir Kůrka Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri
Nykodým, Miloslav Vyborny, Elizabeth Wafnerové and Michaela Židlická
about the group of deputies of the Parliament of the Czech Republic
to annul Act no. 181/2007 Coll. of the Institute for the study of Totalitarian regimes and
security Services Archive and the amendment of certain laws
or individual provisions, and to annul individual provisions
certain other laws, with the participation of the first Chamber of Deputies of the Czech Parliament
and the second Senate of the Czech Republic, as
parties

Follows:

I. § 7 para. 9 of Act no. 181/2007 Coll., On the Institute for the Study
Totalitarian Regimes and Security Services Archive
and amending certain acts, in the words "properly or" cancels the date of publication in the
collection of laws.

II. In other respects, the proposal is rejected.

Reason:

I.
Recap draft


First A group of deputies in accordance with Article. 87 paragraph. 1 point. a) constitutional
Czech National Council Act no. 1/1993 Coll., Constitution of the Czech Republic (
"Constitution"), proposed the annulment of Act no. 181/2007 Coll., on the Institute for the Study
Totalitarian regimes and security Services Archive
and amending some laws (hereinafter the "Act"), or their respective
provisions and repeal individual provisions of certain other laws.
This Act established the Institute for the Study of Totalitarian Regimes (hereinafter
"Institute") and the Archive of Security Forces (hereinafter referred to as the "Archive").
Petitioners at the outset that the Act raises a number of concerns,
in terms of its compliance with the constitutional order of the Czech Republic (Art. 112
paragraph. 1 of the Constitution), which includes the opinion of the Constitutional Court also || | ratified and promulgated international treaties on human rights and fundamental freedoms
[judgment file. Nos. Pl. US 36/01 (Collection of
resolution of the Constitutional Court, volume 26, judgment no. 80, promulgated under no.
403/2002 Coll.), And finding sp. . I. ÚS 752/02 (Collection of Decisions
Constitutional Court, volume 30, judgment no. 54)].
Therefore propose the annulment of the entire Act, alternatively the annulment of certain provisions in the proposed verdict
indicated.

Second According to the petitioners' raises substantial doubt in itself
establishing the Institute as a state institution whose activities are financed from
chapter of the state budget (§ 3 para. 3 of the Act).
Institute is a state organization (§ 3 para. 2 of the Act). There are even several
public institutions, directly or indirectly, financed from the state budget
which research projects in the field of history, perform or can perform
and to their detriment (as can be expected according to the petitioners) will be funded by the Department
. They are primarily universities, which are by
Act no. 111/1998 Coll., On universities, as amended
rules supreme centers of education and independent learning, and who
accorded a key role in scientific development of society (§ 1
Act no. 111/1998 Coll.) Then there is the Academy of Sciences of the Czech Republic (Act
Czech national Council no. 283/1992 Coll., on the Academy of Sciences of the Czech Republic, as | || amended), which is an organizational unit of the Czech Republic and
whose activities are financed from the state budget of the Czech Republic (
for budgetary purposes even has the status of a central authority
Czech Republic). As a public research institution established, among others.
Historical Institute ASCR, the Institute for Contemporary History of the Academy of Sciences and the Institute of State and Law of the Republic
. Other institutions dealing with the history of the Military History Institute in Prague
. Freedom of scientific research is also guaranteed in Art. 15 paragraph.
2 of the Charter of Fundamental Rights and Freedoms (the "Charter").

Third In the establishment of the Institute and Archive petitioners fro nationalization
historical research on "the lack of freedom" and "
era of Communist totalitarian power" [§ 2. a) a point. b) of the Act], and it raises a real danger
that its results will be considered "official". They point out that
Council of the Institute, its highest governing body, elects and dismisses the Senate, as one

Chambers of the Czech Parliament, and they see in this an actual restriction
constitutionally guaranteed freedom of scientific research. Even though the Act does
priority and binding nature of research conducted by the Institute explicitly speak, via
Facti but raises. According to the petitioners, it suggests, among other things
privileged position of the Institute with regard to the obligation imposed by law
all state bodies, organizational units of the State Government funded
organizations, as well as local government authorities and contributory organizations of territorial self
units, as well as archives managed by them, which
keep documents and archival materials relating to the tasks of the Institute
period defined by law, without unnecessary delay
charge needed assistance (§ 5 para. 2 of the Act) . This obligation
no parallel in any other case of these scientific and research institutions
.

Fourth The petitioners criticize the Act because the period which should be the subject
Institute's research is defined solely by its time determining how
fully sufficient, but in addition it makes use of terminology that has no meaning
scientific, but ideological. For example., The Preamble speaks of
"totalitarian and authoritarian regimes of the 20th century" without
taken note that according to customary doctrinal opinion between them more or less
significant difference. (See, for example. Aron, R .: Democracy and Totalitarianism, Atlantis
, Prague 1093, also Pavlicek, and Jirásková V., V., in Pavlicek.
V. et al .: Constitutional Law and Politics, I vol.. General Politics, Linde, Prague 1998
) concerning the period from 1938 until 1945, § 2 point.
A) of this period as the "period of non-freedom", although he
fundamental difference between the still independent Republic and the subsequent
Protectorate of Bohemia and Moravia, as part of the Greater German Reich.
In the case of the period from 1948 to 1989 Act (as opposed to the preamble)
distinguish authoritarian regime from a totalitarian regime, rather it speaks explicitly and unambiguously
period of "communist totalitarian power" [§ 2. b)]
without distinguishing between the various stages of that era, and in this
"era of Communist totalitarian power" the period "preceding"
time period 25 February 1948 to 29 December 1989 "in which took place
happening on preparations for the totalitarian seizure of power by the Communist party of Czechoslovakia
". Definition of this period is utterly indeterminate, while
But it clamped Institute's tasks in connection with this example.
Its authorization to process personal data (§ 5 para. 1).
Petitioners further criticize the Act because the segment of Czechoslovak history from 25
February 1948 to 29 December 1989 is authoritatively designated as "period
Communist totalitarian power" and does not take into account that this period was a
terms of the modalities of exercising state power variable. Comprehensive evaluation and
explicit designation of the entire period from 25 February 1948 until 29 December 1989
as a period of "communist totalitarian power" does not correspond to reality
and conflicts with the law that gives the Constitution, namely to investigate || | and evaluate this era impartially, and Act a priori designates this
period as a period of "totalitarian".

Fifth The petitioners argue that the scope of the Institute is defined in the provisions
§ 4 of the Act very clear or comprehensible. The provisions of point. a) In the first part of the sentence
Institute obligation "to investigate and evaluate nestanně
time non-freedom and the era of Communist totalitarian power". In the next part of the sentence, however, he
stores to investigate "antidemocratic and criminal activity
organs of the state" and "criminal activity of the Communist Party of Czechoslovakia, as well
other organizations based on its ideology."
Since this second part of the sentence refers to these two periods is very clear, that "
state authorities' concerns regarding the period of oppression: state organs have separate
called. Second Republic, the authorities of the Protectorate of Bohemia and Moravia
or even the bodies of the Great German Reich. The petitioners further this provision
complain that it speaks of "criminal activities" which
deemed inappropriate because the legal terminology in 1950 was a crime in the sense
committing certain types of crime, which in criminal law
explicitly distinguished, while in 1950 this distinction had already dropped out.
Further § 4 point. e) of the Act, the term '
Nazi crimes ", which not only do not concern the entire so-called. unfreedom time,

But itself is imprecise and inapposite, as it would make sense only in
case, it concerned not only "crimes" which bodies of the Great German Reich on the territory of the Protectorate
[eg. of the NSDAP in point. a) and e) speak]
but also crimes committed by the authorities of the Protectorate Government and collaborating
organizations and individuals. The term "Nazi and communist crimes"
petitioners consider ideologically. According to them, by their nature
"journalistic" and not legal, so fulfill the task which has obviously have
is a legal way to define the scope (tasks) Institute.
For the term "crime" in point. e) the same applies as was stated point. and).

6th According to the petitioners, in constitutional terms, doubts arise
condition of reliability for the purposes of the Act referred to in his
§ 19 para. 1 point. a) under which it is an unreliable person who
was a member or candidate member of the Communist Party of Czechoslovakia or
Communist Party of Slovakia. They argue that the reason for the unreliability
formal membership in these political parties and did not take into account
actual conduct of these persons, eg. Whether they committed acts
conflicting with the general moral principles, or even criminal acts that are legally
. While membership in the Council under the provisions of § 10
public office and, under Art. 21 par. 4, citizens have access
to elected and other public office under equal conditions.
In this context refer also to Art. 15 of the International Covenant on Civil and Political Rights
. Constituting unreliability
for membership in the Council of the Institute on the basis of purely formal character based on former
political thinking citizens regardless of their real behavior and attitudes
, according to the petitioners, the aforementioned fundamental right guaranteed by the Charter breaches and violates
and the Czech Republic's obligations arising from
International Covenant on civil and political rights.

7th They argue that § 7 para. 6 of the Act, according to which "
membership in the Council is incompatible with membership in a political party or political movement
" is contrary to the prohibition of discrimination within the meaning of Article. 3. 1
Charter (political beliefs) and thereby results in a violation of the right to participate
exercise of public functions in the administration of public affairs (art. 21 paragraph. 1 and paragraph.
4 of the Charter). At the same time they are also breached the obligations arising from the European
European Convention on Human Rights (right to freedom of thought and conscience
under Article. 9) and the International Covenant on Civil and Political Rights
(right to participate in governance
public affairs without unreasonable restrictions and without distinction among others.
by political or other opinion - Art. 25, equality before the law and non-discrimination
(eg. due to political or other opinion - Art. 26).
limitation of these rights is possible only to the extent that follows from Art. 44
Charter and relates it enumerated functions, occupations and activities
.

eighth further discussed provisions § 5 para. 1 of the Act, according to which "
Department is authorized to process personal data to the extent necessary for fulfilling the tasks of the Institute
" and § 13 par. 3 of the Act, which states that "
archive is authorized process personal data to the extent necessary for the performance of their tasks
". the Charter provides (Art. 10 par. 3) that everyone has the right to
protection against unauthorized gathering, publication or other
misuse of his personal data . According to the petitioners in those provisions of the Act
"permission" of the Institute and Archive
drafted so vaguely that it violates the principles of legal certainty and the protection
public confidence in the law that are integral features of the rule of law
. This conclusion from the fact that the Institute's tasks defined in § 4
Act as its competencies are formulated indefinitely, eg.
Its core competence "to investigate and impartially evaluate the period of non-freedom and
era of Communist totalitarian power" [§ 4. and)]. Even less certain is
term "to the extent necessary", which is extremely subjective and allows
Institute and arbitrary interpretations, eg., Also in relation to the powers of the Institute
according to § 4. f) ( "The Institute provides the public the results of its activities, especially
publishes information ... about the deeds and fates of individuals").
Petitioners have analogous reservations also the Archive according to § 13 paragraph
. 3 of the Act.

9th According to § 9 para. 1 point. a) of the Act within the scope of Council

Institute entitled "define methods for implementing the tasks of the Institute".
The petitioners argue that this provision is vague.
Own scientific investigation and impartial evaluation "period of non-freedom and communist totalitarian power
", which according to § 4 of the Law Institute's task,
can not be the task of the Council and its members, but the staff of the Institute.
State that a "method" is generally understood to mean. Purposeful, objectively justified
way of exploring phenomena and the achievement of scientific knowledge, a systematic
procedure, which in this area leads to the goal, and the like. Therefore, if the Council - | || body inherently political because elected and removed by the Senate -
should lay down "methods" for scholarly investigation and impartial evaluation
arises a real danger that the establishment of these "methods" could
actually be affected in freedom of scientific research, constitutionally
enshrined in Article. 15 paragraph. 2 of the Charter. The petitioners also challenge the constitutionality
§ 9 para. 1 point. e) of the Act, under which the Council
established as an expert advisory body to the Director of the Institute's research activities of the Institute
scientific advice and appoint its members. The law does not provide any other details
, however, from the fact that it should be an expert advisory body to the Director of the Institute
is served, it is assumed the management of the Institute's research activities
its director, the staff will be required to perform their work personally || | of the employment contract by the employer's instructions, as is apparent from
§ 38 para. 1 of the Labour Code. Consider as normatively empty
§ 9 para. 1 point. h) of the Act, according to which the scope
Council entitled "to decide appeals against decisions of the Institute".
The law is not determined in case the Department (as an organizational component of the state
) authoritative decision such that against his decision might come to mind
"appeal" as a procedural remedy.

10th According to the petitioners, it raises substantial doubt adjustment position
Security Services Archive. Amendment to Act no. 499/2004 Coll., On
Archives and Records Service and amending certain acts, performed
Part Three (§ 24), was also amended version of § 42 para. 2 of Act No.
. 499/2004 Coll., So that the Security Services Archive was included
into the system archives as another public archives [§ 42 para. 2 point.
B) of the Act]. Status and competence Archive are thus regulated
partly in the general law on archives and records management, as well
specific provisions of the Act no. 181/2007 Coll. (Especially § 12-17).
For this adjustment entails some serious organizational and procedural
uncertainties. According to § 12 para. 2 of the Act Archive is an administrative office (Art. 79
paragraph. 1 of the Constitution), that executive authority, but not "directly managed"
Ministry of the Interior (such as the National Archives and the regional state archives)
but the Institute, which, unlike the Ministry of the Interior has administrative authority
position and is designated simply as "organizational unit
state". There is therefore no executive authority. Among others, the Archive
"supervises the performance of records services at the Institute" [§ 13 para. 1 point. c)
Act], thus at an organizational component of the state which is "directly managed", ie
which is subordinate. The competence of the Archive is explicitly stated in
§ 71 para. 1 point. d) of the Act no. 499/2004 Coll. According to the introductory part §
71 paragraph. 1 of this Act, the control exercised by the "special
legislation", which is in the note no. 27 footnotes
identified as the Czech National Council Act no. 552/1991 Coll. state control, although according
§ 3 par. 2 of this Act, state supervision according to law
CNR no. 552/1991 Coll. does not control exercised within
relationship of superior and subordinate. According to the petitioners, this creates an absurd situation
a subordinate administrative office supervises the activities of the parent
organizational state applies in relation to the powers under that Act
(including decisions on any objections against the Department
inspection protocols and decisions on disciplinary fines to individuals
that caused Institute as a controlled entity violated the obligations
according to § 14 of the Act). Although the archive is subordinate to the Constitution,
checking compliance with the obligations in the field of archives and performance of records service
it is the Ministry of Interior [§ 71 para. 1 point. a)
section 2 of the Act no. 499/2004 Coll., as amended by Act no. 181/2007 Coll.]. Furthermore
petitioners point out that according to the General Law on Archives and

Filing service, the access to archival and acquisition dump
copy or copies of archive materials can be refused the procedure, which remains
Administrative Procedure; submission of dissenting researchers then decide in proceedings under the Administrative Procedure
competent administrative authority in the field of archives and performance
file services (§ 38 par. 2, § 40 par. 3 of Law no. 499/2004 Sb.).
While refusing on the grounds listed in § 15 of Act no. 181/2007 Coll. But "a
appeal against the decision to refuse Archive's Director decides" when
decision refusing evidently made by the Head of the Archive, without
law should determine whether, in this case, decided in the first or
the second stage of the administrative Code (the extent of the administrative Code for
matter covered by the said law provides no other laws).

11th § 17 of the Act which provides that from 1 January 2030
Archive (security forces) will become part of the National Archives, is criticized
little normative definiteness. From § 17 of the Act it is necessary to conclude that
1 January 2030, the Security Services Archive as an administrative agency
extinguished and organizationally will "dissolve" in the National Archives, as
administrative office (to be with him then merged) . If the legislature
authoritatively stated that on 1 January 2030, the Archive of Security
components become part of the National Archives, it must also determine the treatment
resulting effects (changes in the competencies
Institute and the National Archive, the legal conditions of the employees of the Archive etc.). But it
legislature has done, so that § 17 of the Act is incomplete and vague
, with unforeseeable legal consequences.

12th The petitioners consider as incomprehensible and impractical partly
§ 21 para. 1 of the Act, under which the rights and obligations of employees
labor relations Czech Republic, assigned to
work in the Ministry of Interior, Ministry of Defense, including || | Military intelligence, Ministry of justice, Security
information service, Office for foreign Relations and information, and Police
Czech Republic - Office of documentation and investigation of communist crimes,
passes on the first day of the seventh calendar month following the date || | promulgation of the Law on Archives, if these employees perform
activities effective date of this Act shall be exercised by the Archive and
if they meet the conditions pursuant to § 18 of the Act. They point in particular to the fact that
members of security forces are not included in labor
relations, but in the public service relationship to the Czech Republic
, so this provision will not apply to them.
Besides that, they consider compulsory transfer of rights and obligations of employees
Czech Republic from employment relationship as inconsistent with the provisions of Art. 26
paragraph. 1 of the Charter, under which everyone has the right to free choice of profession
. In this context, they point to a number of differences, against the normal
delimitation of administrative bodies, especially the fact that the condition
transition reliability and integrity of the newly defined only in
§ 18 of this Act.

13th The petitioners point out that in a democratic
law statute must be definite, clear, concise, understandable, unambiguous
, nerozporný linguistically and stylistically impeccable, as it
Constitutional Court has indicated in a number of its judgments [e.g. Finding promulgated under no.
331/2005 Coll. (NB., Ed .: Decision Ref. No. Pl. US 23/04, Collection of
resolution Ústaního Court, volume 38, judgment no. 137], it is necessary that the individual
laws are understandable and to have resulted
predictable consequences [eg. judgment no. 106, Vol. 19 Collection of Judgments and Decisions of the Constitutional court
(NB., ed .: Decision Ref. Nos. Pl. ÚS 7/2000,
promulgated under no. 261/2000 Coll.] that only a law whose consequences are predictable
clearly complies with the requirements for the functioning materially
understood the democratic rule of law [eg. finding no. 29. Vol. 3 | || Collection of Decisions of the Constitutional court (NB., ed .: Decision Ref. Nos. Pl.
US 4/95, published as no. 168/1995 Coll.] that the concept of the rule of law principle is clear
, that neither the legislature nor the executive can not
forms of law, ie. the sources of law, dispose arbitrarily, but must follow
aspects of the Constituent Assembly, as well as other aspects, especially
transparency, accessibility and clarity [judgment no. 73, Vol. 18 Collections

Of Decisions of the Constitutional Court (NB., Ed .: Decision Ref. Nos. Pl.
US 24/99, promulgated as no. 167/2000 Coll.]. If the law comes into conflict with
these principles, receives, according to the petitioners, at least until
conflict with the principles of the democratic rule of law (Art. 1, paragraph. 1 of the Constitution).

14th based on the above arguments, the petitioners contend:
|| | 1) alternatively:

A) cancel the entire Act no. 181/2007 Coll., On the Institute for the Study of Totalitarian Regimes and
Security Services Archive and the amendment of certain laws
because many of its provisions are in conflict with the constitutional order and the like | || whole contradicts the requirements that are to the content of laws in a democratic law-based state
.

B) If the Constitutional Court and the petition) failed, cancel this
provisions of Act no. 181/2007 Coll .:

- The word "totalitarian" or "totalitarian" (in its various forms) in
title of the Act, the title of Part One and the title of Chapter Two and
§ 1, § 2. b) a point. c) § 4. a), b), c) and point.
F), § 13 para. 1 point. d) § 13 para. 2 point. and);

- The word "Nazi and communist crimes" in § 4. E);

- § 5 para. 2;

- § 7 para. 6 of the final sentence;

- § 9. 1 point. and);

- § 9. 1 point. h);

- § 13 para. 1 point. C);

- § 15 of the final sentence;

- § 17;

- § 19 para. 1 point. and);

- § 21 para. 1st

2) Delete the word "totalitarian" or "totalitarian" (in its various forms
) in the following provisions of the following Acts;

- In § 10 paragraph. 3, third sentence of Act no. 140/1996 Coll., On making
files of the former State Security, as amended by Act no. 181/2007 Coll .;


- In § 37 para. 6, § 71 para. 1 point. d) and in Annex no. 2 point 1.
Q) of the Act no. 499/2004 Coll., On Archives and Records Service and amending
certain laws as amended by Act no. 181/2007 Coll .;

- In § 1 point. f) in the heading of Title eighth and § 27c to 27e of Act No.
236/1995 Coll., on salary and other compensation related to performance
office of representatives of state power and some state bodies and judges
Members of the European Parliament, amended by Act no. 181/2007 Coll .;

- In § 3 para. 1 point. b) point 8 Czech National Council Act no. 589/1992
Coll., on premiums for social security contributions and the state employment policy
, as amended by Act no. 181/2007 Coll .;

- In § 5. a) section 9 of the Act no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws, as amended
Act no. 181/2007 Coll .;

- In § 5 para. 1 point. i) of the Act no. 155/1995 Coll., on pension insurance
, as amended by Act no. 181/2007 Coll .;

- In § 5. a) point 10 and § 92. 2 point. k) of the Act no. 187/2006
Coll., on Sickness Insurance, as amended by Act no. 181/2007 Coll .:

- § 36 point. Staples) Czech National Council Act no. 582/1991 Coll., on
Organization of Social Security, as amended by Act no. 181/2007 Coll .;


- In § 25 par. 1 point. o) of the Act no. 435/2004 Coll., on employment;

- In § 124 paragraph. 3 and § 303 paragraph. 1 point. b) paragraph 15 of Law no. 262/2006
Coll., Labour Code, as amended by Act no. 181/2007 Coll.

II.

Recap substantial parts of the parties' observations

15th The Constitutional Court sent the petition to open proceedings in accordance with
§ 69 Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter the "Law on the Constitutional Court") participants
management - the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.

16th Deputies at the beginning of his statement, the Constitutional Court
informed of the progress of the approval process of the bill. Příprava
statutory regulation to be very careful and participated in it also
broad specialist public at that proposal sparked considerable response.
The original Senate draft, a comprehensive amendment
brought a major conceptual changes. Based inter alia, on the conclusions
seminar, which was organized to draft Safety Committee.
Chamber of Deputies also pointed out that the law takes into account the comparative
aspect, when the Constitution of similar interests already exist in the Slovak Republic,
in Poland and Germany, countries that have undergone similar historic development
. Generally the draft complains that contains a number of reservations
material and formal, which are not constitutional in nature.


17th Petitioners' complaints regarding the quality of the law in the opinion of the Chamber of Deputies
unfounded. Error, inconsistency and lack of clarity
laws will be invoked every time, but if they should be
properties reason for the Constitutional Court to annul, this would mean that
would have the right to annul any law, without having to restrict
to the text of specific provisions of the Constitution. Thus vague derogatory
criteria would mean uncertainty for citizens of the applicable law, which is to follow.

18th Interpreting the period 1948-1989 in the draft Constitutional
court refused earlier in its judgment. Nos. Pl. US 19/93 (Collection of the resolution
Constitutional Court, volume 1, judgment no. 1 promulgated under no. 14/1994 Coll.)
Where he studied law no. 198/1993 Coll.
of the communist regime. He expressed herein that used the phrase "
regime based on communist ideology, which ruled on the management of the state and the fate
citizens in Czechoslovakia from 25 February 1948 to 17 November 1989 was
criminal, illegitimate and abhorrent "can not be considered unconstitutional.
Deputies also noted that criticized union
"communist totalitarian power" was in our legal system already
reused (Act no. 140/1996 Coll., Annex Act no. 499/2004 || | Sb., then similarly the criminal Code § 261).

19th The lower chamber also denies that the law would restrict the freedom of scientific research
. On the contrary, it actually expands, because in the newly founded
Archives will be saved and the documents to which they have not yet had access to the research community.
Institute for the Study of Totalitarian Regimes is just one of many institutions
dealing with the present historical period and the results of his work
will have to compete in other investigations. Fears of nationalization
historical research and the official nature of his
results must be regarded as unfounded.

20th The Parliament of the Czech Republic was in the drafting of the Act
driven by efforts to avoid doubts about the political independence of the Institute. This also corresponds
existing arrangements for the election of members of the Council of the Institute, incompatibility of membership in
council with membership in a political party or political movement, anchoring
possibility to interfere with its work only under the law.

21st The objections to the definition of the conditions of integrity Deputies
pointed out that personal impact is limited and given the purpose and character
legislation is a definition of reasonable and constitutionally defensible.
Example Slovak legislation lays down conditions for the integrity
even stricter.

22nd Handling personal data is subject to Act no. 101/2000 Coll., On
Protection of Personal Data Law on Archives, of course
necessary to comply with the limits set out in the Charter.

23rd Legislation controls based on the current draft law on
Archives and Records Service and the purpose of the Act was to preserve the structure,
not change.

24th If it is submitted that the archive is not an administrative authority subordinate
Interior Ministry, but the Constitution, which in turn is an administrative office,
expression refers to so-called Institute. Independent administrative authorities that
not subordinate to the executive branch (the Office for privacy or
Council for radio and television broadcasting).

25th Regarding objections to the provisions of § 17 Deputies
stated that the legislature's intention was to declare the precariousness of existence
separate archive that detailed regulation of the technical aspects
merger with the National Archives will be taken well in advance
first January 2030.

26th The petitioners that members of the security forces and the armed forces
provisions on the rights and obligations of
labor relations can not be covered, pointed Deputies
to the resolution of the Czech government, which the Minister of the Interior | || justice and defense and the directors of the Security information service and
Office for foreign Relations and information secure 31 December 2007
that activities which will be transferred to the Archives, were performed
civil servants so that could lead to the transition of these persons according
§ 21 of the Act. The chosen solution also considers the Chamber of Deputies for
advantageous for employees.

27th Deputies concluded its statement by saying that
legislature acted with conviction about the harmony
adopted law with the Constitution, the constitutional order and the rule of law.


28th The draft rule also Czech Senate.
The objections against the use of the term "totalitarian" he said the legislator was based on politics
universally recognized definition of a state-totalitarian regime
whose characteristics exhibited throughout the period. Similarly deemed acceptable
political science terminology, if the law works with
term "Nazi and Communist crimes." It is not essential that if
valid constitutional and criminal law with this concept did not work.
Legislator wanted something to mark major state-political illegitimate interference in people's lives
, his intention was not to task facing the justice Department.
The Czech legal order is also the term "communist crimes"
already appeared earlier, in Act no. 198/1993 Coll., On the Lawlessness of the Communist
regime and resistance against it, or in the Law on Police Czech Republic, while
indicate the scope of a specialized police unit called the Office for the documentation
- crimes of communism.

29th The Senate also disagree with the fact that the approval of the Institute
ask public institutions for cooperation in obtaining documents and archival records
relating to totalitarian regimes meant the threat to the freedom of research.
The aim of the legislature was to provide a kind of standard of care for this issue
due to efforts to overcome the gaps and delays in detecting
"secret chapter" of the past. Permission Institute retrieve documents outside
archive is minimal, proportionate to that objective. The relevant authority has
only accelerate the otherwise time-consuming access to documents.

30th As to the alleged unconstitutionality of the law requires that membership in the Council of the Institute
was incompatible with membership in a political party, pointed
Senate in cases where the legislature has acted accordingly; eg. by
inspectors of the Office for Personal Data Protection or by the Public Protector
rights. The Senate emphasizes that the legislation does not prefer or discriminate
this or that political beliefs or party affiliation, but requires
political independence as a structural element to achieve the independence of the Institute.
It is the will of the people who stand to place the councilors that so long as the conditions
accepted.

31st Unconstitutional restriction of freedom of science can not be seen in
methodical Council powers under the Constitution. The Senate, in this context
recalls that the activities of the Institute is not limited to the function of scholarly,
but also function as documentation, publications and training.
Determination methods for fulfilling the tasks of the Institute is establishing procedures
scientific work, but in general the provision of care to ensure that the Institute has worked in
all its functions effectively. For the quality of one's own research
then establishment of the Scientific Council, composed mostly of celebrities standing outside
Department.

32nd The Senate also admitted that during the discussion of changes in the law
lost much of their original meaning of the provision under which
Council shall decide on appeals against decisions of the Institute. But at least
remains agenda requests for information under the Act no. 106/1999
Coll., On free access to information.

33rd The shortcomings of legislation consisting in the conception of the relation
hierarchical Institute and Archive in controlling the exercise
records management Senate stated that it is a professional activity under the Act on
archives, which are not part of the relationship of superior and subordinate.
Archive is part of a system of public records, it follows the relevant
credentials.

34th Ineligible refers Senate also objected to the derogation regime
appeals in matters of decisions denying the right insight into the archival records
from generic mode, based on the Act on archival
and the absence of provisions determining the Administrative Code. According to the Senate
regards special provisions for the law on archives, which regulates the regime of
. Important archival documents. Also points to the principle of subsidiarity
embedded directly in the administrative order.

35th With the alleged shortcomings of the legislation regarding the planned merger
Archives of the National Archives, the Senate agrees, considers it to be legislatively
unfinished. It presupposes that the Parliament of the Czech Republic in this direction in the future
rectifies.

36th Furthermore, the Senate dealt with the express objection
violation of the constitutional command of equal access to public office, unless the law from among persons
reliable period excludes candidates and members of the Communist Party and KSS. senate

Considers natural demand "minulostní purity", which in addition
concerns only the tip of the narrow leadership of the Institute and the Archive. In this group of people are given
requirements laid flat and as a prerequisite for capacity, not
exclusion of persons already employed.

37th The objections against the rights and obligations arising from labor relations
Senate states that any disagreements are resolved in
legisvakační seven-month period by agreement or notice. Legislation under
Senate only increases legal certainty for employees.

38th Regarding the petitioners dissatisfaction with brevity
rules governing the processing of personal data, warns the Senate that it is the only
about the definition of what is subject to the processing of personal data
Institute. Detailed rules arising from a general law on the protection of personal data
.

39th In conclusion, then the expression Senate pointed out the general principles on which
based legislator in drafting the law, and briefly describe
the legislative process. The Senate also expressed the view that the contested
Act is consistent with the constitutional order of the Czech Republic.

III.
Wording of the contested provisions


40th Since it is simultaneously attacked the whole law, diction
statutory provisions, which, according to the statement of claim, alternatively attacked, noted.

IV.

Terms of locus standi of the petitioner's constitutional conformity of the legislative process


41st The proposal to repeal the Act, respectively. its individual provisions, was passed
group of 57 deputies of the Parliament of the Czech Republic, and therefore
in accordance with the conditions contained in § 64 para. 1 point. b)
Law on the Constitutional Court. In the present case may therefore be stated filling
conditions locus standi of the petitioner.

42nd The Constitutional Court is in accordance with § 68 para. 1 of the
Constitutional Court in proceedings to review laws or other laws
required to assess whether the contested legislation was adopted and issued
constitutionally prescribed manner.

43rd The content of the proposal, the contents of the participants, as well as Web sites
both chambers of the Parliament of the Czech Republic was found
following. Proposer of the Act, the Senate of the Czech Parliament.
Deputies proposal in the first htení (7 November 2006)
ordered for consideration by committees. The result was the comitology complex
amendment Deputies took as the basis for further discussion
2nd reading (16 March 2007). The bill was then approved in a third reading
(2 May 2007), a majority of 92 deputies present, 118;
Voted against the 24 MPs.

44th Senate forwarded the proposal after discussion in committees and plenary
voted on 8 June 2007. Most of the 46 senators present, 50
it approved the version passed in the Chamber of Deputies; 3
senators voted against and one abstained.

45th The law signed by the President of the Republic, President of the Chamber of Deputies and
Prime Minister of the Czech Republic on 12 July 2007, the Act was
promulgated in the Collection of Laws in part 59 under No. 181/2007 Coll.

46th The Constitutional Court notes that the adoption and publication of the contested Act
been prescribed manner.

V.
During the public hearing


47th During the public hearing held on March 13, 2008, they remained
participants for their opinions in the proposal and submissions.
On whether the petitioners' view, there were some
period from 25 February 1948 until 29 December 1989, in which the Communist Party of Czechoslovakia
refrain from exercising its leading role and which would
disassociated itself from the ideology of Marxism-Leninism, the Communist manifesto or Lenin
file State and revolution, the petitioners pointed deputy
that is not such a long period accurately characterize
but it is necessary to examine how this system evolved and changed. On the question of whether
leadership of the Communist Party in 1960, actively sought it to be abolished Article.
4 of the Constitution of the year. 1960, plaintiff's representative stated that "if we materially
assess the possibility of change within the communist mode, then such
we can not ask the question seriously. " Deputy Senate to questions, among others. Said that
membership in the NSDAP or the flag is not defined in the law so that people who
were active during the occupation, are no longer under a professional zenith and would certainly
them to did not apply. "He added that in the case of applicants for the function of

Among the members of the former Communist Party "would have to be intricately examined
how they themselves deal with their past." In search of legal forms
Institute is based on the Slovak experience.

VI.
The Review


VI.A.

In relation to the objections against the law as a whole

48th The Constitutional Court first addressed the general objection
petitioners, under which raises substantial doubt
mere establishment of the Institute as a state institution whose activities are covered by a separate chapter
state budget, and where the petitioners point out,
that more public institutions paid directly or indirectly by the state budget
perform research tasks in the field of history. The existence of the Institute fro
risk of nationalization of historical research statutorily defined period of history and challenge
formulation, which is in the law defining this term, because
them ahead anticipated, as it should be evaluated this period, thereby || | effectively curtailed the constitutionally guaranteed freedom of scientific research.

49th The Constitutional Court must at the outset that the actual establishment of the Institute does not
constitutional dimension. It is a legitimate right of the state to establish such an institution
, despite the fact that there are already other institutions
which deal with similar issues. It can not include in its considerations
question the effectiveness of institutions established by law, which petitioners argue
because such reasoning falls in
political decisions, and if such a consideration was based, violated the principle of separation of powers
.

50th But a constitutional dimension objection relating to the freedom of scientific research
which is guaranteed by Article. 15 paragraph. 2 of the Charter. Law provisions in §
2 defines two historical periods which are to be the subject of research
Constitution, namely "time non-freedom", which is the period from 30 September 1938 to
fourth May 1945, and the "era of Communist totalitarian power", which is a stretch
Czechoslovak history from 25 February 1948 until 29 December 1989, and the time
which preceded this time slot and in which the words of the law "carried || | happening on preparations for the totalitarian seizure of power by the Communist party of Czechoslovakia
". According to the petitioners, this definition has
implicitly contains historical evaluation.

51st Designation of a certain historic period of history called
always involves some simplification, but also incorporates some
characteristic of the period. Quite commonly, for example.
Talk about the period of Habsburg domination or the Hussite wars.
Designation from the very historic sections entitled "Time of Oppression" and "
period of Communist totalitarian power" can not conclude without further restrictions
scientific investigation of these periods, because they only sets out a timetable
period of history, which has be examined.

52nd The petitioners criticize the Act, the use of terminology which has
importance not only scientific but also ideological; specifically, the Preamble
speaks of "totalitarian and authoritarian regimes of the 20th century."
Bothers them that the "period of non-freedom" is marked throughout the period 1938-1945, although
according to them, was a fundamental difference between the still independent Republic
and subsequent Protectorate of Bohemia and Moravia, and the period from 25 February
1948 to 29 December 1989 is marked as the "era of Communist totalitarian power
", without taking into account that this period was in terms of how
exercise of state power variable.

53rd The principal weakness of the petitioners' arguments is that they are
who text of the law attribute the sense that in fact does not.
Those provisions are not "comprehensive evaluation" in the Act
historical periods, but just their name.
Purpose of law is to create an institution that would only be a comprehensive assessment of these periods
deal, under conditions that are formulated in § 4
Act, which expressly states that it should be done impartially .
Ambition Act does not, and can not be a scientific treatise on a given time.
Its purpose is to create a paid state institution that has this problem
deal with the reasons for it are expressed in the preamble of the Act
particular the words: "The knowledge of historical sources and other evidence of the above regimes and
events leading to their
can better understand the effects of systematic destruction of the traditional values ​​of European civilization
deliberate violation of human rights and freedoms, moral and economic

Decline accompanied with judicial crimes and terror against proponents
different opinions, replacement of a functioning market economy
directive control, destruction of the traditional principles of property rights,
abuse of education, science and culture for political and
ideological purposes, and reckless destruction of nature. "that these consequences
mentioned historical periods have occurred, objectively determined
fact that no ideological tinge.

54th petitioners' objection to the annulment of the Act as a whole,
express their concern about the abuse of the emerging institution
political struggle. such considerations are on the one hand, legitimate insofar as it
each institution can be misused for purposes other than those for which it was established. | || that period, which should be subject to the Institute's research, among others
filled with cases of such abuse. on the other hand, the possibility of such abuse
depends on the conditions in which it has to operate. If they are functioning democracy
to misuse can not occur.
Concerns of the petitioners in this direction are essentially expressing their distrust of
democracy, although as parliamentarians on her face and application
significant contributors. It is therefore up to them to potential attempts by
prevent abuse of the Institute. The actual decision on its establishment, however
political decision, which was adopted by a majority
legitimate parliament, the Constitutional Court is not the third chamber to join in this process
admitted.

VI.b.

In relation to the objections against individual provisions

55th The petitioners challenge the constitutionality of various provisions of the Act,
on their part. They object mainly to their inconsistency with the principles
democratic rule of law enshrined in Art. 1. 1
Constitution of the Czech Republic and their obscurity and the resulting
unpredictability. Thus, the provisions of § 4. e) of the Act uses the expression
"Nazi and Communist crimes", which proposed to cancel. It is by
them an ideologically-expression, which is by its nature a journalist and not a legal
. Recall that in legal terminology until 1950, it was a kind
crime, and it is not clear whether the time this date should
think of this type of crime, or just a moral aspect
this activity. This provision therefore does not fulfill the task to have, that
legal manner define the Institute. For ideological
consider whether the term "totalitarian", and therefore proposes its annulment in all its different shapes
in the name of the law, the title of Part One and the title of the head
Second, § 1, § 2 . b) a point. c) § 4. a), b), c
) and points. f) § 13 para. 1 point. d) § 13 para. 2 point. a), and in
all acts listed in paragraph 2 judgment in the petition (see. point 14).

56th A similar objection, the Constitutional Court opinion in judgment Pl.
US 19/93, published as no. 14/1994 Coll., Which it decided on the proposal to repeal
Act no. 198/1993 Coll., On the Lawlessness of the Communist regime
and the resistance against it. Here, he said that "
constitutional foundation of a democratic state does not deny Parliament the right to express its will and its moral and political viewpoint
that under general principles of law
considers suitable and reasonable - and possibly in the form of legal Act
if it considers it appropriate and expedient to stress the legal form of a
social importance and scope of its declaration. such an example.
the statute issued under the first Republic which stated that TG | || Masaryk merited for the state. " He stressed that this
formulate a new merits of offenses. Neither the wording of the law now examined
nothing like this can not be inferred. Moreover, as a general standard for
assessment of any actions in terms of their criminality apply Article 40, paragraph
. 6 of the Charter, under which the crime is punishable with a sentence
imposed by the law in effect at the time the offense was committed.
Can therefore conclude that the act under adjudication morally and legally
political proclamation of Parliament, which for that reason can not be criticized
that the use of common legal terminology.

57th If in point F of the proposal questioned the constitutionality of § 5, paragraph
. 1 of the Act, but to repeal this provision is proposed
(proposed to repeal only the provisions of § 5 para. 2 of the Act), the Constitutional Court
on the objections directed against § 5 para. 1 of the Act may not

No substantive comment. Beyond this, however, it notes that neither
eventual inclusion of the provision of the Act to the judgment in the petition
would not lead to its derogation. Marked provision is merely supplement the general
regulation on the protection of personal data contained in the Act.
Objection of "brevity" does not have the slightest constitutional foundation.

'58. It is also proposed to abolish the provisions of § 5 para. 2 of the Act, which imposes
all state bodies, state organizational units, State
contributory organizations, territorial governments, contributory
organizations and local government archives managed by them to provide | Institute || charge necessary assistance in terms of archival records
related to their tasks from the period defined by law.
The petitioners emphasize that such an obligation is found in the case
no scientific institution dealing with historical research and, therefore, this provision
a confirmation of the Institute's privileged status, which enhances
risk that the results of its research will considered official.

59th First, that provision means that cooperation applies only
submission of requested documents and the Institute is legally entitled to its costs
copy thereof. Such an obligation does not exceed the normal conditions
cooperation among state institutions and local governments. That can not be seen
no violation of constitutionally guaranteed rights. Nor does it
reason for the petitioners' conclusion that it is jeopardizing the freedom of scientific research
. This provision does not create a monopoly of the Institute for the study and analysis of historical documents
vesting period.
They remain accessible to other researchers dealing with the history of this period, while
with the results of their work will be confronted Institute's research results.
This provision does not constitute the Institute's competence, but the conditions
cooperation with institutions listed in the cited statutory provision at
gathering archival documents relevant to the periods which are subject
Institute's research. However, this does not mean all
stored in the archives of the named institutions, but only those which have only
historic character.

60th The petitioners further propose the repeal of § 7 para. 6 of the Act, under which
membership in the Institute's Council is incompatible with membership in
political party or political movement. They point out that under Article.
20 paragraph. 2 of the Charter every citizen has the right to associate in political parties and movements
and limitations of this right are permitted only in connection with
perform certain functions, occupations and activities exhaustively
referred to in Article. 44 of the Charter. According to them of no such case in connection with the Council
Institute's nor with any of the cases for which the Charter allows
restrictions on this fundamental right. It concludes that the contested
provision violates the prohibition of discrimination (Art. 3. 1
Charter), and violation of the right to participate in the performance of public functions
administration of public affairs (art. 21 paragraph. 1 and par. 4).

61st To assess these reservations, it is necessary first to assess the objective
who is pursued by the establishment of the Institute. It follows primarily from the preamble
Act, the Parliament of the Czech Republic declares that it establishes
conscious duty to cope with the consequences of totalitarian and authoritarian regimes
20th century. Under the provisions of § 3 para. 2 of the Act
Institute is a government organization under whose activities may interfere
only under the law, and according to par. 3 of the entity and its
activity is covered by a separate chapter in the state budget. It is therefore a
state organization endowed by law with a large degree of independence that is
further intensified and independent financing from separate chapter
state budget. The Council of the Institute, as stated in § 9 para. 1
law has a fundamental impact on the functioning of this institution.
In this situation, where the dominant intent of the legislature within
means at its disposal to achieve maximum independence for this
institution is perfectly legitimate to lay down as a condition for membership
her partisanship. The object of the Institute's research period, which is still
politically sensitive and whose results may affect various political parties
including those in Parliament. The Constitutional Court Pl.
US 9/01 (Collection of Decisions Ústaního Court, volume 24, judgment no.

192, promulgated under no. 35/2002 Coll., Formulated - albeit in a somewhat different context
- conclusion that a democratic state, and not only in a transitional period
after the fall of totalitarianism, can tie an individual's entry
into state administration and public services and staying in them to certain conditions.
This conclusion is assessed thing remarkable in the sense that he admitted
setting certain limits on the exercise of fundamental rights, and where it comes to protecting democracy
. We see the Institute as an institution whose mission
as postulated in the preamble, is the protection of democracy, then the above
restrictions on the fundamental rights of membership in the Council are legitimate.

62nd The petitioners further propose the annulment of § 9 para. 1 point.
) And point. h) of the Act, which stipulates that the Council has competence
"define methods for implementing the Institute's tasks" and "
decide appeals against decisions of the Institute". The powers of the Board set out methods for implementing the tasks of the Institute
perceive a real risk of interference with freedom
research.

63rd This can be said that there is always a risk of misuse
statutory provisions. However, the Council can not when deciding which content will be
fulfill its jurisdiction, ruling outside the constitutional framework, which, among other things, obliges
Article. 15 paragraph. 2 of the Charter to respect the fundamental right to freedom
scientific research. Only in the confines of this constitutional
Council can exercise its powers.

64th As regards the Council decision on the appeal against the Institute,
petitioners consider this provision to be normatively empty, because the Act does not provide
case the Department of authoritative decisions such
against his decision to come to mind
appeal as a procedural remedy.

65th The Constitutional Court notes that the benchmark for
decision to abolish the Law or in part is inconsistent with the Constitution.
Fact that the provisions of the Act is the normatively empty
can not logically be in conflict with anything, neither the Constitution. Annulling the above mentioned provisions
no constitutional foundation. Moreover, the Act
competence of the Council as an appellate instance; The Council will decide on
appeals relating to the denial of information by Act no. 106/1999 Coll.
The Constitutional Court can also imagine the interpretation that the Council further
act in accordance with § 9 para. 1 point. h) in conjunction with § 12 paragraph
. 2 of the Act eg., In matters under § 13 para. 1 point. f), g), h)
Act. The Constitutional Court is not to adopt such interpretive conclusions
no ties to the constitution drafted. It will depend on the general practice of courts
how this problem is resolved.

66th Furthermore, it is proposed to repeal the provisions of § 13 para. 1 point. c) laying down
competence of the Archive to check the performance of records service at the Institute.
According to the petitioners, this creates a curious situation where a subordinate component
monitor a parent. This situation results from the existing arrangements
Law on Archives and Records Services. According to the Interior Ministry
directs the National Archive and the National Archive oversees the performance of records service
Ministry of Interior.

67th According to the petitioners, this is one of the provisions, which because of its
ambiguity, inconsistency or unpredictability comes into conflict with
principles of the rule of law. These concerns, however, at least
relativize the analogous existing rules of the Act on Archives and Records
services, according to which the Ministry of the Interior manages the National Archives and the National Archives
, a subordinate body, supervises the performance of records service
Ministry of Interior, the body managing it. This legislation and the
administrative relations springing effect for several years and
Constitutional Court is not aware that the practice caused complications in terms of its
clarity, certainty, predictability. In essence
petitioners question the concept of subordination in the event.
Specific regulation of relations of superiority and subordination as one of
principles of public administration organization is dependent on the discretion of the legislature.
It shows how the various players in the vertical subordination,
unless, of course, does not violate basic constitutional principles such.
Principle of separation of powers. Nothing like in the case was registered.
The Constitutional Court does not consider it absurd it more from the perspective of constitutional law, adjustment, which
executor of certain specialized public agenda entrusts

Output control that agenda by a body of executors in this case
its other activities governed. For a very eloquent example
Constitutional Court considers the case a policeman who must be subordinate to the Police
president, but it checks that it complies with safety rules and
traffic flow; Thus, as a subordinate component
monitor a parent. Finally the Constitutional Court questioned whether
at all possible, in connection with the output file services on relations
hierarchical speak. These doubts led him
contents of § 71 para. 1 of the archives, according to which
checking compliance with the obligations in the field of archives and performance of records
services performed under a special law. This is the Law no.
552/1991 Coll., On state control, as amended.
The provisions of § 3 para. 2, however, state supervision pursuant to this Act
does not control performed on the relationship of superior and subordinate
. It follows that the Act 552/1991 Coll.
check the performance of the file service mode hierarchical link removed.
The petitioners' objection is that the reality of legal regulation.

68th If it is further proposed to repeal the last sentence of § 15
law under which the appeal against the decision to refuse access to archival records
director decides Archive, there is no reason.
It is a functional provisions governing arrangements for examining specific [
in relation to § 13 para. 1 point. g) of the Act] categories of records, ie
those for which was canceled grading. At adopt legislation
Constitutional Court has no constitutional character defects did not find, moreover
petitioners have not any specific reservations.

69th According to § 17, 1 January 2030, becoming part
Archives National Archives. The petitioners propose to repeal this provision,
because according to them incomplete, vague and impossible to foresee its consequences
. It does not bear the consequences of the merger arrangement with the National Archives
archive. Such statutory provisions are inconsistent with the principles
democratic rule of law on which the Czech Republic pursuant to Art. 1
paragraph. 1 of the Constitution is based.

70th According to the Chamber of Deputies, this provision only
declaratory nature and expresses the will of the legislature in that time
merge the two archives. The Act was supplemented when the comprehensive amendment
outcome of a discussion with a professional archivist community.
The wording of this provision does not correspond intention to merge only
declare the absence of detailed regulation of conditions or merging it can not be interpreted otherwise
. If we can interpret it this way, then
eliminates the objection that these provisions incomplete and uncertain
whose consequences can not be foreseen.

71st It is also proposed to repeal § 19 para. 1 point. a)
which lays down one of the criteria of reliability for election as a member of the Council
Institute for appointment as Director of the Institute, Director of the Archive and leading
employee of the Institute and Archive directly subordinate to the Director of the Institute or
Archive. For reliable for the purposes of this Act according to § 19 paragraph
. 1 point. a) a person who in the period from 25 February 1948 to 15 February 1990
was not a member or candidate member of the Communist Party of Czechoslovakia or
Communist Party of Slovakia. Other employees of the Institute and Archive
must meet the requirements under the Act no. 451/1991 Coll. (Ie.
Lustration law). The petitioners argue that the reason for unreliability are formal
membership in these political parties and did not take into account
actual conduct of those persons. They further emphasize that membership in the Council is
public office (§ 10) and that, according to Art. 21 par. 4 has
each citizen has the right and opportunity to participate in the conduct of public affairs
.

72nd First, the Constitutional Court must at this point recall that in its Judgment
. Nos. Pl. US 9/01 concluded that, even with regard to the case law
European Court of Human Rights that the promotion of the idea of ​​"democracy capable of defending itself
" is a legitimate aim of the legislation of each
democratic state, at any stage of its development.
On this basis, it concluded that a democratic state can bind the entry
individuals in government and public services to fulfill certain prerequisites
. At the same time, however, also cited judgment the Constitutional Court

Clearly expressed in the sense that "
individual's attitudes to the democratic establishment are determined primarily by his actual actions." In this context, he reminded
Act no. 198/1993 Coll., On the Illegality
communist regime and resistance against it, and finding this Act
published under no. 14/1994 Coll. The cited act enumerates crimes and
other comparable events which occurred on the territory of the Czech Republic
in the period 1948 - 1989, and in the operative part of the text for them
assigns full joint "those who supported the communist regime
as officials, organizers and instigators of political and ideological
area. " The preamble notes the special responsibility
pre-November Communist Party, including its leadership and members. It is therefore obvious that
individual's close ties with the pre-November regime and its repressive forces
is eligible fact adversely affect the credibility
public function performed by that individual in a democratic state
holds, as the Communist regime was Parliament
Czech democratic state as "criminal, illegitimate and
abominable." Although this statute in its Preamble refers to the responsibility
members of the pre-November Communist Party, in the operative part of the statute speaks about
threat to democracy by "individuals belonging
pre-November regime and its repressive components".

73rd The Constitutional Court observes that the cited judgment file. Nos. Pl. US 9/01 on the
conclusions now follows, admits the possibility to tie an individual's entry into
government and public services to certain conditions.
It is up to the legislature to lay down the prerequisites manner appropriate to the purpose for which
office is established. It is not ruled out that the criteria for
different, be yourself and very close function while preserving the elements
common in certain specific conditions differently.
In this regard we can find various models, eg. A judge in an administrative
judiciary in reviewing disciplinary decision against an attorney is not
obligation to be insured against liability for damage as a lawyer -
member disciplinary panel, Judge of the Supreme administrative court can not be - at
unlike lawyer - member disciplinary panel - also an arbitrator and the like.
legislature in setting assumptions has always ensured that
in the relevant field of civil service and public service was guaranteed his || | proper and constitutionally consistent operation. The Constitutional Court is not entitled
lead legislators to unify the prerequisites for carrying out different functions
close to each other eg. That would unify the age limit for judges and attorneys
- member disciplinary panel or the education requirements || | judges and representatives of the Ombudsman. Addressing the issue of the appropriateness
set criteria is also in principle to the will of the legislature. In the case under review
not be overlooked that in the case of the Institute and Archive is a
institution whose task is to handle historical sources and materials
a period which stands in the same 'frontier history "about this || | period with a maximum degree of objectivity informed in order to examine
identify and evaluate the practices of totalitarian regimes, so that in the future
be able to timely detect signs of a totalitarian regime and under the protection of democracy
prevent a totalitarian mode created. Question
membership in the Communist Party during the period from 25 February 1948 to 15 February 1990
or more in § 19 para. 1 of the Act calculated form closer links
totalitarian regime, not legally built as a reason for
general unreliability, as the wording of § 19 para. 1 merely negatively defines
reliability for the purposes of the Act. It is thus quite obvious that this provision
disqualify vilify, nor does it disqualify or vilify
who is not eligible within the meaning of § 19 para. 1 of the Act
in any other sphere, including the possibility of access to other public
functions. The Constitutional Court is of the opinion that based on the content it is rather
form of bias sui generis than of reliability or unreliability
viewed solely from the perspective of linguistic interpretation. The Constitutional Court then
gauged the proportionality between the right of access to public office in
meaning of Article. 21 of the Charter on the one hand and the principle of the protection of democracy, on the second
. It concluded that outweighs public interest in the protection of democracy
. He concluded that the solidarity of persons referred to in § 19 paragraph
. 1 of the Act under totalitarian regimes and institutions in the Act

Listed is still relevant circumstances that may call into question
political loyalty and damage the credibility of institutions such as
Institute and Archive. An analogy can be found in the institute bias
judges (even here evidence is marshaled archival materials, evidence is evaluated
= ascertained facts are analyzed and a decision is
justify the conclusions drawn from the heuristics of obtained information). Like Judge
since time immemorial can not be judge in his own case, a person who is active in the field of historiography and
especially where the
determine and create the conditions for the activities of the Institute and Archive, which have law | || defined status as impartial and objective institution could alone
figuratively with him the entire institution to be questioned for his
ties to the regime of which the Institute and Archive research. Otherwise, a
who belonged to the regime, rather than an historian appears to be a witness and chronicler
. In this case, moreover, the Constitutional Court took into account that
object of research is a regime that its propaganda and ideology, as
aid censorship and other undemocratic methods under the leadership of the CPC (Art. 4 of the Constitution
no. 100 / 1960 Coll.) intentionally and artificially shaped its image and spawned
documents that would become historical sources, in such a way that future generations
view this scheme was false, and glorify
conceal its totalitarian nature. So even if someone had been briefly
eg. A member or a candidate for the Communist Party or the KSS, for him there are "grounds
doubt his impartiality" and evidence that would for and against
doubts were conducted, You can not - just without historical analysis of
regime - yet relativized. The Constitutional Court is aware of the idea
American philosopher George Santayana that "those who are not aware of things
past are condemned to relive it again." Doubts about loyalty
by the Constitutional Court questioned the activities of the Institute and Archive and only by
that its activities did not seem quite effective, fast, good
method of financing or managerially less skillful management. In gauging the intensity
interest in the protection of democracy and the interest in understanding the past
against the right of access to a very narrowly defined public office
eligible for decreasing the number of people the Constitutional Court was
that public interest in the protection of democracy is at this moment, that.
at the time of its decision, intense. Finally, the
can not overlook the fact that the contested § 19 of the Act does not apply to researchers working in the
Constitution, but only members of the Council and senior staff within the meaning of § 18
Act. The Constitutional Court took into account that the researchers at the Institute
fully guaranteed freedom of inquiry and that whoever would have failed because of obstacles
given in § 19 of the Act as a contender for the statutorily-defined range of functions, has
opportunity to pursue the subject as an internal or external researchers.

74th That interpretation can thus conclude that
§ 19 paragraph. 1 point. a) of the Act is not in conflict with the law guaranteed in Art. 21
paragraph. 4 in conjunction with Art. 4, paragraph. 3 of the Charter.

75th In the case of § 21 para. 1 of the Act, which addresses the exercise of the rights and obligations of
labor relations of employees of the Czech Republic
affected by the creation of the Archive, the appellants challenge the constitutionality
for its incomprehensibility and partial impossibility. The provisions
speaks solely on labor relations, with the merger are subject
archives where service is performed by members of the armed forces
who are in service. In relation to state
employees, the petitioners expressed their doubts as to whether the transition
rights and obligations of labor relations based on the law, without
their consent, in accordance with Art. 26 paragraph. 1 of the Charter.
Point to the fact that the passage should occur from a variety of agencies under entirely different office,
which is organizationally included in the system of state administration entirely different
example. Ministry, so that an employee eg. the ministry could
justifiably view as demeaning. Additionally, passage ex lege
occurs only under conditions of reliability and integrity, respectively
fulfill the conditions laid down in Act no. 451/1991 Coll.

76th The Constitutional Court understands the contested provision above as
provisions to protect workers. Violation of Article. 26 paragraph. 1 of the Charter
not come into consideration, since the law was promulgated on July 12

2007 and the rights and obligations arising from employment relations pass to the Archive
until the first day of the seventh calendar month following the date
promulgation, on 1 February. 2008. Each employee had sufficient
time to possibly exercise his right to terminate the employment relationship, and
not have to pass to the employer against his will. Regarding the issue
members of the armed forces, it is clear that if in the period
from 12 July 2007 to February 1, 2008 become employees in employment
relationship will remain further in service to the existing || | employers. From the Assembly of Deputies suggests that the possibility
to switch from service to employment, they were given.

77th In assessing the contested legal enactment, the Constitutional Court has come to the conclusion
that defies the bounds of constitutionality content of § 7
paragraph. 9 of the Act, according to which the Senate may recall a Council member
not performed properly or for longer than six months, their function, and
it in words, "properly or" with emphasis on proper performance.
The Constitutional Court here points out that not neglect to consider whether the derogation of
provisions would exceed the scope of review defined proposal, in other words, whether the provisions
even eligible for review on the merits.
While it is true that the petitioner did not include § 7 para. 9
Act in the list of those who propose to abolish alternative to the annulment of the entire Act. By
provision at issue was neither independent
arguments of unconstitutionality. However, one of the main reasons for proposing that
repeal of the law as a whole, is the institutional possibility of political influence
Business Institute, consequently also interference in the freedom of research.
The provision for reasons that are below landed
danger of such political interference in the activities of the Institute in the form
unwarranted interference into the composition of its Council, a body that research
methodological aspects of the. In this respect, the Constitutional Court considers that the burden
petitioners asserted unconstitutionality.

78th Statutory regulation of scientific research in the Czech Republic is based on
constitutional standards contained in Art. 15 paragraph. 2 of the Charter and is included
especially in Act no. 111/1998 Coll., On universities, as amended by later
regulations, the Act no. 283/1992 Coll., on the Academy of Sciences of the Czech Republic
, as amended, Act no. 130/2002 Coll., on
research and development support, as amended.
As the scientific research is conceptually associated with the category of freedom (see Art. 15 paragraph. 2
Charter), all statutorily-established scientific institutions
built on the principle of autonomy, independence and separateness from state power.
Authorities of these institutions (universities, the Academy of Sciences of the Czech Republic) are
formed by the scholarly community (eg. From universities
academic communities). In this respect, the scientific purpose of the Constitution comes into conflict with
manner in which its supreme body - the Council. According to § 7 para. 1 of the Act
its members are elected and removed by the Senate of the Parliament of the Czech Republic
. For more acceptable to the Constitutional Court considered the method of choice
Council members, since there is at least a diversity among those who
propose candidates, and they are subjects outside the political environment.
Question of choosing individual candidates is thus largely a question of political culture and maturity
, therefore, whether the electors are able to
political aspects of abstract and prioritize the criteria of expertise. For
unacceptable in terms of the guarantee of freedom of research, but it is necessary
way mark removal of Council members. The Senate under paragraph 9 above
statutory provision "may recall a Council member does not perform properly -
its function," which appeals creates unlimited space.
The standard here is that if stipulated by legislation installation of officials of independent institutions
(body), not in the form of self-government, but political bodies (such
in the instant case), their independence is given guarantees
finality (Otherwise, ie. during the accumulation of appointment and dismissal
, it establishes a relationship of subordination). As mentioned above, the
membership in the Council is a public office. According to Art. 21 par. 4
citizens have equal conditions, access to elected and other public offices.
Constitutional Court has previously held (see judgment no. Ref. II. ÚS 53/06 dated
September 12, 2006, published on www.judikatura.cz) that Art. 21 par. 4

Charter does not apply only to access to public office in the sense
creation features, but also includes the right to perform it without interference
including the right to protection from unlawful deprivation of the office, as participation in the governance
that is the whole meaning of Article 21, the
exhausted merely gaining office, but logically it persists throughout the period
performing this function. In relation to the case now under consideration, it follows that
Council members must be under Art. 21 par. 4
protected against state arbitrariness also throughout the performance of functions, including
in defining the grounds for removal . The wording of the provision of the Act does not correspond
.

79th The Constitutional Court therefore annulled the provisions of § 7 para. 9 of the Act in
words "properly or" because the wording of the reason for that is based
possibility Senate to recall members of the Council, is inconsistent with the provisions of Article
. 15 paragraph. 2 and Art. 21 par. 4. The derogation is
with effect from the date of publication in the Collection of Laws.

Chairman of the Constitutional Court

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
judge Frantisek Duchon, Pavel Holländer, Vladimir Kurka, Jan Musil, Jiří
Nykodým, Rychetský Pavel and Elizabeth Wagner and his reasoning judge
Vojen Güttler.