The Proposal To Repeal The Provisions Of § 16 Para. 1 Of Act No. 154/1994 Coll.

Original Language Title: Návrh na zrušení ustanovení § 16 odst. 1 zákona č. 154/1994 Sb.

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124/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 10. April 1996 in plenary in the matter

the proposal of the Group of members of Parliament of the United Kingdom

to cancel the provisions of § 16 para. 1 of Act No. 154/1994 Coll., on

The security intelligence service, as expressed by the words "physical and"



as follows:



The proposal is rejected.



Justification



A group of 46 members of the Chamber of deputies of the Parliament of the Czech Republic

the application for annulment lodged under the provisions of § 16 para. 1 of law No.

154/1994 Coll., on the security information service. The proposal bears the date 18.

October 1995 and was delivered to the Constitutional Court of the Czech Republic on 31 December 2004. October

1995.



The Act set out in that section 16 para. 1 allows security information

the service (hereinafter referred to as "BIS"), to store, retain and use data on the physical

and legal persons, if it is necessary for the performance of the tasks in its scope.

This scope is laid down in § 5 para. 1 of Act No. 153/1994 Coll., on

news services, so that the BIS provides, inter alia, information

about the intentions and activities directed against democratic basics,

sovereignty and territorial integrity of the Czech Republic on the activities,

the consequences can jeopardize safety or significant economic

the interests of the United States, and also on organised crime and terrorism.



A group of Deputies, based on the permissions given to her from their § 64 para. 1

(a). b) Act No. 182/1993 Coll., on the Constitutional Court, has proposed that the date 1.

October 1996 the provisions of § 16 para. 1 of Act No. 154/1994 Coll.

canceled the words "physical".



Design of a group of MPs is 69, in principle, the fact that the law does not

no age restrictions with regard to natural persons, and sees in that

the lack of legal protection of the child, and thus a violation of article 6(1). 32 para. 1

The Charter of fundamental rights and freedoms which guarantees special protection of children and

young people, as well as the infringement of article 81(1). 16 of the International Convention on the rights of

of the child, which provides that no child shall be subjected to arbitrary

interference with their private life, family, home or

correspondence or unlawful attacks on his honour and reputation. The proposal is

Referring also to the legislation contained in § 25 para. 2 the law of the Czech

the National Council no 527/1992 Coll., on the Czech Security information service

the Republic, which was contested by Act No. 154/1994 Coll. abolished.

It contained a provision that the new law would not assume: "data on minors

persons under the age of 15 years may not be placed in the register. Data on the

older minors 15 years of age must be two years after insertion

reviewed by and not later than after five years of stored so that no one

other than that the Court did not have access unless the attained these

people they acquired security information service in the field of its

the scope for more knowledge. "



The proposal also refers in this context to section 19 para. 2 of law No.

67/1992 Coll., on the Military Counterintelligence, (full text of the No.

216/1995 Coll.), which does not allow to insert into the records of the military

Defense News (hereinafter referred to as "VOZ") data on minors and

his editing is fully identical to the content of the above mentioned text of § 25 para. 2

the previously applicable law of the Czech National Council no 527/1992 Sb.



Members of the group design highlights on some of the facts that is

According to them, should be taken into account in this context:



1. The individual is fully competent to perform legal acts from the

age of 18. year of age, criminal liability begins with the age of 15. of the year

the age of the individual. It is accepted that a person under 15 years of age may

behave as described in section 5 of the Act No. 153/1994 Coll., but this

behavior is irrelevant in terms of legal liability and sanctions

the incomprehensible.



2. A number of laws allows the management of the various special registries

about children, but it is the details that are being used for the benefit of children,

the consent of their legal representatives, and their confidentiality (secrecy) is

protected by law. The Act No. 154/1994 Coll. does include

provisions on data protection contained in the registers of the BIS, but this

the protection is done in the interest of the BIS and not in the interests of the children. The collected

information is nepřezkoumatelné.



3. Also on children are subject to provisions of the Charter of fundamental rights and

freedoms-article. 7 on the inviolability of the person and its privacy, article. 10

paragraph. 1 on the right to the preservation of human dignity, personal honour, good

the reputation and name. 10, paragraph 1. 2 on the right to protection against unauthorized

intrusion into a private and family life, and article. 10, paragraph 1. 3 on the right

to protect against unauthorized collecting of data on their person.

Considered the obvious requirement that the protection of children has been stipulated

in the law, and considers that the Intelligence Agency had in carrying out their

task precedence to the interests of the service against the rights of the child.



4. Different adjustment questions of the rights of children and adolescents in the BIS and in

the Act of VOZ is a violation of article. 4 (4). 3 the Charter of rights and

freedoms, according to which the legal restrictions of fundamental rights and freedoms must

apply equally to all cases that meet the specified conditions.



As regards the formal implementation of the proposed adjustments, the design notes

Members that the provisions of § 16 para. 1 contains a substance that

is identical for the two groups of objects: natural persons and legal entities.

It is therefore not necessary, nor is it possible to cancel the entire provision as this would

following the abolition of privilege in respect of legal persons, the BIS which

does not propose. Under the legislation, therefore, considers the group members for the

legislatively correct to the provisions of § 16 para. 1 has been dropped

(repealed), the words "physical and". This adjustment will cancel the entire

the provisions in respect of natural persons. The Constitutional Court is not entitled to itself

provide that the BIS's records may not insert data on minors

persons under the age of 15 years. This adjustment can be done only by law. It is therefore

the competent legislative authorities should be allowed a reasonable period within which to

amendment to § 16 para. 1 of Act No. 154/1994 Coll.



The Judge-Rapporteur reviewed the proposal of the Group of members after the formal.

Act No. 154/1994 Coll. was on 7. July 1994 approved the necessary

the majority of members of Parliament of the Czech Republic, was signed by the competent

constitutional actors and was duly promulgated in the collection of laws of the United

of the Republic.



A proposal from a group of MPs in the prescribed number of members of Parliament has been signed

The Chamber of Deputies. At the same time you agreed, that in proceedings before the

The Constitutional Court will represent Member of JUDr. Jaroslav Ortman,

also verify that the correctness of their signatures on the proposal.



Reasons for the rejection of the proposal within the meaning of § 43 para. 1 Act No. 182/1993

Coll. were found.



The proposal was delivered to the opposite, IE. The Chamber of deputies of the Parliament

The United States, according to § 42 para. 2 and section 69 of Act No. 182/1993 Coll.,

requests for its opinion.



The Chamber of deputies of the Parliament of the United Kingdom in its observations dated

December 13, 1995, signed by the President of the Chamber of Deputies, PhDr.

Milan Uhdem has responded to a proposal from a group of MPs and it said this:



Performance of the tasks of the BIS requires necessarily also the permission to save,

store and use data on natural and legal persons. In

this context is required to ensure the protection of the BIS data contained in the

their filings before the disclosure, misuse, damage, loss, and

theft. Detailed treatment is given in § 16 para. 1 of Act No. 154/1994

Coll. and in § 5 para. 1 of Act No. 153/1994 Coll., as amended. Needed

the information may be contained in the data undoubtedly affecting

individuals under the age of 15 years; Constitution of the Czech Republic (hereinafter referred to as

"The Constitution"), the Charter of fundamental rights and freedoms, other law or the international

the contract, to which the Czech Republic is bound, however, the storage and

the storage of such data in the registers of the BIS does not prohibit. Storage,

retention and possible use of such data in specific BIS

the cases, both for people under the age of 15 years and older, people must

However, no doubt, be in accordance with the above provisions of the constitutional and

other laws, as well as with the international treaties by which the Czech

Republic. For this reason, it must be considered that the BIS

contained in § 16 para. 1 of the Act is in accordance with the Constitution and

the constitutional order of the Czech Republic.



At the same time it is stated that when considering this matter it is necessary to proceed from the

definition of the scope of the intelligence services, according to which the BIS provides

also affecting the very foundations of the United States; These

tasks must therefore correspond to the extent and nature of the legal means

used to obtain the necessary information of the BIS.



The Constitutional Court also has taken the text of the Government's draft law on the BIS and the text

the explanatory memorandum to this proposal.



The Government Bill on the BIS contains in the specific case of § 16 para. 1

the formulation of that in the same wording has been approved by the Chamber of Deputies

Parliament of the Czech Republic and is the same as the current text of this

section in the Act No. 154/1994 Coll.



As regards the explanatory memorandum to the Government a draft law (1015),

The Constitutional Court found that the contested wording, that compared to the previous


the law of the Czech National Council no 527/1992 Coll., as amended by Act No. 316/1993

Coll. extended the competence of the BIS for the collection of data on physical

persons and persons under the age of 15 years, is not in the explanatory memorandum, nor in its

the General section, or in a special section on section 16, no

mention. Therefore, the Constitutional Court devoted attention to the joint report of the committees

Chamber of Deputies (print no. 1058) and the record of the discussion of the Government's

the draft law, and the joint messages of the committees in the Chamber of Deputies. The constitutional

the Court found that the joint report of the Constitution Committee, the armed services and

the Security Committee and the Committee on Petitions, for human rights and nationalities

the content and the wording of section 16, although otherwise, it was

accepted a number of amendments to the overall Bill. As well

so when discussing was not in the Chamber of deputies were no

Group of the proposal in the same case. The Chamber of Deputies has approved this

section of the proposed wording without changing the required majority.



The Constitutional Court requested the opinion of the BIS and finally. Her observations of the day

February 8, 1996, no BIS-24/1-96 responds to each of the arguments of the Group

Members, and notes that the permission to store, preserve and BIS to use

data on natural and legal persons is necessary for the performance of

tasks for BIS of law arise. It is required to by the BIS

to help secure the data contained in filings before the disclosure, misuse,

damage, loss and theft. BIS is a public authority and, in any

the case is not, as a group of Deputies, State infers a repressive

authority, since it is not equipped with any repressive law, respectively.

Executive powers.



As regards the need to lead evidence in accordance with the law under the

for 15 years, the BIS is based on the fact that this necessity is dictated by contemporary trends

development of anticivilizačních phenomena. From the various studies, developed by eg.

The Ministry of the Interior, the Ministry of education, youth and sports,

The Ministry of labour and Social Affairs, as well as from its own activities

The BIS suggests that, for example, clearly. to extremist groups tend to already

children of around 12. year of his age. It is also about the various manifestations of racism and

other extremist attitudes. Even if a person under the age of 15 years are not

criminally responsible, and therefore evidence cannot serve and does not serve the purpose of

criminal proceedings, in terms of prevention and obtaining information about these

signs of this evidence relevant to the activities of the BIS.



The Constitutional Court after examining the proposal of the Group of members of the House of

The Parliament of the United Kingdom and, after considering the observations of the President of the

the Chamber of Deputies and other supporting documents received or requested, came to the

the following conclusions:



A group of Deputies put forward its proposal, in justifying some

provisions that should be, in their opinion, the current legislation

violated, specifically article. 32 para. 1, art. 7 and 10 of the Charter of fundamental rights

and freedoms and article. 16 of the Convention on the rights of the child. It does not indicate in what way

specifically, the disposition of the BIS with the information about children or persons under the age of 15

years infringes the constitutionality.



The provisions of article. 32 para. 1 of the Charter of fundamental rights and freedoms effectively

guarantees special protection of children and adolescents. However, as is apparent from the article. 32

paragraph. 6, details has to lay down the law and in accordance with the provisions of article 8(1). 41

paragraph. 1 may be referred to law only within the limits of the laws claim that these

the provisions are carried out. In the present, in contrast to recent times, however,

specific modifications have been included in the Government's draft, even when acting in

The Chamber of Deputies has not been supplemented by the law on the protection of data on the

children and adolescents. In the future, however, does not prevent anything in the ordinary

the legislative process where you can suggest changes, additions or cancel

laws or their individual provisions, existing legislation

has undergone changes. The submission of such a proposal, however, is not conditional upon the abolition of section

any provision of law to the Constitutional Court.



The provisions of article. 7, as well as the article. 10, paragraph 1. 1 and 2 of the Charter of fundamental

rights and freedoms, have a wider, general nature concerning the

the inviolability of private and family life in General. A similar character

--of course in relation to children--also has a article. 16 of the Convention on the rights of the child.

The Charter of fundamental rights and freedoms, however, unlike the international

treaties on human rights and fundamental freedoms, contains special

the provisions on the system of the management of data about people. The provisions of the

article. 10, paragraph 1. 3 of the Charter of fundamental rights and freedoms while enshrines the right to

protection against unauthorized collection, disclosure, or other

abuse of data about a person, but just before the protection means

unauthorized handling of data, IE. the hearing by the law illegal. No

additional conditions or limits the Charter of fundamental rights and freedoms in this

the provision does not impose itself. Of the current legislation, therefore,

the constitutionality of not violated and that no injury to the rights of the child-specific

This was not caused by. However, this does not mean that it is impossible to

the specific case of handling of certain personal data private or

household effects occurred and was qualified, according to the specific

conditions, such as violations of the rights under art. 7 article, respectively. 10, paragraph 1. 1 or 2

The Charter of fundamental rights and freedoms, without apparently was the reason for the

repeal of certain provisions of the Act. The incorrect procedure of public

power can be the subject of deliberations and decisions of the Constitutional Court, but it is not

automatically reason to repeal the law, according to which such

Authority proceeded, unless this legislation to the parties clearly and

without exception to save a particular course of action or behavior that would be in the

conflict with the Constitution or an international agreement pursuant to article. 10 of the Constitution.



The appellants also argue in the proposal to the provisions of § 19 para. 2 of the Act

No 67/1992 Coll., which does not allow to save the records data on EXPORTS

the behavior of persons under 15 years of age and contains special adjustment of the layout with

data about minors older 15 years (art. 19 (2)). It was

then, that the absence of such amendments in the law on the BIS is in breach of article. 4 (4).

3 of the Charter of fundamental rights and freedoms, according to which legal restrictions

fundamental rights and freedoms must apply equally to all cases that

meet the specified conditions. The Charter of fundamental rights and freedoms in the

the case, however, does not provide for any additional conditions of that restriction. Restrictions

rights, that is, on the other hand, a public authority permission to dispose of the

the data refers to the different data that operate different authorities for the

their specific purposes. Therefore, the issue is regulated in different

laws. The provisions of article. 4 (4). 3 of the Charter of fundamental rights and freedoms

cannot be interpreted in a way that would breach the principle of ' equal validity for

all cases that meet the given conditions "was different to edit

non-identical groups of cases for which the law provides for different conditions,

If there has been a violation of equality. A different, custom mode or conditions

handling a specific information applies not only to the law No 67/1992 Coll.,

but for example. also, Act No. 135/1982 Coll. on reporting and registration of stay

citizens, law No. 89/1995 Coll., on State statistical service, etc.



The plaintiffs, including the already mentioned, they point to the previously applicable

the contested issues and legal background of this regulation see

in particular, with the criminal provisions. However, the Constitutional Court deals with only

ústavností, or the compliance of laws with constitutional laws and international

the contracts referred to in article. 10 of the Constitution, and therefore does not consider this part of the argument

to be legally relevant. However, recognises that the persons concerned age

category, although criminally irresponsible, can act within certain

criminal forms of otherwise criminal conduct stemming mainly

organised crime. According to the applicable legislation of the criminal code

It is not excluded that even the person criminally neodpovědná due to lack of

age was a member of a criminal organisation, and this Institute has a direct link

on organized crime, and thus the provisions of Act No. 153/1994 Coll.

defining the scope of the BIS.



Of all of the above reasons, the Constitutional Court remains than group design

MPs rejected because the conflict with the constitutional order has not been established and

could not be immediately inferred from the relevant articles of the Charter of fundamental

rights and freedoms nor the Convention on the rights of the child. The Constitutional Court could not yet

leave the party or important provisions of article. 8 of the European Convention on

the protection of human rights and fundamental freedoms. Paragraph 1 of this article

He admits to each right to respect for his private and family life

life, home and correspondence, but paragraph 2 provides unquestionably

the ability to significantly edit the scope of that right, when specifically states:

"The State cannot interfere in the exercise of this right, except

When it is in accordance with the law and is necessary in a democratic

society in the interests of national security, public safety,

the economic well-being of the country, the prevention of disorder or crime, for the

the protection of health or morals or the protection of the rights and freedoms of others. "



The Constitutional Court had no reason to make this concept of the right to respect for

private life, home and correspondence contained in the European Convention


interpreted differently.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.

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