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"
The proposal is rejected.
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
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
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.
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
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.