Repeal Of Act No. 451/1991 Coll. And Other Laws

Original Language Title: zrušení zákona č. 451/1991 Sb. a dalších zákonů

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35/2002 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court decided on 5 December 2001 in plenary on the proposal
group of 44 deputies to annul Act no. 451/1991 Coll., Laying down some
further prerequisites for certain positions in state bodies and | || organizations of the Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic
, as amended, Act No.
279/1992 Coll., on some other requirements to perform certain functions
Filled provisions or
appointment of members of the Police of the Czech Republic and members of the Corps of remedial education Czech Republic
amended, Act no. 422/2000 Coll., amending
Act no. 451/1991 Coll., which provides some further prerequisites for
certain positions in state bodies and organizations
Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic
amended, and Act no. 424/2000 Coll., changes
Act no. 279/1992 Coll., on some other requirements for the performance of certain functions
Filled or appointment of members
Czech Republic Police and members of the Corps of correctional
Czech Republic, as amended regulations

Follows:

The provisions of § 3 para. 1 point. d) § 3 para. 3, § 3 para. 4 and § 5 para. 2
Act No. 279/1992 Coll., on some other requirements for the performance of certain functions
Filled or Appointment of members | || Czech Police and members of the Corps of correctional
Czech Republic, as amended, shall be deleted
day of its publication in the Collection of laws.

In other rejecting the application.
Reason


I.

On 2. 3. 2001 reached the Constitutional Court for groups of 44 deputies
represented by prof. JUDr. Zdenek Jicinsky, DSc., Which the petitioners seek the annulment
:

- Act no. 451/1991 Coll., Laying down certain additional preconditions
for certain positions in state bodies and organizations
Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic in
as amended (hereinafter the "large lustration law")

- Act no. 279/1992 Coll., On some other requirements for the performance of certain functions
Filled or Appointment of members
Czech Republic Police and members of the Corps of Correctional
Czech Republic, as amended (hereinafter also the "small lustration
Act")

- Act no. 422/2000 Coll., Amending Act no. 451/1991 Coll., Laying down
some further prerequisites for certain positions in
state bodies and organizations of the Czech and Slovak Federative
Republic, the Czech Republic and the Slovak Republic, as amended
regulations

- Act no. 424/2000 Coll., Amending Act no. 279/1992 Coll., On
some other requirements for certain positions filled by
or Appointment of members of the Police of the Czech Republic || | members of the Corps of remedial education Czech Republic, as amended
regulations.

Petitioners sent a memorandum to the Constitutional Court, which he reached 19. 11. 2001
which entrust their representation in other proceedings before the Constitutional Court
Members Mgr. Bohuslav Sobotka.

Offeror's intention is heading for the reasons to divorced to
appointed laws were removed from future legislation of the Czech Republic
for their particular conflict with the provisions of Art. 1 of the Constitution
Czech Republic no. 1 / 1993 Sb. (Hereinafter "Constitution"), Art. 1, Art. 4 paragraph. 2 and 4 and Article
. 21 par. 4 of the Charter of Fundamental Rights and Freedoms (hereinafter also referred to as "Charter")
Art. 4 of the International Covenant on Economic, Social and Cultural Rights
(no. 120/1976 Coll. - Hereinafter the "Covenant") and the Convention of the International Labour Organization
Discrimination (Employment and Occupation) Convention no. 111 r. | || 1958 (no. 465/1990 Coll., - 'Convention no. 111 ").

Constitutionality of the large lustration law has examined the proposal
99 deputies of the Federal Assembly in 1992. The Court has. Finding out
26th 1992 11th sp. Nos. Pl. US 1/92 (Collection of Decisions of the Constitutional Court of Czechoslovakia
, pp. 56 et seq.), Stated that the provisions of § 2 para. 1 point.
C) § 2 para. 2 and § 4 para. 2, 4 of the contested Act are not in accordance with Article
. 2. 3 and Art. 4, paragraph. 1 and 3 of the Charter and Art. 4 of the Covenant; § 2 of

Paragraph. 3, § 3 para. 2 and § 13 par. 3 of the contested Act are not in accordance with Article
. 1 of the Charter and the provisions of § 11, 12, § 13 para. 1, 2, 4 and 5, § 18
paragraph. 1 and § 20 of the contested Act are not in accordance with Art. 37 paragraph. 1 and Article
. 38 of the Charter and Article. 98 paragraph. 1 of the Constitution of the CSFR no. 100/1960 Coll., As amended
Constitutional Act no. 326/1991 Coll. The cited statutory provisions invalidate
day 15. 12. 1992 efficiency.

When assessing the constitutionality of the Act no. 451/1991 Coll., As stated in the proposal
The Court has relied on the situation at the time of its adoption (4. 10.
1991), respectively. at the time about a year later. This law followed
primarily aim to state and public institutions and workplaces that have
related to national security, could be persons who held senior
function even under the previous regime replaced by persons from whom
can expect loyalty to the democratic principles on which the state is built.
Further help to avert the risk of subversion or a possible recurrence
totalitarianism or at least to limit it. His view
The Court has also emphasized vouchers for a limited period of effectiveness of the lustration law.
In its judgment, stated: "The conditions set by law for the exercise of such
(specified in the law) functions are also limited to the period in which
assumes completion of the democratic process, ie. To 31. 12. 1996 .
the essence of this law is exclusively for the future
set conditions for the exercise of certain narrowly defined functions or activities in the law exactly
specified, not absolutely, but only temporarily. ".

Chamber of Deputies of the Parliament of the Czech Republic rejected in January 1999
parliamentary bill, which should be large lustration law was canceled (PS
1998 third term, print no. 74). The explanatory memorandum to him
inter alia, noted the opinion of the Administrative Council of the International Labour Office (no.
J. GB. 252/16/19). ČSFR contained a call on the Government to take the necessary measures
annulment or amendment (large) lustration law and ensure
damages to all persons who have been unjustly affected by it.
The explanatory memorandum also notes that the lustration law is constantly subject
criticism of the Council of Europe, the European Parliament and the European
and international NGOs, and therefore it is highly desirable that the norm
excess cancel. In evaluating the situation related to the implementation
lustration commission of inquiry
International Labour Organisation (hereinafter "ILO") in 1995 stated that in implementing
recommendation of the Governing Council of the ILO since 1992 there has been little progress.
It expressed "deep regret" that it was the force of law regardless
opinion of the Administrative Council of the ILO extended until 2000. The Commission recommended
ILO Administrative Council, among others., To urge the Czech government to measure
which will lead to repeal or amend those provisions of the Act no. 451/1991 Coll
., which are incompatible with Convention no. 111

Constitutionality of the small lustration law has not been reviewed so that it remains
valid and effective even in those parts that correspond to parts
large lustration law, which The Court has declared unconstitutional.
Also it should touch the bill submitted in 1998 as Parliamentary
print no. 73, which made for its abolition; this proposal
Chamber of Deputies rejected.

Group of deputies sees the substance of its proposal in time factor
social dynamics between November 1989 and 2000, which were
some of the democratic elections (to regional councils) and
changes that are going on this time occurred. According to the petitioners' power
legislative, executive and judicial is definitively constituted on democratic foundations
, leading positions in government and other public institutions
after a long period they are not occupied by persons who appointed former
political regime, whereby the reasons for both lustration laws
if you lay in the need to restructure the group of persons occupying these functions
, lost over time merit.
Leading positions are mostly filled on a competitive basis, which can be taken into account
loyalty candidate for Czech Republic as a democratic
rule of law, also documented his actual behavior in the period after
November 1989; even more so in matters of public
service with the armed forces and security forces, by
which are decided in administrative proceedings. With all classified information

Classification levels may be familiar only to natural persons who have been
certified. They drive of the conditions for his release is the fact that
individual is a reliable security, ie. That was found not
security risk involving eg. Working towards
suppressing human rights and freedoms, or in support
such activity [§ 17, 18 and 23 of law no. 148/1998 Coll., on protection of classified
facts and amending certain laws, as amended,
(hereinafter also referred to as "the law on classified information ")].

The petitioners believe that the risk of subversion or a possible recurrence
totality whose existence in 1992. The Court has in connection with the public
treatment of persons linked to the previous regime admitted
now threatened. Information about any intentions and activities
directed against the democratic foundations of the Czech Republic are obliged to ensure
intelligence services within the meaning of the Act no. 153/1994 Coll., On
intelligence services of the Czech Republic, as amended, || | (hereinafter the "law on the intelligence services"). Moreover, as the petitioners
remind Communist Party of Bohemia and Moravia in the Czech Republic has
legally as a political party with considerable voter support in
parliamentary and municipal elections. The law does allows the action
political parties that would seek to remove the democratic foundations
state or aimed at the seizing and holding power
preventing from other parties and movements compete for power by constitutional means, the || | tribunal suspended or that such party was disbanded by a court decision
. Czech Republic, in which the "democratic process is completed,"
currently faced with serious risks entirely different kind, which are exemplified
economic crime, organized crime, corruption and
racial hatred.

According to Art. 3 of the Constitution, the Charter is part of the constitutional order of the Czech Republic
. For that its position can conclude binding decision
Constitutional Court of Czechoslovakia, which was issued on the basis of the Charter.
Said the court recognized the nature of adjustments made big lustration law for
conform to the Constitution because the then situation of the state and society, thus
the situation shortly after the fall of the previous regime and restore democracy and
further given that this law imposed restrictions do not apply
absolutely, but only for a transitional period, ie. to 31. 12. 1996. in this context
the court has recognized in 1992 that the interest of society and the state
( public property) in ensuring that people have been improved with certain
publicly important positions and that the measures to avert
risk of subversion or a possible return of totalitarianism takes precedence before
particular fundamental right of citizens to have access on equal terms
to elected and other public offices (art. 21 par. 4) or over the right
engage in any occupation or profession without discrimination, within the meaning of the Convention no.
111th

Because the public interest (public good), from whose former existence
Federal Constitutional Court in 1992 was based, has already passed, and
reasons for the limitation of fundamental rights and freedoms guaranteed by the Charter and international treaties
pursuant to Article . 10 of the Constitution.

Large and small lustration law, as well as amendment no. 422/2000 Coll. and
No. 424/2000 Coll., That the validity and effectiveness of both the lustration laws
extended indefinitely, limit without good reason
above mentioned fundamental rights, and are thus in conflict with Article particularly well. Paragraph 4.
2 and 4 of the Charter, as well as Art. 1 of the Constitution, according to which the Czech Republic
democratic constitutional state. For all the foregoing reasons, the group
deputies proposed that the Constitutional Court judgment annulling all four
these laws.

II.

Constitutional Court, under § 69 par. 1 of Act no. 182/1993 Coll., On the Constitutional Court
, as amended, (the "Act")
requested by the Chamber of Deputies and the Senate Czech Republic, as parties
response to the petition.

Chairman of the Chamber of Deputies of the Parliament of the Czech Republic Vaclav Klaus
to the proposal stated inter alia: "... Every democratic state is entitled
accept the limits of its constitutional order and international obligations
a treatment that protects and promotes the principles on which it is based
. Determining the period for which such treatment received, not yet
merely a question of law, but in my opinion, primarily a question

Political, related to the situation in our society. At the same time
must take into account the fact that in a democratic state does not exist and can not exist
entitled to any position of authority, because it is a matter
state what criteria it will occupy. Without doubt,
that these criteria must be established in advance and must apply equally to
all cases which meet the specified conditions. On the other hand
based Deputies from the fact that every citizen has the right to turn
to the court for issuing a decision would be reviewed by his
possible collaboration with the Communist regime. Purpose mentioned acts is
while currently fulfilled to some extent by other applicable laws
; their full replacement can be expected only in the context of
adoption of the civil service law, which should contain provisions that
designated positions in state administration may act only by persons who are personally
any offense in violation of human rights and freedoms.
Based on the above I can only express my conviction that legislative
Corps received the above cited laws in the belief that they are in compliance with
constitutional order and the relevant international treaties. ".

Chairman Czech Senate Petr Pithart, in his opinion
to the second amendment of both lustration laws (Act no. 422/2000 Coll
. and no. 424/2000 Coll.), among other things, said: "the Senate committees
draft amendments which have been assigned for discussion, recommended the Senate to approve it ...
Senate debate was not limited to the content
minor amendments (prolongation of those laws), but crucially with
occurred as a dispute over itself "lustration laws" ... the argument for rejecting amendments
... based mainly on the fact that the exclusion of citizens from
chance to bid for the performance of the functions of government is going
immediately by formal, group of characters not
individual assessment of persons under statutory criteria, whether
are to respect democratic principles or not ... Critics
amendments in question also presented that these laws apparently do not include
all categories of persons they include, and also include some
which apparently did not include ... was also raised general
doubt whether you can find a solution that would not allow discrimination and simultaneously ensure
identify those who were responsible for communist | || repression and could jeopardize the transition to democracy.
Argument for the adoption of the amendments ... was based mainly on the fact that each state has the right to legislate
staffing conditions for appointments in his administration
. Such a condition is ... also loyalty to the method of government.
Democratic way then requires no assurance that its officials
will at all times ensure the democratic rights of citizens. This guarantees
are just ... "lustration" ... Anyone who knowingly participated in the suppression of citizens' rights
is a potential danger for a democratic society, and therefore
does not meet the prerequisites for important positions in the administration of the State
... to exercise the functions of government is no legal right ... the lustration laws do not restrict anyone
... when entering political office (councilors,
MPs, senators, etc.) ... the lustration laws is not a determination of guilt and punishment
. In cases where the instrument of "lustration" evidence
state security collaborators, the person concerned may apply to the court of
a denial of the truth of the registration record. Finally it advocates
adoption of the amendments argued that defend themselves is in principle a right and duty
democracy. The criterion of such defenses, then, is whether it
what should be in the company naturally works itself.
If not, must continue to be used the law to define the necessary rules
.. "

In its reply to the petitioners' observations of both parties states:" ...
Both lustration laws. .. limit the rights of citizens no longer under certain circumstances
formal nature without any further investigated how a citizen
in the period from 25. 2. 1948 to 17. 11. 1989 ... This really behaved || | formalistic approach is 11 years after the fall of the communist regime
constitutionally completely unacceptable and significantly differ from the legal provisions adopted
... in other post-communist countries (eg. Poland), as well as from
editing, which was adopted in the Federal Republic of Germany in relation

The former Stasi employees and collaborators. ". Regarding the judgments
general courts in actions for the protection of personality in connection with
lustration replica emphasizes that" ... such a judgment (ie. Consisting | || verdict of unlawful records from the StB) is a satisfaction ...
only moral, not legal, because the fact is evidence it does not change anything
a lustration law applicable to such person remains covered.
The fact that the agreement with the records was forced upon someone even blackmail,
such person, in fact, the State Security did not provide any cooperation
is de jure without any meaning. ". The petitioners also point out
the fact that "democratic rule of law is undoubtedly
entitled and obliged to protect themselves against entities that the democratic foundations of the state
undermine or that could probably were, if they were to
given the opportunity. In so doing through the restriction of fundamental rights and freedoms
can not be ... the extent and duration of such a time limit things
mere "political considerations" momentary parliamentary majority:
permissible may be the only such restrictions which are for a particular situation in a democratic society
necessary and that even otherwise not outside the bounds of constitutional admissibility
(...). Formalistic conceived lustration laws from 1991
respectively. 1992, whose validity has now been extended ad infinitum, these
found, especially when you have since changed significantly as
social situation and the rule of law that protects the state in that direction
numerous other (and sometimes even more effective) ways. ".
petitioners consider arguments against the abolition of the lustration laws and their amendments
based on the adoption of the Civil service Act, as" ... a purely purposeful
...; testifies already very fact that this law should cover only
some workers in the civil service, which are far from all that
in their application lustration laws limit. ". Furthermore, they added:
" the tendency of certain political circles extent of the lustration laws
still expanding resulted eg. in Act no. 147/2001 Coll., which was
scope of the Act no. 451/1991 Coll. extended to public universities
... At private colleges, however, the lustration law does not apply
(as well as all other kinds of private enterprise at all). Lawmakers
So it is obviously a certain function in a certain kind
universities, not about what people will
to providing higher education to participate. ". The petitioners conclude its rejoinder
remark about § 19 large lustration law is in terms of practice
lex imperfecta, because "... ie. the so-called disclosure. lustration
lists, ie. data records of the State security
is not considered a public offense.".

the Constitutional court also requested a statement from the Ministry of Interior to draft
and also express the same Ministry litigation protection
personalities against the Czech Republic have persons who have received a positive screening certificate
as well as the outcome of proceedings in matters
issuing materially false negative lustration certificate.

Deputy Minister of Interior for the group of deputies stated that the above proposal
"... no comments. Believes that
legal arguments have been presented in the past, both opponents and supporters of
this legislation, including a Constitutional Court judgment in the case. ".
Interior Ministry did not experience" ... no completely new legal
view that the existence of the contested Act propped up or questioned. ".

Interior Ministry also said that under the contested laws
issued from 1991 to date 5. 9. 2001 a total of 366,980
lustration certificate, of which 3.45% were positive. the Ministry
records for that period, a total of 692 actions for the protection of personality by virtue
positive lustration certificates issued by the ministry, in various stages
management. it does not lead, however, a special register lawfully terminated disputes and
results of these disputes, for reasons which, in its statement
outlining in detail. based on our examination accuracy of lustration certificates
Interior Ministry identified 117 cases || | improperly issued certificates. all the persons concerned have been issued a new certificate
and also were reminded of the requirement to submit a
employers if they hold functions, subject to the scheme

Lustration laws. The new certificate was not issued to persons who are currently
nationals of the Slovak Republic.
Written materials relating to these persons were under an international
agreement between the Czech Republic and the Slovak Republic delimited
Ministry of Interior of the Slovak Republic.

III.

According to § 68 para. 2 of Act no. 182/1993 Coll. The Constitutional Court's decision in
proceedings to annul statutes and other legal regulations, evaluates the content
these regulations in terms of their consistency with constitutional laws
international treaties under Art. 10 of the Constitution and determines whether they were accepted
and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. For legal regulations issued before
Constitution of the Czech Republic no. 1/1993. Constitutional Court is authorized
review only their consistency with the existing constitutional
order, but not the constitutionality of the process of their creation and observance of norm-
[see Judgment. Nos. Pl. US 9/99, published in the
Collection of Decisions of the Constitutional Court (hereinafter "Collection
decision '), volume 16, judgment no. 135, pp. 13-14; promulgated under no.
289/1999 Coll.].

In the present case, the Constitutional Court, therefore, limited to the examination of the constitutionality
procedures creation of amendments to both lustration laws (Act no. 422/2000 Coll
. And no. 424/2000 Coll.) And did not review the constitutionality of the procedure creation laws
No. 451/1991 Coll. and no. 279/1992 Coll.

Bill amending Act no. 451/1991 Coll., As amended
regulations was discussed at the 27th meeting of the Chamber of Deputies of the Parliament of the Czech Republic
. Voting on it took place on 21. 9. 2000. Of the requested
reports indicated the meeting reveals that out of 178 present deputies
deputies voted for adoption of the bill 99 to 77. The Senate has debated the
the bill at its 22nd session and voted on 25. 10. 2000.
requested progress report on the meeting reveals that the present
68 senators to the bill voiced 47 voted against
17th The president used his right under Art. 50 par. 1 of the Constitution
16 and 11. 2000 law Deputies returned. That
its Resolution dated 28. 11. 2000 remained on the returned law by majority
all deputies when he returned to a law voted 115 deputies
against 71. Resolution of the Chamber of Deputies about staying || | on the law was published in the Collection of laws under no. 423/2000. The Act thus
been validly passed and promulgated on 13. 12. 2000 in the Collection of Laws under no. 422/2000
.

Bill amending Act no. 279/1992 Coll., As amended
regulations, the Chamber of Deputies of the Parliament of the Czech Republic
at its 27th meeting. Voting on it took place on 21. 9. 2000.
From the requested report during the meeting reveals that the present
178 deputies voted for adoption of the bill 99 to 74. The Senate voted
act and voted for the bill at its 22nd meeting
, namely on 25. 10. 2000. from the requested report during a meeting with
we discover that the 63 senators present for the bill voted 43
, voted against the 13th President of the Republic
exercised his right under Art. 50 par. 1 of the Constitution of the Czech Republic on 16 and 11. 2000
law Deputies returned. That resolution dated 28. 11. 2000
maintained the law by majority vote of all deputies,
he returned for a law voted 109 deputies, against 73
Resolution Chamber of Deputies of retention of the law was
published in the Collection of laws under no. 425/2000. The law was thus validly adopted and promulgated
on 13. 12. 2000 in the Collection of Laws under no. 424/2000.

IV.

Constitutional Court deems it necessary immediately to his home evaluation
recalled its Resolution of 15. 8. 2000, file no. Nos. Pl. US 25/2000 (Collection
decision, Volume 19, USN. No. 27), which rejected the proposal
group of deputies of the Parliament of the Czech Republic to repeal the provisions
amending statute. The Constitutional Court reminds him that
amending the law has no independent legal existence and becomes part
amended law. In consideration here is thus proposed that the Constitutional Court can not independently
comment on amendments no. 422/2000 Coll. and no. 424/2000 Coll.
but only to the law no. 451/1991 Coll. and no. 279/1992 Coll., whose
components to become both amendments. Therefore, it will also deal exclusively

Act no. 451/1991 Coll. and no. 279/1992 Coll., as amended by both
regulations.

V.

The Constitutional Court first had to deal with the fact that Act no. 451/1991 Coll
. the terms of its constitutionality by the Constitutional Court judged
ČSFR.

Proposal 99 deputies of the Federal Assembly, alternatively
demanded that The Court has expressed its finding that the Act no. 451/1991 Coll
. lost 31 12. 1991 efficacy, or that this law -
again as a whole - does not comply with various provisions of the Charter
fundamental rights and freedoms, other provisions of a constitutional nature and
certain provisions of several international treaties
human rights and fundamental freedoms. The Court has therefore within its
powers specified in Article. 2 point. a) and b) of Constitutional Law no. 91/1991
Coll., on the Constitutional Court of the Czech and Slovak Federal Republic, dealt
Act no. 451/1991 Coll. as a whole (ie all its provisions).
Not bound by the reasoning of the petition MPs criticized this law
terms of all possible constitutional
regulations and international agreements on human rights and fundamental freedoms, including
those draft deputies did not state specifically.
Ended its investigation findings on 26. 11. 1992, which noted a discrepancy
certain provisions of the Act no. 451/1991 Coll. with the CSFR Constitution, the Charter and the International Covenant on
Economic, Social and Cultural Rights. These provisions ceased
effect on 15. 12. 1991 and thus truncated form of the law took
Czech Republic.

The current proposal calls for a group of deputies of the award which would repeal
Act no. 451/1991 Coll. as a whole, and abolished the law no. 279/1992 Coll.
no. 422/2000 Coll. and no. 424/2000 Coll. Act no. 451/1991 Coll. However
already been reviewed by the Constitutional Court of Czechoslovakia and the results of the review were incorporated into its
cited judgment.

As a result, the Constitutional Court had to answer the question of whether or not
in connection with that part of parliamentary proposal, which proposes
repeal of Act no. 451/1991 Coll., Applicable § 35 . 1 of Law no.
182/1993 Coll., which reads: "the proposal for initiating proceedings is inadmissible
when it relates to matters on which the Constitutional court has already ruled finding, and in other cases provided
this Act. ".

Constitutional Court had to interpret whether a "Constitutional Court" under § 35 paragraph
. 1 consider "The Court has." Constitutional law no. 542/1992
Coll., On the dissolution of the Czech and Slovak Federal Republic (Art. 3 par. 1)
ex constitutione completed all institutions ČSFR.
Competence of the Constitutional Court of Czechoslovakia were transferred under Art. 6 par. 2 of the Constitutional Act
to the Supreme Court and the Supreme Court of the Slovak Republic did not provide a constitutional law
both successor states otherwise. The latter provision has become obsolete
at the time of the establishment of the Constitutional Court on the basis of Article. 83 to 89
Czech Constitution. Czech Constitution nor any other constitutional act of the Czech Republic stipulates that
functioning of the Constitutional Court of Czechoslovakia moved in relation to the Czech Republic at the Constitutional Court of the Czech Republic
. Constitutional existence of both constitutional courts is therefore mutually independent
. There's not a formal constitutional continuity.

Act no. 182/1993 Coll. is legislation whose approval anticipates Art. 88
paragraph. 1 of the Czech Constitution, which reads: "The law stipulates who and under what conditions
may file a motion to initiate proceedings and other rules of procedure
before the Constitutional Court.". Systematic interpretation leads to the conclusion that this provision
has in mind only the Constitutional Court, since it is part of the
part of the Czech Constitution, which establishes the Constitutional Court. Conversely, the Constitutional Court
ČSFR was established by constitutional law no. 91/1991 Coll. and rules of procedure
before it was modified by Act no. 491/1991 Coll., on organization of the Constitutional Court
Czech and Slovak Federal Republic and the proceedings before it.

Act no. 182/1993 Coll. and operates a system of judicial protection of constitutionality
based Constitution, ie in a different system than the system similar
based constitutional law no. 91/1991 Coll.

Although the Constitutional Court of the Czech Republic to deal with, just like in the year.
1992 did the Constitutional Court of Czechoslovakia, the Act no. 451/1991 Coll., It is not,
in his opinion, about the same thing. Recalls in this context its
opinion expressed in its judgment of 24 1st, 2001, which annulled certain provisions
Act no. 247/1995 Coll., On elections to the Parliament of the Czech Republic and

Amending and supplementing certain other laws, as amended
regulations (see no. 64/2001 Coll.). He came to the conclusion that
under certain circumstances, the same thing can after more than 4.5 years
appear in a somewhat different light, especially if there has been in this time period for
social changes. Such a phenomenon does not escape from the frame constitutionality.
Proposal of deputies in the matter of the lustration laws, which now, in the year.
2001 assesses the Constitutional Court, points to significant changes in the company,
occurred during more than eight years since for the Constitutional | || court of Czechoslovakia, and the Constitutional court in no way disputing these changes.
Its conclusion contained in the judgment Elections Act therefore considered
relevant in this case. In addition, it plays a role that
Constitutional Court is evaluating an amended, that an amended version of the Law no.
451/1991 Coll., And that this law should be considered now in the light
instruments at the time of judgment of the Constitutional court of Czechoslovakia were not valid.
This is particularly true for the Czech Republic's Constitution, possibly for some
international treaties, which are for ČSFR, respectively. Czech Republic
become binding until after the release of the award in 1992.

In view of the foregoing, the Constitutional Court concluded that the finding
Constitutional Court of Czechoslovakia on 26. 11. 1992 does not constitute an impediment
res judicata in accordance with § 35 para. 1 of Act no. 182/1993 Coll. The Constitutional Court is thus
formally entitled to consider the proposal of deputies
throughout its range.

VI.

The Constitutional Court also summed up his relationship with the jurisprudence of the Constitutional Court
ČSFR. In its judgment on the question of the difference between restitution and expropriation of
24th 5th 1994 sp. Nos. Pl. US 16/93 cites the Constitutional Court from the decision of Constitutional Court of Czechoslovakia
sentences google principle of equality. He says to them:
"Because according to Art. 3 of the Constitution of the Czech Republic is the Charter of Fundamental Rights and Freedoms
part of its constitutional order, it can be inferred from that i
binding decisions of the Constitutional Court of Czechoslovakia, which was on its basis | || issued. ". This conclusion of the Constitutional Court, moreover, expressly
allege the petitioners.

Cited conclusion of the Constitutional Court on the binding decisions of the Constitutional Court of Czechoslovakia has
but in practice only a limited impact due to the fact that during
abstract review of the constitutionality of laws the Constitutional Court usually measured by
statutory text not only the Charter or other constitutional acts that constitute
constitutional order (Art. 112, paragraph. 1 of the Constitution), but also international treaties
on human rights and fundamental freedoms, which in turn part of the constitutional order
not. This way, acted in the past as well
The Court has, even in the case of Act no. 451/1991 Coll. Applications
conclusion of the binding decisions of the Constitutional Court of Czechoslovakia would lead to
impractical and logically unsustainable conclusion that his judgment in the matter
lustration law from r. 1991 is partly binding and partly not.

Constitutional Court, moreover, in its later decisions approached
decision of its Czechoslovak predecessor less formally.
Considered to be a follower of the material concept of constitutionality in the Czech Republic
, although not formally its legal successor.
Phrased it in a number of its judgments, in which it has consistently relied on the case law of the Constitutional Court of Czechoslovakia
, without considering it necessary to its outlet on the binding nature of its
decisions based on the Charter of repeat (see eg. Judgments. Zn. I.
US 68/93 from 21. 4. 1994 sp.. I. ÚS 108/93 of 30. 11. 1994, Ref. No..
Pl. US 5/95 from 8. 11 . 1995 Collection of decisions, volume 1, judgment no. 17;
volume 2, judgment no. 60, volume 4, judgment no. 74, promulgated under no. 6/1996
Sb.).

Eloquent is the finding of I. US 56/95 (Collection of Decisions, Volume 5, judgment no.
2), which states: "For the sake of completeness, the Constitutional Court took into account the objection
complainant that it relied on the judgment of the Constitutional court of Czechoslovakia dated
21st 12th, 1992. This reference is incorrect... with regard to the
the court has also considered the assessment obligation had court under §
5 of the CPC . the cited finding is therefore to solve the case under unusable
because its essence concerns the problem completely different. ". From the above quote
it is clear that the Constitutional Court treats the Constitutional Court of Czechoslovakia
de facto with its own findings and seek formal reasons that could use such findings
exclude or vice versa would allow.


Constitutional Court and in its practice promotes the idea of ​​continuity of protection
constitutionality in democratic Czechoslovakia and the Czech
Democratic Republic, which is the successor state. It was not led to only
spontaneously generated a consensus with the various rulings
Czechoslovak Constitutional Court, but also the imperative arising from Art.
1 of the Czech Constitution, according to which the Czech Republic "
democratic constitutional state." The essential attributes of the rule of law in a democratic state
include its predictability, which is closely associated with categories
continuity in the law and legal certainty.
Constitutionality in democratic Czechoslovakia and in the democratic Czech Republic was and is identically
based on values ​​guaranteed by the Charter of Fundamental Rights and Freedoms and
international treaties on human rights and fundamental freedoms.
There is therefore no real reason to make the concept of constitutionality
Constitutional Court of Czechoslovakia and the Czech Constitutional Court mutually substantially and fundamentally differed
.

Even though the Constitutional Court of the CSFR do not create for the Constitutional Court
formal obstacle 'rule according to § 35 para. 1 of Act no. 182/1993 Coll
., Pose for him real authority that
the constitutional court of the CSFR was the "judicial body for protection of constitutionality" with jurisdiction to
Czech Republic, which is itself now.

This phenomenon of spontaneous linking conceptual compliance with the imperatives of the rule
state or the rule of law can be seen in the current case law of the European
Court of Human Rights (hereinafter "the European Court").
Analogy relations between Czechoslovakia and the Czech Constitutional Court is clear.
Past and present European Court are two separate entities. The first one was established
European Convention on Human Rights of the year.
1950 (hereinafter the "European Convention"), the second to the 11th protocol of the year.
1994. Proceedings before them each more than a little different. Both
assessing the compliance behavior of States Parties to the European Convention. 11. Protocol
contains no provisions on the binding judgments of the European Court earlier today
European Court.

The European Court, which began its activity in r. 1998
not consider it necessary to question the binding nature of prior court judgments
any deal. He solved simply by since its first decisions
refers to judgments of his predecessor, as if they were his own
decision. In the judgment of 21. 1. 1999 in the case against Belgium Geyseghem
without any explanation confirmed that the present matter
apply the principle used in the cases Lala and Pelladoah against the Netherlands from r. 1994 and invokes
Poitrimol further case against France from r. 1993

Postulate of continuity of protection provided, which is symptomatic of
decision of the judicial authority, which enters the body instead of the defunct
or annulled, has two pages. On the one hand, the new court allows
deviate from the legal opinion of the preceding court if there is a change
circumstances under which that previous court ruling, on the other hand it imposes
not question the decision of the previous court if no such | || change in circumstances has occurred.

VII.

After the Constitutional Court applied its consideration of the extent reviewability findings
Constitutional Court of Czechoslovakia in its judgment of 26. 11. 1992, and assessed in the light of the proposal
group of deputies. The petitioners say it: "Signatories
Members therefore have no choice but to propose to the Constitutional Court to annul both
Act no. 422/2000 Coll. And no. 424/2000 Coll., As well as laws alone no. || | 451/1991 Coll. and no. 279/1992 Coll., for their inconsistency particular
provisions of Art. 1 of the Constitution, Art. 1, Art. 4 paragraph. 2 and 4 and Art. 21 par. 4
Charter of fundamental rights and freedoms, Art. 4 of the International Covenant on
economic, social and cultural rights and the Convention of the International Labour organization
discrimination (employment and occupation) from r. 1958 (no. 111
), which is undoubtedly an international treaty within the meaning of Art. 10
Constitution. "

Act no. 451/1991 Coll. He was after 26. 11. 1992 amended twice:
Act no. 254/1995 Coll., Which established its validity until 31. 12. 2000 and Act No.
. 422/2000 Coll., Which was cited to annul the provision on the period of validity
revised in the year. 1995 and removed it from the scope of § 1-3
lustration law citizens born after 1 December 1971. The only
provisions of the Act no. 451/1991 Coll. whose constitutionality the Constitutional court
ČSFR in r. 1992 did not assess and which are now part of it, are therefore

Provisions contained in its current § 20 and introduced into it by law no. 422/2000 Coll
.

The Court has examined the constitutionality of Law no. 451/1991 Coll.
by all conceivable provisions of the Charter and international treaties
human rights and fundamental freedoms, including the International Covenant on
Economic, Social and Cultural Rights and the Convention no. 111, to which the petitioners explicitly
They are appealing. Assessment of compliance with both
mentioned international treaties expressly moreover already requested proposal
group of deputies of the Federal Assembly and the Constitutional Court of the CSFR in its
finding both of them clearly expressed.

The petitioners further indicate that the Act no. 451/1991 Coll. with Art. 1 of the Constitution
Czech Republic, which naturally Constitutional Court of Czechoslovakia as poměřující instrument
serve in r. 1992 could not. Art. 1 of the Constitution states that "
Czech Republic is a sovereign, unitary and democratic state of law based on respect for
rights and freedoms of man and citizen." At a time when
The Court has considered the constitutionality of the large lustration law, sounded Art. 1 of the Constitution ČSFR
follows: "Czech and Slovak Federative Republic is a democratic, law
state, composed of the Czech and Slovak Republics' (
see constitutional Act no. 493/1992 Coll., 8. 10. 1992, amending and supplementing constitutional
Act no. 143/1968 Coll., on the Czechoslovak Federation, as amended
regulations and some other constitutional laws).
Common central concept of both Articles 1 and the term "democratic rule of law" when
respect for the rights and freedoms of man and citizen then and now was guaranteed and ensures
constitutional Charter of Fundamental Rights and Freedoms. There is no doubt that the Constitutional Court of the CSFR
assess the constitutionality of the large lustration law in terms of Article
. 1 then the Constitution, ie in terms of the attributes of a democratic legal state
and inconsistency did not find them. In the reasoning for its finding on
concept of democratic rule of law, moreover, repeatedly refers in particular
terms of its value framework. In the example cited judgment. States that
"the rule of law, which is associated with democratic values ​​
enthroned after the fall of totalitarianism can not ... in terms of values, understood as amorphous."

Czech National Council Act no. 279/1992 Coll., A small lustration law, not in terms of its constitutionality assessed
neither Czechoslovakia nor the Czech Constitutional Court
. According to the explanatory memorandum, based on the overall concept of the Act no. 451/1991 Coll
. The reason why he had to be - as a lex specialis to the large lustration law
- approved consisted of Art. 27 of the Constitutional Act on the Czechoslovak Federation
. According to him, they were setting up their own
armed forces and regulation of their status within the exclusive competence of each
republic, within the legislative competence of the Czech National Council.
The construction of the small lustration law is identical with the construction of large
lustration law. The small lustration law contains a list of functions within
police and Corrections Force of the Czech Republic, in which you can not appoint or nominate
citizen who does not meet any of the conditions listed in § 3
Act no. 279/1992 Coll. (For a position in the police) or in § 5 (for
function of Corrections Force of the Czech Republic).

It is proposed that the Constitutional Court annul the entire Act no. 279/1992 Coll.
The appellants do not indicate the specific reasons for what we believe is a contradiction
its provisions with the Charter and international treaties on human rights
, therefore reasons that should originate solely in this small lustration
Testament, but not in Act no. 451/1991 Coll. Under these circumstances
sees no reason for the Constitutional Court to ensure that in its review of the constitutionality
small lustration law exceeded the scope of control that
held in r. 1992, the Constitutional Court of the CSFR in connection with Act no.
451/1991 Coll. With reference to the arguments set out in the reasoning of the judgment
Constitutional Court of Czechoslovakia on 26. 11. 1992 the Constitutional Court finds the contradiction
provisions of § 3 para. 1 point. d) and § 3 para. 3 of the Act no. 279/1992 Coll.
a conscious collaboration with the StB, which are substantively identical to § 2 para. 1 point.
C) and § 2 para. 2 of Act no. 451/1991 Coll., In contradiction with Article. 2. 3 and Article
. 4, paragraph. 1 and 3 of the Charter and Art. 4 of the International Covenant on Economic,
Social and Cultural Rights. Also with reference to the arguments in
reasoning of Constitutional Court of the CSFR it finds conflict of § 3 para. 4 and § 5
par. 2 Act no. 279/1992 Coll. for granting exemptions with Art. 1 of the Charter.

The two latter provisions are in terms of its content, essentially identical
with the provisions of § 2 para. 3 and § 3 para. 2 of Act no. 451/1991 Coll
., Whose inconsistency with Art. 1 of the Charter The court has stated.
Cited provisions of a large lustration law, although expect
disruption "important security interest of the state" while they
relevant provisions of the Act no. 279/1992 Coll. Only disturbance "
important security interest of the service" (§ 3 para. 4), respectively. "
Important interest of the service" (§ 5 para. 2), this phraseology is different, however, in terms of assessing the constitutionality
irrelevant. In the case of Act no. 451/1991 Coll.
Cited provisions in question constituted an unjustified inequality between workers
two ministries (interior and defense) and other parties concerned by this
law. In the case of Act no. 279/1992 Coll.
contrary, there is unjustified inequality between the personnel departments of Interior and Justice, which so far on his
basis for an exemption, on the one hand, and the other parties concerned
lustration legislation, ie. Act no. 451/1991 Coll. in
which provision of the exceptions due to the Constitutional court judgment
ČSFR lost its validity in the past, on the other hand.

Opinion Constitutional Court to annul those provisions of the small lustration
Act for their conflict with the Charter and international treaties on
Human Rights and Fundamental Freedoms has an impact on some other
provisions of this Act, which provisions to interference link. This is especially
§ 6 para. 1, § 8 par. 1 and § 9.
5. Given the fact that the substantive scope of those provisions is not exhausted by reference to
provisions that the Constitutional Court He found unconstitutional, and there
only its narrow, have said provisions in the Act no. 279/1992 Coll.
Continue its meaning and place. In addition, the fact that certain
provision refers to another provision, which was found
unconstitutional, does not establish the unconstitutionality of that reference provision.
The Constitutional Court therefore found no reason to repealing those provisions referring
. He also found no grounds to annul those parts of the text of Act No.
. 279/1992 Coll., Which refer to the content of the provisions of Law no.
451/1991 Coll., Which lost force as a result of a Constitutional Court judgment
ČSFR. This is particularly the provisions relating to the so-called findings.
Independent commission established under § 11-13 of the Act no. 451/1991 Coll.
Reference to the findings of the Commission include, for example. § 6 para. 1 in fine and § 8 paragraph
. 1 of Act no. 279/1992 Coll. The Constitutional Court is the judicial body protection
constitutionality and it was not required to perform editorial changes to laws that had been
submitted for assessment. It would have struck it into the competence of the legislature.

Concurrently with the amendment of the large lustration law was amended in similarly
r. 2000 Act no. 279/1992 Coll., By Act no. 424/2000 Coll
. The amendment pursues the same aim as amendment no. 422/2000 Coll.
large lustration law, and further conclusions of the Constitutional Court therefore relate
together both lustration laws.

VIII.

Petitioner's petition directed to large and small lustration law
pro futuro "removed from the legal order of the Czech Republic".
Substance of the arguments summarized in Section V. proposal. Based on the finding
Constitutional Court of Czechoslovakia from 1992. They state: "The Court has recognized
nature of adjustments made by Act no. 451/1991 Coll.
Be constitutional, given the situation of the state and society shortly after the fall
previous regime and restore democracy and respect the fact that the law established
restrictions do not apply absolutely, but only for a transitional period, ie.
to 31 December 1996. a similar position would be the court has apparently | || i took to the CNR Act no. 279/1992 Coll., if it has been dealt with.
Under these circumstances and conditions of the Constitutional court of the CSFR in r. 1992
recognized that the public interest (public good) resting
need in society and the state to have been improved with persons in certain publicly
important positions and that the measures aimed at averting
risk of subversion or a possible recurrence takes precedence ... "over fundamental rights
citizens that proposal further specifies. Of cited substantial
evaluation judgment of the Constitutional Court of Czechoslovakia petitioners further conclude
to which the proposal provides a variety of arguments.
This conclusion is worded as follows: "Because ... the public interest (public good), from whose

Former existence Constitutional Court of the Czechoslovak Federal Republic in 1992 was based, has already passed, and passed away
reasons for the limitation of fundamental rights and freedoms ... that
about the existence of this public interest based. "In other words, the petitioners
believe that the time factor for assessing the constitutionality of the lustration laws
plays a key role. by their validity and effectiveness
extended indefinitely, limit fundamental rights and freedoms in
currently has "no justification, "and are therefore inconsistent with
certain provisions of the Constitution, the Charter and international treaties on human
rights and fundamental freedoms.

IX.

Constitutional court agrees with the petitioners' view that
amendment of the lustration laws, which removed the provision on their limited time
force, there was a significant intervention into their content. This intervention
undoubtedly represents a significant change of circumstances in terms of assessing
constitutionality of both lustration laws. Constitutional court can therefore
without further assume all the conclusions contained in the judgment of the Constitutional court of Czechoslovakia,
but must first answer the question whether, in their drawing
represented a limitation period of validity of Act no. 451/1991 Coll.
until the end of the year. 1996 in The Court has such a significant factor that influenced his decision
, which in the majority of the provisions of this Act
found no inconsistency with the Constitution, the Charter nor international treaties on human
Rights and Fundamental Freedoms.

Constitutional Court in this regard feels that the proposal inaccurately and incompletely
especially captured the essence of argument used by the Constitutional Court in ČSFR
reasons for its finding, and therefore can not with the interpretation given by the petitioner
identify. It is true that The Court has recognized
justification of the needs of society and the state to have been improved with a person in
certain public functions and that the measures aimed at averting
risk of subversion or a possible return of totalitarianism.
Also stressed the relevance of the time limit of validity of the lustration law.

The Constitutional Court of Czechoslovakia but also puts forward other arguments
proposal completely ignores. The Court has emphasizes that the "stabilized
democratic systems is part of the requirements required by
persons seeking employment in the service of the state, public services and
workplaces, which are central to the security and stability of the State | || considered risky, and subject to certain civic prerequisites
signaling a consensus of opinion and loyalty to the interests of the state and
democratic principles on which the state is built. " In light of this maxim
approve the action by the legislature that "based on legally
opinion" that, at least to the degree of reasonableness can not assume that
values ​​of democratic constitutional principles "will be automatically and unconditionally
reported in the life of a former
power structures. " It states, finally convinced that the state can not deny that
set for the exercise of control or otherwise critical functions
conditions or assumptions, which "takes into account also for their own safety, the safety of citizens
and further democratic development ".

Arguments Constitutional Court of Czechoslovakia is therefore infinitely richer and more diversified
than her proposal of deputies served. Some of his arguments
bind to the needs of the state and society in terms
transition from totalitarianism to democracy, finding that fully into account. In this context
The Court has also pointed to a limited
validity of the lustration law, but without tying themselves necessarily end his
justified validity to the year 1996. Time-limited force of law only
notes and r. 1996 denotes orientation as the year "in which
assumes the completion of the democratic process." Thus taking some kind
working hypothesis about the pace of the dynamics of the development of democracy in Czechoslovakia. Draft
group of deputies brings many data which convincingly demonstrate that
development of democratic transformations after r. 1992 is stormy and that - as expressly
state - was "the democratic process is completed." The Constitutional Court, however
deems necessary to deliver these data to determine the degree of development
democracy in a State, the question is essentially a social and political, not constitutional
. The Constitutional Court is therefore unable to claim a
"consummation" or on the contrary "nedovršení" democratic process means
available to it, examine it. However, it may in some agreement with

Petitioner confirm that the public interest inherent in the state's needs in
period of transition from totalitarianism to democracy lost by r. 1992
its intensity and urgency.

The second proposal of deputies neglected group of reasons, which states
The Court has, refers to the need for a democratic society and a democratic state
protect his state administration and public services before entering
persons who do not meet certain assumptions. Among these assumptions
explicitly mentions "loyalty to the interests of the state and democratic
principles on which the state is built." The establishment of such assumptions
considers a measure which is not only their own countries in transition
from totalitarianism to democracy, but also all "
stabilized democratic systems." Finally expressed belief that such loyalty is not
possible "without further and unconditionally" expected from "members of the former
power structures" and from those who "were appointed to important
state, social and economic functions on the basis of
conflicting value criteria only to a representative of the earlier reigning ideology
served to maintain the power monopoly of the ruling
bureaucratic apparatus. "

The Court has expressed its arguments supporting these different
public interest (public good), which is the right and obligation
democratic state to actively defend its democratic system, even
restricting access to government and public services using terms
loyalty of their representatives and employees. This public interest
The Court has unequivocally attributed to a democratic state generally
ie in a stage in which the democratic system is still being built
so at a stage where democracy is completed (the "stabilized || | democratic systems ").

The task of the Constitutional Court of the Czech Republic was therefore comment on whether
above public good "timeless nature" and is therefore also relevant
Now, ten years after the adoption of Act no. 451/1991 Coll.
The Constitutional Court notes first that the rationale for the idea of ​​"democracy capable of defending the
" (wehrhafte Demokratie, démocratie Apte and défendre, democracy
Capable of Defending Itself) repeatedly recognized by the European Court in its decisions
. The court considers its implementation as a "legitimate aim", whose implementation
permits within reasonable limits
States to restrict the rights guaranteed in the European Convention. At the same time more than once stressed that the creators
European Convention to the text of deliberately neglecting
individual's right to equal access to public service in countries included (see eg. The judgment in the case
Glasenapp against Germany from r. 1986). The question of loyalty
persons in public administration and public services, the European Court declared in its judgment in
Vogt against Germany from r. 1995 as follows: "The Court
based on the assumption that a democratic state is
authorized by its officials claim to be loyal to the constitutional principles on which it relies
. in this regard, taking into account the experience of Germany during the Weimar Republic
during a bitter period that followed the collapse of the | || scheme to the adoption of the Basic Law in the year. 1949. Germany wished
ruled out that these repeated experiences, and therefore based its new
stand on the idea of ​​democracy capable of defending itself ... is understood that the above
circumstances have supplied substantial weight to this notion and the corresponding
duty of political loyalty imposed on officials. "

Both judgments of the European Court as follows on this question several conclusions
:

1) Promoting the idea of ​​"democracy capable of defending itself" is a legitimate objective
law in any democratic country, at any stage of its development
.

2) The requirement of political loyalty of persons in state administration and public
services is considered an undoubted component of the concept of "democracy capable of defending itself
".

3) Specific degree of loyalty required depends on the historical, political and social
experience of each individual State and
actual extent of threats to democracy in the state.
In this context, the European Court judgment in the matter Vogt notes that no country in Europe
in the 80s (at the time of the factors under consideration)
not require loyalty with such hardness as Germany, and paused over || | "absolute nature" of this requirement in the German conditions, as
German courts apply the requirement of loyalty equally to all officials,

Regardless of their function and inclusion in a hierarchical structure
public services.

The requirement of loyalty of civil servants to the European Court, however
expressed in other cases in which the complaint was directed against
consolidated democratic state. The Constitutional Court recalls at least
judgment in Pellegrin v France from r. 1999 in which the European Court
expressed the belief that the state has a "legitimate interest"
require state employees a "special bond of trust and loyalty"
because those employees are kind of holders of its sovereignty.

Based on its excursion into the case law of the European Court could therefore
Constitutional Court concluded: democratic state, not only in the 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, in particular
meet the requirement of (political) loyalty. It demonstrates
indeed eg. Even legislative or judicial practice in the United States of America
(see US Supreme Court decision in the case of Adler v. Board of Education
).

The Constitutional Court assumes that the term "loyalty" is to be interpreted
- as well as other nodal concepts, for example.
Impartiality and independence of the courts - two complementary ways.
The concept of loyalty covers the level of loyalty of each individual acting in
public services, the level of loyalty of public services as a whole.
Relevant, it is not only whether public services are really
loyal, but also whether they appear as a loyal public. To do this,
order to avoid any doubts about their loyalty. Such doubts
undermine public confidence in the public service and hence the democratic
state that embody these services. Untrustworthy public services and state administration
its consequences threaten democracy and democratic
state is entitled to defend against such threats by ensuring that
public services to the public as untrustworthy can not prove, that || | eliminating reasons for doubts.

The Constitutional Court proceeded to answer the question of whether a tight
individuals belonging to the power apparatus and repressive forces
totalitarian state can be regarded as a sign of disloyalty to the democratic
state, or at least relevant reason to doubt the loyalty
eyes of the public.

Constitutional Court primarily draws attention to Act no. 198/1993 Coll., On
illegality of the communist regime and resistance against it, and his
judgment concerning this Act published under no. 14/1994 Coll.
The Act enumerates crimes and other comparable events which occurred in 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 || | communist regime as officials, organizers and instigators
in the political and ideological areas. "
The preamble notes the special responsibility of the pre-November Communist Party, including its
leadership and members. It is therefore evident that individual's close ties with
pre-November regime and its repressive forces is a reality
eligible adversely affect the credibility of the public office which
this individual in a democratic state, as the Communist regime was
Parliament Czech democratic state as
"criminal, illegitimate and abhorrent."

In this context, the Constitutional Court deems inappropriate
petitioners objection that the present Communist Party of Bohemia and Moravia is "legally
working party with not negligible voter base."
Lustration law because its regulation takes a position only to pre-November Communist Party and
only qualified forms of involvement in it infers certain
consequences.

The Court has in its judgment of r. 1992 warned that lustration laws have
other European countries, which in the 80th and 90th
years apart totalitarian regime of monopoly power. Given that
any international court on the issue of lustration laws comply with international treaties
not yet decided, the Constitutional Court considers
desirable to utilize its answer to the above question
other international and foreign indications.

Common feature of "lustration laws" adopted in Europe over 90 years
is that it focused on the position and / or behavior

Individuals under totalitarianism and draw them to him
negative consequences in terms of its involvement in public life in contemporary
democratic state. Such laws have been approved in the Federal Republic of Germany
(Act on Stasi documents from 20. 12. 1991), Bulgaria (Act on
additional conditions relating to scientific institutions and high
verification committee of the 9th 12th 1992), Hungary (Act on checking the background
persons occupying certain key functions of 9. 3. 1994), Albania (two laws
22, 9 and 30. 11. 1995), Poland ( law granting employment or service relationship
persons holding public office in the security forces
state or cooperation with them in the years 1944
- 1990, from 11. 4. 1997), Romania (law on access
citizens to their personal file maintained by the Securitate and aimed to reveal the nature
this organization as a political police from 20. 10. 1999) and to a limited extent
in other countries of Central and Eastern Europe. Without Constitutional Court
go into the details of individual acts, it notes that virtually all of these laws
deem relevant persons belonging to the secret police
totalitarian state or cooperation with it, some of them feature people
in the party and state apparatus (Albanian or Bulgarian
Act). The Parliamentary Assembly of the Council of Europe in its resolution.
1096 (1996) (item 11) fundamentally admits the compatibility of lustration laws with the attributes
democratic rule of law, provided that their
goal is not to punish the persons concerned but to protect emerging
democracy.

The Constitutional Court has in the light of the foregoing reason to
finding that certain behaviors and / or position of the individual in
totalitarian state is widely considered the interests of the democratic state under
risk to impartiality and credibility of its | || public services, and therefore has a restrictive effect on the possibilities and ways of involvement
"positively lustrovaných" people to them.

The Constitutional Court also raised the question whether certain behaviors and / or
status of an individual in a former totalitarian state represents for the interests
democratic state, which was constituted in its place
"timeless" or vice versa only temporary risk. The Constitutional Court is aware
that individual's attitudes to the democratic establishment are determined primarily by his actual actions
. The longer the period since the collapse of the totalitarian regime
passed, the more and more closely examine the individual's attitude towards democratic state
his daily interaction with him and democratic society.
In other words, with time relative importance of attitudes and positions
people in a totalitarian state, although certainly not disappear, but surely shrinking.
In this regard, in Europe there appears to be consensus. Temporal application
individual lustration laws or individual measures on their
based in Europe is generally limited, either temporary validity of Act
(Albanian - until the end of the year. 2002), or the determination of the period in which they can | || be carried out by individual vetting, which according to data available in
Hungary until the end of the year. 2004 in Germany by the end of the year. 2006 in Romania
to end a six-year existence of the lustration body established on the basis of the above-cited
Act in. 2000 ie. to r. 2006 (with a possible extension
Parliament), or finally by limiting the temporal effects of individual lustration measures
. This is the case in Poland, where
effects of the relevant court decision last ten years. Although the Constitutional Court is convinced
temporariness of the lustration law, notes at the same time, in the great
most other European countries, which in the past decade
solve the same problem, lustration laws are still valid and effective.

X.

Then, when the Constitutional Court answered all the questions that were identified as preliminary
he walked to assess the constitutionality of Act no. 451/1991 Coll
. and no. 279/1992 Coll., exclusively in the light of their amendments no. 422/2000 Coll
. and no. 424/2000 Coll., allowing them withdrew the temporary validity period.

The Constitutional Court does not share the legal opinion of the petitioners, under which
public interest (public good), from whose former existence The Court has in
r. 1992 was based, he has already passed, and passed away the reasons
limitation of fundamental rights and freedoms that the existence of public interest based.

Large and small lustration law has to protect existing public interest, or

- In other words - pursued the legitimate aim of protection is active
democratic state from the dangers that could be brought
insufficiently loyal and unreliable public services. Both laws
pursuing its legitimate objective by imposing certain conditions for the exercise
certain positions in state bodies and organizations, the police and the
Corrections Force of the Czech Republic. Legislative measures of this kind is not
currently an exception in Europe, and it expressly allows such.
Recommendation. (2000) 6 of the Committee of Ministers of the Council of Europe, sitting and
Czech Republic. This Recommendation regulates the position
representatives of public authorities (Public Officials, agents publics). In the preamble to the recommendations
recalled that the public service plays in democratic societies
significant role and that the people in it are subject to specific obligations and commitments
because they serve the state. In paragraph 4
explicitly acknowledges that access to public functions may exist as
general and specific requirements, provided that they are determined
law.

Both lustration laws set special conditions for access to only some
(basically just control or significant) positions in government or public service
. Even this method of selection of functions whose performance is linked to the specific requirements
is common in a democratic state, and the Czech Republic
applies eg. In connection with Act no. 148/1998 Coll., On
which the petitioners refer themselves.

Specific assumptions that lustration laws introduced, reflecting
individual rights during totalitarian establishment in 1948 - 1989. If
this position meets the characteristics specified in the lustration laws
impossible to access lustrovaného individuals to public office they
listed. People close ties with the totalitarian regime and its repressive forces
Constitutional Court of the Czech Republic in accordance with its predecessor, the Czechoslovak
still relevant circumstance which may call into question
political loyalty and harm the credibility of public service
democratic state hence endanger such a state and its
establishment. Similarly, look upon this aspect of their past
public representatives and officials currently Other newly democratic European states
.

Constitutional Court considers it beyond doubt that the relevance of that assumption
with time since the fall of the totalitarian establishment decreases and therefore considers
lustration legislation to be temporary, as it is
Federal Republic of Germany and the different states of Central and Eastern Europe.
Puts question therefore arises whether the restrictions of certain rights introduced in them yet
"necessary in a democratic society", in other words, whether they are still appropriate
restrictions to the legitimate aim pursued.

Constitutional Court in its assessment based on the fact that the Screening
assumptions only apply to a limited range of functions
fundamentally important and that instead restrict individuals' access to most functions
in public administration and public services. Takes note of the declining trend
application of lustration laws in practice. As follows from the observations
Ministry of Interior which the Constitutional Court requested was for the first eight months
r. 2001 on the basis of issued about 5,800 certificates from which
about 2% was positive. In practice, the lustration laws restricted
in the period January-August 2001 access to listed public office
approximately 120 individuals.

The Constitutional Court, however, finds first that has not been filled
imperative embodied in Art. 79 par. 2 of the Constitution, which provides that "
legal relations of civil servants in ministries and other administrative offices
regulated by law". Part of Czech law has not yet become law on civil service
. Both lustration laws so limited and determination
specific action provided for in the civil service
substitute for the absence of key required by the Constitution Act, and their existence is therefore
the state of Czech democratic society remains essential.
With the exception of certain acts, eg. No. 483/1991 Coll., On Czech Television, no.
6/1993 Coll., On the Czech National Bank no. 335/1991 Coll., On courts and | || judges, no. 148/1998 Coll., on protection of classified information and amending some laws
, and no. 455/1991 Coll., on business
(Trade Act), regulating access to elected, appointed and

Ustanovovaným functions specified in the lustration laws of other
only these lustration laws.

The Constitutional Court, however, does not consider the current situation to be optimal.
Legislature should promptly adjust the conditions for access to public
functions in their entirety and to establish normal with such general application
personal qualifications directly related to the democratic society, not
only indirectly and negatively - with reference
past excessive loyalty to a totalitarian state and its repressive forces. That is
e.g. In the Federal Republic of Germany (Art. 7 § 1 para. 2
Bundesbeamtengesetz). The Constitutional Court in this context also points
to the explanatory memorandum to the Act no. 422/2000 Coll., According to which "would force
current Act no. 451/1991 Coll., Should be stopped until the adoption of the Law on
State service ". The promise of the explanatory memorandum, the Constitutional Court welcomes
with the approval of general requirements for access to public office
considered due to the temporary nature of the subsidiary and the specific assumptions set
lustration laws as urgent.

Constitutional Court finds the argument for the proposal no doubt that the petitioner did not own
conflict with the Charter nor
international treaties on human rights in the case of the amended §
20 of Act no. 451/1991 Coll. and its corresponding § 10a of the Act no. 279/1992 Coll
. (Effect of lustration laws are exempt citizens born after
1. 12. 1971). These provisions narrow the scope of both laws and
their purpose and their method follows the path that a much wider
(absolute) rate monitor petitioners themselves.
Does not consider it necessary to § 20 of the large lustration law and § 10a of the small lustration law
comment further.

XI.

For all the foregoing reasons, the Constitutional Court annulled § 3 para. 1 point. d)
and § 3 para. 3 of the Act no. 279/1992 Coll., on certain other assumptions
for certain positions filled by appointment or provision
members of the Police of the Czech Republic and members of the Corps of remedial education
Czech Republic, as amended, for their
conflict with Art. 2. 3 and Art. 4, paragraph. 1 and 3 of the Charter and Art. 4
International Covenant on economic, social and cultural rights, || | abolished the § 3 para. 4 and § 5 para. 2 of the Act no. 279/1992 Coll.
for their conflict with Art. 1 of the Charter, and dismissed the remainder of the proposal.

Chairman of the Constitutional Court:

JUDr. Kessler vr

Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
took the first part of the statement of decision Plenum judge JUDr. Anthony
Walk.

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