73/2017 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 3/14 on 20 April. December 2016
the plenary consisting of the President of the Court, Pavel Rychetského and judges Louis
David, Jaroslav Fenyka, Josef Fiala, Jan Filip, Jaromir Jirsy,
Thomas, Too, John Musil, Vladimir Sládečka, Radovan Suchánka,
Catherine Šimáčkové, Vojtěch Šimíčka, Milady Tomková, Uhlir and David
Jiří Zemánek (reporter judge) on the proposal of the Supreme Court on
give the unconstitutionality of § 37 para. 6 of law no 499/2004 Coll., on
Archives and records service and amending certain laws, as amended by
effective until 30 June. June 2009, with the participation of the Chamber of deputies of the Parliament
The Czech Republic and the Czech Senate as participants
the management and the Government of the United States as a secondary party to the proceedings,
as follows:
1. the proposal to declare the unconstitutionality of § 37 para. 6 of law no 499/2004
Coll. on Archives and records service and amending certain acts, in
the version in force until 30 June 1998. 6.2009, is in the words "papers arising
1. January 1990 from the activity of the security forces under the law on
Institute for the study of totalitarian regimes and the archive
folders "is rejected.
2. In the remaining part of the proposal.
Justification
(I).
Recapitulation of the document instituting the proceedings
1. the Constitutional Court received on 4 April 2006. 3. the resolution of the Supreme Court of the 2014 date
15.1. 2014 # 30 Cdo 2951/2012-254, which according to § 109 paragraph. 1
(a). c) of Act No 99/1963 Coll., the code of civil procedure, as amended by
amended, in conjunction with paragraph 243c cuts out dovolací
proceedings, as the Court considers that that section 37 paragraph 2. 6 of law no 499/2004 Coll., on
Archives and records service and amending certain laws, as amended by
later rules, (hereinafter referred to as the "law on Archives") is in violation of the
with the article. 8 of the Convention for the protection of human rights and fundamental freedoms (hereinafter
"the Convention"), and the matter shall be submitted to the Constitutional Court.
2. Due to the fact that the provisions of § 37 para. 6 of law No.
499/2004 Coll. on Archives and records service and amending certain
laws concerning the data provided by the person concerned, has seen in the
during the proceedings before the general courts, called on the Constitutional Court changes
the explicit indication of the appellant's remedies proposal. Submission of 23 July. 6.
2015, the Supreme Court said its proposal so that it proposes that the constitutional
the Court held the unconstitutionality of § 37 para. 6 of law no 499/2004 Coll., on
Archives and records service and amending certain laws, as amended by
effective until 30 June. 6.2009, (hereinafter ' the contested provisions ').
3. In that case the applicant shall act under the SP. zn. 30 Cdo 2951/2012
the appeal of Vladimir Hartman (hereinafter referred to as "the applicant"), whose action,
to him, the defendant-Czech Republic security forces (the Archive
also referred to as "the defendant") has paid compensation in cash in the amount of 300
EUR in respect of interference with his personality rights, made by
the defendant has made available to a third party, Zdeňce Yeast, worker
Ostrava branch of Czech television, the sensitive personal data relating to
his person from the volume INCREASE 442-MV, led by the former State security,
by judgment of the city court in Prague on 10. 1.2012 No. 66 (C)
109/2011-187 rejected. Judgment of the Court of first instance was confirmed
the judgment of the High Court in Prague on 5. 6.2012 No. 1 what 28/2012-202.
The plaintiff appealed against the decision of the Court of appeal, leave to appeal to the Supreme
the Court together with a proposal on the annulment of the contested provisions.
4. In its proposal after the Supreme Court notes the contents of the affected
the provisions of law no 499/2004 Coll. on Archives and records service
amendments to certain laws, in the version in force until 30 June. 6.2009, article. 10, paragraph 1. 2
The Charter of fundamental rights and freedoms ("the Charter") and article. 8 (2). 1
Convention for the protection of human rights and fundamental freedoms, given that in General
unlawful handling of personal data generally occurs to the intervention in
personality rights; such unlawful treatment of personal data is also
disclosure of sensitive data. The legal exception contained in the text
the contested provisions has occurred, according to the Supreme Court to remove the sensitive
data protection, since protection (in particular, the prior consent of the concerned
the person) does not apply, inter alia, on the papers before the 1. January 1990 from the
the activities of the security forces, according to law No. 181/2007 Coll., on the Institute
for the study of totalitarian regimes and the archives of the security services and the
amendments to certain laws, as amended, (hereinafter referred to as
"the law No 181/2007 Sb."). From the explanatory memorandum and preamble of the Act No.
181/2007 Coll., shows that such an exception is justified by the settlement
own past and the widest possible disclosure of the historically valuable
information to the public. The rapporteur in this context refers to the
the judgment of the European Court of human rights (hereinafter "ECHR")
Niemietz against Germany dated June 16. 12.1992, no. 13710/88, in the
which States that the right to privacy is not just by
the shock of the individual, but also has its social dimension. According to the
article. 8 of the Convention, that the right to privacy is not an absolute law,
interventions and limitations to this right are permitted, but only for the
situations where the conditions of paragraph 2 are met, this provision.
5. the applicant States that the interference of the State in private justice
life of a protected article. 10, paragraph 1. 2 of the Charter, is also dealt with in the judgment
of 28 June. 2.2013 SP. zn. 30 Cdo 2778/2011 in which concluded
It is always necessary to consider whether the legal intervention (test
legality), whether watching at least one of the legitimate objectives (test
legitimacy) and whether it was necessary in a democratic society (test
the necessity).
6. the applicant concludes that, in the case of the applicant, it is clear that the
the defendant was proceeding according to the relevant national rules, i.e.. Law No.
499/2004 Coll. on Archives and records service and amending certain
law, in the version in force on the day of 19. 3.2008, which was the legal
the basis for the official procedure. This law was sufficiently public
accessible to both predictable and does not show or any other qualitative
defects, which should result in a possible challenge to the legality of this
legal regulation and the contested provisions. The Supreme Court then
He went up to the test of legitimacy, which aims to determine whether the intervention of the
carried out in accordance with the law (i.e. the disclosure of sensitive personal data
in the context of disclosure of State security) volume one of the watched
legitimate objectives envisaged in article. 8 (2). 2 of the Convention. Here is based on
the petitioner from the preamble to the Act No. 181/2007 Coll. and believes that the intervention
in the privacy of the plaintiff was led by a legitimate aim, as expressed in the Convention as
"protection of morals" and "protection of the rights and freedoms of others". Then he went up
the applicant to the test of necessity, and refers to the interpretation made by the
ECTHR, that the term ' necessary ' as a requirement of proportionality when
He stated that "the concept of necessity required to hit [in the law]
match the urgent social need and, in particular, to be a reasonable
pursued the legitimate aim pursued "(Olsson against Sweden, judgment plenary of
24 September. 3. the 1998 # 10478/83, paragraph 67). Here the plaintiff asks the question,
whether the law broadly defined disclosure of sensitive personal data can
actually be considered to be reasonable and that you cannot vote more sensitive
the procedure without being thwarted by the legitimate aim of the legislator. It is equally
According to the claimant's need to evaluate whether the influence of the passage of time does not drop
the social need to inform the public at the cost of providing all
sensitive personal data.
7. the appellant, aware of the fact that when you deploy any of the tools
protection of personal data, whether it is the anonymization, or request
the necessary consent of the living individuals, there could be some
restrictions on access to information, but considers that such restrictions de lege
ferenda seems reasonable and archived writings yet not lost
its explanatory value on the practice of the Communist regime to curb
the human and political rights. At the same time would have been filled with both section 10 of Act No.
101/2000 Coll., on the protection of personal data and on amendments to certain laws,
which provides that the processing of personal data controller and processor
shall ensure that the data subject has not suffered the injury on their rights, in particular the law
on the preservation of human dignity, and also ensures protection against
unauthorized intrusion into a private and personal life
of the data. Here is the applicant takes the view that can lead to disproportion
between the law No. 140/1996 Coll., on making volumes resulting from the activities of the
the former State security, as amended, (hereinafter referred to as
"the law No. 140/1996 Coll.") and the provisions of § 37 para. 6 of the Act on
archives that can seem like an unsatisfactory condition
proportionality, having regard to the fact that sensitive personal
the information in the files of the State security agents and colleagues are
According to the first of the Act protected more than personal data in
our people victimized by the former State security
law later said.
II.
Representation of the parties to the proceedings, the opinion of the authority for the protection of personal
data, archives and institutions
8. the Constitutional Court within the meaning of section 69 of Act No. 182/1993 Coll., on the constitutional
the Tribunal, as amended, (hereinafter referred to as the "law on the constitutional
the Court ") requested the observations of the parties on the matter of procedure-Chamber of Deputies
and the Czech Senate, the opinion of the Government of the Czech Republic
(hereinafter referred to as "the Government"), the Ombudsman and the Office for the protection of
of personal data.
9. the President of the Chamber of deputies in its statement said that the proposal
the Chamber of Deputies, the Government submitted a bill on 11 July. August 2003 and was
assigned number 428 printing house. The draft law discussed
The Chamber of deputies in three readings. The third reading of the draft law
took place on March 31. a meeting of the Chamber of Deputies on 11 July. May 2004. A proposal from the
the law was approved as a comprehensive amendment of the Committee
for public administration, regional development and the environment, modified
other amendments. In the final vote on the proposal, no. 123
the Bill voted out of 173 deputies present for the Bill 116
Members, 49 members of Parliament voted against the proposal. Bill returned
The Chamber of Deputies, the Senate with amendments. The returned bill
then discussed the Chamber of Deputies on 30 November. June 2004 on their 33.
meeting. In voting no 272 votes out of 182 deputies present for the
Bill 109 members, 15 members voted against the proposal.
The Chamber of Deputies approved the draft law in the version approved by the Senate.
The law was delivered to the President of the Republic to sign the 21 October. July
2004. the President of the Republic signed the Act on 27. July 2004. Law
It was after the signature of the Prime Minister announced on 23 June in the statute book. September
2004 as law no 499/2004 Coll., the President of the Chamber of Deputies finally
noted that the Bill was made constitutionally prescribed procedure
the consent of both houses of Parliament, the law has been signed by the respective constitutional
agents and properly declared. It is a matter of the Constitutional Court, to design
The Supreme Court ruled.
10. the President of the Senate, said that the Bill was referred to the Senate on 20 April.
May 2004. The Organizing Committee of the Senate of this proposal as Senate document No No.
367 (in the 4th term) ordered to hear the Committee for territorial
development, public administration and the environment (guarantee Committee), as well as
Committee for education, science, culture, human rights and petitions. The Committee for the
territorial development, public administration and the environment, by order No. 90
(Senate document no no 367/1) on 2 December. June 2004 recommended the Senate proposal
return to the Chamber of Deputies Act with amendments. The Committee for the
education, science, culture, human rights and petitions by resolution No 209
(Senate document no no 367/2) of 3 July 2003. June 2004 also recommended Senate
a Bill to return the Chamber of Deputies with amendments. The plenary
The Senate discussed the Bill on their 16. Meeting 4. term of Office
day 10. June 2004 and adopted resolution No. 467, which the Bill
returned to the Chamber of deputies in the text of the adopted amendments.
For the resolution of the 49 Senators voted from 51 and 1 Senator was present
against. One of the amendments concerning the contested
the provisions of § 37 para. 6, it was only a drafting clarification
consisting of replacing the word "published" by the words "publicly available". In
any discussion of the contributions that were in the course of the hearing of the Senate to
the content of the draft law, challenging the constitutionality of the papers presented in the classroom
the contested provisions of § 37 para. 6. Act No. 181/2007 Coll., on the Institute
for the study of totalitarian regimes and the archives of the security services and the
amendments to certain laws, in its third section in section 24 the contested
the provisions of § 37 para. 6 with effect from 1. August 2008 amended accordingly,
that the words "of the former State security" was replaced by the words
"the security forces according to the law on the Institute for the study of totalitarian
procedures and on the archives of the security services ". The Senate Bill was
referred to the 15 July. May 2007. The Organising Committee of the Senate, the proposal
as Senate document No No 62 (6th term) commanded to discuss
Committee for education, science, culture, human rights and petitions (guarantee
the Committee), as well as constitutional and legal Committee of the Committee on Foreign Affairs,
defence and security. All the committees to which the Bill was referred to the
consultation, recommended the Senate to approve the Bill as amended by the
transferred the Chamber of Deputies. Committee for education, science, culture,
human rights and the petition did so its resolution No. 50 (Senate document No No.
62/1) of 30 March 2004. in May 2007, the Constitutional Committee resolution No. 20
(Senate document No 62/2) of 30 March 2004. in May 2007, and the Committee on foreign
Affairs, defence and the security of its resolution No. 68 (Senate document No 62/3)
of 6 May 1999. June 13, 2007. The plenary of the Senate discussed the Bill on its 6.
Meeting 6. the term of delivery 8. in June 2007, and adopted the resolution No.
152, which was approved as amended by the Bill transferred by the
the Chamber of Deputies. For the 46 senators voted this resolution of 50 present and
against were 3 Senators. In any discussion of the contributions that were in
during the negotiations of the Senate to the content of the draft law, presented in the classroom
challenging the constitutionality of the contested provisions of § 37 para. 6. The President of the
The Senate, in its statement also notes the legislative changes of the
the provisions that have occurred subsequently, by Act No. 190/2009 Coll., which
amended by law no 499/2004 Coll. on Archives and records service and amending
certain acts, as amended, and other related
laws, Act No. 227/2009 Coll., amending certain laws in the
connection with the adoption of the law on basic registers, by law No.
167/2012 Coll., amending Act No. 499/2004 Coll. on Archives and
archival service and amending certain laws, as amended
law, Act No 227/2000 Coll. on electronic signature and amending
some other laws (the law on electronic signature), as amended by
amended, and other related laws. Also the President of the Senate
expressed its conviction that it is fully on the Constitutional Court, to make a proposal to
give the unconstitutionality of the contested legal provisions, to assess and
things decided.
11. the Government of the United States, at its meeting on 20 April. August 2015 discussed
material "representation of the Government of the Czech Republic on the proposal of the Supreme Court
The United States to declare the unconstitutionality of § 37 para. 6 of the Act on
Archives, served under the brand pl. ÚS 3/14 "and taken to
It resolution No. 682, which approved its accession to the said procedure,
adopted a representation to the subject of the proposal and instructed the Minister of the Interior
representing the Government in the proceedings before the Constitutional Court.
12. The Government submitted observations that that the purpose of the
provisions is to enable the study without limitations most of the collections
arising out of the activities of the former security forces, courts and prokuratur
the Communist regime and to learn as much as possible of the practice of the Communist
mode when the Suppression of human and political rights and freedoms,
through the repressive organs of totalitarian State in the period from 1948
until the 1990s, as well as papers arising from the activities of the German occupation
management in the years 1938 to 1945. Adjustment contained in the contested provision is
therefore a reflection of the efforts of the legislature to deal with the consequences of totalitarian and
authoritarian regimes 20. of the century. The contested provision is of the
an important role in the uncovering of the totalitarian past through the study
archival funds arising from the activities of the former security forces and
other organs of totalitarian regimes operating in the territory of the Czech Republic,
which allows for the scientific community, but also to the general public to learn what
most of the practices of these schemes to curb human and political
rights and freedoms. The Government has considered that by saying the unconstitutionality of the contested
the provisions would significantly reduce or even stop the disclosure of
preserved materials documenting the activity of specific people
representing, or cooperating with totalitarian regimes, thereby
as a result he was disowned sense that the legislature followed the adoption of the law
No. 181/2007 Coll., with whom the contested provisions are closely related. Would have occurred
When public records containing personal information of living people
It can be seen only if this person were put forward within 30 days
from the date of delivery of the notification of a request for inspection of the records
objections in writing, in the case of sensitive personal data will then be required
the prior written consent of the person in the consultation. On the archival documents
arising out of the activities of the authorities referred to in the contested provisions should, moreover,
apply accessibility restrictions pursuant to § 37 para. 1 of the law on
Archives, i.e.. These documents could be published up to 30 years
then, what was taken as the papers (not the would in the meantime
published). It would, having regard to the prevailing period of their choice, to which
There has been, in many cases up in connection with the creation of the Institute for the study
totalitarian regimes in 2007, was unavailable to the time when
Since the fall of the totalitarian regime, the latest relevant mode
the Communist, for almost 50 years and no longer, as opposed to
now, actually there will be such a social
the need to inform and warn the company. The Government is convinced that the
legislature chosen form and manner of disclosure of public records
illustrating the activities of totalitarian regimes, or limiting the right to
Informational self-determination resulting from the contested provisions of the
monitors the constitutionally qualified purpose, which is to allow the knowledge of historical
Springs and other testimony about the activities of criminal organisations based
the Communist and Nazi ideology. Unlimited, respectively.
"uncensored" access to historical sources and other testimony about
activities referred to criminal organisations, the Government considers it necessary to
not only objectively describing their crimes, the naming of the organizers and
agents, but also for subsequent education of citizens on these topics and
to the consolidation of democratic traditions, the development of civil society and in
last but not least to fulfil the ideal of Justice.
13. Submission of 29 April. 7.2015 has informed the Ombudsman
The Constitutional Court of its decision not to make use of their right to enter into the control.
14. the President of the Office for the protection of personal data, to which the Constitutional
the Court turned the request for an opinion, points out in its observations on the
the need to distinguish between two ways envisaged by law
the processing of personal data, by making the provision of documents (on the
the basis of individualized requests) and the publication of the personal data. If
Archives Act uses the term "inspection" shall mean the
"the provision of or access to the application", and there is no indication that the
could be without another subfield may under widely semantic concept
"disclosure". From this perspective, according to the Office for the protection of personal data
short and internally contradictory arguments of the applicant, if
mentioned "the need to inform ... to the public at the cost of providing all
sensitive data "or" intervention carried out in accordance with the law (IE.
disclosure of sensitive personal data in the context of the disclosure ...) ". The law on the
Archives adjusts in § 34 et seq. the inspection of the records and
the making of copies, extracts and copies of them, in principle, at the request of and under the
compliance with the legal conditions to resource limits are set and
such disclosure of personal data. along the lines of
the provisions of § 5 para. 1 (b). b) of Act No. 101/2000 Coll., on the protection of
personal data and on amendments to certain laws. The Office for the protection of personal
the data points to the fact that the need to differentiate between the above
referred to ways of processing of personal data is also apparent from the statutory
the obligation to define the theme and the target process and in accordance with set
all the necessary processing parameters, as specified in § 5 para. 1 and
subs. Act No. 101/2000 Coll., on the protection of personal data and on amendments
certain acts, as amended, (hereinafter referred to as ' law No.
101/2000 Sb. "). The provision of (individualised disclosure) of personal
data according to the specific laws and does not include the
various connecting forms of processing of personal data-as is the case in
the case law on archives. The documents obtained in the framework of the consultation
different researchers work, creative way-liability for other
treatment of information, however, the law on archives or other directly
related regulation does not regulate and is primarily given the responsibility
the researcher, who must, according to article 10 of Act No. 101/2000 Coll., respect
the privacy of the data subject and to ensure that the processing was not affected by the
private and personal life of the data subject. The Office for the protection of personal
data points out that in the present case is considered for invasion of privacy
not published, but already the legal disclosure of the information for a particular
a special group of archival documents from the period before 1990; from the description of the
the case shows that, in this case there has been no publication of the information concerned
persons, as further processing that would be manifestly invasive to
privacy, was dropped. The Office for personal data protection States that, of
the perspective of the protection of personal data is the process of disclosure documents
relationship to the past, the processing of personal data with a specific purpose,
that is required with regard to the significant social interest in
coping with the past. In this process, play a vital role specific
information about the various entities, actors of the life and decision making in a totalitarian
mode. Many of the personal data have been repressive totalitarian State folders
for political reasons, collected and processed by methods
incompatible with the principles of the rule of law, have such distinctive character and
are the key and in the detail necessary to the knowledge of the past. In time
decreases sensitivity and exploitable archive material, and this will also
reduces the risk of interference with the privacy of the persons concerned. The fact that a number of
information cannot be not only time, but also because of the antique methods
work reliably verify or disprove, balances the democratic legal
mode, in which the documents and information from the totalitarian regime treated
fundamentally different from current citizens ' personal data processed today
the public administration. This also applies to data on the conviction, which is today
in the case of political and zpolitizovaných of crime seen
through the lens of rehabilitation laws; such information has no value
a similar statement of criminal records. The Office for personal data protection
watching how the archives to provide access to individual candidates to
all shall ensure the protection of the privacy rights of the persons concerned. In
disclosure of data from the time of the totalitarian regime, to individual applicants
cannot be automatically seen as invasion of privacy of the persons concerned.
15. In two other opinions of the then Office for the protection of personal data
on the one hand expressed his assessment of the new European Union adjustment processing of personal
data [regulation of the European Parliament and of the Council (EU) 2016/679 from 27 June.
April 2016 on the protection of individuals with regard to the processing of
of personal data and on the free movement of such data, and repealing Directive
95/46/EC (the General Regulation on protection of personal data)-hereinafter referred to as
"Regulation"] leaving space to the Member States of the European Union to
mitigation of safety within the area of archives, compared to the standards of its regulation
in other areas, both showed their level of supervisory activities
several decisions on the imposition of penalties in cases of violation of law No.
101/2000 Coll. and by the judgment of the Administrative Court for the review of one of them,
which will be zoomed in section VIII below.
16. The draft through its Director spontaneously sent extensive
the observations of the national archives, which is not a party to the proceedings, and therefore its
observations of the Constitutional Court only took note. The national archives in it
expressed the belief that if the Constitutional Court cancels the contested provision,
in principle, this will affect the operation of all public archives and at the same time effectively
make it impossible to research in modern historical sources. Indeed, the archives
will just have to ask for the consent of all those persons, in our
where appropriate, carry out any personal data anonymization. Such activity is
However, financial, personnel and organizationally so demanding that it archives
not being able to manage in real time. The funds concerned for the public
in fact, unapproachable and their research (and experts)
recovery will not be possible. The National Archives also said that, on the basis of legal
the case, which resulted in the initiation of proceedings to issue of unconstitutionality
the contested provisions, joined a preliminary comparative archives
analysis of the activities related to making archival materials
from archival funds. For this purpose, it was in the national archives and in the State
the regional archives in Prague, described the internal procedure for the archive
material for researchers from these funds and the variant of this procedure in the
the case of annulment of the contested provisions. In this variant, the national archives
He worked with the possibility of any anonymisation of personal data which, while of
Archives Act provided, however it can be accepted as
possible solutions, taking into account any request to soften the hardness of the
the law, which would otherwise be assumed failure to submit and disable
the archived material absolutely. After consulting with historians and experts on
contemporary history of who in these funds often study, it was found that
maintain the accessibility of archival materials would require even at an enormous
the deployment so far of an unknown number of new labour a significant
extension of the period of preparation of the archived material to the research room. National
the archive also points out the increased costs associated with the anonymization
data, in particular the cost of copying records. Last but not least, in the
larger anonymizačních work from the archive should be
the question of the imposition of anonymised copies. The national archives, after
points out the pitfalls, which operates the law no 499/2004 Coll. of ethical and
operational point of view today, points out that the factual conclusion
a substantial part of the funds of the Czech national heritage as
inevitable consequences would build against the concept of the open
the company, which is ready to deal responsibly with his
of the past and with the help of this reflection critically evaluate their own presence.
In conclusion, the national archives, notes that for the years of research in
modern collections in the Czech Republic there was the case when the
an individual from applying in this context, the right to the protection of
the personality that would succeed with a claim to payment of the non-material damage. It
It is also an expression of a certain "respectability" of researchers, their internal clock and
ethics process obtained information. Agree with this text
and to add the signatures of the directors of the State regional archives in Prague,
The State regional archives in Pilsen, the State regional archive in
Litoměřice, State regional archives in zámrsk, State
regional archives in Třeboň, the Moravian archives in Brno,
The Moravian archives in Opava, Prague City Archives, the archives of the city
The archive of the city of Plzeň and Ústí nad Labem.
17. The Constitutional Court has forwarded its common observations spontaneously also
The security services archive, Institute for the study of totalitarian regimes,
The Institute for contemporary history and the historical Institute of the Academy of Sciences of the Czech
Republic of China (hereinafter referred to as "the Constitution"). In its observations indicate that
submitting public records researchers in case of annulment of the contested
provision was very complicated. First, all the papers
the advance had to be pročteny and vyselektovány would have to be the person to which the
only the personal information and the persons to which it provides sensitive personal
details. Subsequently, the registry would have to be subpoenaed to inquire about the findings,
whether-and if so, where the person lives. Living person with personal
the data would then be contacted probably by official
boards (if possible) and expected would be whether the statutory time limit
opposes, for persons with sensitive personal information would be
necessary to wait for the express written agreement. Because the vast majority of
the records containing the information to dozens of (and in the case of e.g. large
object volumes up hundreds of) people, it cannot be assumed that the
disclosure of your information to all. For this reason, it would
be undertaken, i.e. anonymization. or acquisition of analog capture
copies of papers and black out the data, the disclosure was
be spoken opposition or not expressed written consent. Expert
archivists who for years studied, to be able to exercise its
the profession would have been demoted to the technical staff of the digestive site
the processing of funds, their business hours copying public records and their
začerňováním. The significant administrative burden that such a
procedure and which has brought not only the security forces, but the Archive
or other Archives staff, absolutely addition
a number of problematic points, the incompleteness of the registers, the load of the Department
the administrative activities of the Ministry of the Interior, the identification and selection of individuals
with foreign nationalities. It is also in the draft was not disputed by the authorization
the conclusion that anonymization of personal records and sensitive personal data
will not lose value on the practice of the Communist regime. Such
"the dehumanization of history" would result from the institutes to gross distortion and
lack of understanding of the context, since knowledge of the personal ties allows you to
knowledge of stories dedicated to the resistance and resistance. For the duration of the
the current law, according to which all documents of the former
State security and other agents of the accessible all candidates almost without
any limitations, were thousands of researchers all over the country
made available to the hundreds of thousands of records which could free photograph
digital cameras, respectively. you take away their digitised copies.
In this situation, it is impossible for the archives to determine which papers (and
so that personal and sensitive personal data) have been made available and therefore no longer
the fall of their protection shall cease to make sense. At the same time it does highlight that-up to
to exceptional cases-avoid more serious abuse of such data
or institutions of such abuse, there is nothing known. In this context, it is
argued that the contested provision does not allow researchers to disseminate and publish
anything that you read in our submitted for inspection. In
research form, which shall be completed and signed by each researcher is
expressly stated that, in accordance with the applicable legislation fully
aware of their personal responsibility for the handling of information received
the consultation of archival documents. Finally, the Constitution state that the cancellation
the contested provisions would be a backward step, which would be heavily hit as
our archives, so all the modern Czech historiography, which could
ultimately, damaged also in international competition, where the Czech
historians in the world at some of the current topics were not able to respond
just because the sources of research will be concluded, and could rise to
some fundamental monographs and synthesis relating for example. to the extraordinary
people's courts or could not be completed grant projects from the area of
modern history.
18. Additional observations, which the Constitutional Court only took note, spontaneously
provide Post Bellum, o. p. s., established the Council 174/7, Prague 1, according
their words of non-governmental and non-profit organization, which documents the memories
witnesses of important historical phenomena 20. of the century. Post Bellum,.
p. s., argues that the Supreme Court was not to submit a proposal for the repeal of § 37
paragraph. 11 (as was originally identified by the applicant, the contested provision)
the law on Archives actively open, especially because of the judgment of the
The municipal court in Prague, no. 66 (C) 109/2011-187 and subsequent judgment
The High Court in Prague No. 1 what 28/2012-202 follows that the injury that
It was alleged in the proceedings and given to the documentary evidence, not injury in
the causal link is making available Archive volume security
folders, but rather with the fact that a person who, from the archives of the security services
received sensitive information about the dovolateli, they were treated with them on, without having to
It was from the dovolatele consent. The result of the proceedings before the Constitutional Court
would the proceedings before general courts had no effect. On the merits
Post Bellum, o. p. s., points out that the contested provision interferes with the
privacy rights in a manner with the requirements of the Convention as well as Conformal
Of the Charter, i.e.. in a legitimate public interest, on the basis of the law, and in accordance
with the requirement of reasonableness, and it mj. taking into account the fact that
protection of the right to privacy is sufficiently secured in the Czech legislation
other effective legal instruments (protection of personality, etc.). Post
Bellum, o. p. s., in its submission underwent collision referred to extensively
rights of the proportionality test, and came to the conclusion that the contested provisions of the
meets all the criteria, therefore, the criterion of proportionality test
suitability, desirability and the criterion of proportionality in a strict sense. Post
Bellum, o. p. s., also States that the annulment of the contested provisions would in
practice and partly overcame make it impossible to research activities, thereby
to a halt not only the scientific work of professional historians, but also
they gathered the activities of other researchers from the ranks of publicists and a wider
the professional public, focusing on modern Czech and Czechoslovak
history, not only for the period of Nazi occupation in the years 1948-1989, but also from
the years 1939-1945, that is, from the time of persecution of the population of the Czech lands
the Nazi regime including the events of the Holocaust. Post Bellum, o. p. s.,
In conclusion, it points out that the repeal of the statutory provisions
high probability of a halt of the proper functioning of archival institutions,
Since the obligations imposed upon them, which would not be capable of organizational,
personnel or economically. In conclusion, the Post Bellum, o. p. s.,
presents statistical and factual information, and concluded that the abolition of
the contested provisions would mean closing the options in our
incurred for the last hundred years for the current generation of inquiries efficiently.
III.
The conditions of the locus standi of the applicant
19. The Constitutional Court first examined whether the formal conditions are met
the factual assessment of the draft, and he as well as the question of whether the appellant
in the present case is actively open to submit this proposal.
20. According to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")
If the Court concluded that the law, which is to be used in solving the case,
is in conflict with the constitutional order, refer the matter to the Constitutional Court. This is
the so-called. specific control of constitutionality of the law, where the referring court
must certify that it is given by the relationship of the contested provisions of the law with
his decision-making activities within the meaning of § 64 para. 3 of the law on the constitutional
the Court, IE. He is forced to this provision on the matter, which
the decision is called, immediately use; otherwise, such
procedural proposal actively open and his proposal will be rejected as
apparently brought on by an unauthorized person. This conclusion follows also from the constant
the case-law of the Constitutional Court, for example, from SP. zn. PL. ÚS 34/10 from the
24 September. 7.2012 (N 130/66 SbNU 19; 285/2012), according to which it applies,
that "the Court may request a decision by this procedure just in case
These provisions of the Act, which has inevitably use it in front of him
the present case ". It is not enough therefore only hypothetical use or just
the wider context, because such a concept would have led the Court to
call into question the provisions of the law and beyond the purpose pursued by that
constitutional, as the Institute usually occurs to a chaining
the applied rules and is always applied de facto legislation as
all [see resolution SP. zn. PL. ÚS 38/2000 of 23 October 2000. 10.2000
(U 39/20 SbNU 353)]. To protect the constitutionality of the way of ensuring internal
control of the legal system, the Constitutional Court held that
the purpose of the ústavněprocesního Institute of the specific review of the standards is to
to avoid a situation in which "a rejection of the proposal, the Constitutional Court
embezzled their role in the constitutional dialogue and urged the General Court would lead
proceedings of the unconstitutionality of this Court ".
21. The Constitutional Court notes that, in the case under examination are contested
the provisions on the specific matter of it, but only in part. The Supreme Court of
with his proposal, after it said other submissions from 20. 6.2014 and
23.6. 2015, seeks the annulment of the contested provisions, which in the case
Prosecutor Vladimir Hartman municipal court in Prague has applied the judgment of
day 10. January 2012 No. 66 C 109/2011-187, which dismissed the action to
defendant (s) Czech Republic-archive of the security forces paid
the claimant compensation in cash of EUR 300 000 in respect of
illegal damage to his moral rights, which should be
disclosure to a third party, Zdeňce Yeast, worker of the Ostrava
a branch of the Czech television, sensitive personal data relating to
ZV volume 442-MV, led by the former State security to the defendant, and
by providing this information to others. Court of first instance
the Court held that in proceedings, although it has been shown that the defendant has made available
to a third person without the consent of the applicant in question archiválii (volume-
the investigation file of the activities of the former State security), which contained
sensitive personal information about the applicant's conviction, including data on criminal
proceedings, the hearing of the defendant was acting to authorized, since the
special protection of sensitive personal data pursuant to § 37 para. 3 the
the basis of the exceptions to paragraph 6 (now article 11) of the same provision of the law on
Archives archival documents from the activities not covered by the security forces.
With these conclusions, aligned to the High Court in Prague that the judgment of the Court
first instance by judgment of 5 November 2002. June 2012 No. 1 what 28/2012-202
confirmed. For the assessment of locus standi of the applicant is
irrelevant, to the detriment of hardened and rendered the plaintiff could occur only in the
due to further handling sensitive personal data of the applicant by a third
person, as this would, without prior disclosure of such data
the defendant according to the contested provisions of the Act did not have the option with the following
the data further.
22. as to intervention in the personality rights should be dovolatele
unauthorized disclosure of sensitive personal data relating
only for all incurred before the 1. January 1990 from the activity of the former
The State security as the security forces according to law No. 181/2007
Coll. on the Institute for the study of totalitarian regimes and the archive
components and amending certain acts, and not from the work of other, in
the contested provisions referred to part of the State and political
organisation of society, it should be in the extent to which the applicant is
required vote of unconstitutionality accessing archival materials resulting from
of the activities of these other components of the totalitarian State in the mode
the contested provisions, a proposal rejected as brought by a person so obviously
ineligible. Only to the extent arising out of accessing archival materials
the activities of the security forces is to determine whether the contested
the provision is in accordance with the constitutional order, in the immediate
the context of the assessment of the claim of the plaintiff to the satisfaction of such extraordinary appeal
the Court in the main proceedings, that only on the basis of this finding may
to assess whether the decision was the Court of appeal about the archive
the security forces as the defendant rightly. Only in this range, then
also, the outcome of a review of the contested provisions of the Constitutional Court will have
direct impact on the outcome of the proceedings on the merits, which is the condition for
the granting of locus standi to the applicant.
IV.
The diction of the contested provisions of the legislation
23. The Text of article 37 of law no 499/2004 Coll. on Archives and
archival service and amending certain acts, in the version in force at the material
time, IE. at the time of the making available of the volume:
(1) for inspection in the archives are accessible only to the records of the earlier
thirty years of age, unless otherwise stipulated.
(2) public records relating to living individuals whose
contents are sensitive personal data, 13) can be seen only with the prior
the consent of that person. The archive shall inform the person concerned of the request for
inspection and request for your consent.
(3) for the purpose of the notification of the person concerned may ask the competent archives
an administrative office in the field of archival science and performance records of findings
the necessary data from the information system of the population register.
(4) the administrative authorities in the field of archival science and performance records can
on the basis of the requests referred to in paragraph 3 to obtain archive and use of
obyvatel14 registration information system) data on the person concerned, and
and) the name or names, first and last name,
(b)) date of birth, place of residence or the type and address space
the stay, in the case of foreigners,
(c)) of the date, place and County of death, where appropriate, the date of death and the State on whose
the death has occurred, in the case of the death of a citizen outside the territory of the Czech Republic,
d) day, who was in the Court decision on the Declaration of death listed
as the day of death.
The information collected in this way will provide the administrative authorities in the field of archival science and
performance records archive that asked for them.
(...)
(6) the provisions of paragraphs 1 to 4 shall not apply to papers arising before the
1 January 1990, of the activities of the security forces, according to the law on the Institute
for the study of totalitarian regimes and the archives of the security services, as well as
as well as social organizations and political parties are members of the National
the queue, the papers that were already before the application for inspection
to them publicly accessible, or papers that were as
documents accessible to the public prior to the Declaration for the papers. 15)
(...)
---------------------
13) § 4 (b). b) of Act No. 101/2000 Coll., as amended.
14) Act No. 133/2000 Coll., on registration of the population and social security numbers, in
as amended.
15) for example, Act No. 140/1996 Coll., on making volumes incurred
the activities of the former State security, as amended, § 95
paragraph. 2 and § 101 paragraph. 3 of Act No. 128/2000 Coll., on municipalities (municipal
establishment), as amended, section 43 and § 58 para. 3 of Act No.
129/2000 Coll., on regions (regional establishment), as amended
the provisions of § 65, § 70 para. 3, § 87 para. 2 and § 94 paragraph. 1 of law No.
131/2000 Coll., on the capital city of Prague, as subsequently amended.
In the.
The constitutional conformity of the legislative process
24. According to the provisions of § 68 para. 2 Act No. 182/1993 Coll., on the constitutional
the Tribunal, as amended by Act No. 48/2002 Coll., Constitutional Court-in addition to the assessment of the
compliance of the contested provisions with constitutional order-determine whether the
the law is adopted and published within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner.
25. given that the applicant did not defect to the legislative
the process exceeded the Constitution laid down the competence or the legislature, not with
regard to the principles of procedural economy to examine this question more closely and
It is sufficient, in addition to taking into account the observations submitted by the
the Chamber of Deputies and the Senate of the Parliament of the United Kingdom, formal verification
during the legislative process of publicly available information sources
on http://www.psp.cz.
26. the law on archives was approved by the Chamber of deputies at its 33.
meeting on 30 November. June 2004 a majority of 109 members of Parliament, was signed by the
respective constitutional officials, and was published on 23 December 2005. September 2004 in
The collection of laws on the amount of 173. The Constitutional Court therefore notes that the law has been
adopted and published within the limits of the Constitution set out competences and constitutionally
in the prescribed manner.
27. After this discovery went up the Constitutional Court to assess the content of the
the contested provisions with regard to its compliance with the constitutional order of the Czech
the Republic [article 87, paragraph 1 (a)) of the Constitution],
Vi.
The abandonment of an oral hearing
28. The Constitutional Court, in accordance with the provisions of section 44 of the Act on the Constitutional Court
consider that, in case there is an oral hearing should be held. It would not be
could have contributed to the further clarification or deeper things than how it
of reference material and from the written acts of the parties to the proceedings.
Nenařízení oral proceedings justifies the fact that the Constitutional Court
did not consider it necessary to carry out the taking of evidence with regard to the origin of the factors
relevant to its decision from public sources.
VII.
Access to archival information on the activities of the security forces
former non-democratic regimes in selected countries
29. the Constitutional Court also enlist comparative documents concerning the protection of
personal data when making available archival information resulting from
the activities of the security forces of the former totalitarian regimes in Europe.
Access models on the one hand, they reflect the specifics of what was then the Suppression methods
human rights and freedoms that are used in different countries, on the one hand
differences in the intensity of the current social demand for coping with the
thing of the past. Therefore, it is difficult to generalize the conditions under which you may access the
These archival information in a given social context work
nekonfliktně, IE. while maintaining a sustainable balance between the level of
the admissibility of the intervention to the data protection of the individuals concerned and the degree of filling
the fundamental right of every Member of society to information and the freedom of
scientific inquiry, which in total represent the public interest in knowledge
own past as a prerequisite of coping with it. Very open
access mode applies generally in relation to persons who, in the previous
the schemes were collaborators of the security forces or who have held
public function, as well as in the procurement of information about yourself.
Access to archive materials of third parties is generally subject to
date of expiry of the withdrawal period, which can be avoided by the grant of the consent of the concerned
the person or znečitelněním (anonymizací) of personal data.
by listing the data that cannot be subsequently after disclosure
without further published, with the mode of handling sensitive personal
the data tends to be more stringent. Administrative authority (head of archives) is the assessment of the
the request for consultation shall be obliged to weigh the conflicting rights and interests. The applicant
as a rule, they must state the reason for the inspection and sign the Declaration that will be
respect the limits, among others. dispose of the information in the
consistent with the protection of personal data. The differences between laws
access to archival information on the activities of the security forces
former non-democratic regimes must be put into the context of the
differences in personnel and material-technical equipment archives in
each of the selected countries that are capable of varying degrees
to provide this information to those interested in such services, that make the fulfillment of
the purpose of the access to all real.
30. According to the German law on free access to information is
provision of personal data shall only be possible if the interest of the applicant for information
outweighs the interest protected by third parties, for sensitive data (e.g. on
racial and ethnic origin, philosophical and religious beliefs)
requires its explicit consent. The law on Archives admits truncation
withdrawal periods (30 years from the death of a person). for scientific research or for
private use without disclosure, confirmed the signing of
the formal commitment to ensure protection of personal data. Under the law on
materials of the State security service of the former GDR, that is lex
specialis to the abovementioned, the authority of the Federal Envoy for materials
The Stasi archive information in advance graded, compiles and passes them to the
in the single mode, but differentiated with respect to individual
categories of users and the purposes of their use required, thereby eliminating
risks from widespread access. Disclosure of personal information
for the purposes of political or historical settlement with the past is
subject to the agreement of the persons concerned ("the victim" of persecution), respectively.
of third parties, not the "offenders" (Stasi collaborators), or
anonymizací these data, but does not preclude liability
processor (scientific workplace, author, publication, etc.) according to the
General provisions of civil, administrative or criminal law. This
but the restriction does not apply if this is a clarifying historical tasks of known
celebrities, political leaders or public officials. A considerable
attention is given to the system in such a centralized individual
the assessment of individual cases and the effective protection of individuals against the resources
unauthorized handling of archival information. Corrective exercise
These rules is the principle of the inadmissibility of the use of personal data to the debit of
concerned or to third parties, as well as the Federal Constitutional Court sentencing
prohibition on the provision of information obtained the former Stasi for breaches of privacy
or photographic media resources (case Helmut Kohl). This Court in the case
"The list of unofficial Stasi collaborators" also recognized the particular importance
the publication of this list for the public debate about the nature of the previous regime,
that still took place, and although considered an obligation imposed
the ordinary court of the complainants (the "Neues Forum") cross out the name of the
Prosecutor (in the main proceedings), such as the revaluation of the severity of the interference with the right
the Prosecutor for the protection of the personality and the taking into account of the law as insufficient
the complainant, on freedom of expression, because the list did not include any intimate
or similar information, but only that it was possible to obtain
other legal means to annul this obligation. With the transfer of this
special modifications to the General archive of the right mode is calculated in
the year 2020, when they also expire 30letá the withdrawal period normally archives
applied and there will be no objective reason to further
special treatment (see Becker, s.; Oldenhage, K. Bundesarchivgesetz.
Handkommentar. 1. Aufl. Baden-Baden: Nomos, 2006, p. 73).
31. The Polish law on the nation's memory Institute allows everyone at the request
access to documents of the institutions of the former State security which it
concerned, including the provision of data relating to persons, which these authorities
brought information. Broad access to data of persons holding public
functions, as well as other people, if they were not employees of the bodies of State
security, however, does not apply to sensitive information (on ethnic and racial
of origin, religious beliefs, etc.). The case-law of the Constitutional Court in the
case "access to archives of the nation's memory Institute" (SP. zn. To 2/07, P 37/07)
concerning the application of lustration law is based on the principle of
Balancing (practical concordance), according to which the specification
the assumptions governing the access to the archives, must be clear and
an effective way to protect both values-freedom of information and expression and
privacy policy-to an extent that ensures an optimal balance
between them without undue injury to any of them; granting permission to
an area-based approach, peculiar or neověřitelném observations
its purpose is not permitted. The constitutional nekonformitu of procedural provisions
This law, which disproportionately restrict access to information about their own
person, and by mj. even exhausted the right of the person concerned in accordance with article 3(1). 51 para.
4 of the Constitution, to request correction of false or incomplete information or
the information obtained in violation of the law (e.g., blackmail, using
compromising materials), clearly distinguish it from the Court of the legality of
provisions limiting in a way necessary in a democratic legal State
access for the purposes of research and journalistic activities on the basis of strict
expedience.
32. Austria is a model case of a country where archival information
containing personal data are virtually the only concern for the needs of
research, on which indirectly also illustrates the absence of current judicial
the case-law. Whereas that period has elapsed since the Nazi regime
more years than the statutory 50letá the withdrawal period, no special adjustment
access to information resulting from the activities of the former repressive
components of the occupation regime no longer needed. Federal Act on archival science
modifies the exception from the General obligations of the archives at the request of personal information
to provide for the case of the superiority of the legitimate interest of third parties or of interest
the public. Stricter rules apply to their further dissemination, for example. for
commercial, research or statistical purposes, but also for private and family
processing, with special arrangements for sensitive data (subject to statutory
confidentiality, authentication, reliability of processors
information). The archives have significant scope for discretion in assessing the
the relevance and priority of the interests involved.
33. To assess the constitutionality of the contested provisions may, however, be
also editing evidence from disclosure of the files of the former
the security forces of countries that in the past also have made the experience
with totalitarian regimes. Overview of identical or different features of these arrangements
It outlines the context in which it is easier to catch a glimpse of the real dimension of the questions
the solution is to bring the constitutional review of the contested provisions. For
the main features of the archive law of other countries in relation to documents
the security forces of the former undemocratic regime is possible
consider the following:
34. In the Slovak Republic in accordance with the opinion of the authority on the protection of personal
the provisions of the Act on the data memory of the nation take precedence over General
by modifying the law on the protection of personal data. on the issue of sensitive data
a third person, and it is appropriate that national memory Institute said
the user of the data made available to the person concerned, stating that these data may
handle only for your own use exclusively in a personal or home
activity; According to the explanation of the nation's memory Institute, in 2004, sensitive
data to a third person, although they must be before you can access znečitelněny to
to avoid their abuse and creating new injustices, the Institute may, however,
some of the information from this category keep in neanonymizované form,
If it's due to fulfill the purpose of the law as adequate; the constitutionality of the
the law has not yet been questioned nor its application from the point of view of the protection of
personal data of general courts, case-law applies only to the truth
records, not the protection of fundamental rights of the individual immediately. In
Slovenia is ensured by the availability of these documents without any
restrictions, with the exception of sensitive information of third parties; There is no
the difference between the direct right of access and the right obtained documents
disclose to the public, with restrictions on research and official purposes. Hungarian Constitutional
the Court (SP. zn. 60/1994) set aside the absolute confidentiality of the data on the persons who
at the time were of the undemocratic regime of public functions or operate
for the secret service, as this can be considered the subject of public
interest; the relevant amendment to the Act, which was established by the historical archives
The Hungarian State security, however, was the proposal of the President of the Republic
declared unconstitutional (SP. zn. 37/2005). Also Similarly, Spain
as Austria ranks-due to the time starting from the fall of Frank's
mode-one of the countries with the ' standard ' provisions on the archives; If it can be with
regard to the circumstances of the case, mutatis mutandis, to exclude the possibility of
the injury to privacy or security risk for the person concerned, may be those
who can demonstrate a direct legitimate interest, but always in accordance with the rules
protection of personal data, to allow access to the data of third parties
used to identify them. Ukrainian law (2015) on access to
Archives of the repressive totalitarian Communist regime from folders years
1917-1991 is removed from the scope of the law on the protection of personal data.
Broadly defines the basic principles of State policy in the field of
providing archival information, including the making of copies,
points out to a separate responsibility of the processor for the protection of
personal data of third parties when dealing with them, defining actors
documented stories. Access to information about colleagues
repressive folders, including those of them who were originally "victims"
persecution, cannot be with reference to the protection of personal data.
"The victim" of persecution may, within 1 year after the entry into force of this
the law defining the range of information about yourself, which is supposed to be free access (on the
for a maximum of 25 years), limited; for family members "victim" applies
the possibility of such a restriction only in regard to sensitive information.
35. The scoreboard shows that the disclosure of the files of the security
components of the former non-democratic regimes, containing personal information, it is
as a rule, subject to strict conditions, where legislation
does not separate the various stages of processing the records in terms of fulfillment of
the purpose of the reference given, IE. only for the needs of
individual applicants for public inspection from the publication or other forms of
dissemination of the information to the public. High level of protection
personal data contained in the volumes of the former Stasi in Germany reflects the
the fact that these volumes, intended first and foremost for lustration purposes,
have not been assessed in the archive mode right. Their use for the purposes of
other (research, etc.) therefore requires before making a legitimate
applicants to the various forms of centralized processing, which places significant
the demands on the personnel and material-technical equipment of this agenda. In
countries where the State archives service in this range do not and
retain some responsibility for the further processing of personal data on the
users accessing the records of that type usually
requires the prior consent of the subjects of personal data in such
our included. Archive as the administrative authority has variously defined
scope in weighing the legitimate interest of between researchers and relevant
holders of personal data.
36. In the light of this knowledge, the model is all about access
the activities of the former security forces selected Czech legislator
the most explicit. However, such a comparison is somewhat misleading, since it is
trying to compare the incomparable, and clearly does not represent peace
the adequacy of the model in relation to the nature and duration of application of the
tools of persecution of opponents of totalitarian regimes. This experience is
In short, the fully non-blittable and this fact must be
methods and means of cognition.
VIII.
The definition of the legal framework for access to documents of the former State
safety
37. Although the appellant requests the constitutional review only the contested
provisions, and the task of the Constitutional Court is therefore not assess the constitutionality of
the procedure, which has led to the use of the Archives Act as
such, however, the Constitutional Court assessed and feedback when I say
the claimant, that can lead to disproportion between the higher data protection
third parties acting on the documents which are made available in
the scheme of the Act No. 140/1996 Coll., according to which § 10a must Archive
security services the following information before you can access a copy of
just replace, as opposed to personal information when accessing archival materials in the
mode of the contested provisions of the law on Archives protection in advance of any
are not subject to. The relationship between the two in terms of the applicability of the laws is
appropriate to clarify before the constitutional court proceeding to own
a review of the contested provisions, since the stated opinion may tempt you to
doubts as to whether the relevant period ever existed room for
the application of the contested provisions. If it is then this doubt
confirmed, he would have the Constitutional Court of the Supreme Court as the proposal made by
someone apparently unauthorized pursuant to § 43 para. 1 (b). (c)) Law No.
182/1993 Coll., on the Constitutional Court, as amended by Act No. 77/1998 Coll.,
refuse.
38. Volumes resulting from the activities of the State security, understood as part of the
The single archive (National Heritage)
States should be according to the original considerations the Government as promoter
the draft made available based on the more extensive amendment of the former Act.
97/1974 Coll. on archives. Although it should be only about the adjustment to
transitional period, serving the needs of the settlement with the past in the sense of
the laws on judicial and extra-judicial rehabilitation, lustracích and
restitution of private and average assets (should cover about 60 thousand
people, with another 120-150 thousands of people could be told only the contents of the
an accounting record as personal documentation to them, led by the
not been preserved), would represent a large amount of documents of the exclusion
General archive mode and its subordinates to a special mode of the serious
and neorganický intervention into the concept of an archive group rights. New and more precisely by
had to be defined by the rights and obligations of the administrator of the records, so
applicants for the disclosure (for example, as regards the protection of security interests
the State and the right to privacy of the persons concerned, including the requirement
partial anonymisation of personal data while leaving only their names and
last name and cover names of persons registered as collaborators of the State
safety, removal of thirty years of the withdrawal period, etc.).
39. It was therefore decided not to make the disclosure of the volumes on the way
the amendment to the then applicable law about archives and to propose a separate
the law is valid only for a limited period of operation of the information system
volumes, i.e.. until 31 December 2006. 12.2000. Then this information system
cancelled and subsequently settled in the meaning of the regulations (see the archive
the explanatory memorandum to the draft law No. 140/1996 Coll., on disclosure volumes
arising from the activities of the former State security). On time-limited nature of the
the new legislation also testified the proposal that the request for disclosure of the volume was
may be made only within six months from the effective date of its effectiveness.
40. the purpose of the original text of Act No. 140/1996 was therefore to make
upon request, persons-citizens of the United States being chased
the components of the repressive totalitarian state-documents about their
persecution, i.e.. to provide communication to applicants, whether it is about them in
registered personal information system volume or a volume with personal
data, respectively. provide a copy of such a Union (section 1), and so have the burden
material for the purposes of proceedings under the above acts. Information
obtained from the volumes have become in the course of the taking of evidence in the context of these proceedings,
part of the judicial records, and were so published. In doing so, it was necessary to
protect data about third parties acting as "another person" in the
object volumes of applicants, respectively, as "persons outside the service
and public activity of the Member of the "security forces in its personnel
the file, znečitelněním, right in the heart of the bud-before
making a volume to the applicant (section 6). The scope of this znečitelnění,
saved to the Interior Ministry, as an administrator, was based on the documentation if the
applicable law, no. 256/1992 Coll., on the protection of personal data in the
information systems, and was led, in particular, fears of a rise in the legal
disputes, if the courts in the context of the review of administrative decisions
associated with rehabilitation and other procedures this documentation
was something credible of the Charter, it was not possible, the veracity of the
objective reasons to validate. For the purposes laid down, however, even in such modified
the form of the basic function to perform.
41. in order to make progress in the process of dealing with the totalitarian past was
the current limited access to the agenda of the former State security volume
legislature found-without, however, took place before a wide discussion
across society-such as the lack of fulfillment of his original intent.
This deficiency has been removed by the adoption of Act No. 109/2002 Coll.
the amended Act No. 140/1996 Coll., on making volumes resulting from the activities of the
the former State security, and some other laws, whose purpose was to (section
1) "the widest possible disclosure of the practice of the Communist regime to curb
political rights and freedoms "and that in addition to pressure on breaking the stereotype
extensive access to classified information expanded the right to
access to volumes, limited only to that part of the volume, which
the applicant directly concerned, to anyone (individuals 18 years or older,
regardless of nationality, section 5), including data on
vykonavatelích persecution contained in the staffing files
Members, and in the volumes of people that registered as collaborators of the State
safety.
42. the condition of anonymisation of personal data of third parties has been maintained in
the same range; According to the methodology of znečitelňování documents Archive
the security forces are subject to znečitelnění (and even if you already
deceased persons) in the protection of private and family life, only serious
derogation from the usual social norms of behavior. It also applies to
documents proving the originating status of the participant of the resistance, or in
Law No. 262/2007 Coll., on taking part in the resistance and resistance against communism,
which are also exposed in the management of the publication. This change
was led by convincing the legislature that "social interest in disclosure
and disclosure of preserved materials documenting the activity of specific
people create and sustain a criminal, illegitimate and
zavrženíhodného Communist regime is greater than data protection (quasi
personal data) about the business activities of the members of the State security and
... of secret collaborators "(see the explanatory memorandum to the Act No 107/2002
Coll.), the natural persons that are registered with personal volume received
the opportunity to connect to the content of the volume or the fact of registration in
information system of its own representation, which has become an integral part of the
document zpřístupňovaného the next potential candidates at the same time records
about registering.
43. As part of this amendment was the partial amendment of the Act No. 97/1974 Coll.
about archives, allowing access to the records of the Communist Party
Czechoslovakia (not even other organizations based on its
ideology) under the age of 30 years of age without the consent of the head of the archive and
other terms and conditions.
44. Before the adoption of the new law on Archives and the establishment of the Archives
the security forces Act No. 181/2007 Coll., i.e., eleven years after the
the effectiveness of Act No. 140/1996 Coll., the original idea was to populate the
the legislature on the integration of the information system volumes to the General mode
an archive of the law. Archive of the security forces as well as in the relevant period,
He has worked and is still working in the disclosure of the volumes
the former security services, which have been declared papers,
i.e.. selected and taken into evidence, in duplicate, in parallel to the existing
[section 13, paragraph 1 (a)) of Act No. 181/2007 Coll.]: on the one hand by
Act No. 140/1996 Coll., on the one hand, according to the law on archives. Different
access to each of these modes to protect the personal information with which it is
(as a rule, in the first case) or not (in the case of direct
the second publication of the information), then leads to differences in the
the provision of the privacy policy of third parties in their
(no) znečitelněním this the archive.
45. This is not yet about the competing procedures, as
According to the transitional provision of § 82 para. 4 the law on archives, on the
the determinant of the importance of the mutual application of both rozhraničení
regulations cannot be due to the action was the outline of regulatory developments
no doubt, and that falls on all archives in the Czech Republic, the following applies:
"Papers under thirty years of age, which were made available before the date of
entry into force of this Act under special legislation,
are subject to disclosure under the laws in force prior to the
the effective date of this Act. " In a footnote attached to the
This provision is under the special law indicates for example. Act No.
140/1996 Coll.
46. the Constitutional Court took into account the judgment of the municipal court in Prague
of 27 June. 11.2013, SP. zn. 3A 86/2011-89 in case Czech Republic-
Archive of the security forces against the Office for the protection of personal data, in
which is ratified by the legal opinion that the law No. 140/1996 Coll., imposing
anonymisation of personal data of the persons concerned, as a lex specialis
the application takes precedence over the law on archives, which as lex
the basis that does not store the anonymization. The Court justified this conclusion by the fact that "only
such an interpretation is in a position to guarantee the protection of personal data to third
people "within the meaning of article 3(1). 10 of the Charter. The interpretation of two-dovozující
disclosure of the records of the different regimes of the fact whether the
the records in question has been made available before the effective date of the law on
Archives, the Court found as irrational and illogical, with the
transitional provision of § 82 para. 4 the law on Archives "pro futuro or
does not preclude the application of Act No. 140/1996 Coll. on the archival documents under 30 years old,
If you have not been made available ". Absurd considers the possibility that the applicant itself
determine in which records should be made available to the regime.
47. The Constitutional Court, however, does not agree with this legal opinion. If you should
be the mutual ratio of both regulations defined the principle of lex specialis (law
No. 140/1996.) derogat legi generali (law on archives),
section 82 paragraph would be missed. 4 of law then the said normative meaning and
passed with postulátem rational legislature. In doing so,
"disclosure" of personal information means the "introduction of the authorized
the applicant with copies of documents "(article 10, paragraph 2, of Act No. 140/1996),
button is clicked. their "referral for recovery" (cf. Maštalka, j. personal data
right, and we. Prague: c. h. Beck, 2008, p. 27). The records in this mode
time (1. 1.2005) made available on the basis of individual applications
According to the contested provisions are subject to exemption from the conditions of the previous
the consent of the person concerned, as well as archival documents containing information on the
vykonavatelích persecution that were published (made "publicly
accessible ") under section 7 of Act No. 140/1996. prior to application of
inspection of them. prior to the Declaration for the papers (contested
provisions in fine). The purpose of the law on Archives is different than the purpose of the law
No. 140/1996 Coll.; both operate side by side, and the relationship between them is not a generic
and the specific rules.
48. The solution chosen by the legislature was based on the assumption that the time
the space allotted to that date was sufficient for the purposes of
rehabilitation and other proceedings, in which the data of other people
obtained from the records of potentially exposed to immediate access
an indefinite number of official. other people, comparable with
impacts are publication. Therefore, it was necessary to copy such records
anonymize pursuant to section 10a of Act No. 140/1996 Coll., and if this control
not over yet, even after that date, it was appropriate to give them this status within the
Yet the ongoing leave until they do not lose the end of
protective thirty years period. Transitional provision of § 82 para. 4 of the law on
Therefore, the level of protection of archives respects the personal data provided by the
made available for the purposes of those proceedings, while access to the
the records for the purposes of another, for example. the research, which has not been
immediately carry the risk of disclosure, it was and is possible from the acquisition of
the effectiveness of the law on archives, i.e.. from the 1. 1.2005, mode only
the contested provisions, i.e.. without the consent of the person concerned or anonynizace,
and not according to the law No. 140/1996 Coll.
49. The normative purpose of the transitional provision § 82 para. 4 of the law on
archival Science pursues an aim to exclude the protection has been compromised
personal information already provided with regard to the risk of disclosure. Whether in the
the time when the security forces let the Archive to look into
the papers worker Ostrava branch of Czech television, i.e..
on 19 December. 3.2008, the personal data of the applicant within the past thirty years in it
contained are subject to anonymization, therefore depended on whether this
papers have been or has not yet been made available before the 1. 1.2005.
50. Also the differences in the transmission of requests for access to public records
containing the information of the volumes of the former security forces and
procedures for obtaining them pursuant to section 8 and 9 of law No. 140/1996 Coll., respectively.
section 34 et seq. the law on Archives show the differences between the two
modes. Information on the activities of the former security forces are next to
the records that make up the security services Archive funds volume
contained in our so called often. nesvazkových funds "terraced"
Archives (e.g. reporting for district Secretaries of the COMMUNIST PARTY, investigation files
Public Prosecutor's Office, judicial writings). Disclosure of personal data in the range mode
of which of the two regulations at the relevant time was and still is determined by the
a resolution of their applications by the time scope of application in accordance with section 82
paragraph. 4 the law on archives, which granted Archive security
components on the basis of a request for public inspection or the Court in the case of a review
the decision of the archive. Therefore, is not an option, consider the possibility of the applicant for
disclosure to choose his regime at its sole discretion.
51. the extent of disclosure of personal information is not given by the ratio specialties
Act No. 140/1996 Coll. to the law on archives as a banking law
-to-use, but is based on the essential equivalence of both schemes.
Duty area third parties personal data anonymisation pursuant to section 10a
Act No. 140/1996 Coll. would be denied a sense transitional provision of § 82
paragraph. 4 the law on Archives and came into conflict with the principle of
rational legislature.
52. on the basis of the annual reports archive folders can be
to the conclusion that in the years 2014-2015 was prepared to study a total of 10 728
the records, of which 190 (1.771%) with information for researchers, that it can be
make only in the regime of section 10a of Act No. 140/1996 Coll., and only 28
(0.261%) to be made available in this mode. Archive
the security forces, the official statistics on the number of records made available to the
in anonymised form because of their first disclosure before
entry into force of the law on archives.
IX.
A frame of reference of the constitutional review of the contested provisions
53. The Constitutional Court in its findings [e.g., SP. zn. IV. TC 154/97 of
on 9 April. 2. the 1998 (N 17/10 SbNU 113)] so that the conflict of the right to
information and its dissemination to the law on the protection of the personality and the private
life is a clash of fundamental rights on the same level, which
the solution is primarily for general courts, which must, taking into account
the circumstances of each case, consider whether the adoption of legal measures
It is necessary in a democratic society for the protection of the rights and freedoms
of others, or. for the protection of the constitutional order senior public
interest, not one law for no reason given precedence over the law of the
the second. Assessment of the compatibility of the contested provisions of the law on
archives with the constitutional order and the international contractual obligations
The United States in the field of human rights, on which the Supreme Court of the constitutional
the Court has requested, must be guided by the considerations that have in mind the achievement of
a fair balance between the fundamental rights in the application only
such a restriction of one or each of them, without which the conflict between
those rights was not solvable. Used restriction must conserve the nature and
the meaning of the basic law and must not be used for any other purpose,
than that for which it was established (article 4, paragraph 4, of the Charter). The imperative of finding
a fair balance, therefore, does not exclude reasoned in favor of
one of the protected rights, if the safeguards against misuse of restrictions
imposed to the detriment of other rights will work sufficiently
effectively.
54. While the criteria used for a specific review of the contested provisions
refer to the relevant time as defined by the applicant, the results of this
review relevant well into the future, since the contested provisions (§ 37
paragraph. 6 the law on archives, in the version in force until 30 June. 6.2009)-just
otherwise systematically included-is still part of the rule of law
(paragraph 11).
IX.)
Protection of personal data as part of the right to privacy
55. As recalled in the report, the Constitutional Court SP. zn. PL. ÚS 24/10 of 22 June.
3.2011 [the popular name of "Data retention" (N 52/60 SbNU 625; 94/2011
SB.)]. 1 (1). 1 of the Constitution is contained the normative principle
democratic rule of law. The basic attribute of the constitutional concept of
the rule of law and the condition of its functioning is respect for the rights and freedoms
an individual that is specifically expressed in that provision. The Constitution of the
the material concept of statehood, which characterizes the legal
the respect of the public authorities to free (autonomous) sphere of the individual, as defined
fundamental rights and freedoms, in which the public authorities may in principle does not intervene,
and only intervenes in cases that are justified by the need for solutions
collisions with other fundamental rights or constitutional aprobovaným and the law
clearly defined public interest, provided that it is
by law, predicted the intervention of proportional with respect to the objective to
be achieved, so this intervention with regard to the rate of reduction omezovaného
the fundamental right or freedom.
56. the central human rights entitled to the autonomy of the individual is
the requirement of respect for the independent and peculiar arrangement of life, which one of the
the primary function is the traditional protection-next to the spatial dimension
Privacy and undisturbed formation of social relationships-i guarantee in the form of rights
on the protection of personal data. In the Charter it is not right to respect for
private lives was in one article (such as an all-encompassing
in the case of article. 8 of the Convention). On the contrary, as the Constitutional Court in that
the award further stated, the protection of the private sphere of the individual is in the Charter of
spread to more provisions and supplemented by other aspects of the right to
Privacy declared at various points of the Charter. The core of this edit
It is the right of individuals to decide at its discretion whether or in
to what extent, how and under what conditions to be fact
and from his personal privacy information made available to other entities.
Partial attributes of this law, expressly guaranteed by article. 10, paragraph 1. 3
The Charter consists of the right to protection against unauthorized collection,
disclosure or other processing of the data about yourself [cf. findings
The Constitutional Court, SP. zn. IV. TC 23/05 of 17 May. 7.2007 (N 111/46 SbNU
41) or SP. zn. I. ÚS 705/06 from day 1. 12.2008 (N 207/51 SbNU 577)],
in conjunction with article. 13 of the Charter, which protects even in addition to postal secrecy
the secrets of other documents and records, whether held in private,
or sent by means of communication, with the exception of cases and
the ways provided for by law. The Charter referred to list of what needs to be
include in the privacy framework, cannot be considered as exhaustive and
final.
57. Also, in its findings, for example. SP. zn. I. ÚS 326/06 of 18 January.
12.2006 (N 229/43 SbNU 595) and SP. zn. II. the TC 522/99 of 1 September. 3.2000
(N 32/17 SbNU 229), the Constitutional Court stated that the right to the protection of
private life is an inalienable human right, and to limit the
This right can be in a democratic legal State, go to
protection of the fundamental rights of others or for the protection of the public interest, which
It is in the form of a principle or value contained in the constitutional order [cf. find
The Constitutional Court, SP. zn. IV. TC 412/04 of 7 December 2004. 12.2005 (N 224/39 SbNU
353)]. The standard aspect, in which the constitutional court assesses the mutual
the conflicts of fundamental rights and freedoms, respectively, their clash with another
constitutionally protected value, is the point of view of proportionality. In so doing,
care should be taken in order to achieve the highest possible degree of conformity between them,
Therefore, the optimal implementation of the two protected values.
58. Restrictive interventions, however, somewhat beyond the so-called sub-group.
personality rights, i.e.. the right to the preservation of human dignity, personal
honour, good reputation and name, which are "hard core" of privacy protection
in a broader sense (article 10, paragraph 1, of the Charter) and are assigned to the
nadpozitivním values as the very essence and the highest purpose of fundamental
[cf. find SP. zn. II. TC 2268/07 of 29 April. 2.2008 (N 45/48
SbNU 527)]. While the normative content of the right to personal honor and the good
reputation is changing depending on the cultural, spatial and time
context, human dignity is-especially in the constitutional doctrine of Germany
as the State, which in the past has gone through periods of totalitarian regimes-
the undisputed constitutional value, which cannot be legally or
the case-law nor to be counterbalanced by other limited rights and interests, working with her
in its case-law of the ECtHR, although the Convention does not explicitly refer her.
59. In finding SP. zn. IV. TC 23/05 of 17 May. 7.2007 (N 111/46 SbNU 41)
The Constitutional Court did not consider it a legitimate publication of difamační information
with regard to the dignity of other persons in public life, if
have not been proven to be given reasonable reasons to rely on the veracity of the
such information, or if its the originator even had reason to the truth
for information call into question, but it's not verified, let alone if it was her
motivated by a desire to damage the publication of the person concerned. The Constitutional Court is in
that finding also dealt with the fundamental right to personal honor and the good
a reputation that is being applied in multiple dimensions. This is a private
sphere and the realm of social, civil and professional constraints that can be
described as a social. In the first sphere, it is actually about the protection of privacy in the
in the strict sense, which is essentially just an autonomous decision
each what and to what extent having regard to their personal honour and good
the reputation of this sphere as information releases for the rest of the world. In other
words, in this segment typically complete informational self-determination.
60. the Sphere of social, civic and occupational ties reflects the
the social aspect of fundamental rights, and reflects the real situation in which the
the individual lives in the community and shall enter with the rest of its members to the
the different forms of interaction and communication, and through their behavior, ba
even through my very existence affects other members of the community. In
the second area is no longer an absolute privacy protection, in other words,
in this realm, you can, under certain conditions to enter without the consent of the
the body of rights, because it may be present facts that are
matter of public interest. Social sphere can be distorted
proportional intervention of public authorities in order to protect the interests of the
the community. The outer edge of the private sphere of the individual make up.
public sphere. This is the one segment of human life that can
to perceive or take note of each (Löffler/Rickler. Handbuch des
Presserechts. 4. vyd. 2000, 42. Chapter, marg No. 7). In this sphere,
There are practically no limitations for the dissemination of truthful facts.
61. Because the right to the preservation of human dignity, personal honour and good
rumors of a warranted article. 10, paragraph 1. 1 of the Charter is not omezitelné podústavními
laws, whose purpose would be the Charter established in the form of public goods
(as is the case for example in article 17, paragraph 4, on freedom of expression and the rights of
search for and disseminate information for the benefit of the legal measures required
in a democratic society for the protection of the rights and freedoms of others,
national security, public safety, public health and morality)
and the ability to claim this right is not expressly or subject to
the implementing rules (as for some economic, social and
cultural rights in title, fourth of the Charter), you need permissions to-
Recognizing the search is in the category of constitutional limitations, i.e. imanentních.
restrictions arising directly from the constitutional order itself. The legitimacy of the
such interventions of public authorities concerned the fundamental personality rights
the person may be justified because of the requirement of respect for the comparably
the intense need for the protection of personality rights of another, whose human
dignity, personal honour or reputation would suffer if he was
for example. denied access to certain information affecting its people.
62. so the two claims of the same nature and intensity, always
It is necessary to weigh the urgency and the level of competing values and interests with the
regard to the factual basis was created specifically so that both values were
as far as possible be retained. If you cannot comply with this request, it is
It should be about more convincingly justify a broader hit to one of the following values
in application of the principle of proportionality. These constitutional principles, which are
assessment of the measures implemented by the public authorities restricting the basic
the right of individuals, should be appropriately applied to
cases of collision between the rights of private parties in the horizontal plane.
63. In the interpretation of the right to privacy in its various dimensions, as
captures the Charter, it is necessary to bear in mind the purpose of the dynamically
developing rights as such, and should be considered on the right to
Privacy in its historic integrity. Therefore, even the right to the protection of personal
the data guaranteed by article. 10, paragraph 1. 3 of the Charter is to be interpreted on the side
one not only in connection with the provisions of article. 7 (physical integrity and
her privacy), article. 8 (personal freedom), art. 12 (inviolability
dwelling) and article. 10, paragraph 1. 1 (the preservation of human dignity, personal honour,
good reputation and name) and paragraph 2 (protection from unauthorized
intrusion into a private and family life), which by their nature and
importance of complete privacy of the individual and the individual
integrity as a necessary condition for the existence of an entirely decent man and
the citizen and the development of human life at all.
64. on the other hand, namely the interpretation of the right to protection of personal data,
If it is exposed to the requirement of balancing competing interests
influenced by the current social and political context: "[P] ředstavy about
what belongs to the private sphere and the public sphere, what is also very
dynamically changing ... the boundaries between private and public ... are continuously
Scrolls, in favour of the expansion of the public sphere ... each
the individual is seen as a person with social ties existing
inside of the civil community, and as a person conscious responsibility
against a whole ... everyone must accept all persons, a valid and generally
reasonably required by the (legal) terms, conditions and restrictions on its freedom
realized in the context of privacy, but always assuming that it remains
generally speaking, retained room for unique existence of the individual. "
(Wagnerová, E. Prince, V;; Langášek, T.; POSPÍŠIL, i. et al. The Charter
fundamental rights and freedoms. Comment. Prague: Wolters Kluwer, 2012, str.
278-279).
IX. (b))
The right of access to information
65. The proposal for the contested provisions of the law on Archives evokes the collision
between the fundamental right to protection of personal data as part of the privacy
persons interested in information about the activities of our security
the constituents of the former totalitarian regime, and the freedom of expression and the right to
information that includes the expression of their opinions, free
search for, receive and disseminate ideas and information referred to in article 14(2). 17
paragraph. 1 and 2 of the Charter, or article. 10, paragraph 1. 1 of the Convention, and are closely related to the
freedom of scientific research according to the article. 15 paragraph 1. 2 of the Charter. Difamační
the potential of the freedom of expression and the right to information can be restricted by statutory
measures necessary in a democratic society for the protection of the rights and
freedoms of others, national security, public safety, the protection of
public health and morality under article. Article 17(1). 4 of the Charter, or article. 10
paragraph. 2 of the Convention. The individual attributes of the freedom of expression and the right to
information are independent of each other: search and receiving information
creates real prerequisites for effective fulfillment of freedom of expression, it is not
However, tied to the expansion of the information obtained by their publication or
other sharing. Search and receiving information is, therefore, a separate
the basic law, whose performance cannot be a later publication of the subject.
It has meaning in itself and as a prerequisite of freedom of thought and conscience according to the
article. 15 paragraph 1. 1 of the Charter, or article. 9. 1 of the Convention. On any
restrictions from above the calculated reasons can therefore be subject to the claims of
different from the requirements for restrictions of the right to disseminate information, if the intervention of the
in the privacy of the person concerned will be for example. less intense and more easily
justifiable interference caused by their dissemination than.
66. Access to relevant information in a democratic society
the general prerequisite for the realization of the rights of each of the active participation in
public life, on the basis of equal participation within the meaning of article 87(1). 1 of the Charter,
as i was reminded of the Constitutional Court in finding SP. zn. PL. ÚS 2/10 of 30 October. 3.
2010 (N 68/56 SbNU 761; 123/2010 Coll.), with reference to the judgments of the ECtHR in the
matters Campos Damaso against Portugal and the Sunday Times v United
United Kingdom (cf. also Wagnerová, e. Prince, V;; Langášek, T.;
POSPÍŠIL, i. et al. The Charter of fundamental rights and freedoms. Comment. Prague:
Wolters Kluwer, 2012, p. 431). A pillar of democratic society is
the discussion about the exercise of public authority and its impact on individuals in the
the past, at present and in the future. The ideal of true democracy
It stands on a society where everyone on himself is regarded as a part of the
the whole. An essential element of such a company is a citizen, actively seeking
on understanding myself in the context of the knowledge of the fates of the other ("how I
preserve me? "). The elementary part of the belief of the inadmissibility
any recurrence of the totalitarian regime is to internalise the stories people
This mode in the past persecuted.
67. in the light of the preamble of the Charter to link bitter experience from the time when
human rights and fundamental freedoms were suppressed in our homeland, can be
put on the conditions of disclosure of stories documenting the practice
the security forces of the former totalitarian power just such legal restrictions,
which are proportional, i.e. do not go beyond what is
knowledge of their practice appropriate, necessary and in accordance with art. 4 (4).
2 of the Charter to the essence and meaning of the most right to information [cf.
for example. find SP. zn. II. the TC 522/99 of 1 September. 3.2000 (N 32/17 SbNU
229)]. If the realization of the right to information is a natural person to
disclosure of information other people solely for their personal use,
not applicable to this form of processing of personal data, when their
the publication does not come from the nature of things into account, Act No. 101/2000
SB. (section 3, paragraph 3). By contrast, the realization of the right to information and freedom
professional researcher of scientific research, whose final destination is
information obtained from the consultation of archival documents, in the form of
disclose to the public, puts on a privacy policy different requirements
as opposed to simply studying, for the dissemination of such information with personal
data quality is a completely different, more intensive intervention in the
privacy.
68. The tightening of conditions of access to all just for the Group of
professional researchers would lead to a breach of the principle of equal treatment of
before the law, while tightening for both groups would, for the first
meant a disproportionate restriction on the right to information. Therefore, it appears as
the most gentle and constitutionally compatible solution set conditions
the inspection of the records in the archives to all researchers on
the same level with the fact that a personal information manager (archive) undertakes to
professional researchers to ensure that their processing for more
(in particular, the publication of the) obtain the consent of the persons concerned according to the law No.
101/2000 SB. (section 7 in conjunction with § 5 para 2, § 9). The same is true for
researchers-natural persons, if the information obtained from the records they wanted
beyond your personal needs, i.e. a mere acquaintance with them,
to refer to another for further processing (e.g., to the media for the purpose of
publication). Department of legal regime of inspection and disclosure is therefore
fully justified.
69. In general terms, is the right to access all information about the
the activities of the security forces of the former totalitarian power prerequisite
nezprostředkovaného the knowledge of the past. Apply by analogy the word of Charles
Jasperse from the book the question of guilt (Prague: Academia, 2006), written shortly after the
the end of the 2. During World War II, to which it refers and Elisabeth Wagner in
its a different opinion on the Constitutional Court SP. zn. PL. ÚS 25/07
of 13 October. 3.2008 (N 56/48 SbNU 791; 160/2008 Coll.) in the case of the proposal on
repeal of the law No 181/2007 Coll., of the Institute for the study of totalitarian regimes
and the archives of the security forces: "... we want to ask ourselves,
You relentlessly clarify for ourselves: where I feel false,
false, false-looking acted guilty so far as is
meant for each other, and not just in cases or in others... " AK it E.
Wagner just says: "the question of why each answer,
as the only instance when solving the moral blame is just as Jasperse
own conscience ... "
70. the personalised knowledge of the past also reflects the social
the dimension of the right to access to information, on the basis of the individual
able to live in a society that surrounds him, a relatively nekonfliktně,
join with other members in the different forms of interaction and
communication and through their behavior, and even through his own being
Act on other members of society. His behavior or being is
spoluurčováno levels of the authentic deal with stories
undemocratic regime. Where the legislator in this specific
information space is his intervention limiting the right to privacy
one (or other persecuted, with their related stories
people) could be justified only to the extent to which it is eligible
allow the second (the other members of the company) the acquisition is not available
knowledge of the nature of the totalitarian regime, which provide an opportunity to
the better self-recognition on the basis of comparisons with the fate of the victims of persecution.
71. the constitutional review of the contested Reference consideration provision
thus also the imperative of the constitutional order, which, in the specific context
respect the right of other stores involved persons from the circuit
Haunted (family members, other relatives, friends,
survivors) to have access to all materials containing his personal information,
without whose knowledge of these persons have been forced to remain in poor
ignorance about their own destiny. Understand your position in each
a democratic society subject constitutionally senior public
interest.
72. Recognizing such imperatives in the case law of the Constitutional Court is
still open: "in the Czech context as in the case of the right to
Informational self-determination on Pandora's box. In particular, the database that contains the
often sensitive information from the private life of individual persons
acquired primarily státněbezpečnostními authorities in the period before November
1989, which the State still holds, can trigger the need for a solution ... and can only
utter astonishment that such an individual case, the Constitutional Court has not yet
did. " (Wagnerová, E. Prince, V;; Langášek, T.; POSPÍŠIL, i. and
wheels. The Charter of fundamental rights and freedoms. Comment. Prague: Wolters Kluwer,
2012, p. 285).
73. The worse hit to the personal integrity of the individual concerned
exercise of the right of another person to the access to Information Act, the more effective
constitutional guarantees of protection against misuse of the information received must
be equipped with the person concerned. The adequacy of the intervention is to be judged as
the intensity of its impact to the personal sphere of the persons concerned, as well as the number of
These people [e.g., surface and preventive nature of the collection and storage of
traffic and location data on electronic communications, the main
the reason why the contested provisions of the relevant law withstood the test
of proportionality, see find SP. zn. PL. ÚS 24/10 of 22 June. 3.2011 (N
52/60 SbNU 625; 94/2011 Sb.)]. Guarantee the proportionality of the intervention of a lie
not only in a flat and transparent access to archived rule settings
information, but also in a real enforceability of these rules and the availability of
independent and impartial judicial control. While you familiarize yourself with the documents and
information from the files of the Communist secret services in addition to researchers, the
and the public must be aware of the fact that these writings can
contain half-truths or lies, and therefore cannot rely on their
credibility.
IX. (c))
International and European dimension of the constitutional review
74. The ECTHR deduced from article. 8 of the Convention, which guarantees the right to respect for
private and family life, and the right to Informational self-determination, when
repeatedly stressed that also the collection and retention of data relating to
the private life of individuals fall under the scope of this article, as the
the term "private life" must not be interpreted restrictively [in particular
decision in the matter of Malone v United Kingdom (No. 8691/79) of
on 2 February 2005. 8.1984], In its case-law on article. 8 of the Convention, the ECTHR also called
interference with the privacy of individuals, among other interventions in the form of checks
the data content of the mail and wiretap phone calls [cf. decision in
things Klass and others v Germany (No. 5029/71) of 6 May 1999. 9.1978,
decision in the matter of Leander against Sweden (No. 9248/81) of 26 March 2004. 3.
1987, the decision in the case against France Kruslin (# 11801/85) of 24 December 2002.
4.1990, or decision on Kopp against Switzerland (No. 23224/94)
25.3. 1998], detection of phone numbers of callers people [cf.
decision in the case of p. g. and j. h. v United Kingdom (No.
44787/98) of 25 October 2005. 9.2001] or the retention of DNA data of individuals in the
databases of the accused [cf. decision in case against S. s. and
United Kingdom (30562/04 and 30566/04) of 4 November 1993. 12.2008], in
decision in the case against Romania Rotaru (# 28341/95) of 4 November 1993. 5.
2000 the ECTHR ruled from the right to private life indicated in the form
the right to Informational self-determination and the positive obligation of the State to dispose
the data about the person from her private sphere State rallied and processed.
75. As usual, the ECTHR stated interpretation of the term "private rough
life "is in compliance with the Convention on the protection of individuals with regard to
automatic processing of personal data (in force in the Czech Republic
from the 1. 11.2001, published under no. 115/2001 Coll., m. s.), whose objective is to
"guarantee on the territory of each Contracting Party, each individual ...
respect for its rights and fundamental freedoms, and in particular the right to
private life in relation to the automated processing of data
of a personal nature, which concern him (article 1), and you are
defined as any information relating to an identified or
identifiable natural persons (article 2) "[cf. decision in a case
Amman against Switzerland (No. 27798/95) of 16 December 2003. 2.2000 and there cited
case law]. Exceptions from the prohibition on State interference with the right to private
life, necessary in a democratic society and in accordance with the law of the
the title of the calculated values of the public interest or for the protection of rights and freedoms
other, interpreted by the ECTHR in contrast, strictly. Acts of public authorities
representing the interference with the right to private life must not find themselves outside the
any imminent (preventive or subsequent) judicial control
[cf. e.g. judgment Camenzind against Switzerland (no 21353/93)
of 16 December 2002. 12.1997].
76. The ECTHR stores when considering between the right to privacy and
freedom of expression in the form of publishing in the media to heed the request to the
a fair balance between two conflicting private
claims that, in principle, have the same value. Publication of information on
the private lives of publicly known persons, although it occurs mostly
for entertainment purposes rather than education, while benefiting from protection of freedom
expression, this however may give way to the right to respect for private
life when the information in question have a personal and intimate in nature and is not
no public interest in their disclosure. The obligation for the Publisher in advance
to notify the intention to disclose sensitive information that the person concerned could
Alternatively, apply to the Court for an interim measure, that the disclosure of
the Court found, however, prevent excessive restrictions on freedom of expression,
Since the penalties for interference with the right to privacy already exist, and due to the
a diverse practice in European countries should be left to the national court
sufficient scope for the discretion of the [decision in case against Mosley
The United Kingdom (no 48009/08) of 10 June 1999. 5.2011], transferred to the
the context of Czech law, the General Court shall examine whether the Publisher, in turn,
Professional Explorer, lived up to its obligations under the Act.
101/2000 Sb.-obtain prior to publication of the personal data of the person concerned of its
Agreement, or. whether the State, through the Office for the protection of personal
data properly applied its controller: a penalty function, respectively.
77. in its case-law of the ECTHR has defined the concept of "the most intimate personal realm
the individual "(and the most intimate aspect of private life, un aspect des
plus private pool intimes de la vie), for example. in its decisions
[Dudgeon v United Kingdom (# 7525/76), the Stübing against Germany
(43547/08), Mosley v United Kingdom (no 48009/08), y. f.
against Turkey (No. 2580/94)]. To this the most protected realm
individuals are information about his sexuality and stigmatise
information about his condition or suffered physical and psychological harm.
Furthermore, it is extremely necessary to carefully protect the stigmatizing information about
minors or similarly vulnerable persons (people with mental or
intellectual disabilities). Just in relation to the most intimate sphere
individuals or to protect privacy and dignity particularly
vulnerable persons with the need to protect the privacy and dignity of the increases. From
It follows that the ordinary courts and other public authorities (for example,
The Office for personal data protection or law enforcement authorities) are
required to just this information belonging to the most intimate personal realm
individual attention compared to other personal data and
provide them with the much stronger protection.
78. the Charter of fundamental rights of the European Union (hereinafter referred to as "the EU Charter") as
modern human rights expressly enshrines in article catalog. 8: "(1) everyone has the
the right to protection of personal data concerning him or her. (2) the following particulars
must be processed fairly for specified purposes and on the basis of
the consent of the person concerned or some other legitimate reason,
laid down by law. Everyone has the right of access to data by the
they were collected, and the right to correct them. (3) on compliance with these
rules is supervised by an independent body. "
79. The provisions of article. 8 of the Charter of the EU, however, immediately apply as
part of the frame of reference for the constitutional review of the contested provisions
the law on archives, since the application of the Charter of the EU is, in its article. 51
paragraph. 1 tied solely to the application of EU law in the Member State and
cannot extend the scope of application of Union law beyond the powers of
conferred on the Union (paragraph 2); Edit the archives to the extent
the Union's powers does not fall. The fundamental right to protection of personal data
According to the article. 8 of the Charter of the EU, which is also guaranteed in article. 16 of the Treaty on
the functioning of the European Union (hereinafter referred to as ' TFEU ') and is in accordance with the laws of the
European Union law adopted pursuant to this contract, exercised under
conditions and within the limits laid down (article 52, paragraph 2, of the Charter of the EU), it is
source (eurokonformní) criteria for the interpretation of the laws of the Member
States in the field of the protection of personal data, which significantly impact
on the application of national standards, outside the direct reach of the EU
rights, as is the case in the case of the contested provisions of the law on
archival science.
80. These criteria are the rules issued under the authority of article. 16
TFEU and contained in the harmonisation directive 95/46/EC of 24 July 2003. October 1995
on the protection of individuals with regard to the processing of personal data and the
on the free movement of such data (hereinafter referred to as "the directive"), specifying
and expanding the principle of the right to privacy, with regard to the Member States
of the Council of Europe Convention (No. 108) on the protection of individuals with regard to
automatic processing of personal data. this directive has the status
implementing regulation for article. 8 of the Charter of the EU, but actually it was one
from its normative resources and can therefore admit in the framework of the European Union
the law of "constitutional" importance, and became the model for the adoption of the law and no.
101/2000 Coll., [cf. § 1, footnote 1)]. According to her, the Member
diskreci States when setting the conditions under which the processing
personal data is lawful (article 5). While mj. "additional processing for
historical, statistical or scientific purposes is not considered to be
incompatible provided that Member States provide appropriate safeguards "
[article 6, paragraph 1 (b))] and if this processing without meeting
terms and conditions unambiguous consent by the data subject "necessary
to perform a task in the public interest or in the exercise of public authority,
vested in the administrator "(article 7). As opposed to the prohibition on processing sensitive
personal data without the express consent of the data subject.
the following applies: "If the provision of suitable safeguards, Member
States may provide for reasons of substantial public interest, exemptions in addition to ...
either by national law or by decision of the
the supervisory authority. " (article 8, paragraph 4). An important exception to the application of this
The directive is the "processing of personal data carried out by a natural person for
purely personal or household activity ". Such processing is
generally perceived as part of the freedom of the individual to take information
(see the manual of European law in the field of data protection. Vyd. Agency
The fundamental rights of the European Union and the Council of Europe, 2014, p. 19).
81. Regulation of the European Parliament and of the Council (EU) 2016/679 from 27 June. 4.
2016 on the protection of individuals with regard to the processing of personal
data and on the free movement of such data and Directive 95/46/EC
(General Regulation on the protection of personal data), which is valid from 4. 5.
2016 and the entry into force on 25 April. 5.2018 will replace Directive 95/46/EC,
spolutvoří-as part of the legal order of the Czech Republic-expository
a framework for the adjustment of the privacy standard for archival law
in the future.
82. For archival purposes in the public interest and scientific or historic
Research regulations in the article. 89 admits that the law of the Member State
established in the name of the implementation of the necessary derogations from the rights
standard protection of personal data referred to in this Regulation which is
for example. the right to limit the processing of the data controller, the data subject
their accuracy or to the opposition of the data subject will not be
verified that the legitimate reasons for the administrator to process the data outweigh the
the legitimate interests of their body (article 18), which can be evaluated as
mitigation of national regulation in managing personal data in the
the area equivalent to that which is the subject of the attention of the Constitutional Court in the
context of the review of the contested provisions.
83. In the preamble to the regulation States alinea 73: "the right of the Union or
a Member State may impose restrictions on certain policy ... If it is in
a democratic society must and reasonable ... for reasons relating to the public
the public interest, the further processing of archived personal data with
to provide specific information related to political behavior
under the former totalitarian regime. These limits should be in accordance with the
the requirements laid down in the Charter and the European Convention for the protection of human
rights and fundamental freedoms. " In alinea 158 then States: "Member States should
should also be able to provide that personal data may be further
processed for archival purposes, for example, in order to provide
for specific information related to political behavior for the former
totalitarian regimes ... "
84. in General, the Regulation makes the lawfulness of the processing of personal data
the granting of the consent of their body [article 6, paragraph 1 (a))], unless it is
This process "necessary for the fulfilment of a task carried out in the public
interest or in the exercise of official authority vested in the administrator "[letter
(e))]. processing of sensitive personal data shall be prohibited, unless the
"necessary for reasons of substantial public interest ... that is a reasonable
the aim pursued, it adheres to the essence of the right to data protection and provides
appropriate and specific safeguards to protect the fundamental rights and interests of the entity
the data "(article 9). Regulation, as well as the Directive does not apply to
processing of personal data carried out by a natural person in the course of exclusively
personal or household activities [article 2, paragraph 2 (b), (c))].
X.
A review of the constitutionality of the contested provisions of their own
85. A Model of specialized and concentrated constitutional judiciary in accordance with
article. 83 of the Constitution imposes a Constitutional Court consistently respect the rules
the separation of powers. The subsidiary nature of its jurisdiction in relation to
the General of the judiciary and the Government it leads to the fact that to cancel the
their decision, which involves fundamental constitutionally incompatible way
deplete the constitutionally guaranteed fundamental rights of persons, only the
When the effective remedy by other means is not possible. In relation to the
the reticence of legislative acts of the Constitutional Court reflected its
sebeomezením interfere with things that should primarily address the
the democratically elected legislature. It leads to a restriction of the constitutional
a review on the assessment of the legality of the process standards of the legislature (compliance with the
the rules of the legislative process and respect for the limits of the discretion of the legislature
given the constitutional order) and the adequacy of possible intervention by
the selected solutions to the fundamental rights of the people. Wherever it is sufficient to
restoring compliance with the constitutional order is the need to give priority to the constitutionally
konformnímu interpretation of the contested provision prior to its abolition, which would
It usually destruktivnější impact for participants of legal relationships and
undercut the predictability of the effects of the remedy to the constitutionality of the deficit
the future.
86. After the Constitutional Court considered the arguments of the applicant and
confronted with the contested provision, it notes that the proposal in the
section to which the petitioner is actively open to reasonable grounds is not.
87. The Constitutional Court considered the starting point for the assessment of the compatibility of the
the contested provisions with constitutional order souladný the interpretation used
terminology. In the context of an archive group rights must be consistently distinguish
between the two in section 4 (b). e) of Act No. 101/2000 Coll., in parallel and mutually
independently calculated ways of processing of personal data: the naked
"making available" papers on the basis of individual Archive Manager
the application of the researcher-natural person or professional researchers and its
any "dissemination" or "publication" professional researcher
through publications or other forms of sharing, which the administrator
the archive already.
88. In the explanatory memorandum to the law on Archives States that legal
legislation forming the constitutional order of the Czech Republic on the
the area covered by the Constitution in article. 2 (2). 3 and article. paragraph 79. 1 and 3 and the Charter in the
article. 2 (2). 2, article. 7 (2). 1, art. 15 paragraph 1. 2 and article. 34 para. 2.
The requirements for the legal restriction of reservation of State power (article 2 (2).
3 and article. paragraph 79. 1 and 3 of the Constitution and article. 2 (2). 2 of the Charter) fills the
the proposed legislation is the establishment of the competence of the relevant administrative
authorities in the field of archival Science (§ 42-62, title IV of the law on archives),
request restrictions on the inviolability of privacy only by law (article 7 (1).
1 of the Charter) is taken into account the provisions of § 37 para. 2 of the law on archives,
in the version in force at the material time, that binds the inspection of public records
relating to living individuals, and containing sensitive personal
information on the person's prior consent of that person. At the same time is art. 7
paragraph. 1 of the Charter, the constitutional basis for the proportional restrictions on freedom
of scientific research guaranteed by article. 15 paragraph 1. 2 of the Charter and the right of access to
cultural wealth under art. 34 para. 2 of the Charter, which is realized
the same provisions of the proposed legislation. Archives and records management
service are not governed by the law of the European communities. How to
Secondly, legislation in these fields is left in the powers of the
the national authorities of each country. In the explanatory memorandum, the
stresses that the archives law expresses the fact that the
archival custody is exercised in the public interest as an expression of care for springs
to the knowledge of the history of the State and nation and the documents as evidence
or information for citizens, public institutions and other legal
of the person. Archival documents have at the same time the importance of not only
historical and cultural, but also legal and evidentiary, as demonstrated in the past
years of the whole process, property restitution, rehabilitation, compensation,
the transformation of ownership relations etc. The explanatory memorandum to the exception of
restrict access to all materials containing personal data of living persons
According to the contested provisions of § 37 para. 6 the law on Archives
explicitly does not represent.
89. the law on archives used in section 34 et seq. the term "consultation", which
means just to familiarize yourself with the contents of the papers or its direct
the provision of a particular researcher Archive Manager-physical person for
her personal or professional researchers for the need for further
any treatment. According to the Constitutional Court, there is no indication that the
would "consult" the records should include, without further
"disclosure". Or repeated (parallel) the individual inspection of more
researcher does not change its nature and it is not the publication, as it does not
informational need for an unlimited number of mailing of such notice, such
in the case of a book or electronic publications. Directive 95/46/EC does not
There are so stark as the law No. 101/2000 Coll., ["distribution, or
any other disclosure ", article. 2 (a). (b))], since it obliges Member
States of the European Union, only as regards the result to be in the
with regard to the processing of personal data and leaves them
the choice of appropriate resources to achieve this result (article 288 of the Treaty on
the functioning of the European Union), including adaptation with regard to normative
the importance of legal terminology. A broader concept of the term
"making available", comprising introduction of third parties with the personal
data of another, is thereby a part of commentary of literature (Kučerová, a. and
team. The law on the protection of personal data. Comment. 1. Edition. Prague:
C. h. Beck, 2012, p. 70).
90. the Constitutional Court considers it quite obvious that interference with the fundamental
privacy rights of the person concerned whose data records
It contains, in the case of a simple consultation only for personal use
researchers-individuals incomparably less significant than the publication of the
personal data collected by a professional researcher for unknown and
an unlimited range of their recipients.
91. The Constitutional Court does not share the interpretation put forward by the applicant, that balance
the difference between the two terms ["the need to inform the public ... for the price
provide all sensitive data "or" intervention carried out in accordance with the
the law (i.e. the disclosure of sensitive personal data in the context of disclosure
...)"]. In the case under examination, from which originates the doubt about the constitutionality of
the contested provisions of the law on archives, the petitioner asks the question,
whether the constitutionally controversial invasion of privacy is not just any publication
sensitive data without the consent of the plaintiff, but the disclosure
the records of the Czech Television worker; from the description of the case
It follows that in the case of the publication of the data, in fact, prevent,
as from the next processing (preparation of the show and its broadcast)
because of the negative of the person concerned has been abandoned.
92. The claimant seeks vote of unconstitutionality by design
the contested provisions on the grounds that after this on the basis of its
examination passed successfully the test of legality and legitimacy, it has doubts as to the
the necessity of the law broadly defined making sensitive personal
of the data. In this context, raises the question of the proportionality of the contested
provisions, i.e. whether you cannot vote more sensitive procedure without being thwarted by
legitimate objective of the legislator. Here the applicant is, in the sense
restrict access to the information after the introduction of any of the tools of protection
personal data, whether it's necessary or request data anonymization
the prior consent of living individuals, it considers that such a restriction is
de lege ferenda seems reasonable, since the papers or so
will not lose its value on the practice of the Communist regime in the
Suppression of human and political rights.
93. The Constitutional Court of the lawfulness of the contested provision, are subjected to the test and came to the
the conclusion that the exception in this provision is not adjusted from the frame
the reservation of law, both in terms of cases, the limits and the methods of application of the
State power under art. 2 (2). 3 of the Constitution, as well as with regard to the limitation of rights
to privacy pursuant to article. 7 (2). 1 of the Charter and the protection of personal data in accordance with
article. 8 of the Charter of the EU, and has been adopted by the legislative can constitutionally be a harmonious
process. [You can add even more recent requirement of the ECTHR, designed
by default, in the framework of the principle of proportionality (see terms and conditions. Ranjit K, J.; Mike K., D.;
Kratochvíl, J.; Bobek, m. European Convention on human rights. Comment.
1. Edition. Prague: c. h. Beck, 2012, p. 882), on the sufficiency of the guarantees
before the arbitrary restriction of fundamental rights applications (Gillan and Quinton
against the United Kingdom, judgment No. 4158/05 of 12 October. 1.2010)].
94. the law on archives in § 34 et seq. allows access to
the records on the basis of the application and in accordance with the conditions laid down in this
the law and order of the research archive, which are given by the limits of the resources and
the method of processing of personal data whose settings requires
the administrator of personal data § 5 para. 1 (b). b) of Act No. 101/2000 Sb.
Itself to provide access to all materials shall not include any
inclusion does not imply any downstream forms of further processing
personal data contained in our. Confusion of the concept of "making available"
the "disclosure" within the meaning of the phrase "making available to the public"
It is therefore confusing. The only constitutionally be a harmonious meaning of the term "consultation",
used in section 34 et seq. the law on archives, so it is "individual
making available "upon request and only for the personal use of the researcher
-natural persons, or to the need for professional researchers, however, which
does not imply permission for further processing or publication of the
of personal data.
95. The researcher, whose request for access to public records or make
extracts, copies, or copies of the archive has not complied with, it may make submissions to the
The national archives as the competent administrative authority in the field of
Archives and records performance [§ 38 paragraph 2 in conjunction with § 46
paragraph. 1 (b). (g)) of the archives], whose decision is
reviewable in the administrative justice system. Archive researchers cannot deny
access, even when the person concerned has objected to the inspection of the
the records containing the personal information, if applicable
the exception under the contested provisions [section 38 (1) (b) (c))]. The same thing
also applies in the case of sensitive personal data contained in the archiválii of the
the activities of the security forces of the totalitarian regime, if the person concerned
has consented to the inspection referred to in subparagraph (d)) of the same section;
systematic interpretation can be inferred that if absentuje according to the contested
the provisions of the requirement of prior informed consent (generally stored in § 37 para.
3) shall cease to have meaning and by not giving as the reason for the denial of access to
archiválii. Such an interpretation is consistent with the top marked
evolutivně dotvářenou the principle of open access to all of the
the activities of the repressive totalitarian regime, that folder is in the
doubt in the interpretation of priority. It corresponds and inclusion
The archives of the security services to the national archives to 1. 1.2030 (section 17
Act No. 181/2007 Sb.). Even in this proceeding, the competent authorities of the
take into account the need to protect the most intimate personal spheres of individuals (cf.
paragraph 77).
96. The archive is in the meaning of § 10 of the Act No. 101/2000 Coll., shall be obliged to ensure that the
the other person can access papers with details of her researchers did not suffer
harm to their rights, their human dignity was preserved and was not
unduly exposed to her private and personal life. Archive
they must in particular take the necessary measures against unauthorized
data processing (section 11). This obligation to archive responds to it when
directs the applicant signing the research sheet referring to research
procedure (see Decree patterns no 645/2004 Coll., which implements certain
the provisions of the law on Archives and records service and amending certain
laws, as amended) to the statement that you-as a
Explorer-will be fully aware of the responsibility associated with any
handling of obtained personal information, in particular with their publication, to
which shall seek the prior approval of the person concerned (section 7 in relation to section 5 of the
paragraph. 2 the first sentence of the Act).
97. The Constitutional Court did not find the contested provision is incompatible with the protection of
the fundamental right to privacy with regard to processing of personal data safeguards
According to § 5 para. 2 of the Act No. 101/2000 Coll., as it excludes their
an administrator from the obligation to obtain consent prior to disclosure of records
the person concerned, "If this is about handling solely for purposes of archival science
by a special Act ". This provision is inspired by the Directive,
which considers the further processing of personal data for historical,
statistical and scientific purposes shall be permissible if the Member States shall provide the
appropriate protective measures. This exemption is subject to the processing of personal
the data that make up the content of the records (Kučerová, and.
protection of personal data. Comment. 1. Edition. Prague: c. h. Beck, 2012,
page 154). Although the system of protection of sensitive personal data [section 4 (b).
(b))] is compared to "normal" mode of protection of personal data, more stringent
[consent of the data subject must be "explicit", section 9 (a))], the exception for
the contested provision in relation to sensitive data is justified by the same
[the letter ch)].
98. On the basis of the test carried out by the legitimacy of the Constitutional Court found that the
the contested provisions affecting the right to privacy, pursuing an aim of
the permissible in a democratic society, according to the article. 8 (2). 2 of the Convention, both at the
It points out the appellant. Incomplete disclosure of archival information, to
which would (in the case of abrogation) not giving prior consent
the person concerned has led, would allow only deformed and not
full knowledge of the totalitarian past. The following odosobněná the social
self-reflection would have to do without an authentic experience stories
revealing not only the fate of persecuted people and with them-often
only randomly related-other actors, but-and in particular-
the pursuers. The sharpness of the testimony would be weakened, would not let
sufficiently intense social catharsis of the past, which is permanently
needed.
99. the Constitutional Court refers to its finding SP. zn. PL. ÚS 25/07 of 13 March 2002.
3.2008 (N 56/48 SbNU 791; 160/2008 Coll.) in the matter of the application for revocation
Act No. 181/2007 Coll., of the Institute for the study of totalitarian regimes and the
The archives of the security services, which cited his preamble:
"The knowledge of historical sources and other testimony about those regimes
and the events leading to them to better understand the implications of
the systematic destruction of traditional values of European civilization, the conscious
violations of human rights and freedoms, the moral and economic decline
accompanied by judicial crimes and terror against bearers of different
opinions, the replacement of a functioning market economy, management direktivním
destruction of the traditional principles of property rights, abuse, education,
education, science and culture for political and ideological purposes, and
the ruthless destruction of nature. "
100. The contested provision pursues a legitimate aim under article. 8 (2). 2
Convention and, in fact, does not track the target of one who was only formally
declared as legitimate. For achieving this are irreplaceable importance
for specific information about the actors of life and decision making in the period
the totalitarian regime. Many of the personal information the then repressive
ingredients for political reasons, collected and processed by methods
incompatible with the principles of the rule of law and may, therefore, have hardly
verifiable, and therefore of doubtful value. Just but also knowledge
the ways in which the security services sought the following information is
in and of itself an important finding for this goal. The Constitutional Court considers the
the preservation of the current open mode accessing archival materials and
other testimony about the activities of the then repressive folders as necessary
not only for objective historical knowledge of the practices of the previous regime and
the naming of their organizers and executors, but also for education
the head of the citizens is to a separate judgment on the need to recognise
signs of authoritarian tendencies in society, to strengthening the foundations of the
democratic rule of law, the development of civil society and
fulfilling the ideal of Justice.
101. The Constitutional Court Then proceeded to perform a test of proportionality in
more narrowly, to verify that in using the legal restriction
fundamental rights and freedoms is preserved the essence and meaning of in accordance
with the article. 4 (4). 4 of the Charter. The preservation of the material content of the right to
Privacy requires that in each case there was only for
such a restriction on a fundamental right that is necessary and fair
požadovatelné in a democratic legal State, to make it even
purpose limitation. In other words, after you identify the purpose for which it has
be restricted by the basic law, it must be examined whether the restriction
appropriate and necessary (required) to 600 goal has been reached.
Restrictive intervention is suitable, if such a material relationship with
the purpose of that at least supports the achievement of the purpose. The need for intervention
It assumes that there is no other, for the rights of the person concerned
more, IE. less, injurious, and as appropriate
resource. Restriction of the fundamental right to protection of personal data should not be
out of proportion to the importance of the objective pursued by it, must
to be in balance with the constitutional law on access to information, i.e., it must not
go beyond what is necessary to achieve that objective. When
the fulfilment of these assumptions is a restriction on the fundamental rights of natural persons
as individuals tied to the community and relating to him
justifiable.
102. the applicant considers that the anonymizací (znečitelněním) personal
data or redeeming the previous request of the necessary consent of the concerned
living individuals lose their archive information comes in.
the value of the practice of the Communist regime, and therefore maintaining the existing
access to them is not needed. According to the Constitutional Court, however, the appellant
does not take into account that the mere inspection of the records on the basis of
individual applications just for the need for researchers-as was the case in the
the case worker Ostrava branch of the Czech television, which from the
the publication of the collected archive dropped-in itself
It does not mean a risk of harm to the dignity, honor and reputation of the concerned
the person (the plaintiff in the main proceedings for damages). This potential
the plaintiff could avert the risk (and also turned away) that didn't speak out
consented to the disclosure of the information obtained, to which it should invite (and
also called Ostrava branch of Czech Television) in accordance with Act No.
101/2000 Coll., in preparation for the intended broadcast of the show. The contested
the provisions of the law on archives in any way not preclude or limit the
space for the applicant to request verification of the information, its
putting the record straight based on their own observations (could include
a decision on his rehabilitation), reduction, etc. to completely
prevent their publication. Unauthorized interference with the personality rights
the applicant therefore cannot be a mere consultation of the records referred to in
the contested provisions, but to any procedure Ostrava branch
Czech Television beyond the scope of Act No. 101/2000 Coll.-the further processing of
for the needs of television broadcast without the consent of the plaintiff.
103. In the opinion of the authority for the protection of personal data, no 5/2009
"Disclosure of personal information in the media", notes that for the application
the law on the protection of personal data in the area of journalism, it is appropriate
to distinguish the two situations, namely, the preparation of reports or articles
their subsequent zveřejněnu. While in the first case, you can come to
the conclusion that the activities of each of the journalists at the gathering
for the purposes of the preparation of reports or the article shall not be in conflict with the law
No 101/2000 SB., since personal data are searched for and used in the
accordance with article 6(1). Article 17(1). 4 of the Charter, and the risk of unauthorized interference with the
the privacy of the persons concerned at this stage is minimal, in the case of the publication of the
stories or article occurs-the often irreversible-interference
Privacy and his confrontation with the law on the dissemination of information (by: Smith, D.
The law on personal data protection and related legislation. Comment.
Wolters Kluwer, 2014, s. 111-112). Will be on the applicant to assess
whether in the context of the Ostrava branch of Czech Television there was a sharing of sensitive
the personal data of the applicant, which should be covered with prior consent of the
the defendant.
104. "the dehumanization of history" as a result of a de facto prevent access to
the identification of their players would lead to distortion and misunderstanding
historical context and would frustrate the acquisition of the past in the context of
knowledge of the fates and the links of the stories of the resistance and the resistance of specific people,
can have a liberating effect in relation to spent their own story.
While the dividing line does not lead across society between the fair and
unfair, inside each one of us and each of us must
deal with the past and with the past of that country. To tolerate interference with
privacy of only getting to the data of the person concerned from the time
totality, accompanied by options to prevent their spread, not
monospaced, constitutionally unacceptable requirement. The contested provision
also in this test passed.
105. Although it was a totalitarian State whose security forces
the persecution of opponents of the regime have caused widespread devastation ratios
in the company, today's State based on democratic
the principles of the rule of law and respect for the basic rights of the individual may exempt
liability for any unauthorised alterations to the data protection rights of victims
This persecution or other persons, to which could be
violations of the obligations connected with the establishment and the archives of the application of the
the conditions of access to the records, which are laid down by the law on
Archives and research of procedure, or the abuse of open access to
sensitive data by researchers to their publication or other
processing without the consent of the persons concerned.
106. the contested provisions of the Act does not relieve the State of archives
the obligation to protect the information from the most intimate personal spheres of an individual's
(sexuality, stigmatizing medical information or suffered
the injury) and particularly vulnerable persons (children, people with disabilities).
On the effective control of compliance with the obligations related to independent
authority, accompanied with hard-hitting sanctions in case of their infringement, it is
bound by the admissibility of a restriction of the right to protection of personal data under article. 10
Of the Charter, article. EU and article 8 of the Charter. 8 of the Convention.
107. This monitoring role in the first series of the Office for the protection of personal
data performance of supervisory activities and the application of penalties for infractions (up to
up to 5 miles. CZK for natural persons) or for administrative offences (up to
above 10 million. EUR for legal entities and natural persons-entrepreneurs)
under Title VII of Act No. 101/2000 Coll. (cf. e.g., decisions of the Office
for the protection of personal data. SPR-6601/10-21 of 31 May. January 1, 2011 in
Affairs Czech Republic-archive of the security forces and the decisions
the President of the Office. SPR-6601/10-27 of 12 August. April 2011 at the same
stuff). In relation to the "normal" archives performs monitoring of compliance with
obligations in the field of archival Science also Ministry of the Interior, national
the archive and the State regional archives in accordance with title IV of the law on archives.
Violation of obligations of the researcher under section 84-90 of Act No. 513/91 Coll.,
the civil code, may be vitiated by an action for protection of personality in accordance with
part four of title III of the law. In cases of serious injury to the rights of the
or the legitimate interests of the person concerned is not excluded or criminal
individual responsibility and from 1. 12.2016 (Law No 183/2016 Coll.
the amended Act No. 418/2007 Coll. on criminal liability of legal persons
and the proceedings against them, as amended) also legal persons
for the crime of unlawful processing of personal data pursuant to § 180
of the criminal code.
108. If the Constitutional Court held the unconstitutionality of the contested
provisions, public records containing information of the volumes
the security forces of the totalitarian regime would-in case of disagreement
the persons concerned with the earlier by making them available-could be seen
After a thirty-year period from the time of the trade, when they were
declared the records (if you have not previously published). As to the
the takeover of some of the volumes in the collections up in
with regard to the establishment of the archives of the security forces in 2007,
so the papers would remain inaccessible until the second half of the
the 1930s 21. century, when from the fall of the previous regime expires have almost
50 years and when you can actually expect a fall in social demand
knowledge of the totalitarian past. The State of the coping with this task is in the
every company that has been through such an experience, a different, therefore it is
practical usability knowledge about access to such legislation
all other countries is limited. Although as time
probably reduces the sensitivity and thus exploitable archive materials,
the experience of post-war Germany shows that the phase shift
interest in the "contemporary history" on this past generation that personally
experienced. It was up to the following generation, which since the mid-1960s. years
showed a critical interest in dealing with the Nazi past of his
the country just from this perspective. For today's young population in the United
Republic may mean a resurgence of interest in the recent past
the period in which, in the case of annulment of the contested provisions were
the papers are not available. It is the legislature, how, when
access settings will take these facts into account.
109. A factual conclusion of no small part of the funds of the Czech National Archive
heritage, which after twelve years of unlimited access occurred in
as a result of annulment of the contested provisions, when the range of the previous
disclosure, unconditional consent of the persons concerned, is practically already
impossible to be traced back, would be built against the concept of the open
the company, which has the will to recognize their recent past and with the help of
This reflection critically evaluate their own presence. At the time that the
Open Access applies to thousands of users was allowed to inspect
hundreds of thousands of records, take copies of these statements, and digitized
a copy of the. A factual conclusion of collections containing information from the
volumes of the former State security so warranted. The constitutional
the Court expressed by disagreeing with the applicant, that the papers
znečitelněním personal and sensitive personal data lost comes in.
the value of the practice the Suppression of rights under the previous regime. On top of this, you cannot
to overlook the power of de facto canonical that is already 12 years old
were the records containing the personal information of the individuals examined,
copied, and otherwise used, and therefore the "closing" of the archives, which would
was the result of derogačního-scope or interpretation of the imposing the obligation to
all personal data anonymous, at the current time only
arbitrary interference with varying impact for different individuals and researchers.
XI.
The conclusion of the
110. The Constitutional Court has come to the conclusion that in terms of the fundamental right to
protection of personal data is a mere inspection of the records containing
information on the activities of the security forces of the totalitarian regime based on
the contested provisions in a legal, legitimate and proportional intervention into
This right, balanced against the fundamental right to access to information and
ospravedlněným in view of the significant social interest on the
an authentic knowledge of the past. This restrictive intervention does not reach
the intensity of the damage human dignity, honour and good name, because it is not
linked with permission of the researcher to disclose data collected or otherwise is
process without the prior consent of the person concerned.
111. the contested provisions of § 37 para. 6 of law no 499/2004 Coll., on
Archives and records service and amending certain laws, as amended by
effective until 30 June. 6.2009, whose adoption was justified by a strong public
interest in the knowledge of the practices of the security forces of the former totalitarian
the scheme through open access to public records on the basis of
individual applications, neupřednostňovalo-and even in the present
the systematic inclusion as paragraph 11 not-any of the
of the fundamental rights at the expense of the second way constitutionally
neakceptovatelným. Authorities of the State, especially the Office for the protection of personal
data and general courts, cannot abandon its responsibility for
an effective inspection procedure of archives and researchers in taking action
According to § 13 para. 1 of Act No. 101/2000 Coll., to prevent
unauthorized or inadvertent access to personal data and their
unauthorised processing, as well as other abuses. This is especially true for
the protection of the most intimate personal sphere of the individual, which includes
stigmatizing information about sexuality, health or mental and
mental disabilities people, of minors or similarly vulnerable
persons, the need to protect the privacy and dignity requires
Special attention. Therefore, the contested provisions of the Act does not relieve State
the obligation to protect the information from the most intimate personal spheres of an individual's
and particularly vulnerable people. The authorities of the State must-again especially with the
regard to the protection of sensitive data-effectively penalize also offences
and administrative offences in the case of non-compliance with conditions of researchers for public inspection
archival materials that are laid down by the law on Archives and
Research of procedure, including the consistent application of fines pursuant to title
VII of Act No. 101/2000 Coll., as well as sanctioning civil law tools and
the criminal.
112. in view of the fact that the appellant was actively open to the proposal for a
to declare the unconstitutionality only of the contested provisions in the
the words "papers arising before the 1. January 1990 from the activity
security forces under the Act on the Institute for the study of totalitarian
procedures and on the archives of the security services, which the Constitutional Court
did not conflict with the constitutional order, in this section in accordance with § 70 para.
2 Act No. 182/1993 Coll., on the Constitutional Court, rejected the proposal. In the remaining
part of the proposal as submitted by the person clearly ineligible pursuant to § 43 para.
1 (b). c) Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No.
77/1998 Coll., refused.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the decision of the judges of the plenum have been Louis
David, Josef Fiala, Jan Filip, Jan Musil, Pavel Rychetský, Radovan
Suchánek and Milada T.
