The Constitutional Court found no 105 / 2004 Coll.

Motion denied.

On 26 June 2003, the Constitutional Court received a proposal from the Ombudsman (hereinafter referred to as the "appellant") seeking the annulment of the provisions of paragraph 18 of Annex 3 to Government Decree No. 246 / 1998 Coll., laying down the lists of classified facts, as amended by Government Decree No. 89 / 1999 Coll., Government Decree No. 152 / 1999 Coll., Government Decree No. 17 / 2001 Coll., Government Decree No. 275 / 2001 Coll., Government Decree No. 403 / 2001 Coll., and Government Decree No. 549 / 2002 Coll. (hereinafter referred to as Government Decree No. 246 / 1998 Coll.) for its contradiction with Article 1 and Article 78 of the Constitution of the Czech Republic (hereinafter referred to as Article 3 of the Law No. 148 / 1998 Coll., on the protection of classified facts, as amended by the Act No. 148 / 1998 Coll. "The appellant submits that Petr Uhl approached him with an initiative against the Ministry of Foreign Affairs, which classified its concept of human rights in 2000, and against some provisions of Annex 3 to Decree No. 246 / 1998 Coll., on which the Ministry of Foreign Affairs relied on the concept of human rights. The Ombudsman, pursuant to the provisions of Paragraph 18 (2) of Act No. 349 / 1999 Coll., on the Ombudsman, adopted a final opinion after the completion of the inquiry into that complaint, concluding, inter alia, that the provisions of point 18 of Annex 3 to Government Decree No. 246 / 1998 Coll. (hereinafter referred to as the contested provision) is contrary to certain provisions of Law No 148 / 1998 Coll. and to certain provisions of the Charter and of the Constitution. On the basis of this opinion, it makes the proposal in question.

The appellant notes that Law No 148 / 1998 Coll. is based on the assumption that it is only possible to conceal a fact which has been classified as classified by the competent authority. The substantive definition of classified information is two-step according to Act No. 148 / 1998 Coll.. The starting point is the material definition of the classified fact in the provision of § 3 of Act No. 148 / 1998 Coll., according to which the classified fact is such that the unauthorised disposal could cause damage to the interests of the Czech Republic or to the interests for which the Czech Republic has committed itself or could be unfavourable to those interests, together with the provision of § 4 of Act No. 148 / 1998 Coll., which provides for a demonstration of the area in which the classified facts may occur. The Act expressly provides that it will be specified by a government regulation, which sets out in detail for each department lists the facts which may be covered by secrecy. Article 78 At the same time, the government is entitled to issue regulations only to implement the law and only within its limits. Therefore, it cannot, by its regulation, include in the list of classified information other than those which fulfil or may fulfil the statutory definition of classified information.

The Government is therefore obliged by its decree to issue a list of classified information. Without their detailed list, the law could not be applied at all. The legislator is said to realise that the disclosure of information is an intervention in fundamental rights and freedoms (freedom of expression and the right of information under Article 17 of the Charter) and that it is quite easily misused by the nature of the matter. In this context, the appellant refers to the finding of the Constitutional Court sp. zn. The list must specify the facts in substance, otherwise the instruction would be completely unnecessary to the government. It would therefore be circumventing the law or exceeding its limits if the government formulated the classified information list so vaguely and generally that its provisions would not differ in practice from the basic definition contained in the law. The requirement for substantive clarification of classified facts under the law also complies with the principles of legal certainty and the predictability of acts of public authority, which, according to the Constitutional Court's constant case law, are one of the fundamental components of the democratic rule of law (Article 1 of the Constitution). By its list, the Government takes note of what will be excluded from the scope of the fundamental right to freedom of expression and information, even under the threat of criminal sanctions (Sections 10 and 107 of Act No. 140 / 1961 Coll., Criminal Act). Therefore, from the point of view of substantive law, it is possible to hide only one fact that meets the basic material definition under the law and is also included in the Government's regulation on the classified information list, provided that the classification of classified information on the list is of substance and degree of generality more specific than the legal definition.

According to the contested provision, sensitive political, security and economic information from international relations may be classified under the jurisdiction of the Ministry of Foreign Affairs. The criterion of "sensitivity" of information is considered superfluous by the Ombudsman in view of the provisions of Act No. 148 / 1998 Coll. The assessment of "sensitivity" is only applicable when deciding on the confidentiality of a fact, in the context of the consideration of whether the wrongful treatment of such a fact can or cannot cause harm to the interests of the Czech Republic or what harm. This procedure is prescribed by the law itself in the provision of § 5 in conjunction with the provision of § 2 paragraphs 1 and 2 of Act No. 148 / 1998 Coll. Such assessment shall result in the determination of a specific classification level according to the degree of "sensitivity 'of the classified fact. Thus, the" sensitive' approach appears to be duplicated from this point of view. The definition of the area of international relations in the contested provision is also duplicated, as this is understood to be the case in Annex 3 to Decree No. 246 / 1998 Coll. itself. Repeating provisions of higher legal force in lower legal force regulations is generally not considered desirable. However, this cannot, without further ado, lead to the conclusion that the regulation of lower legal force is therefore defective. However, in the case of the contested provision, the disclosure of the duplicity of the attributes "sensitive 'and" from the field of international relations' is essential in order to establish the actual content of this standard. Following the exclusion of quoted duplicated attributes, it is clear that the Ministry of Foreign Affairs can hide "political, security and economic information." However, such a definition of classified information clearly does not meet the requirements of the classified information protection law, which is listed by the Government. The definition is a vague, classified fact in no way materially specific. It allows the Ministry of Foreign Affairs, even arbitrarily, to hide anything. In addition to this item, the other provisions of Annex 3 to Decree-Law No 246 / 1998 Coll. appear to be unnecessary as in all cases political, security or economic information. Thus, contrary to Article 78 of the Constitution, the Government exceeded the limits laid down by Act No 148 / 1998 Coll. (Clause 3), which may lead to unconstitutional interference in the right to information under Article 17 (5) of the Charter in the event that that provision is applied in a particular case. In addition, the contested provision is contrary to the constitutional principles of legal certainty and the predictability of acts of public authority, which are inherent attributes of a democratic rule of law within the meaning of Article 1 of the Constitution, to the extent that it allows the Ministry of Foreign Affairs to proceed arbitrarily in the disclosure of facts.

According to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '), the Constitutional Court requested comments from the Government of the Czech Republic as a party to the proceedings on the present proposal. The Ministry of Foreign Affairs and the National Security Office also requested comments pursuant to § 48 (2) of the Law on the Constitutional Court.

Prime Minister PhDr. Vladimir Špidla informed the Constitutional Court in his letter of 12 August 2003 that the Government of the Czech Republic had approved its observations on the proposal at the meeting of 6 August 2003. The Government considers that the lists of classified information contained in the Government's regulation must, to a certain extent, be established by more general wording in such a way that, within the meaning of Article 3 (1) of Law No 148 / 1998 Coll., they are an essential legal basis for the possibility of concealing certain information, while, as a result of any case-law, they are not an obstacle to such confidentiality. Therefore, the general information was also used for the contested provision of the Government Regulation. In particular, in the terms of the Ministry of Foreign Affairs, the cumulation of the conditions contained in the provisions of § 3 (1) of Act No. 148 / 1998 Coll. requires the inclusion of a more general provision in the classified list. When obtaining certain information from abroad, which cannot be specified in advance and the disclosure of which could clearly cause harm to the interests of the Czech Republic, it would otherwise not be possible to classify such information as a classified fact and to hide it if it could not be placed under any provision of the classified information list within the scope of the Ministry of Foreign Affairs. The risk of damage to the interests of the Czech Republic in the event of non-disclosure of indefinite foreign information is considerable. The question of the possibility of concealing such information relates to the question of the credibility of the Czech Republic towards foreign partners and to the question of access to this foreign information at all.

According to the Government, the contested provision of the Government's regulation in the application practice helps to protect the key principle of the entire system of protection of classified information, expressed in the provision of § 3 (1) of Act No. 148 / 1998 Coll., i.e. the protection of the interests of the Czech Republic without it being possible to argue that the principle of proportionality of the information provision is thereby compromised. The criterion of "sensitivity 'of information is, in practice, used by the expression to which the specific nature of the classified information concerned is to be specified and stressed, only after an assessment of the context arising from the provisions of § 3 (1) and § 2 (1) and 2 (2) of Law No 148 / 1998 Coll. shows whether such sensitive information is to be classified as a classified fact. The limits of administrative discretion in the contested provision may therefore be considered wider than normal but not unrestricted.

In its observations, the Government admits duplicity in defining the area of international relations, as the Ombudsman argued in his proposal. However, for the possible annulment of the contested provision, duplicity is of no relevance, given that it is a duplicate statement contained in Annex 3 to Government Decree No. 246 / 1998 Coll. as such, since Annex 3 to this Regulation is provided by the heading "List of classified information under the jurisdiction of the Ministry of Foreign Affairs'. That duplication leads to the fact that even after the words" from the field of international relations' have been deleted, the Ministry of Foreign Affairs, under the contested provision of the Decree, cannot conceal anything from the government from political, security and economic information, but only such political, security and economic information as will arise under the jurisdiction of the Ministry of Foreign Affairs, i.e. in the field of international relations. The framework of that Annex is therefore again specified in the contents of classified sensitive information, as provided for in Section 3 (3) of Act No 148 / 1998 Coll.

The Government also states that the contested provision was added to Annex 3 to Decree No. 246 / 1998 Coll. by Decree No. 403 / 2001 Coll., whose proposal was processed by the National Security Office. That procedure complies with the requirements of § 3 paragraphs 2 and 3 of Act No. 148 / 1998 Coll. Therefore, it cannot be accepted that the contested provision does not meet the requirements of the law which are included in the list issued by the Government. The contested provision does not contravene Article 3 of Act No 148 / 1998 Coll. or Article 78 of the Constitution as it does not exceed the limits of the law. Pursuant to Article 17 (5) of the Charter, State authorities and local authorities are required to provide adequate information on their activities. The conditions and implementation shall be laid down by law. This is Act No. 106 / 1999 Coll., on Free Access to Information, as amended, which recognises restrictions on the right to information in the case of classified information. Given that the Government, by including the contested provision in the Government Regulation, has not exceeded the limits laid down by law, the disclosure of the relevant information under the contested government regulation cannot lead to interference with the right to information. The Government considers it questionable whether the determination of sensitive political, security and economic information in the field of international relations as a fact of classified or, as a result of this provision, the resulting limits of administrative discretion can, at present, be interpreted with certainty as not complying with the constitutional principle of legal certainty and the predictability of public acts. Knowing that the Czech Republic has been a member of the international democratic community for many years, it can be assumed that it is possible, at least in general terms, to deduce and predict the nature of the classified facts covered by the contested provisions and the intensity of the information value. It therefore does not find the contradiction of the contested provision in relation to the meaning of Article 1 of the Constitution. It points out that the principle of listing classified information in a list issued as legislation in other countries is not applied. The only condition for a fact to be classified is that when it is disclosed, it may endanger the interests of the country concerned or cause harm. Therefore, the substantive intention of the new legislation on classified information, approved by the Government of the Czech Republic, assumes that the classification of classified information will be carried out by its processor only on the basis of a qualified assessment of the possibility and extent of causing harm to the interests of the Czech Republic or the interests to which the Czech Republic has committed itself to protect, in the event of disclosure of relevant information, its unauthorised acquisition or unauthorised use, without issuing a list of classified information.

In its observations, the Ministry of Foreign Affairs (hereinafter "the Ministry ') stated that the present proposal was aimed very unilaterally. It stresses only to allow the widest possible access to information and pays significantly less attention to the obligation to ensure the protection of classified information. It also focuses only on one of the conditions for identifying a particular fact with the appropriate classification level - against a specific provision from the classified information list in the field of competence of the Ministry of Foreign Affairs, which the Ministry considers to be a condition of support and essentially formal. In his view, it is not at all considered that the possibility that in a particular case the primary and fundamental condition might not have been met, i.e. that only a misassessment could be made of whether and to what extent the unauthorized treatment of the information in question could cause harm to the interests of the Czech Republic. The problem in question is allegedly not in the contested provision but in the provision of § 3 of Act No. 148 / 1998 Coll., under which the two conditions are cumulative. Under the terms of the Ministry, this statutory provision necessitates the inclusion of a more general provision in the classified list. When obtaining certain information from abroad (no longer specified in advance), the disclosure of which could cause harm to the interests of the Czech Republic would not be possible to classify it as a classified fact unless it could at the same time be placed under some provision in the list of classified facts in the field of the Ministry of Foreign Affairs. The risk that damage to the interests of the Czech Republic would be caused in such cases is significantly greater than the risk that any information would not be published where the risk could be misassessed. The Ministry also highlights the issue of credibility towards foreign partners. Should it not be possible to guarantee in advance that the information provided, the content of which is not known at the time, cannot be protected under classified information, such information may not be provided. The Ministry considers that the provisions of Section 3 of Act No. 148 / 1998 Coll., must first be amended in order not to jeopardise the protection of classified information under the jurisdiction of the Ministry of Foreign Affairs and the possibility of obtaining sensitive information from foreign partners. If this provision were to remove a formal condition requiring the fact to be identified by the appropriate classification to be included in the list of classified information, then the Decree of Government No. 246 / 1998 Coll. could be repealed entirely.

In its observations, the National Security Office ("the NSA ') states that the classified information list is to some extent merely indicative. It serves primarily as a general tool for identifying individual facts as classified and for classifying individual types of classified information into classified items. Therefore, the lists of classified information use, in certain cases, general wording as in the contested provision. The NSA does not agree that the contested provision would be contrary to the provision of § 3 of Act No. 148 / 1998 Coll. The law itself does not specify any further requirements for the contents of the list. The contested provision is therefore not even contrary to Article 78 of the Constitution as it does not go beyond the legal limits and is not so vague and in general that its wording does not differ from the basic definition contained in the law as indicated in the proposal. The text of the contested provision is not even contrary to the provisions of Article 17 (5) of the Charter, since it confers conditions and the exercise of the right to information on the law, and it is clear that the right to information is limited in so far as classified facts are concerned, as also recognised by the provisions of Section 7 of Act No. 106 / 1999 Coll. The contested provisions, as well as other items of the classified information list in the application practice, assist in protecting the key principle of the classified information protection system - the protection of the interests of the Czech Republic. In practice, there are no more problems. Furthermore, the NSA adds that classification of classified information depends on specific cases, since the decision on the correct determination and designation of the appropriate classification level is the responsibility and responsibility of the statutory authority [§ 12 (2) (l) of Act No. 148 / 1998 Coll.]. However, a classified fact may only be that contained in the classified information list. Therefore, the classification level cannot be indicated by a fact which, although satisfying the content of the classified information, cannot be classified under any of the headings listed. In other countries, this principle is not applied, and the only condition for a fact to be classified is the possibility that the country's interests may be threatened or harmed by disclosure. Therefore, the substantive intention of the new legislation, approved by the Government, and, consequently, the proposal for a new law on the protection of classified information, presupposes that the classification of classified information will be carried out by its processor (author) only on the basis of a qualified assessment of the extent of the damage caused to the interests (or disadvantages to the interests) of the Czech Republic or the interests which the Czech Republic has committed to protect, in its disclosure, unlawful acquisition or unauthorised use.

The Constitutional Court first examined, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, whether the government regulation in respect of which the appellant objects to the unconstitutionality of its provision was adopted and issued within the limits of the Constitution laid down by the jurisdiction and by the constitutional procedure. The constitutional authority to issue regulations shall be given to the Government by Article 78 of the Constitution, according to which, for the implementation of the law and within its limits, the Government shall be entitled to issue regulations. The regulation shall be signed by the Prime Minister and the relevant member of the Government. By Law No 148 / 1998 Coll. it can be concluded that the Prime Minister himself is a competent member of the Government in the present case. According to the provisions of Section 7 (1) of the Act cited, it is the central administration for the protection of classified information, which also processes the lists of classified information (Section 3 (2) of the Act cited), the National Security Office under the supervision of the Prime Minister (Section 7 (3) of the Act cited).

In the present case, the Constitutional Court found that, by order No 678 of 19 October 1998, the Government approved a draft government regulation setting out the lists of classified information. Of the 15 members of the Government present, all 15 voted in favour. The order was signed by Prime Minister Miloš Zeman. The regulation was properly published in the Collection of Laws under No. 246 / 1998 Coll. The activities took place on 2.11.1998. The contested provision of point 18 of Annex 3 was supplemented by its amendment to the contested Decree of the Government by Regulation No 403 / 2001 Coll., amending Government Regulation No. 246 / 1998 Coll., laying down lists of classified information, as amended. This amendment was adopted by Government Resolution 1048 of 15 October 2001. Of the 15 members of the Government present, all 15 voted in favour. This government decree was signed by Ing. Miloš Zeman and was properly published in the Collection of Laws under the above number.

In these circumstances, the Constitutional Court concludes that the contested government regulation was adopted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner within the meaning of Section 68 (2) of Act No 182 / 1993 Coll., as amended. That is why the Constitutional Court was able to deal with it meritorically.

The appellant requests the annulment of the provisions of point 18 of Annex 3 to Decree No. 246 / 1998 Coll. Annex 3 to that Regulation is marked "List of classified information under the jurisdiction of the Ministry of Foreign Affairs' and point 18 of that Annex reads:" Sensitive political, security and economic information in the field of international relations'. This regulation was issued for the implementation of Act No. 148 / 1998 Coll. According to the provisions of Paragraph 3 (1), a classified fact is a fact with which unauthorised disposal could cause harm to the interests of the Czech Republic or to the interests which the Czech Republic has committed itself to protect or which could be unfavourable to those interests and which is included in the list of classified information. Pursuant to paragraphs 2 and 3 of this Article, the lists of classified information shall be drawn up by the National Security Office, acting on a proposal from the Central Authorities, and shall be issued by the Government by a regulation.

In particular, the appellant submits that the government acted in breach of Article 78 of the Constitution by the contested provision. According to the sentence of the first provision, the Government is entitled to issue regulations implementing the law and within its limits. This must be done by secundum et intra legem, not by praeter legem. The Government's regulation merely disseminates or updates the layout or hypothesis of the legal standards implemented, and it is not possible for that legal standard to be extended or narrowed in fact. The Government's regulation is required to be general and to affect an indefinite group of addressees, as the Constitution empowers it to legislate, not to issue an individual administrative act. The Excess of Power is protected by the barrier of matters reserved for regulation only to the laws (the so-called reservation of the law) (cf. the finding of the Constitutional Court sp. zn. Pl. ÚS 45 / 2000, Collection of finds and resolutions of the Constitutional Court, Volume 21, Found No 30; published under No. 96 / 2001 Coll.).

Paragraph 3 (1) of Act No 148 / 1998 Coll. defines the concept of "classified facts' by means of two cumulative conditions, namely material conditions (the unlawful treatment of such facts may cause harm to the interests of the Czech Republic or to the interests which the Czech Republic has committed itself to protect or could be unfavourable to those interests) and formal conditions (it is included in the list of classified facts). It is clear from the present proposal that the appellant came out of the language method in interpreting the provisions of Article 3 of Law No 148 / 1998. It concluded that the law foresees the existence of a taxiously and specifically defined list of classified information. It then concludes that the government has withdrawn from the legal limits in its activities as the list issued by the Government does not comply with this requirement.

However, the interpretation of the rule of law is a complex, multifaceted intellectual operation that combines a number of methodological approaches. The Constitutional Court considers the interpretation of e ratione legis to be an indispensable method of interpretation in the present context. He had previously accepted, in his case-law, the principle of a freer relationship between the law and the regulation, with the fact that it considered its compliance with the meaning and purpose of the law as a whole as a priority of the constitutionality of the regulation (cf. One of the main objectives of Act No. 148 / 1998 Coll., on the protection of classified information, is the protection of the interests of the Czech Republic. This is evidenced by the wording of the provision of Section 1a of that Act, according to which it is primarily the object of which to define the facts which must be classified in the interests of the Czech Republic. That purpose of the Act is intended to be fulfilled by other provisions, not least by the provisions of § 3 (1). The use of the teleological interpretation method leads to the undoubted conclusion that the purpose of the law is to ensure that all the facts which are qualified (§ 2 (2)) conflict with the interests of the Czech Republic are kept secret. This objective is designed in material condition the provision of § 3 paragraph 1 of Act No. 148 / 1998 Coll. It would be absurd to believe that the legislator intended to prevent the effective implementation of the purpose of the Act by incorporating the second, formal, provisions of Paragraph 3 (1) of Act No 148 / 1998 Coll. It would be such an absurd conclusion to accept the thesis that the list of classified information drawn up by the Government on the basis of the order of the law should contain only fully detailed items, while at the same time being a list of final, exhaustive. A combination of high specificity and taxaticity in drawing up the classified information list would make it impossible to fulfil the full purpose of the law, and the programme would carry the risk that the fact that it fulfils the material presumption of secrecy will not be classified because it does not fall under any of the specific items on the list drawn up by the government. The government did not have a mandate for such a "risky" combination. In fact, it is not entitled to reduce the legal standard in fact (see above). This would not be a "law and within its limits," but a contra legem procedure which does not allow Article 78 of the Constitution.

The appellant also considers that Decree No. 246 / 1998 Coll. of the Government did not comply with the principles of legal certainty and predictability of acts of public authority which are the property of the democratic rule of law (Article 1 (1) of the Constitution).

The Constitutional Court naturally agrees that the predictability of law is one of the fundamental elements of the principle of legal certainty, without which a democratic rule of law cannot be imagined. It also shares the appellant's view that "predictability 'is linked to a clear normative definition of the various classified information groups as well as to the taxative nature of their government list.

However, neither the legal certainty nor the predictability of acts of public authority are absolute categories that could be placed above other components that constitute the concept of a "democratic rule of law '. The protection of the interests of the Czech Republic as a sovereign state is also a protected value (Article 1 (1) of the Constitution). The Act on classified information defines these interests as" maintaining the constitutionality, sovereignty, territorial integrity, safeguarding state defence, public security, protecting important economic and political interests, the rights and freedoms of natural and legal persons and the protection of the life or health of natural persons'. The task of the legislator and, therefore, of the government is to optimise the possible dissent of the protection mechanisms of both values, in other words, to narrow down to the minimum the scope for possible leeway in acts of public authority while ensuring effective protection of the interests of the State. It would not be "optimisation" if the government's regulation ensured perfect legal certainty and, consequently, perfect predictability at the expense of protecting the interests of the State, which would have to give up the requirement of such assumed predictability unconditionally.

In this context, the Constitutional Court draws attention to the principle of proportionality, which is another expression of the concept of optimisation. It must also measure the list in Annex 3 to Government Decree No. 246 / 1998 Coll., which is the subject of the proposal. Adequate limitation of predictability (legal certainty) is a necessary restriction which can still ensure the effective implementation of the objective of Act No. 148 / 1998 Coll. It is clear that in the described operation "optimization" the government was forced to optimise to a large extent the conflicting requirements on the accuracy and specificity of the items on the one hand and on the taxonomy of their entire file on the other.

Hypothetically, two possible procedures were offered: to choose the exact expression of the individual items in the list and to define this list as a list of demonstrators at the same time. A similar path was clearly chosen by the legislature itself when, in Article 4 of Law No 148 / 1998 Coll., he drew up a list of "areas" in which classified facts may occur. Despite its unusual extent (27 items), it did not forget to mention its list with the word "in particular."

In a similar situation, the Government could not choose this procedure, given that the language interpretation of the provisions of Article 3 (1) of Law No 148 / 1998 Coll. in relation to the formal condition (listing of the facts) states in the request for a exhaustive list. Therefore, it had to act inversely, maintain the taxability of the list and "optimise" to the extent of the generality (specificity) of the provisions of the individual items of the list and the list as a whole.

The Constitutional Court notes that Annex 3 to Decree No. 246 / 1998 Coll. (List of classified information under the jurisdiction of the Ministry of Foreign Affairs) contains 18 items. Of which 17 are relatively specific, whereas item 18 is relatively general. Thus, the list in its entirety gives the public authority scope for greater substantive administrative discretion only under item 18, which must be understood as a "residual 'area not covered by items 1 - 17. Only in this residual area (not in the whole of international relations) creates objectively room for acts that could theoretically be described as" unpredictable. "

However, the Constitutional Court draws attention to the fact that the appellant refers his view of legal certainty and predictability to the inappropriately narrow concept of democratic rule of law. Legal certainty and predictability of acts of public authority should be maintained in relation to other bodies of international law. According to Article 1 (2) of the Constitution, "the Czech Republic complies with its obligations under international law." The Czech Republic has assumed international obligations against its allies to protect certain important and sensitive facts. It shall transfer those international obligations to national law and ensure that they are kept confidential. "Predictable" for these other states will be the legal framework for the procedure of public authorities of the Czech Republic, which will be capable of leading to compliance with its international confidentiality obligations. On the contrary, "unforeseeable" will be such a framework that the secrecy of the facts that the Czech Republic has committed itself internationally will not be able to ensure in all cases. However, the Czech Republic bears international responsibility to the allies only for the "result": it breaks its commitment when it has not ensured the protection of an individual fact which was subject to confidentiality under an international treaty. In order for the Czech Republic to be able to meet its international obligations in the field, its authorities must have the right to assess whether or not a fact is to be classified under the international agreement. If the Czech Republic is not able to fully ensure such a specific assessment and subsequent secrecy due to a certain content of its national law, its behaviour is "unpredictable 'for the contracting partners and it distorts legal certainty in international legal relations. The contractual partners need not disclose certain sensitive facts to the Czech Republic, or to the detriment of its security or other essential interests protected by Article 1 (1) of the Constitution.

Taking into account the previous considerations, the Constitutional Court considers that the degree of legal uncertainty, the unpredictability that it removes from the list of classified information falling within the competence of the Ministry of Foreign Affairs as a whole is appropriate in relation to the legally required level of protection of the interests of the State and the constitutional principle of compliance with the obligations arising from international law for the Czech Republic.

Furthermore, the appellant considers that Government Decree No. 246 / 1998 Coll. allows the Ministry of Foreign Affairs to proceed with the disclosure of the facts in such a way that there may be unconstitutional interference with the right of information under Article 17 (1) and (5) of the Charter. His conviction is not shared by the Constitutional Court. Law No 148 / 1998 Coll. limits the freedom of expression and the right to seek and disseminate information, inter alia, for reasons of State defence or public security, for reasons expressly permitted by Article 17 (4) of the Charter. The Government has not exceeded its limits in the implementation of this Act and a certain, reasonable degree of administrative discretion in applying the Government's regulation requires the purpose of that Act. Accordingly, the application of the contested provision in the list does not prevent the Ministry of Foreign Affairs from providing adequate information on its activities in accordance with the law.

The Constitutional Court also did not agree with the assertion of the appellant of the parties to the alleged infringement of Article 4 (2) of the Charter. The limits of fundamental rights and freedoms (in the present case the right to information) are undoubtedly defined by law in the present case (first, by law No 148 / 1998 Coll., which determines what is a classified fact and, second, by law No 106 / 1999 Coll., which provides that the compulsory body does not provide classified information). As was discussed above, the government did not break the limits of the law in the present case and therefore did not limit the constitutional right to information more than the law allows.

The Constitutional Court admits that the application of Decree-Law No 246 / 1998 Coll. and its annexes in specific cases may give rise to certain problems and doubts, as was the case in the case which initiated the action of the appellant. The legal space for administrative discretion may in an individual situation be misused for arbitrary secrecy of a specific fact which currently does not fulfil the material condition of § 3 paragraph 1 of Act No. 148 / 1998 Coll. In such a situation, however, the rule of law allows for the protection of its right to information, by means defined by Act No. 106 / 1999 Coll. According to Article 16 (1) of the Act, an appeal may be brought against the decision of the compulsory body to refuse the request for information or the decision of the central authority of the state administration (paragraph 5 of the provision cited). The decision to reject the application is also revisable by the General Court (§ 16 (6) of the Act cited) and its decision subsequently by the Constitutional Court.

Therefore, any insolence in determining the specific facts to be classified can be dealt with effectively. The Constitutional Court therefore considers that the contested provision, in a just defined broader procedural context, is also in line with the conclusions made by the European Court of Human Rights on the required accuracy of the legal standard and the predictability of public acts. In cases where the law authorises a public authority to consider that the scope and modalities of the exercise of such discretion are defined with sufficient clarity with regard to the legitimate objective in question and that individuals have provided adequate protection against arbitrary or arbitrary [Kruslin against France (1990), Sections 27, 29, 30 and M. Andersson against Sweden (1992), § 75].

In the light of all the above, the Constitutional Court rejected the application for annulment of the provision of paragraph 18 of Annex 3 to Decree No. 246 / 1998 Coll. under Paragraph 70 (2) of Law No. 182 / 1993 Coll..

Pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Court of First Instance took a different position on the decision of the full Judge JUDr. Eliška Wagner.