Found at the Constitutional Court of the Czech Republic No. 107 / 1996 Coll.
The finding of the Constitutional Court of the Czech Republic of 28 February 1996 on the application for annulment of Act No. 34 / 1995 Coll., supplementing Act No. 76 / 1959 Coll., on certain service ratios of soldiers, as amended, and on the application for annulment of Act No. 33 / 1995 Coll., amending and supplementing the Act of the Czech National Council No. 186 / 1992 Coll., on the service ratio of members of the Police of the Czech Republic, as amended, and Act No. 100 / 1970 Coll., on the service ratio of members of the National Security Corps, as amended
Valid
The Constitutional Tribunal found
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107
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 28 February 1996 in plenary on the application for annulment of Act No. 34 / 1995 Coll., supplementing Act No. 76 / 1959 of the Chamber of Deputies of the Parliament of the Czech Republic, on certain conditions of service of soldiers, as amended by the Act of the Court of First Instance of the Parliament of the Czech Republic, as amended by the Act of the Parliament of the Czech Republic, amending and supplementing Act No. 33 / 1995 Coll., Act No. 186 / 1992 Coll.
as follows:
Proposals are denied.
Reason
On 3 April 1995, a group of 42 Members of the Chamber of Deputies of the Parliament of the Czech Republic submitted a proposal to repeal Act No. 34 / 1995 Coll., supplementing Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended. By design of the contested Act No. 34 / 1995 Coll. supplemented the provision of Paragraph 33 (9) of Law No. 76 / 1959 Coll. by excluding the calculation of certain periods of service until the period of service applicable to the entitlement to the service allowance and its amount. In the transitional provision for adjustment effective as from 1 April 1995, it further stated that until the new measurement of the service contribution, i.e. by 31 October 1995 at the latest, its payment is suspended (§ 37a).
In its proposal, a group of Members argues that Act No. 34 / 1995 Coll. is contrary to the Constitution of the Czech Republic (hereinafter the Constitution) and the Charter of Fundamental Rights and Freedoms (hereinafter the Charter). Namely, the fact that the contested Act No. 34 / 1995 Coll. infringes the constitutional principle of equality of citizens before the law within the meaning of Article 1 of the Charter is criticised. According to Article 28 of the Charter, citizens have the right to a fair remuneration for the work they are involved in with respect to soldiers, including cash benefits - the service allowance, severance pay and death pay. A fair remuneration for the work carried out, extremely difficult working conditions and statutory personal constraints compared to civil servants are reflected in the service allowance. The service allowance is a benefit which, according to Article 33 (2) of Act No. 76 / 1959 Coll. is assessed under the Social Security Act. This means that entitlement to this benefit does not expire and that only the right to payment of individual benefits or parts of benefits is barred (Section 97 of Act No. 100 / 1988 Coll., on Social Security, as amended). The right to a fair remuneration for the work carried out may be limited by law only (Article 41 (1) of the Charter), which must apply equally to all cases which fulfil the conditions laid down (Article 4 (3) of the Charter) and must not discriminate against any individual or group of persons on grounds of their "other status' (Article 3 (1) of the Charter).
From the point of view of constitutionality, the appellants also consider it essential that the contested law has retroactive effect, since from 1 April 1995 it removes a certain group of citizens of the Czech Republic by virtue of the law acquired entitlement to a service contribution. Act No. 34 / 1995 Coll. with retroactive effect reglements the very creation of the right to an unbiased service allowance and removes or reduces the claims arising from it. It follows from the definition of the genuine and incorrect retroactivity of the legal standards contained in the finding of the ÚS CR sp. zn. Pl. ÚS 3 / 94., that in the case of Act No. 34 / 1995 Coll. it is a retroactivity of the right which is prohibited in the legal state.
The applicants also draw attention to the fact that the Government of the Czech Republic itself, by its resolution of 21 December 1994 No 729, opposed the text of the parliamentary draft of the contested law.
Act No. 34 / 1995 Coll., in their view, retroactively abolishes the legally acquired rights.
For all these reasons, a group of Members therefore proposes to repeal Act No. 34 / 1995 Coll., as amended.
The application for annulment of the Law pursuant to Article 87 (1) (a) of the Constitution and Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, was submitted by a group of forty-two Members who, from their ranks, had appointed a representative in the proceedings before the Constitutional Court, Dr Jaroslav Ortman.
After finding that there are no grounds for rejecting a proposal within the meaning of Article 43 of Act No. 182 / 1993 Coll., or for terminating the procedure under Article 67 of the same Act, the proposal was sent to the Parliament of the Czech Republic with a call for expression in accordance with the provisions of Article 69 of the Act cited. In view of the negative opinion of the Government of the Czech Republic on the parliamentary proposal of the contested Act No. 34 / 1995 Coll., its President was asked to send it to the Constitutional Court. In the framework of the provision of further documentary evidence within the meaning of § 42 (2) of Act No. 182 / 1993 Coll., the Constitutional Court requested the opinions of the relevant ministries, i.e. the defence, interior, justice and labour and social matters, in which it was to express its own nature of the activities of persons listed in § 33 (9) (a) to (g) of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., the opinion of the Interim Director of the Security Information Service was also requested.
In the course of the proceedings, the Constitutional Court concluded that there was still a need to supplement some of the appellants' claims with evidence and therefore called on their representatives to supplement them accordingly.
The appellants' representative stated in his observations that the claims relating to the service contribution relate to a whole set of soldiers, that is to say, including a subset of soldiers, referred to in Article I (1) (a) to (g) of Law No 34 / 1995 Coll. the distinction between soldiers for the purposes of their entitlement to the service allowance was not made by a group of Members but by the contested law. The representative of the appellants also stressed that the service allowance was introduced by the legal measure of the Bureau of the National Assembly No. 165 / 1964 Coll. and amended by Act No. 165 / 1978 Coll. His later amendment was carried out by Act No. 226 / 1992 Coll., which also changed his designation to a service allowance. Before the amendment of Act No. 34 / 1995 Coll. was entitled to a service allowance under the conditions laid down, all soldiers were entitled to leave the service, regardless of their rank, because there was no valid reason for that because of the nature of their service. The service contribution was intended and intended to serve as a retirement pension because it was always assumed that the service of professional soldiers could not and is not - as in other armies - their lifelong occupation (except for exceptions). In the case of discharged professional soldiers, they had and have been given a service allowance of up to 60 years of age to assist them in their continued employment in civilian life in order to avoid a more substantial decrease in their earnings and standards of living.
Since Law No 34 / 1995 Coll. also applies to those soldiers categorised under its Article I (1) (a) to (g) who have been rehabilitated under Law No 119 / 1990 Coll. and have been serving after 13 May 1992, the statement summarises the laws which have restricted or otherwise modified the rights of the soldiers who were entitled to a service allowance when they were discharged, compared to civil servants.
Recital of requested opinions
A) Parliament of the Czech Republic
Parliament of the Czech Republic, as a party to the proceedings, in its observations signed by the President of the Chamber of Deputies, PhDr. Milan Udem, stated that it was necessary to base its reasoning on the contested law, which refers to Paragraph 2 (2) of Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its opposition. According to this provision, the Communist Party of Czechoslovakia was a criminal and repugnant organisation similar to other organisations based on its ideology, which in their activities aimed at suppressing human rights and the democratic system. This other organization was undoubtedly the secret service of the Communist regime. For this reason, it was proposed that the service period in the selected components and functions should no longer be counted for the purposes of the confession and determination of the service allowance, similar to that of former members of the National Security Corps or the Police of the Czech Republic. At the same time, the draft law assumed that the outstanding service contributions would be aligned in terms of the basis as well as the above, with the newly determined calculation of the service period.
The appellants' objection that the contested law is retroactive is stated in the statement by the Parliament of the Czech Republic that the cited law is based consistently on the principle that the relationships of both substantive and procedural law which arose under the validity of the old law are governed by that law in principle, until the new law is effective. However, after its effectiveness, it is governed by a new law. The law cited does not have retroactive effects, since it does not deny, or abolish, the validity of previous legal relations, nor does it provide for an obligation to repay already paid contributions.
As regards the appellants' objection that, in the context of the adoption of the law in question, the reasons for limiting the benefits of a particular group of persons have not been demonstrated, the statement by Parliament refers to the abovementioned explanatory memorandum as well as the shorthand record from the meeting of the Chamber of Deputies. The stenographer's record from the Chamber of Deputies meeting (Press No. 1463) on the issue of justification for the minor benefits of a particular group of persons shows the following:
"Other organisations within the meaning of Article 2 (2) of Act No. 198 / 1993 Coll. are, among other things, undoubtedly the secret services of the Communist regime, both in the former Czechoslovak People's Army and in all the branches of the Ministry of Interior, Federal Ministry of Interior and so on. The current regulation of the law on the service ratio of soldiers provides for an obligation to include the period of service in these organisations for the purposes of granting and determining the amount of cash requirements. The proposed adjustment concerns only those who worked or were in service and served in these organisations. The intention of the petitioners is to deduct these times, with the fact that, if any of the soldiers served in such a file all the time, they should not be entitled to any monetary benefits if they have gone to civilian service. '
At the end of its observations, the President The Chamber of Deputies considered that the legislature acted in the belief that the law adopted was in accordance with the Constitution, the constitutional order of the Czech Republic and our legal order.
The statement by the Parliament of the Czech Republic on the amended proposal by a group of Members states that this supplement contains only data which have been and are currently generally known, as it results from the legislation in force and which have therefore been taken into account in the drafting of the law in question. In particular, attention is drawn to the fact that, on the other hand, the supplement does not contain any information on the basis of which it is possible to conclude that the exceptional difficulties in working conditions and the personal restrictions on those persons were due to the adoption of the law in question. The stated earlier or even current workload and personal limitations of those persons cannot be an adequate reason for the permanent and forever unchanged grant of a service allowance and other formalities.
B) Government of the Czech Republic
By its Resolution of 21 December 1994 No 729 on the parliamentary proposal for the contested law, the Government of the Czech Republic adopted an opinion stating that the Government had not given its consent to the proposal for the following reasons:
- The adoption of the proposed legislation would mean the indirect amendment of Act No. 87 / 1991 Coll., on non-judicial rehabilitation, as the periods of service referred to in Article The proposal is also confirmed in the provision of Section 30 of this Act.
- Act No. 76 / 1959 Coll. allows for the coexistence of the service allowance and pension, with the choice of either the allowance or the pension and the calculation of the service period being the same for both benefits. The proposed proposal for the compatibility of that law with the social security rules completely passes.
- Under Act No. 226 / 1992 Coll., which amended and supplemented Act No. 76 / 1959 Coll., the allowances for the service to which they were entitled before the amendment was effective, i.e. before 13 May 1992, shall be deemed to be service contributions in the area in which they were awarded. Therefore, it is not possible to re-assess in the draft transitional provision the calculation of the service period for the service contribution, with the addition of a higher contribution to the soldier in accordance with the existing regulations or, if the period is recalculated, it would not be appropriate to consider that contribution already granted.
C) Ministry of Defence of the Czech Republic
In particular, the opinion of the Minister of Defence revealed that internal regulations were not found to include the working characteristics of the various groups of professional soldiers affected by the contested law by the revision of the Ministry of Defence's file and archive funds.
The various groups of professional soldiers referred to in § 33 paragraph 9 of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., follow from that opinion:
1.
Within the organisational structure of the former military counter-intelligence (VKR), not only parts (services) whose activities involved the organisation and conduct of counterintelligence activities, but also departments which did not directly participate in the performance of counterintelligence protection tasks (e.g. administrative and financial service, material-technical security). In the opinion of the Minister of Defence, Paragraph 33 (9) (a) applies on a flat-rate basis to all professional soldiers who served in the armed forces with VKR, that is to say also to VKR soldiers in occipital and administrative functions, in particular to the logistics, financial, personnel, analytical and administrative security sectors, which were not linked to the performance of counterintelligence activities. The statutory provision cited also fails to take into account cases where a soldier was formally assigned to the workplace or in office with a counter-intelligence focus, but did not actually carry out counterintelligence activities for the purpose of sending him to the school concerned.
As regards the characteristics of the activity of the former VKR, it is apparent for example from the main administration of VKR (HS VKR) Regulation No 0071 / 19-1983, the HS VKR Regulation No 0040 / 19-1985.
2.
Act No. 34 / 1995 Coll. uses a non-existent legal term because the "Intelligence Unit of the Czechoslovak People's Army" was never established in the organisational structure of the former CSLA. An interpretation of the organizational regulations regarding the nature of the activities carried out can be concluded that the legislator was referring to the General Staff of the Czechoslovak People's Army (TSH CSLA), which carried out a survey by its CSLA departments and units. The TSG ČSLA was characterised by the Organisation Regulations as a military intelligence management authority. The activity of the head of the GŠ ČSLA was enshrined in Article 15 of the Order of Organisation of the Federal Ministry of Defence in Peace (All-REC-10, No. 000003). At the lower level of the organizational structure of the former CSLA, the Intelligence Chiefs of the regiment operated in the sense of the Order of the Internal Service of the CSSR Armed Forces.
3.
Due to the fact that the main political administration of the former CSLA (HPS ČSLA) and its subordinate components had their own file and archive regime, its papers have not been processed in archival for 25 years. The basic characteristics and main tasks of the HPS ČSLA can be documented with the use of the Code of the All-Obl. According to Article 28 of the Act, the CSLA was the highest political body of the CSLA. She worked with the rights of the CSC. In its activities it was governed by resolutions of the Parties, Party Statutes, resolutions and directives of the CSC. The CSC was responsible for all its activities. HPS ČSLA performed specifically the tasks listed in Annex 1.1)
With regard to the political department of the Ministry of National Defence, Article 29 All-around 10 political body for the management and implementation of all party-policy work, in particular for the uniform and direct management of the basic organisations of the KSČ and the SSM at the Ministry (excluding the KSČ and SSM TSG). In its activities it followed the resolutions of the Congress and Statutes of the Czech Republic, the resolutions and directives of the Czech Republic, the directives and instructions of the Chief of the Czech Republic, the resolutions of the Communists of the Ministry.
The duties of the Deputy Commander for Political Work (Political Affairs) at the level of the regiment, battalion and company were defined by the Order of the Internal Service of the Armed Forces of the CSSR (Zákl- Ř.1 / 4). The general characteristics of the activities of representatives of political leaders at the relevant levels were in Articles 69, 111 and 121. The order was basically done in the same way. They were responsible in peace and during the war for the organisation and state of political work of the department concerned, for the work associated with political and military education of soldiers, for the consolidation of moral political status and military discipline, as well as for the effectiveness of political work; have been subordinate to the competent department commander.
4.
The members referred to in § 33 (9) (d) to (g) of Act No. 76 / 1959 Coll., as amended by the contested Act No. 34 / 1995 Coll., are not within the competence of the Ministry of Defence, so the Minister of Defence was unable to comment on their working characteristics.
The opinion of the Minister of Defence also states that political affiliation (membership of the CSSR and the SSM) was not an explicit legal requirement or condition for any function in the CSLA. However, the requirement of political engagement was enshrined in Act No. 76 / 1959 Coll. until 1991. It was reflected in Paragraph 23 as one of the terms of service, Paragraph 5 (2) as one of the terms of appointment or promotion to higher rank, and Paragraph 10 (1) as one of the conditions for appointment of soldiers. The removal of the political aspect in the service of professional soldiers took place only by Act No. 228 / 1991 Coll. and Act No. 226 / 1992 Coll. Political engagement was thus an important criterion for the assessment of professional soldiers and thus a criterion for the continued conduct of the service.
In the context of the provision of the service allowance, the Minister of Defence also pointed out the recommendations of the International Labour Organisation (ILO) No 68 / 1944 relating to the service, i.e. that, when released from that service, the service allowance should be granted, as well as the Convention No 158 / 1982 on Termination of Employment, covering all sectors of economic activity and all employees. Pursuant to Article 12 of the Convention cited above, redundant professional soldiers shall be entitled to severance benefits and other similar benefits, the amount of which shall be determined taking into account the duration of the service.
As regards the number of persons affected by the contested law from the point of view of the Ministry of Defence of the Czech Republic, this suspended the payment of the service contribution to the 2024 concerned.
D) Ministry of Interior of the Czech Republic
The reply of the Minister of Interior to the request of the Constitutional Court states that the working characteristics of the members of the National Security Corps affected by the provisions of Section 33 (9) (d) of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., were not kept in writing. They can only be derived from internal rules issued for the operation of the State Security component in a very complex way. On the basis of the information received, in particular the internal standards at the time, these functions were defined by order No 21 of 9 March 1995 of the Minister for the Interior (RMV). The definition was all the more complex that the term "section 'referred to in Paragraph 33 (9) (d) was not identical to the term" department' commonly used in the internal legal standards of the former Federal Ministry of Interior. Therefore, the Minister of the Interior's quoted order excludes those functions that, although they were included in the relevant counterintelligence and intelligence unit, could not possibly include such activities, given their full capacity. The analogous approach was followed in the interpretation of the concept of "political farming activity" within the meaning of § 153 (2) (d) of Act No. 186 / 1992 Coll., as amended by Act No. 33 / 1995 Coll., which corresponded to the wording of § 33 (9) (e) of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll. It was also based on the fact that the member was assigned to the relevant branch which dealt with political activities, taking into account whether he was actually engaged in political activities with regard to his functional classification. Both in the previous case [point (d)] and here [Paragraph 33 (9) (e) of Act No. 76 / 1959 Coll.] is a list of functions in the opinion of the Minister exhaustive.
Within the meaning of the Annex to the cited order, which specifies the provisions of § 153 (2) (a) of Act No. 186 / 1992 Coll., as amended by Act No. 33 / 1995 Coll., which corresponds to the content of the provision of § 33 (9) (d) of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., a member of the SNB included in the StB component on the counter-intelligence or intelligence section shall be deemed to be a member of the service listed in Annex 2.
According to the cited RMV no. 21 / 1995, SNB members are classified in the political management (department) of the FMV, MV of the Czech Republic or MV of the Slovak Republic directly engaged in political activities if they were directly engaged in such activities secured by the administrations listed in Annex RMV No 21 / 1995.
Category of persons under Paragraph 33 (9) (d)
RMV No. 54 / 1972, containing the "Directive for Intelligence and Counter-Intelligence," defined the protection of the socialist society and the state establishment, security and defence of CSSR, the socialist economy, the security of the Czechoslovak people and their rights before the activities of foreign and internal enemies (see Annex 3) .1.
As regards the fight against the so-called internal enemy, the latter was governed by RMV No 10 / 1975, which was subsequently replaced by RMV Order No 43 / 1980. In accordance with the Order No 43 / 1980 cited, its contents included, in particular, the implementation and organisation of counter-intelligence measures to prevent and prevent the influence of the ideological diversion directed against the CSSR and the countries of the Socialist Community, the search, detection and documentation of the anti-state activities of persons carrying out counter-intelligence activities against CSSR in conjunction with hostile organisations abroad, as well as right-wing and anti-socialist forces within the State.
RMV No. 39 / 1980 covered counterintelligence management activities to combat the external enemy.
Counterintelligence activity in the economic protection sector was subject to RMV No. 41 / 1980.
What was characteristic of the activities of the SNB members included in the STB file on the counter-intelligence section is, according to the Minister of the Interior, valid for the activities of the SNB members, if they were included in the intelligence section.
Categories of persons referred to in § 33 (9) (e) and (f)
The Department and the Department for Political Work (point (e)), as amended by RMV No 21 / 1995, represented the organizational components of the structure of the political farming apparatus VB, whose activities were covered by the Minister of the Interior Regulation (NMV) No 18 / 1972. In particular, the Department, set up at the level of the main headquarters of the VB MV of the Czech Republic and the MV of the SSR, managed the propaganda of Marxist-Leninist learning, internal and foreign policy of the Czech Republic, provided methodological assistance in carrying out political teaching, organising and conducting training of the political establishment; manage and control the activities of the Department for Political Work on VB Administrations and Urban Administrations of VB and representatives of the Chiefs for Political Work at the District Department of VB and provide them with practical assistance (Article II (12)). The Department of Political Labour set up in VB administrations, VB municipal administrations performed the same tasks as the department at the level of HV VB MV ČSR and MV SSR in relation to its level of activity.
As regards the Deputy Chief (Commander) for Political Work, he, within the meaning of Article II (14), at OVB, OOVB and the School of VB, in particular raised members to complete the commitment of the KSČ, the Fatherland and the People to proletarian internationalism, the inreconcilability to bourgeois ideology, to high responsibility in the performance of their duties, to the precise fulfilment of orders, to the strict observance of socialist legality and to high revolutionary vigilance.
Paragraph 33 (9) (f) of Law No 76 / 1959 Coll. does not explicitly affect the Chief (Commander), who stood over his representative for political training.
In the structure of the political farming apparatus VB, the administration for political breeding work (NMV No 18 / 1972) and the administration for political farming, education, cultural and promotional activities of the FMV, established by NMV No 28 / 1977, had its place. In particular, the main tasks of the administration were, according to the principles for political work approved by the Bureau of the Czech Republic, to ensure the tasks of the Minister of Interior of the CSSR in the management of political work in the SNB; The basic principle of this activity was the direct, individual political activities of the staff of the SNB political farming apparatus on members in designated SNB departments. In addition, it assisted the KSČ authorities and organisations in designated SNB services in the conduct of party-policy work, in particular in the application of the Party's leading role in SNB conditions and in the performance of security policy tasks, etc. The principles of the work of this SNB apparatus were also consistent with those of the cadre selection that worked in it. According to NMV No. 22 / 1972, the selection was made from the politically advanced, classically conscious and Communist Party of Czechoslovakia dedicated to the SNB, from the members of the KSČ who proved the ideal strength and internationalloyalty, especially in the crisis period 1968-1969, were active in the talks committees for the cleansing of the party in 1970 and were actively involved in party policy.
As the Minister of the Interior points out, it is clear from the documentation presented that there is no exceptional difficulty in the working conditions of the three categories of SNB members involved compared to other members. In his opinion, SNB members who performed intelligence tasks abroad without cover, i.e. with a changed identity, could represent a certain exception. In principle, the risk of life or health risks, other serious risks, mental burden, etc., were comparable for all SNB members included in the same or comparable type of function, regardless of the component in which they were included. The comparison with the working conditions of civil servants is not, in the opinion of the requested Minister, effective, taking into account that one of the legal conditions for providing the service allowance (service allowance) is termination of the service rather than the employment relationship.
The Minister of the Interior also confirmed that the fulfilment of the conditions of overall political engagement was strictly required of all members of the SNB, regardless of the function held and the rank achieved. This certainly results not only from generally binding legislation (Act No. 100 / 1970 Coll., on the service relationship of members of the National Security Corps) but also from internal instructions. The former Minister of Interior Jaromír Obzina, in his speech in the justification of the Government Bill No. 63 / 1983 Coll., which amended and supplemented Act No. 100 / 1970 Coll., at the 9th Joint Meeting of the House of the FS CSSR on 14 June 1983, stated, inter alia,:... "over the past 12 years, the generational replacement of members of the SNB and the cleansing of the SNB from those who seriously embezzled during the social crisis 1968-1969 of the service oath, the Constitution and the laws of the CSSR. The class and political composition of the SNB has been strongly consolidated. There are now 75% of the members of the SNB who worked as workers and cooperative peasants before being admitted to the security system. To date, 76% of the members of the SNB and the candidates of the KSČ and 84% of the StB component are members of the SNB. 'As regards membership of the SSM, it can be noted from the Minister of Interior that, in practice, every younger member of the SNB was a member of this organisation, as this fact was already highlighted during the selection and during the recruitment procedure. It is thus clear that the so-called political education (graduating from the University of Marxism-Leninism, the VUML extension studies and other courses of the KSČ up to the post-graduate study at the University of Political University of the KSČ or the Military Political Academy of Klement Gottwald) was, although differentiated, established as a qualifying condition for the performance of all functions in the SNB. Strict determination of the condition (de facto) of membership of the KSČ can be assumed by the nature of the case to fill the post of Deputy Chief (Chief of Political Labour within the meaning of § 33 (9) (f) of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll.).
At the end of its opinion, the Minister of the Interior stated that the numbers of persons affected by Act No 34 / 1995 Coll. are not known to the Ministry of the Interior, given that the Ministry of the Interior (or its legal predecessor) did not measure the service allowance for those persons.
E) Ministry of Justice of the Czech Republic
The work of the directors of the Correctional Education Corps referred to in § 33 (9) (g) of Act No. 76 / 1959 Coll., as amended by the contested Act No. 34 / 1995 Coll., as well as the condition of the political involvement of these persons in the performance of their activities, is set out in the Order of the Minister of Justice No 22 / 1973 on the establishment of the Political and Corrective Education Corps, namely from its Annex: The Directive for the Activities of the Political and Corrective Education Corps.
The policy-making apparatus of the SNV was created from among the members of the KSČ, who stood firmly in the positions of Marxism-Leninism and Proletarian Internationalism, with their party experience, political and professional qualities, to guarantee the committed application of the party's policy and the successful fulfilment of the mission of the SNV political apparatus. The provisions of the staff of this apparatus for the functions and their removal were carried out by responsible service officials with cadre competence, after approval by the relevant party authorities according to the cadre nomenclature.
In the structure of the SNV political training apparatus, the members of the SNV were included both in the functions of the Deputy Chief of Administration for Political Work, who were also the Head of the Political Work Department and the Deputy Chief of the Political Work Service (see Annex 4 for the activities of that Department; see Annex 5 - 1) for the activities of the Deputy Chief of Service.
Furthermore, it follows from the directive cited that the provisions of Paragraph 33 (9) (g) of Law No 76 / 1959 Coll. expressly do not apply to the head of the SNV branch for political training but only to their representatives.
The Minister of Justice stated in his observations that the contested Act No. 34 / 1995 Coll. concerned 18 former employees of the current Prison Service.
F) Ministry of Labour and Social Affairs of the Czech Republic
In his opinion, the Minister for Labour and Social Affairs stated that the assessment of the higher intensity of the activities carried out by members of the armed forces, consisting in particular of a threat to their life and health, as well as the differences between the service and the employment relationship, was and is expressed in special forms (surcharges, increased rates of pay). As regards the service allowance, it does not directly link to the activity carried out, which is also clear from the fact that it is provided only after the service has ceased. The service allowance was not part of the so-called professional income and was not part of the salary of members of the armed forces under the applicable rules. This is a specific category of income motivated to some extent by social reasons (loss of expertise acquired for professional purposes, more difficult search for new employment in civil sectors after termination of service).
Finally, the Minister for Labour and Social Affairs stressed the scope of the law enshrined in Article 28 of the Charter. The quoted provision of the Charter guarantees the right to a fair remuneration for the work of employees and not citizens. It is clear that this is a reward for work in the course of an employment relationship, whether in service or employment. Therefore, the right enshrined in this Article cannot be extended to post-employment performance.
G) Security Information Service of the Czech Republic
The interim Director of the Security Information Service of the Czech Republic (BIS), at the request of the Constitutional Court, stated that the position of the BIS is completely marginal and specific in the matter.
The analysis of the development of the legal regulation of BIS activities shows that the contested Act No. 34 / 1995 Coll. could only affect those members of the former Federal Security Service ("FBIS ') who did not become members of the BIS and who were also granted a service allowance under Act No. 100 / 1970 Coll., on the service relationship of members of the National Security Corps. After the approval of Act No. 34 / 1995 Coll. the BIS therefore carried out an evaluation of its possible effects on former FBIS members, which paid the service allowance. In this context, it was found that no member of the former FBIS was affected by the contested Law No 34 / 1995 Coll.. The members of its successor organisation, i.e. BIS, shall not be allowed to be affected.
H) Invitation to consider the order of the Minister of Defence No 35 / 1995
During the proceedings, the Constitutional Court was informed by JUDr. Jaroslav Ortman that the Constitutional Court should examine the order of the Minister of Defence No 35 / 1995 on the uniform application of the provisions of § 33 paragraph 9 of Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., pursuant to § 70 paragraph 3 of Act No. 182 / 1993 Coll.
According to the author, the order is also applied to cases (functions) not covered. Article I (1) of Act No. 34 / 1995 Coll. states that the duration of the service will be determined for the entitlement to a service allowance and its amount is not the period of service of a CSLA soldier classified in the CSLA HPS, who was directly engaged in political activities or who was appointed as Deputy Commander for Political Work or Propagandists (see Section 33 (9) (c) of Act No. 76 / 1959 Coll., as amended by Amendment No. 34 / 1995 Coll.). That function did not exist in the CSLA and the Minister of Defence interpreted in the order by considering himself as such a soldier of the profession assigned to the post of Deputy Chief of Political Affairs at all stages. The Minister of Defence shall not be able to interpret and transpose the laws autonomously without having been expressly empowered to do so by the Law pursuant to Article 79 (3) of the Constitution.
The Constitutional Court, as required by Article 68 (2) of Act No. 182 / 1993 Coll., first examined whether Law No. 34 / 1995 Coll. had been adopted and issued within the limits of the Constitution established competence and in a constitutional manner.
It is clear from the report of the Parliament of the Czech Republic as well as from the shortwriting record from the meeting of the Chamber of Deputies (press No 1463) that the contested Act No. 34 / 1995 Coll. proposed for adoption as an amendment to Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended, a group of Members who have thus exercised their right to legislative initiative under Article 41 (2) of the Constitution. The Act was adopted by the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Articles 15 (1) and 106 (2) of the Third Constitution. The country prescribed in Article 39 (1) and (2) of the Constitution has been complied with. The meeting of the Chamber of Deputies on 8 February 1995, its 69th vote, took part in 119 Members, 88 of whom voted in favour of the bill, 19 of whom were opposed and 12 abstentions.
The law was upheld by the Constitution, the law was signed by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister (Article 51 of the Constitution) and was published in the Collection of Laws in the amount of 7, 1995, sent out on 3 March 1995. By that date Law No 34 / 1995 Coll. became effective. It became effective in accordance with Article II thereof on 1 April 1995.
On 3 April 1995, a group of 41 Members of the Chamber of Deputies of the Parliament of the Czech Republic submitted a motion to repeal Act No. 33 / 1995 Coll., amending and supplementing Act No. 186 / 1992 Coll. and Act No. 100 / 1970 Coll., both as amended.
According to the appellants, the contested law is contrary to Article 1 of the Constitution and Articles 1, 3, 4 (3), 28 and 41 (1) of the Charter.
The Group of Members therefore proposes that the Constitutional Court should repeal Act No. 33 / 1995 Coll. At the same time, Members have given their consent to be represented in proceedings before the Constitutional Court by MEP JUDr. J. Ortman.
The motion by the group of Members to abolish Act No. 33 / 1995 Coll. is based on an analysis of the law and is justified as follows: "The contribution for the service is a legal right of a police officer whose employment has ended without fault by his release or dismissal for medical, professional or organisational reasons. The contribution shall reflect fair remuneration for the work carried out, extremely difficult working conditions and legal restrictions as compared to civil servants. In essence, it is a reasonable and partial compensation for a decent service income and belongs to all officers who have fulfilled the generally prescribed legal conditions. '
The service allowance has been and is designed in all the laws governing it as an absolute claim. The limitation shall be subject only to claims for individual transactions resulting therefrom.
Article 28 The Charter is entitled to a fair remuneration for work whose limits can only be laid down by law (Article 41 (1) of the Charter), and any restriction must apply equally to all cases which fulfil the conditions laid down (Article 4 (3) of the Charter). Those conditions must respect the principle of equality in rights and the prohibition of discrimination against any individual or group of persons on the grounds of their "other status' (Articles 1 and 3 (1) of the Charter).
The Constitutional Court found in sp. zn. However, this has not been demonstrated.
Act No. 33 / 1995 Coll. has retroactive effect since since 1 April 1995 it removes a certain group of citizens of the Czech Republic under the law acquired the right to a contribution for the service. According to the finding of the Constitutional Court sp. zn. Pl. ÚS 16 / 93, in the constitutional order of the Czech Republic, the general prohibition of retroactivity, based on the principles of the rule of law, is valid, the tenure of which also includes the principle of legal certainty and the protection of citizens' trust in law.
In the event of the cancellation of the term of service of a group of persons already performed for the granting of an unlimited contribution for the service and the withdrawal of that right for the contribution already realised, the result of the genuine retroactivity of Act No. 33 / 1995 Coll., as it relegates both the very origin of the legal relationship and the claims arising therefrom (Pl. ÚS 3 / 94).
Article II of Act No. 33 / 1995 Coll. provides for the amendment of Act No. 100 / 1970 Coll., by adjusting the contribution rights for the service in FBIS. According to § 35 (2) of Act No. 244 / 1991 Coll., the service of FBIS members was adequately covered by Act No. 100 / 1970 Coll. However, Act No. 244 / 1991 Coll. was repealed with effect from 31 December 1992 by Act No. 543 / 1992 Coll., so also for this institution and its members the Act No. 100 / 1970 Coll. expired.
The regulation of the legal relationship of former members of the repealed body is contrary to the principles of the rule of law under Article 1 of the Constitution, which do not permit the retroactivity of the legal standards to be determined and the amendment of the annulled act.
Act No. 33 / 1995 Coll. was passed on the initiative of a group of Members and the Government of the Czech Republic, by its Resolution No. 730 of 21 December 1994, opposed to the text of the parliamentary bill.
Act No. 33 / 1995 Coll. retroactively abolishes the legal rights acquired and must therefore be repealed with effect from 1 April 1995.
According to the provisions of § 42 (3) and § 69 of Act No. 182 / 1993 Coll., the Constitutional Court sent this proposal to the Chamber of Deputies of the Parliament of the Czech Republic for comments. Her President, Dr Milan Uhde, confirmed the position of the Chamber of Deputies expressed by the vote on the draft law No. 33 / 1995 Coll. and justified the following arguments: "The reason report on this law refers to Paragraph 2 (2) of the Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its resistance to it, according to which the Communist Party of Czechoslovakia was a criminal organisation similar to another organisation based on its ideology, which in their activities aimed at suppressing human rights and the democratic system. This other organization, according to the explanatory memorandum, was undoubtedly the secret service of the Communist regime. For this reason, it was proposed that the service period in the selected components and functions should no longer be counted for the purposes of granting and determining the service allowance. 'The President of the Chamber of Deputies states that the law cited is consistently based on the principle that the legal relations of both substantive and procedural law arising from the validity of the old law are, in principle, governed by this law, until the new law is effective; However, after its effectiveness, it shall be governed by new law. The law cited does not include and does not regulate the creation of legal relations and claims arising from them before its effect, but merely sets out the conditions for their granting and payment to the future. It follows that the Act does not have retroactive effects, in fact it does not deny or abolish the validity of previous legal relations nor does it provide for an obligation to repay contributions already paid. In this context, the President of the Chamber of Deputies refers to the finding of the Constitutional Court No. 164 / 1994 Coll. It states that the law was approved by the necessary majority of Members on 8 February 1995, signed by the relevant constitutional authorities and duly declared.
The Constitutional Court also requested the expression of the central authorities concerned by the application of the law - BIS, Ministry of Labour and Social Affairs, Ministry of Defence, Ministry of Interior and Ministry of Justice - and asked them to characterise the activities carried out by officials in the respective functions.
A) Security Information Service
From the observations of the interim director of the BIS, the Constitutional Court found that, after November 1989, major organisational changes to the Federal Ministry of Interior (FMV) occurred in several stages.
The counterintelligence tasks of the State were gradually performed by members of the Office for the Protection of the Constitution and Democracy, and later by FBIS members. Both of these authorities were the organizational services of the FMV, whose members were in the service of members of the SNB under Act No. 100 / 1970 Coll. Act No. 527 / 1992 Coll. established BIS, which became the legal successor of FBIS, not FMV or SNB. The same law provides for the appointment of BIS members. In this Act, the legislator combined the right to a contribution for the service of BIS members only with the duration of the service of the SNB members included in the FMV Office for the Protection of the Constitution and Democracy or in the FBIS or the duration of the service of the FBIS member. The last modification is contained in the current Act No. 154 / 1994 Coll., on the Security Information Service of the Czech Republic.
It is clear from this that the contested Act No. 33 / 1995 Coll. only affects those members of the former FBIS who did not become at least members of the BIS and who were at the same time granted a service allowance under Law No. 100 / 1970. After the approval of Act No. 33 / 1995 Coll. BIS carried out an evaluation of its possible effects on former FBIS members to whom the service allowance is paid. At the ban on this law, only three members of the former FBIS were suspended from the service allowance. In order to implement Act No. 33 / 1995 Coll. the interim director of the BIS issued an order specifying the personal extent of the functions referred to in § 134 (3) (a) and (d) of Act No. 100 / 1970 Coll. This order, as communicated by the interim director of the BIS, closely monitors the interpretation of the sole competent authority in this matter - the Ministry of the Interior.
B) Ministry of Labour and Social Affairs
From the expression of the Ministry of Labour and Social Affairs it was found that the regulations for the remuneration of police officers issued until the entry into force of the Decree of Government No. 79 / 1994 Coll. had a ministerial competence, issued by the former FMV and the Ministry of Labour and Social Affairs did not have them due to the degree of secrecy. The same applies to the working characteristics of the relevant categories of persons. The higher intensity of the activities carried out by the police officers has been and is also valued directly in salary according to the regulations in force (additional payments, increased salary). The service allowance was not part of the service income and was not part of the salary under the applicable rules. It is not directly linked to the activity carried out and is provided only in connection with termination of service. This is a special category of money income, the provision of which is justified mainly by social aspects (difficult finding new employment in civil sectors at termination of service, loss of expertise acquired for professional purposes).
C) Ministry of Defence
The Ministry of Defence's statement states that internal regulations were not found by the revision of the Ministry of Defence's file and archive funds, which would include the working characteristics of the various groups of professional soldiers for which Law No. 33 / 1995 Coll. excludes the calculation of service periods until the period of service applicable to the entitlement to the service allowance and its amount. In relation to the individual provisions of the law it states:
- Former military counterintelligence ("VKR") was subordinate to the Ministry of the Interior from 1951 to 1990 and included in its structure as the III administration of the SNB. It was made up of professional soldiers called upon to carry out SNB tasks in order to protect the fighting capabilities of the armed forces. Within the VKR, not only parts (services) whose activities involved the organisation and conduct of counterintelligence activities were not only active, but also departments which did not directly participate in the performance of counterintelligence protection tasks (e.g. administrative and financial services, material technical supplies).
Paragraph 153 (2) (b) of the Act No. 186 / 1992 Coll., on the business conditions of members of the Police of the Czech Republic, as amended by Act No. 33 / 1995 Coll., applies to all professional soldiers who served in the armed forces with VKR. We do not distinguish between professional soldiers included in VKR according to their functions and nature of the activity carried out in VKR.
In view of the legal consequences of the provisions of § 153 (2) (b) of Act No 186 / 1992 Coll. in the same way, the professional soldiers included in VKR in functions of occipital and administrative nature, in particular on the section of logistical, financial, personnel, analytical and administrative security, which were not linked to the performance of counterintelligence activities. It also does not take into account cases where a soldier has been formally assigned to the workplace or in office with a counterintelligence focus, but has not been effectively engaged in counterintelligence activities for the purpose of sending him to the school concerned.
- Members of military intelligence, according to the classification of § 153 paragraph 2 (c) of Act No. 186 / 1992 Coll.... "with classification in the branch of the Intelligence Service of the Czechoslovak People's Army..." which has in fact never been established in the organisational structure of the former CSLA. It can be concluded that the legislator was referring to the intelligence administration of the General Staff of the CSLA, which carried out the survey. The Constitutional Court has been sent internal rules laying down certain obligations of members of that institution.
- Members of the main political administration of the CSLA. Paragraph 153 (2) (g) of the Act uses an inaccurate designation to define functions and activities. The required characteristics cannot be provided to the Constitutional Court as the main political administration of the CSLA had its own file and archive regime. She did the shredding herself. Since 1970, HPS CSLA documents have not been processed in the archive and are currently being studied by the Historical Institute of the Army of the Czech Republic. The basic characteristics and main tasks of the CSLA are defined by the relevant regulations.
Attached The Order of Internal Service of the CSSR, which was in force between 1 October 1979 and 1 June 1992, gives a sufficient picture of the activities of members of the CSSR. Among other things, the duty of the Deputy Commander of the Political Affairs Regiment, the Deputy Commander of the Political Affairs Battalion and the Deputy Chief of the Political Affairs Company has also been imposed. At the relevant level, they were required to:
- organise and carry out political work and focus it on the integration of members of the regiment (battalion, companies) around the CSČ;
- to raise soldiers to the absolute devotion of the socialist homeland, the KSČ... in the spirit of socialist and proletarian internationalism, irreconcilability with bourgeois ideology;
- explain to the soldiers the leading and driving role of the KSČ;
- raise soldiers to class hate...;
- organise and conduct political training and information, mass policy work;
- organise the ideologically theoretical and methodological preparation of political training leaders;
- direct the political work of officers and ensign, shape their working, political and moral qualities, personally conduct their educational work with officers and manage their Marxist-Lenin training;
- establish and maintain constant contact with local party and state authorities.
For the uniform application of the law, the Minister of Defence issued an order setting out the personal scope of the provision. It was published in No. 35 / 1995 of the Ministry of Defence Bulletin.
Furthermore, the opinion draws attention to the recommendations of the International Labour Organisation No 68 / 1944 and the International Labour Organisation Convention No 158 / 1982 relating to dismissed soldiers, ensuring entitlement to severance benefits and other similar benefits, the amount of which shall be determined taking into account the duration of the service. In this context, the Defence Minister draws attention to the Government's position in its resolution of 21 December 1994.
D) Ministry of Interior
The expression of the Ministry of Interior dated 6 November 1995 states that the working characteristics of the members of the SNB mentioned in the new version of § 153 paragraph 2 of Act No. 186 / 1992 Coll., on the service relationship of the members of the Police of the Czech Republic, were not conducted in writing. Very complex and only flat-rate can be derived from internal rules issued by StB.
In spite of the above, however, it was necessary for the application of Act No. 33 / 1995 Coll. to carry out a thorough analysis of all functions in order to determine whether the statutory condition for the performance of the service in the StB component was met on the counter-intelligence or intelligence section. On the basis of the information gathered, in particular from the internal standards at the time, these functions were defined by order No 21 of 9 March 1995 of the Minister of Interior.
The definition was all the more complex because the term "section 'mentioned in the cited law was not identical to the term" department', commonly used in the internal legal standards of the former FMV. Therefore, the order of the Minister of the Interior excludes those functions which, although they were included in the relevant counterintelligence and intelligence unit, could not possibly include such activities due to their content. In an analogous way, the concept of "political governance (department) 'and" direct exercise of political activity' was interpreted. It was also based on the fact that the member was assigned to the relevant branch which dealt with political activities, taking into account whether he was actually engaged in political activities with regard to his functional classification.
The Constitutional Court has at its disposal certain regulations of the Minister of Interior of the CSSR. These Regulations characterise certain activities subject to assessment.
For example, the Directive on the Activities of the Political and Security apparatus (Annex to Regulation No 18 / 1972 of the Minister for the Interior) states that:
* The mission of the political breeding apparatus is, among other things:
- to raise, in the spirit of the ideas of marxism-leninism and proletarian internationalism, class-conscious and politically mature members of the VB dedicated to the KSČ, recognising its political ideas, who will respect and exercise its leading role in the construction and development of socialist society;
* The task of the political breeding apparatus is primarily:
- to raise VB members to the Marxist-Lenin world view and commitment to the cause of communism, to ideological consolidation of their views, to irreconcilability with the bourgeois ideology, to develop their love and commitment to the CSC, to proletarian internationalism...;
- to raise members to work on the basis of the progressive traditions of the KSČ, high revolutionary vigilance and vigilance;
- develop a high idealism and party to professional security work so that each member of the VB becomes a convinced, conscious and dedicated warrior against class enemies;
- lead the VB members to comply with the resolutions of the Party and the Government...;
- provide assistance to the KSSC bodies and organisations in VB components, departments and schools;
* the political establishment apparatus fully respects the statutes of the KSČ, the resolutions of the meetings of the KSČ, as well as the resolutions of the KSČ and the Party's territorial authorities;
* the activity of the political farming apparatus VB is carried out on the basis of prospective and short-term plans based on the KSČ line. The content of these plans shall be consulted with the relevant territorial authorities of the KSČ.
The main tasks of administration for the political, educational, cultural and promotional activities of the FMV (Annex 1 to Regulation MV CSSR No 28 / 1977) provide, inter alia, that:
* Governance for political farming etc. the work performs the following basic tasks:
- assist the KSČ authorities and organisations in designated SNB services in the conduct of party-policy work, in particular in the application of the Party's leading role in SNB conditions;
- preparing content and programmes of SNB staff training including Marxist-Lenin training....
The principles for political training in the National Security Corps (Annex 2 to Regulation MV CSSR No 28 / 1977) laid down, inter alia:
* Political training in the SNB is based on Marxist-Lenin ideology and security policy of the KSČ,
* In its activities, the SNB is governed by resolutions of the KSČ Conventions, by guidelines for the work of the authorities and organisations of the KSČ in the SNB, by resolutions of the party authorities and by the party conferences...,
* The SNB is composed of members of the KSČ, who are firmly in the position of Marxism-Leninism and Proletarian Internationalism, who are committed to the party's politics and their party experience, political, moral and professional qualities, give a guarantee of the successful performance of tasks in political breeding.
The duties of the staff of the SNB's political farming apparatus are:
- consistently implement party resolutions and, with knowledge of the facts, promote the Party's security policy requirements;
- continuously acquire marxismus-leninism, educate and ideologically consolidate.
The Organisational Rules of Administration for the Political, Educational, Cultural and Promotional Activities of the FMV (Annex to the Order of the Ministry of Social Affairs No 29 / 1978) set out, inter alia, the tasks of this administration again in relation to the KSČ authorities:
- prepare documents for the preparation and application of the resolution of the CSC's senior bodies;
- organise and ensure the promotion and popularisation of the SNB... on the main tasks that result from the resolutions of the KSČ authorities for SNB;
- provide for compulsory study literature and didactic aids for schools directly subordinate and within the defined scope for the different components of the secondary education system;
- preparing the content and programme of the SNB staff training including Marxist-Lenin training... checks the progress of Marxist-Lenin training and its effectiveness.
In addition, specific tasks have been set out for the various organisational bodies of the administration in the same terms.
E) Ministry of Justice
The Ministry of Justice did not comment on the application for annulment of Act No. 33 / 1995 Coll. but sent its comments on the application for annulment of Act No. 34 / 1995 Coll. [see Part Ia / 3 (E)]. At this point, it is only to be noted that the content of the work of the SNV political apparatus was set out in very general terms "Directive for the activities of the SNV Czech Republic political apparatus" (Annex to the order of the Minister of Justice No 22 of 1973), which documents the close cooperation with the KSČ apparatus and the emphasis on the promotion of its principles (education in the spirit of Marxism-Leninism, the commitment of the KSČ, the implacability of the manifestations of bourgeois ideology, the fight against the class enemy, etc.). The application of the law has affected about 18 people in the Ministry of Justice.
F) Government of the Czech Republic
The Constitutional Court also requested the opinion of the Government of the Czech Republic on the draft contested law annexed to the Government Resolution of 21 December 1994 No 730. The Government states in its opinion that it does not agree with the draft law. In addition to the factual and legislative shortcomings, it criticises the suggestion that "it is based on the fact that until now no one has addressed the question of reducing benefits for former StB members. However, this does not correspond to reality. Already in 1990, a civil commission was established on the basis of Act No. 169 / 1990 Coll. which examined the members of the StB and expressed their capacity to continue their service. Members made redundant by decision of the civil commission were not entitled to severance pay, salary compensation or service allowance. The draft amendment does not take into account the principle of individual assessment carried out by the citizens' commissions and replaces it by a flat-rate assessment of former members of the SNB and police officers in the performance of their duties without examining the degree of individual involvement in past injustices. The proposed amendment is also a non-systemic intervention in Act No. 87 / 1991 Coll., on extrajudicial rehabilitation. '
The Constitutional Court, as required by Article 68 (2) of Act No. 182 / 1993 Coll., also examined whether Law No. 33 / 1995 Coll. was adopted and issued within the limits of the Constitution established competence and by a constitutional procedure.
It is clear from the report of the Chamber of Deputies of the Parliament of the Czech Republic as well as from the shorthand record of the meeting of the Chamber of Deputies that the contested Act No. 33 / 1995 Coll. proposed for adoption a group of Members who have thus exercised their right to legislative initiative under Article 41 (2) of the Constitution. The Act was adopted by the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Articles 15 (1) and 106 (2) of the Third Constitution. The country prescribed in Article 39 (1) and (2) of the Constitution has been complied with. The meeting of the Chamber of Deputies on 8 February 1995, its 70th vote, was attended by 129 Members, of whom 93 voted for the law, 23 voted against the law and 13 abstentions.
The constitutional procedure for admission and the law was followed. The Act was signed by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister (Article 51 of the Constitution) and was published in the Collection of Laws in the amount of 7, 1995, sent out on 3 March 1995. By that date Law No 33 / 1995 Coll. became effective. It became effective in accordance with its Article III on 1 April 1995.
The reasons for the contested laws, of which the legislature's apparent intention, refer to Section 2 (2) of Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime. According to this provision, the CSC was a criminal and repugnant organisation, like other organisations based on its ideology, which in their activities aimed at the suppression of human rights and the democratic system. Such an organisation was undoubtedly also the secret service of the Communist regime and other organisations, departments and activities, based on the ideology of the KSČ, such as State Security (in particular its components on the counter-intelligence and intelligence section), the main political administration of the CSLA, as well as services and activities aimed at the so-called political work in the former CSLA, SNB or SNV.
Act No. 33 / 1995 Coll. and No. 34 / 1995 Coll. are in the context of the trend already expressed in Act No. 198 / 1993 Coll., Act No. 451 / 1991 Coll., the laws of restitution and others and form together a system of legal settlement with the Communist regime.
In this connection, Act No. 198 / 1993 Coll. As stated by the Constitutional Court in its finding in sp. zn. The persons performing functions designated by the contested laws undoubtedly actively promoted the Communist regime and its totalitarian principles, whether or not they were members of the KSČ and, in principle, whether or not they were directly an important, essential and determining factor or merely an instrument (certainly conscious) or a kind of captive of those who actively advocated the regime. As is apparent from the documents cited above, they had it "in full work."
The Constitution is not based on value neutrality, it is not just by defining institutions and processes, but it also includes certain regulatory ideas that express the fundamental untouchables of democratic society. The Constitution accepts and respects the principle of legality as part of the general concept of the rule of law, but it does not only bind the positive right to formal legality, but the interpretation and application of legal standards is subject to their intrinsic material sense, it makes the right subject to respect for the fundamental constitutional values of democratic society, and it also measures the use of legal standards. This also means "old right" value discount with "old mode." This concept of a constitutional state rejects the formally rational legitimacy of the regime and the formal rule of law. Whatever the laws of the state, in a state that is called democratic and proclaims the principle of the sovereignty of the people, no regime can be legitimate but a democratic one.
The service allowance and the service allowance are conceived in the legal order of the Czech Republic together with other benefits as a compensation for work carried out under difficult conditions and certain personal restrictions resulting from the nature of work in the armed forces of the state. It belongs to all those who have fulfilled the statutory conditions. They are part of a system of social benefits related to termination of service. In addition to the service allowance, these are severance and salary compensation (see § 114 - 119 of Act No. 186 / 1992 Coll. and § 33a of Act No. 76 / 1959 Coll.). Entitlement to all these benefits shall be maintained.
Moreover, as regards the service allowance, unlike the proposal of a group of Members, it cannot be seen as part of the remuneration for the work, but according to the opinion of the Minister of Labour and Social Affairs, with which the Constitutional Court has identified itself, as a separate income which was not part of the so-called "professional income 'and is not part of the salary of members of the armed forces under the applicable rules. This is a specific category of income justified to some extent by social reasons.
Although the justification of the parliamentary proposal explicitly mentions only secret services, the actual text of the law clearly also affects the political apparatus. This conclusion is confirmed, for example, by the rule of law of the Bureau of the National Assembly No. 165 / 1964 Coll., which introduced the service allowance, later renamed a service allowance, for professional soldiers. According to his § 33 (2) "The contribution does not belong to professional soldiers transferred to the reserve at their request or for moral political reasons; does not also belong to the withdrawal or loss of military rank '. In other words, if the professional soldier at the time fulfilled all the substantive conditions for granting the service allowance, but if he was not morally politically reliable, he did not receive the allowance, unlike others. The explanatory memorandum to this legal measure did not contain a statement of moral political reasons. These were so well known at the time that they probably did not need to be commented on. At the same time, this aspect was allowed to be interpreted very widely, specifically, and in fact deepened by this generally binding legislation from the outset, the inequality between" reliable and unreliable. "
If at present the legislature decided to stop or reduce the payment of the payout to those who, with their moral political reliability, contributed to the suppression of human rights and the democratic system because they were active in the files listed in the contested laws, it set out a far more objective criterion for the granting of that contribution compared to the statutory measure 165 / 1964 Coll. above.
The reduction or withdrawal of the benefits of one group of citizens as a result of the adoption of Laws 33 / 1995 Coll. and 34 / 1995 Coll. does not mean that the legislator would thus impose disproportionate obligations on that group.
The contribution is granted and paid out from the budget, i.e. from taxpayers' money (see for example Section 33c (1) of Act No. 76 / 1959 Coll.). It would therefore be immoral for the former support of the Communist regime to be awarded by public funds to which all citizens (even in the past, persevere) contribute. The political apparatus and the secret service were certainly fundamental pillars without which totalitarian power could not exist. The Constitutional Court believes that the legislator's reasoning, expressed in the contested law, is correct, that there are no grounds (moral, political) for the new democratic state to pay above-standard social benefits to those who made it impossible to create it.
It would be absurd and unsensual for a democratic state to evaluate the activities of the aforementioned persons (Act No. 198 / 1993 Coll. condemned and rejected) as an extremely demanding activity for the purpose of an advantage in the field of social security. If the relevant persons have been examined by the citizens' committees and found to be eligible for the service in a newly formed political system, this is an expression of the generosity and humanity of the democratic system towards its opponents. However, this does not mean anything more and no less than that these persons were found to be eligible for other services in an already democratic state (as stated in their statement by the Ministry of Defence "sufficiently demonstrated their loyalty to the democratic establishment"), and not the approval of their activities in favour of the communist regime, or the increased appreciation of their activities in the exposed organisations and in the exposed sites, which represented important support for the regime itself, by the approval of such a importance that the activities described should be favoured by the democratic society.
Nor can the fact that the profession of "professional soldier" or "member of the SNB" depend solely and solely on the voluntary decision of each individual remain unnoticed, and has always been above average remunerated in relation to other professions.
The provisions of the contested laws do not apply to all members of the SNB, SNV or soldiers of the CSLA, but only to certain functions, those whose activities are incompatible with the principles of a democratic state. While it is true that both laws apply across borders to all persons who served in incriminated functions, as the statements of the ministries of defence and the interior also point out. However, as is apparent from the abovementioned internal rules (orders), all persons who have worked in these areas of activity have been committed to activities incompatible with the democratic order and can hardly be assumed that they have not "properly 'fulfilled their obligations. The Act No. 33 / 1995 Coll. and No. 34 / 1995 Coll. relate directly to the special bodies of the ministries of the Interior, Defence and Justice, implementing social security (§ 3 of Act No. 582 / 1991 Coll.), which are thus the direct addressees of the tasks arising from those laws, and they assess whether and how long they have worked in a particular function of the person concerned.
On the basis of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, which establishes its internal structure, or Act No. 76 / 1959 Coll. the above laws are then distributed by the orders of the relevant ministers (i.e. internal regulatory instructions, not a general binding legislation). These only bind the said social security authorities and are a starting point in applying the activities referred to in the contested laws, precisely for the needs of these authorities, which can, of course, then, in cases of doubt or ambiguity, make a question to the Ministry. In this context, it must be stated that the functional classification described in the relevant orders (MV, MO, BIS, MS) is a completely different concept than the description of the various activities covered by the contested laws themselves. The law clearly refers to the content of an activity that is sufficiently clear and unambiguous when it undoubtedly shows in all directions the features of an activity that is rightly condemned by a democratic society as an activity strongly supporting the previous undemocratic regime (see Act No. 198 / 1993 Coll.).
As a general rule, the uncertainty of one of the provisions of the law must be regarded as contradictory to the requirement of legal certainty and hence the rule of law (Article 1 of the Constitution) only if the intensity of that uncertainty excludes the possibility of determining the normative content of that provision even by normal interpretation procedures. In the present case, this is not the case and it has to be pointed out again that the activities described within the service period are certainly marked in terms of their filling. Their further definition by internal rules (orders from the relevant ministers as set out in the Annexes) corresponds to the definition made in the contested law itself. It must be assumed that the terminology of a law such as "on the counter-intelligence or intelligence section..." etc., is a substantive and completely clear definition of certain activities. The orders of the ministers and the interim director of the BIS (which undoubtedly follow the precise legal definition) specify in which organisational bodies (trade unions, administrations, other articles, etc.) this activity was carried out.
Even if the Constitutional Court did not agree with the legal definition of the circle of persons concerned and saw the reasons for defining a wider definition of the circle of persons who were more intensively involved in the functioning of the communist regime in the context under consideration, it would be for the legislator to deal with this fact.
As stated elsewhere in this preamble, the Government of the Czech Republic, by its resolutions No 729 and 730 of 21 December 1994, opposed the text of the parliamentary proposals of the contested laws. Based on the resolutions in question, the Constitutional Court reached the following conclusions.
Although the objections are very serious in many respects, in particular regarding the conflict with Act No. 87 / 1991 Coll., on extrajudicial rehabilitation, as amended, the Constitutional Court was unable to take them into account as they deviate from its competence by their nature. However, if, as a result of the indirect amendment of Article 30 of Law No 87 / 1991 Coll. of the contested laws, there would be hardships in specific cases (i.e. in cases of extrajudicial rehabilitation of soldiers as well as former soldiers whose service ended incorrectly between 25 February 1948 and 1 January 1990 and who served in the VKR or CSLA intelligence services if they were subsequently reactivated), the Ministers have the possibility to mitigate the hardness of the law by their individual decisions. From RMO No 35 / 1995 (E), it follows, for example, that the Minister of the Interior used this title in relation to Act No. 119 / 1990 Coll. and No. 87 / 1991 Coll., as amended. Another usable device is regulated in § 31 paragraphs 1 and 2 of Act No. 76 / 1959 Coll., as amended, which allows professional soldiers released for specified reasons for service, retraining at the expense of the Ministry of Defence and the Ministry of Interior etc. The alleged problem also does not fall within the competence of the Constitutional Court.
In spite of the above, however, it is necessary to add at this point that nothing naturally prevents individual citizens from being affected by the application of Act No. 186 / 1992 Coll., as amended by Act No. 33 / 1995 Coll., and Act No. 76 / 1959 Coll., as amended by Act No. 34 / 1995 Coll., who believe that they have been damaged by their rights because they did not actually perform an incriminated function, from turning to a general court.
As mentioned above, during the proceedings before the Constitutional Court, the representative of the group of Members drew attention to the need to assess RMO No 35 / 1995 on the uniform application of § 33 paragraph 9 of Act No 76 / 1959 Coll., as amended by Act No 34 / 1995 Coll., pursuant to § 70 paragraph 3 of Act No 182 / 1993 Coll.
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Regulation Information
| Citation | The Constitutional Court of the Czech Republic found no 107 / 1996 Coll., on the application for annulment of Act No. 34 / 1995 Coll., supplementing Act No. 76 / 1959 Coll., on certain service ratios of soldiers, as amended, and on the application for annulment of Act No. 33 / 1995 Coll., amending and supplementing the Act of the Czech National Council No. 186 / 1992 Coll., on the service ratio of members of the Police of the Czech Republic, as amended, and Act No. 100 / 1970 Coll., on the service ratio of members of the National Security Corps, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.04.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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