The Constitutional Court found no 123 / 2010 Coll.
The Constitutional Court found of 30 March 2010 on the application for annulment of the word "final 'in § 11 (4) (b) of Act No. 106 / 1999 Coll., on Free Access to Information, as amended
Valid
123
FIND
The Constitutional Court
On behalf of the Republic
On 30 March 2010, the Constitutional Court, in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická, on the proposal of Mgr. F. K., Ph.D., on the abolition of the word "Powerful 'in § 11 (4) of Act No. 106 / 1999 Coll., on Freedom of Access to Information, as amended, associated with a Constitutional complaint against the Supreme Administrative Court judgment of 29 April 2009 No 8 As 50 / 2008-75,
as follows:
Paragraph 11 (4) (b) of Act No. 106 / 1999 Coll., on Free Access to Information, as amended, is deleted in the word "final 'on the date of the publication of this finding in the Collection of Laws.
Reasons
Procedure and recap of the proposal
1. On 17 July 2009, the Constitutional Court received a constitutional complaint from the appellant requesting the annulment of the judgment of the Supreme Administrative Court of 29 April 2009 No 8 As 50 / 2008-75 in breach of its fundamental right to information pursuant to Article 17 of the Charter of Fundamental Rights and Freedoms ("the Charter ').
In the present case, the Municipal Court of Prague, by judgment of 18.6.2008 No 9 Ca 4 / 2007-43, dismissed the complainant's action against the decision of the Minister of Finance of 30.10.2006 No 10 / 99 897 / 2006-RK, which rejected the complainant's decomposition against the decision of the Ministry of Finance of 29.9.2006 No 22 / 92219 / 2006 / 3341IK-255 and confirmed at the same time this decision on the partial refusal of information, or the failure to provide judgments of the courts in the cases of lawsuits against persons transferred by the Fund of Children and Youth in "liquidation 'pursuant to Act No 364 / 2000 Coll., on the abolition of the Fund of Children and Youth and amendments of certain laws, in the version of the laws which they had not obtained by law. The complainant lodged a complaint against that judgment of the Municipal Court, but it was rejected by the judgment of the Supreme Administrative Court under appeal. The Supreme Administrative Court concluded that, as regards the judgments of the wrongdoers, those judgments should also be included in the decision-making activities of the courts (if the final judgments of the judgments of the courts are the decision-making activities of the courts, there is no reason that the judgments of the wrongdoers should not be such activities, nor vice versa). Therefore, Article 11 (4) (b) of the Information Act clearly prevents obliged entities from providing any information on the decision-making activities of the courts (with the exception of providing information in the form of final judgments). All the more so, the provisions of this law prevent the provision of information on the decision-making activities of courts in the form of judgments which have not yet acquired legal authority. The Supreme Administrative Court further stated that it was not for it to issue fundamental judgments on whether the regulation of Article 11 (4) (b) of the Information Act, as effective from 23 March 2006, was happy or not, but found that it was not contrary to the right to information, guaranteed by constitutional order, in particular Article 17 (5) of the Charter of Fundamental Rights and Freedoms. The limitation of the right to information on the decision-making activities of the courts is in principle not based on the refusal of public access to any information on the decision-making activities of the courts (cf. provision of information in the form of final judgments). This limitation is limited by the requirement not to interfere during the process - in the interests of objectivity and impartiality of the assessment of each case - in the own decision-making activities of the court (including in the form of unjust judgments), and is also limited by the necessary measures in the interests of national security, territorial integrity or public security, the prevention of unrest and crime, the protection of health or morale, the protection of reputation or the rights of others, the prevention of disclosure of confidential information or the maintenance of the authority and impartiality of the judiciary [Article 10 (2) of the Convention on the protection of human rights and fundamental freedoms (hereinafter referred to as" the Convention'). The exercise of freedom of expression and the right to information can therefore be restricted by law, inter alia, in order to preserve the authority and impartiality of the judiciary.
2. The root of the constitutional complaint is the question of the interpretation of the provisions of § 11 (4) (b) of Act No. 106 / 1999 Coll., on free access to information, as amended, (hereinafter referred to as the "Freedom of Information Act 'or" Information Act'), using the constitutional principles and limits referred to in Articles 17 and 4 (4) of the Charter of Fundamental Rights and Freedoms, in the specific case of the complainant's request for the provision of unjust judgments by the courts. The Ministry of Finance refused to provide the complainant with copies of the judgments in cases in which he was a party to the proceedings, referring to their wrongdoing. The complainant considers that the judgments as a result of the decision-making activities of the courts are - except for the statutory exceptions - public. This is all the more true if the information about them is required by the public authority which, in the previous proceedings, was in a dispute over the State's assets. In the complainant's view, the question of the legal power of the judgment itself is not a criterion capable of fulfilling the material conditions of limiting the right to information under Article 17 (4) of the Charter of Fundamental Rights and Freedoms. Such a restriction is embezzled not only from the complainant's fundamental political right, but also from the historical meaning and purpose of the public judicial decision making, which is intended to contribute to long-term confidence in the predictability, transparency and justice of the justice system itself.
3. In addition to the constitutional complaint, the complainant submitted a proposal to abolish part of the provision of Section 11 (4) (b) of the Freedom of Information Act, namely the words "final '.
4. The First Chamber of the Constitutional Court found no reason to reject a constitutional complaint by the appellant pursuant to Article 43 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), since the application of the contested provision gave rise to a fact which is the subject of a constitutional complaint. The formal conditions for its discussion under Article 43 (1) are fulfilled and the constitutional complaint was not found manifestly unfounded under Article 43 (2) (a) of the Act cited. Therefore, the First Chamber, within the meaning of § 78 (1) of this Act, suspended the proceedings on constitutional complaints (by order of 4. 1. 2010 sp. zn. I. ÚS 1885 / 09) and the proposal for the annulment of the above-mentioned provisions of the Act referred to plenary of the Constitutional Court for a decision pursuant to Article 87 (1) of the Constitution of the Czech Republic (hereinafter the Constitution).
Recital of the observations of the parties
5. The Constitutional Court, in accordance with Article 69 of the Law on the Constitutional Court, requested the observations of the parties - both chambers of Parliament.
6. In its observations on the proposal, the Chamber of Deputies merely summarised the progress of the legislative process leading to the adoption of a law establishing the contested provision and stated that the legislature acted in the belief that the law adopted was in line with the Constitution and our legal order. In conclusion, she agreed to drop the oral act.
7. In his observations on the proposal, the Senate summarised the course of the legislative process leading to the adoption of a law establishing the contested provision. He stated, inter alia, that, on Article 11 (4) (b) of the Freedom of Information Act in question, an amendment was approved by the Senate, which extended the draft law in substance so that all final decisions of the courts could be given to applicants for information instead of the final judgments proposed. None of the discussion papers that were made during the Senate's deliberations on the content of the draft law questioned the constitutionality of the procedure to limit the provision of judicial decisions to those that gained legal authority. The Senate has discussed a bill containing the appellant's contested part of the provision of Paragraph 11 (4) (b) of the Freedom of Access to Information Act within the limits of the Constitution's established competence and in a constitutional manner. The contested contradiction of the legal provision in question with Article 17 (4) of the Charter of Fundamental Rights and Freedoms was not found by the Senate in its negotiations. The Senate has given its assent to the abandonment of oral proceedings.
8. The Constitutional Court requested (pursuant to the provisions of Sections 48 (2) and 49 (1) of the Law on the Constitutional Court) as well as a statement from the Ministry of Justice, which did not, however, express itself within the prescribed time limit.
Derogation of the contested provision of the law
9. Paragraph 11 (4) (b) of the Freedom of Information Act reads as follows: "Obligatory bodies shall not further provide information on the decision-making activities of the courts, except for final judgments."
Active ID of the applicant
10. The appellant's active legitimacy for the submission of the proposal under consideration is evident from the provisions of Section 74 of the Constitutional Court Act. The applicant thus fulfils the defined conditions of active legitimacy for the application to the Constitutional Court.
Constitutional conformity of the legislative process
11. According to Article 68 (2) of the Constitutional Court Act, the Constitutional Court, in addition to assessing the compliance of the contested law with the constitutional laws, ascertains whether the law has been adopted and issued within the limits of the constitutional jurisdiction and by the constitutionally prescribed means.
12. Given that the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence, it is not necessary to examine this issue further in the light of the principles of the process economy, and it is sufficient, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, to formally verify the conduct of the legislative process from a publicly available source of information at http: / / www.psp.cz.
13. The contested version of Paragraph 11 (4) (b) was inserted into the Law on Freedom of Access to Information by Amendment to Act No. 61 / 2006 Coll., amending Act No. 106 / 1999 Coll., on Freedom of Access to Information, as amended, Act No. 121 / 2000 Coll., on Copyright Law, on Rights Related to Copyright Law and on the Amendment of Certain Laws (Copyright Act), as amended by Act No. 81 / 2005 Coll., and Act No. 128 / 2000 Coll., on Municipality (Municipal Establishment), as amended (Parliamentary Document No. 991). This law was adopted by the Chamber of Deputies on 14 October 2005. The Senate returned the bill to the Chamber of Deputies with amendments (Resolution 250), but the Chamber of Deputies remained on the original bill (Resolution 2153). The Act was published in the Collection of Laws in the amount of 26 under the number 61 / 2006 Coll. The Constitutional Court therefore finds that the law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Evaluation of the Constitutional Court
14. The appellant first submits to the Constitutional Court an alternative that the provision of Paragraph 11 (4) (b) of the Freedom of Information Act could be regarded as devaluable in the sense that it does not prohibit the provision of unjust judgments by courts. The opposite interpretation (held, inter alia, by the Supreme Administrative Court in Case 50 / 2008-75 No 8 As of 29.4.2009) considers the appellant to be "too restrictive '.
15. In the proceedings, the appellant first referred to the question of interpretation of the provisions of Paragraph 11 (4) (b) of the Freedom of Access to Information Act in the sense of whether or not it actually prohibits the wrongful judgments of the courts to be provided.
16. The Constitutional Court concluded that the provisions of Paragraph 11 (4) (b) of the Freedom of Information Act are not constitutionally conformable as regards the possibility of providing unjust judgments to the courts for information. In fact, the legislature uses an exhaustive list in Section 11 (4) (b) of the Freedom of Information Act. Thus, information on the decision-making activities of the courts can only be provided in the form of final judgments. From this argument and contrario (indirectly) there is a ban on providing information on other decision-making activities, including unjust judgments. Otherwise, a text-based permission to provide information on the decision-making activities of the courts would lose any reasonable meaning only in the form of final judgments. The opposite interpretation could not be accepted by application of the rule of constitutionally conformal interpretation, since, as is clear from the case law of the Constitutional Court [cf. otherwise it would no longer be a logical interpretation of the law, but a law. For the sake of completeness, the Constitutional Court states that this (only possible) interpretation cannot be an interpretation of restrictive (as the appellant believes) as it relies on the literal (and taxiously worded) wording of Paragraph 11 (4) (b) of the Freedom of Information Act. A restrictive interpretation means that a language speech is meant by the legislator with a closer reach than that of the literal text, so the term used indicates more than the legislator actually intended.
17. In this context, the Constitutional Court refers to the relevant part of the reasoning of the Supreme Administrative Court judgment cited above: "On 23 March 2006, the provisions of Paragraph 11 (4) (b) of the Information Act took effect, as effective at the relevant time, according to which the compulsory bodies did not provide information on the decision-making activities of the courts, except for final judgments. The amendment of the Information Act (Act No. 61 / 2006 Coll.) added a clear obligation to the text of the original provision § 11 (4) (b) of the Information Act (" Obligatory Entities will no longer provide information on the decision-making activities of the courts ") to compulsory bodies with effect from 23 March 2006, namely to make final judgments available. However, it is not a trivial clarification of the provisions of Paragraph 11 (4) (b) of the Information Act in the sole sense that compulsory bodies must make final judgments available to the courts. This amendment also has serious consequences for defining the concept of" decision-making activities of the courts' in relation to the scope of the information obligation of the competent bodies. The written copies of the judgments are always the result of the decision-making activities of the courts, which necessarily provide information on their activities in a particular case (operative part and justification of the judgment). It is therefore necessary to consider as a decision-making activity within the meaning of Article 11 (4) (b) of the Information Act, not only the procedure of the courts in the proceedings and their actions to establish the facts of the case and its legal assessment, but also its own decisions and decisions in the substance of the case. In addition, the "compulsory bodies shall not provide information on the decision-making activities of the courts, except in the case of final judgments', it follows that final judgments or the results of the decision-making activities of the courts in the form of final judgments are, as exceptions to that activity, a legally necessary part of the decision-making activities of the courts (thus, final judgments are part of the decision-making activities of the courts). As regards the judgments of the wrongdoers, it must also be concluded here that those judgments must also be included in the decision-making activities of the courts (if the final judgments are the decision-making activities of the courts, there is no reason not to include the judgments of the wrongdoers, or vice versa). Paragraph 11 (4) (b) of the Information Act clearly prevents obliged entities from providing any information on the decision-making activities of the courts (with the exception of providing information in the form of final judgments). All the more so, the provisions of this law prevent the provision of information on the decision-making activities of courts in the form of judgments which have not yet acquired legal authority. This is because, where information on the decision-making activities of the courts as such (with the exception of final judgments) is the subject of a statutory exclusion, it is not possible to provide the information on that activity laid down in the judgments of the unjust (argument and contrario, which reveals the meaning of the legal standard according to the rules of formal logic)... '.
18. Thus, in view of the content of the appellant's proposal, the question of the constitutional conformity of the standard itself, which prohibits the provision of unjust judgments, has been raised, but at the same time allows the provision of final judgments (hereinafter referred to as "the contested standard ').
19. In the judgment cited, the Supreme Administrative Court brought the constitutional consistency of the contested rule.
20. On the contrary, in support of its conclusion on the unconstitutionality of the contested standard, the appellant states essentially the following. In any event, the requirement to provide unjust judgments which the appellant intended to use as a source of interpretation of the law and the source of legal arguments could not have been intervened in the course of the trial or in the court's own decision-making. If disclosure of unjust decisions were to jeopardise the court's decision-making activities, it would not and could not be declared publicly for the same reason. If there could indeed be a conflict with the right to the protection of individuals, with the right to the protection of personal data or privacy, it is necessary to seek solutions first through other less restrictive legal institutes or legal standards and only after this has failed to apply provisions limiting the right to information. In the case of, for example, the right to the protection of personal data or privacy, a provision providing adequate protection for such rights already includes the law itself on free access to information in § 8a, which refers to legislation governing their protection. Another adequate protection or "insurance 'includes the provisions of Section 12 of the Freedom of Information Act. The argument of the Supreme Administrative Court that these unjust decisions can be made as a result of their review of substantial changes is relevant, but it is a fact that the applicant must count on and, accordingly, handle information. In such a case, the applicant must know that the wrongdoing decision is not irreversible and is not final, but it cannot be a reason to refuse to provide this decision as information. As a source of interpretation of the law, not only final decisions are published, but also different opinions, for example, from the court or European Court of Human Rights. Moreover, a final judgment does not need to be a final decision on the matter, as it may be annulled by, for example, a decision of the Supreme Court or the Constitutional Court. If the court proceedings are governed by the principle of the public and the judgment is declared publicly without exception, the data relating to the final court proceedings are de facto published (whether during the procedure itself or by the judgment itself) and the judgment itself is only a written document of what has already been declared.
21. The Constitutional Court - not bound by the reasoning of the proposal, but only by its petition - has undertaken to examine the constitutionality of the contested standard.
22. Pursuant to Article 17 (1) of the Charter, "Freedom of expression and the right to information are guaranteed." According to Article 17 (2) of the Charter, "Everyone has the right to express their views by word, letter, print, image or other means, as well as to freely seek, receive and disseminate ideas and information regardless of national borders." According to Article 17 (5) of the Charter, "State and local authorities are required to provide adequate information on their activities. Conditions and implementation shall be laid down by law. '.
23. According to Article 10 (1) of the Convention, "Everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and disseminate information or ideas without interference by state authorities and regardless of borders... '.
24. Paragraph 11 (4) (b) of the Freedom of Information Act does not provide information on the decision-making activities of the courts in the form of unjust judgments. This affects and limits the fundamental right of the individual to information (under Article 17 of the Charter) and the fundamental freedom of the individual to receive information (under Article 10 of the Convention).
25. In this context, it is also appropriate to refer to the more general case law of the European Court of Human Rights concerning the right to information. Reference can be made to the decision on the admissibility of the complaint lodged by the Association of South Bohemian Mothers v Czech Republic of 10.7.2006, complaint No 19101 / 03, which consists of the explicit recognition of the applicability of Article 10 of the European Convention in cases of refusal of a request for access to public or administrative documents (cf. Parliamentary Institute: Access to courts by non-governmental non-profit organisations in selected EU Member States where a greater number of persons are at risk of discrimination, available at http: / / / www.psp.cz / cgi-bin / win / kps / pi / work / pi-5-269.pdf). For example, the judgment in Campos Daâmaso v Portugal of 24 April 2008, No 17107 / 05, in which the reproduction of the indictment by a journalist was granted protection in respect of (inter alia) the right (public) to receive information pursuant to Article 10 of the Convention.
26. After all, The Supreme Administrative Court in the judgment cited does not dispute that the contested standard is an intervention in Article 17 of the Charter and Article 10 of the Convention.
27. However, any restriction on the fundamental right of an individual is unconstitutional. Article 17 (4) of the Charter explicitly foresees this: "Freedom of expression and the right to seek and disseminate information may be restricted by law if measures in a democratic society are necessary to protect the rights and freedoms of others, the security of the state, public security, the protection of public health and morality." Similarly, Article 10 (2) of the Convention states: "The exercise of these freedoms, as it includes both obligations and responsibilities, may be subject to the formalities, conditions, restrictions or penalties provided for by law and necessary in a democratic society in the interests of national security, territorial integrity or public security, the prevention of unrest and crime, the protection of health or morale, the protection of reputation or the rights of others, the prevention of the leak of confidential information or the maintenance of the authority and impartiality of the judiciary."
28. Thus, interference in the rights arising from Article 17 of the Charter and Article 10 (1) of the Convention will infringe the Charter and the Convention if it fails to comply with the requirements laid down in Article 17 (4) of the Charter and Article 10 (2) of the Convention. It must therefore be established whether the intervention "provided for by law ', whether it pursued one or more of the legitimate objectives enshrined in those provisions and whether it was" necessary in a democratic society' to achieve those objectives.
29. In view of the existence of Article 11 (4) (b) of the Freedom of Information Act, it is not disputed that the intervention is "provided for by law" within the meaning of Article 17 (4) of the Charter and Article 10 (2) of the Convention.
30. The Constitutional Court also considers that the condition of a legitimate objective is fulfilled. The intervention in question may be regarded as serving to protect the values cited in Article 17 (4) of the Charter and Article 10 (2) of the Convention. In the meantime, the Constitutional Court agrees with the reasoning cited by the Supreme Administrative Court.
31. However, the Constitutional Court considers that the contested standard does not fulfil the condition of the necessity of restricting the fundamental right and the freedom of an individual in a democratic society.
32. The European Court of Human Rights consistently takes the view that, in Article 10 (2) of the Convention, the adjective "necessary" contains the existence of an "urgent social need" (see the judgment in the Lingens case, 1986, cited in the order of the Constitutional Court sp. zn. IV. ÚS 606 / 03 of 19.4.2004 (U 23 / 33 SbNU 453)).
33. The key is that (naturally) and priori cannot be excluded that, in a particular case, the protection of the fundamental right will prevail over quoted values, i.e. that there will be no "urgent social need" to limit the fundamental right (hereinafter also as "this thesis"). This is why it is necessary to examine in any particular case (as the case may be) the fulfilment of the condition of the necessity of limiting the fundamental right and individual freedom in a democratic society.
34. Moreover, this argument is also based on the case law of the Constitutional Court. For example, in the sp. zn. IV. ÚS 154 / 97 of 9.2.1998 (N 17 / 10 SbNU 113) The Constitutional Court stated that "In the run-up to the fundamental political right of information and dissemination with the right to the protection of personality and private life, that is to say, fundamental rights which stand at the same level, it will always be up to independent courts to consider carefully, taking into account the circumstances of each individual case, whether one right has been unjustifiably given priority over another law. '
35. After all, this thesis was also expressed by the Administrative Court on the issue, namely the Municipal Court in Prague in the judgment of 23 February 2007 in Case 10 Ca 144 / 2005 (available in the ASPI system), which was cited by the Supreme Administrative Court in that judgment. In this context, the Municipal Court admittedly stated that "Any conflict of the right to information with other fundamental human rights... must be assessed in the light of a specific case, which of these rights in the particular case should be given priority... The requirement to provide anonymous final judgments in cases of a particular kind cannot therefore be rejected in general, with the fact that it is information on the" decision-making activities of the courts'..., but the necessity and specific reason for limiting the right to such information must be clearly established and assessed whether, in the present case, the restriction of that right is necessary. "
36. This argument is also based on the case law of the European Court of Human Rights. For example, in the judgment in Campos Daâmaso v Portugal of 24 April 2008, No 17107 / 05 (available in the ASPI system) [solving the case of the publication of the text of the indictment by a journalist before its formal presentation in the context of a specific procedure], it was stated: "32. Thus, the Court must now establish whether the contested intervention corresponds to a" urgent social need ', whether it was proportionate to the legitimate objectives pursued and whether the reasons invoked by the national authorities in order to justify it appear to be "relevant and sufficient'... 33. As regards the circumstances of the present case, the Court first of all observes that the article on the basis of which the complainant was sentenced clearly dealt with a question of general interest... 35. It must be established whether, in the specific circumstances of the present case, the interest in informing the public prevailed over" obligations and responsibilities... '. In that judgment, the European Court of Human Rights at the beginning of its review argued that "31. First of all, it cannot be considered that the issues discussed by the courts cannot be the subject of earlier or simultaneous debates elsewhere, whether in specialised journals, national press or in public as such. The mission of the media to disseminate such information and ideas corresponds to the right of the public to receive it.' This view can also be applied to this case, as it is merely a transmission of an unjust judgment to the applicant for simple information (and contrario of its publication in the paper and subsequent debate on it, which concerned the judgment cited in Campos Daâmaso v Portugal). The famous judgment of the European Court of Human Rights in the Sunday Times case against the United Kingdom of 26.4.1979 (cf. Berger, V.: The caselaw of the European Court of Human Rights, 1st edition, IFEC, Prague, 2003, p. 477 - 482), which concerned the prohibition to publish information on ongoing civil proceedings imposed by the periodic review. In this judgment, the European Court of Human Rights concluded that intervention in freedom of expression did not correspond to an urgent social need that outweighs the public interest associated with freedom of expression; it did not rely on sufficient grounds for Article 10 (2) of the Convention and was neither proportionate to the objective pursued nor necessary in a democratic society to maintain the authority of the judiciary. The latter case, dealt with by the European Court of Human Rights, is all the more likely to affect the now tried issue, where, as has already been mentioned, only the transmission of an unjust judgment to the applicant for information (compared to his publication in the paper and possibly the assessment of judgment).
37. This thesis was also expressed in the recommendation of the Committee of Ministers of the Council of Europe Rec (2003) 13 on the provision of information relating to criminal proceedings through the media (e.g.:... "After considering any conflicting interests protected by Articles 6, 8 and 10 of the Convention and the need to ensure a balance between those rights in the light of the circumstances of each particular case, without neglecting the control function of the European Court of Human Rights in securing obligations under the Convention... '- cited from the above judgment in Campos Daâmaso v Portugal).
38. However, the contested standard is clearly in conflict with this thesis. It does not, in any particular case (by looking at the circumstances of the case), allow the existence of an "urgent social need 'to limit the fundamental right (that is, the necessity of a limitation of the fundamental right). The contested standard indicates that, whenever there is a law and the legitimate objective of limiting the fundamental right of an individual to information (to provide an unjust judgment), the values cited in Article 17 (4) of the Charter and Article 10 (2) of the Convention, will be preferred to the fundamental right of the individual to freedom of expression in the form of a right of information; In any case (and priori), the contested standard therefore breaks the fundamental right of the individual. This also (strictly speaking) denies the notoriety [inter alia, resulting from the case-law of the Constitutional Court, cf., for example, the finding in the case sp. zn. Pl. ÚS 15 / 96 of 9.10.1996 (N 99 / 6 SbNU 213; 280 / 1996 Coll.)] that constitutional values (including constitutional rights) are prima facie equivalent. Thus, the contested standard, based on the necessity of limiting the fundamental right and the freedom of an individual in a democratic society, makes the postulate irreparable, since its assessment - taking into account the circumstances of a particular case - consistently excludes it.
39. In this context, it should be recalled that freedom of expression - including in it pursuant to Article 10 (1) of the Convention, the freedom to receive information - is one of the most important foundations of democratic society; its guarantees are therefore of particular importance. It cannot be seen that the right to information such as the collection of information is a major preparatory step (inter alia) primarily in journalism and is an inherent, protected part of freedom of the press. The functioning of the press involves creating a forum for public debate. However, the implementation of this function is not limited to media and professional journalists. In which case, it creates an area for public debate, or in relation to NGOs, but also to individuals. The purpose of the activity, i.e. to collect information, can therefore be considered as one of the essential elements of the informed company. Civil society plays an important role in the debate on public issues. There is no doubt that an unjust judgment may address matters of public interest; applicants for information are, or at least may be, involved in the legitimate collection of information on these matters. Their aim may be to communicate such information to the public, thereby contributing to a public debate which is not only legitimate but also necessary in a democratic rule of law. The monopoly on information enjoyed by the court is thus a form of censorship sui generis. As a result of the censorship of the information monopoly, it may intervene in the performance of a supervisory function, which is also the responsibility of civil society, as it may have a similar function to that of the press. Obstacles created to prevent access to information of public interest may also deter those working in media and similar areas from seeking them. As a result, they would no longer be able to fulfil their role of public control and their ability to provide accurate and reliable information would be adversely affected. More specifically, for example, in relation to criminal proceedings, the Committee of Ministers of the Council of Europe adopted Recommendation Rec (2003) 13 on the provision of information relating to criminal proceedings through the media, in which it rightly recalls that, with regard to the right of the public to receive information, the media have the right to inform the public and stresses the importance of reporting on criminal proceedings which the media are preparing for the purpose of informing the public and allowing the public to exercise their right to supervise the functioning of criminal justice. Moreover, the annex to the Recommendation states, inter alia, the right of the public to receive information on the activities of law enforcement authorities through the media, which includes the right of journalists to report freely on the functioning of the criminal justice system (cf. European Court of Human Rights judgment in Campos Daâmaso v Portugal). There is no reason not to believe that these arguments can be applied not only to the press, but also to the possibility of civil society access to information of public interest.
40. The Constitutional Court therefore points out that it will be necessary to examine in each individual case (according to the circumstances of a particular case) the condition of the necessity of limiting the fundamental right of an individual to information, namely, here also the restriction of the right to give a judgment to the unjust.
41. The existing view that the prohibition on the provision of unjust judgments is justified by the constitutional value of the protection of the independence and impartiality of the judiciary is answered by the arguments set out above (cf. paragraph 33 et seq.). It cannot be ruled out and the priori that, in a particular case, the protection of the fundamental right to such information will prevail over another protected constitutional value, i.e. the existence of an "urgent social need 'to limit the fundamental right. It cannot be seen that constitutional values (including constitutional rights) are prima facie equivalent (cf. point 38 of this finding). It is also necessary to reflect the case law of the European Court of Human Rights, according to which it is not possible and priori to consider that the matters pending by the courts cannot be the subject of earlier or simultaneous discussions elsewhere, whether in specialised journals, national press or in public as such (cf. point 36 of this finding).
42. In so doing, public debate on a matter dealt with by a court without further (i.e. automatically) need not interfere with the independence or impartiality of the judiciary. The presumption is that the judge (for example, decisive in the instance of the case of the case before the wrongfully concluded case) has sufficient personal qualities (otherwise he would not be appointed by the judge), guaranteeing his ability to decide the case independently and impartially, that is to say, independently of any opinion expressed in the public space [for example, the judges take a vow that, inter alia, they will, in accordance with their best knowledge and conscience, decide independently and impartially - cf. § 62 (1) of the Law on Courts and Courts, and, moreover, also, Article 79 (1) of Act No 6 / 2002 Coll., on Courts, Judges, sitting and Civil Service and on the amendment of certain other laws (Law on Courts and Courts)]. Moreover, the case-law of the European Court of Human Rights (see, for example, the judgment cited above in Campos Daâmaso v Portugal: "In addition, no judge who was not a career judge could rule on the case, which reduced the risk that articles such as the article at issue in the main proceedings would affect the outcome of the proceedings... The Esposende court itself acknowledged that the publication of the contested article did not interfere with the conduct of the investigation... Moreover, the Government did not specify how the publication of the contested article could have disrupted the investigation in question... ').
43. In spite of this, the public debate on a matter dealt with by an unjust judgment may, on the contrary, contribute to independent and impartial decision-making, because sometimes it may reveal the existence of unacceptable influence on judicial decision-making. This is precisely one of the senses of the fundamental right to information as a derivative of freedom of expression. The legal objective of the public debate is the public controllability of the conduct of justice, the judgment in broad daylight, not in the darkness of public court proceedings. On the contrary, the judgment of a lack of public opinion is capable of reducing the authority of judicial authority, as it can generate suspicion to the public that "there is something to hide" (in the sense of doing injustice). Without confidence, the proper exercise of public power in a democratic state is not possible. Thus, the element of trust is a functional condition for the exercise of democratic public power and therefore trust in acts of public power must be protected; trust in judicial decision-making is one of the fundamental non-legal attributes of the rule of law [cf. sp. zn. IV. ÚS 525 / 02 of 11.11.2003 (N 131 / 31 SbNU 173)]. Moreover, the authority of the judicial authority refers to the public interest - capable of limiting fundamental rights or freedoms - and the Convention for the Protection of Human Rights and Fundamental Freedoms itself in Article 10 (2). Thus, public authorities must take into account the expectations that they give rise to by their process and activities. Thus, as a result of the censorship of the information monopoly (in the form of a flat-rate ban on the provision of unjust judgments), intervention in the performance of public control functions may take place, which is not only for the press but also for civil society, and, in consequence, for the authority of the court. Therefore, the priori (non-limited) exclusion of public control by not providing even unjust judgments would be an expression of an inadequate understanding of the meaning of the fundamental right to information and freedom of expression in relation to public power and of the lack of reflection of the meaning of public control. Even the court is a power authority that exercises power in the state, so that it is subject to public control.
44. Moreover, the constitutional order of Article 96 (2) in fine of the Constitution applies, according to which "the judgment is always declared publicly." The judgment itself is essentially a written document of what has already been declared publicly (cf. also the text below); If this would be a rational, flat-rate ban on the provision of unjust judgments for the protection of the independence and impartiality of judicial power, the prohibition of public announcement of a judgment (at first instance) would have to apply for the same reason.
45. It can also be considered that any public debate (particularly professional), not without a reason to criticise unjust judgments, can certainly contribute to a fair outcome in the ongoing judicial proceedings. This is hardly reasonable to see interference in the independence and impartiality of the judiciary; After all, according to Article 82 (2) of the Law on Courts and Judges, as amended, the judge is obliged to ensure continuous education on the deepening of his professional legal and other knowledge needed for the proper performance of his duties.
46. Hypothetical opinion advocating - in order to protect the independence and impartiality of the judiciary - a general ban on the provision of unjust judgments and, at the same time, on the flat-rate admission of final judgments, it also points to the logical consideration that even final judgments may be changed in reality; This is also relatively often the way of extraordinary appeals or constitutional complaints or complaints to the European Court of Human Rights.
47. There is also the view that the State should not be a person required to provide information in private relations at all, and that, if an unjust judgment solves a private relationship between the State (which thus has an equal status in legal proceedings as any other party to the proceedings) and a natural or legal person, the State should not - even never - have an obligation to provide unjust judgments; If, by virtue of its participation in the proceedings, the State is required to give a wrongful judgment, the State, in which case, would have to bear a greater degree of duty than the other party. However, the levels of obligations are given by the Civil Code and are the same for both sides of the private law dispute.
48. However, such a conclusion is lacking in the abovementioned constitutional argument, which states that, in the event of a conflict of constitutional values, it must be addressed in the light of the particular circumstances of each case.
49. Furthermore, that view is based on the impracticable premise that the provision of a wrongful judgment is required of the State in the capacity of a party to proceedings before a general court in private law by virtue of such participation in legal proceedings. However, fundamental rights (i.e. also the right to information) are public subjective rights, i.e. the addressee of obligations (i.e. to ensure and protect them, i.e. to do something positive) is public authority. The provision of an unjust judgment is required of the State as a public authority holder because the requested information (the wrongful judgment) is the result of a decision-making power, that is, the result of the exercise of public power (not of private acts). Therefore, in the event of an obligation to comply with the requirement to provide such information, the State would not be more obliged than the other party to the proceedings; such a duty on the State - as a superintendent - is based on a completely different legal title, which does not concern its legal status as a party in its own private legal dispute.
50. The fact that the addressee of the fundamental right to information under Article 17 of the Charter of Fundamental Rights and Freedoms is not the State as a party to private legal proceedings, but the State as a public authority does not oppose the view that not only the court but also another state body - for example, acting as a party to legal proceedings - will be obliged to give an unjust judgment if the applicant so requests and he has the information required. The address of the fundamental right to information pursuant to Article 17 of the Charter of Fundamental Rights and Freedoms shall be the State (as a carrier of State authority), not a court or other State body. Therefore, where there is a right to provide information and the corresponding obligation of the State to provide information, it is not decisive in the sense and purpose of that right which State authority will provide the information requested. Such another State body (in the case of the appellant of the Ministry of Finance) will act as a State authority, as well as a court, in both cases it will be a State body. This also defines the difference between a hypothetical situation where, in civil proceedings, the State would not act as a participant, but also two natural persons; in such a case, it could not be possible to request information (a wrongful judgment) from a party, i.e. a private person.
51. After all, the obligation to give an unjust judgment can hardly be a violation of the principle of equality of arms, an equality of procedural status under the civil order. It is an act outside the scope of civil proceedings, not related to it. This concerns the implementation of a public law obligation based on legislation other than a private law standard (this obligation is based on administrative and constitutional law). Moreover, even if the above did not apply, this would not interfere with the parties' procedural rights under the Civil Code. The purpose and purpose of the principle of equality of arms, equal rights and obligations in civil proceedings before a State authority is to guarantee the conditions for a fair outcome of proceedings; This could not be the case if one of the parties was at a disadvantage in the process (typically impossibility to submit its own claims and evidence, etc.). However, this is clearly not the case in the case under trial.
52. It can also be noted that, in the sense and purpose of the fundamental right to information, it is not (in principle) relevant whether the unjust judgment concerns private law (e.g. between the State as owner and a third party, etc.) or public law. The purpose and purpose of the right to information is public control of the exercise of state (i.e. judicial) power; the logic of the case makes it possible - and thus also to be subject to legitimate control - not only in public law decisions, but also in private law disputes (even in this latter case it is an authoritarian decision on the rights and obligations of persons who may be abused or abused, etc.). From the point of view of teleology, Article 17 of the Charter and Article 10 of the Convention, the difference between private-law disputes and public-law matters may lie only to the extent (not in principle) of public interest, since it may often be higher in the case of a matter of public interest; the public will then monitor not only the conduct of the court itself, but will be interested to know, or evaluate, facts of what happened before the trial, or the state's management. The public interest can be found - as the Constitutional Court pointed out, for example, in the finding of page I of the ÚS 260 / 06 of 24.1.2007 (N 10 / 44 of the SbNU 129) - also in the State's activities in the form of State property management; the management of the State's assets is, inter alia, the conclusion of private law contracts, which can in future generate private law disputes. In the quoted finding, the Constitutional Court, inter alia, sought to address the view of the Supreme Administrative Court in the then proceedings, according to which the conduct of a state-owned undertaking can be classified as being of public interest because of business with the use of state-owned assets. The Constitutional Court also referred to the views of a section of the professional literature according to which the term "public institution managing public funds' within the meaning of the Law on Free Access to Information (and thus under the obligation to provide information) may include commercial companies established by the State.
53. The notion that the State should not be a person required to provide information in private relations at all is therefore contrary to the argument that even the management of the State's property (including, inter alia, the private law on which the State is acting) is undoubtedly of public interest (because it is the management of money collected, inter alia, from taxpayers, and therefore they have a legitimate right to control it; to compare the maximum priority of an individual before the State as a requirement of the rule of law), thus affecting the meaning and purpose of Article 17 of the Charter and Article 10 of the Convention. Indeed, the consideration that the State should not be a person required to provide information in private relations does not consistently reflect the meaning and purpose of the sub-constitutional regulation. Pending the entry into force of the amendment to the Act on Free Access to Information by Act No. 61 / 2006 Coll. In fact, the compulsory body under the Freedom of Information Act was also "a public institution managing public funds'. Thus, the legislator explicitly emphasised that the question of managing public funds is in the public interest, that it should be subject to public control. The legal definition of" public funds "is contained in § 2 (g) of Act No. 320 / 2001 Coll., on Financial Control in Public Administration and on the amendment of certain laws (Financial Control Act):" Public Finance, Matters, Property Rights and Other Property Values belonging to a State or other legal person referred to in point (a). "Although the wording" managing public funds' was deleted by the cited amendment to the Information Act (§ 2 (1)), for example, in the finding in sp. zn. I. ÚS 260 / 06 (see above) it was explained that the purpose was to guarantee the right to information relating to the competence of the public institution, whether or not it manages public funds. It should also be noted that the view that the State should not be a person required to provide information in private relations at all, opens up potential scope for corruption and other similar negative effects.
54. It remains to be said that the purpose of providing unjust judgments may also be in the predictability of judicial decisions and may also be a source of interpretation of law, a source of legal argument. Neither does the logic of the case change the fact that these judgments may be amended later. After all, even the final judgment can be revoked and different opinions of judges on the majority are published.
55. However, the Constitutional Court has also found another reason to support the conclusion on the unconstitutional nature of the contested rule of law.
56. That legislation does not fulfil the requirement to restrict the fundamental right and the freedom of an individual in a democratic society, even because it is often possible to achieve the legitimate objective (protection of quoted values) pursued by using another means which does not restrict the fundamental right to such an extent (i.e. denying the fundamental right to freedom of expression will not be necessary). Thus, the contested standard does not fulfil the requirement of necessity (in the context of measuring in a conflict of standing constitutional values), that is to say, the condition of comparison of a legislative instrument affecting constitutional value with other measures enabling the same objective to be achieved, but of non-constitutional value.
57. In a slightly different way, the contested legal standard will no longer stand in the light of its contradiction with Article 4 (4) of the Charter, which, when applying the provisions on the limits of fundamental rights and freedoms, commands the examination of their substance and meaning. Therefore, if everyone has the right to information, the law which limits the right to seek and disseminate information (Article 17 (4) of the Charter) cannot essentially annul that right and thus exclude it. Consequently, the contested standard does not respect the principle of minimising interference with fundamental rights and freedoms in the form of possible restrictions and maximising the preservation of the substance of the fundamental right.
58. In this context, it can be noted, in particular, that Section 7 of the Act on Freedom of Access to Information, according to which if the required information is in accordance with the legislation (Act No. 412 / 2005 Coll., on the Protection of classified information and on Security Eligibility) is designated as classified information to which the applicant does not have legitimate access, the compulsory body will not provide it. According to Section 8a of the Freedom of Access to Information Act, information relating to personality, manifestations of a personal nature, privacy of a natural person and personal data will be provided by the compulsory entity only in accordance with the legislation governing their protection (e.g. Sections 11 to 16 of the Civil Code, Sections 5 and 10 of Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws). According to Section 9 of the Act on Free Access to Information, if the required information is a commercial secret (§ 17 of Act No. 513 / 1991 Coll., Commercial Code), the compulsory entity will not provide it. Under Section 10 of the Freedom of Access to Information Act, information on the property ratios of a person who is not a compulsory entity obtained under tax, tax, pension or health insurance or social security laws will not be provided by the compulsory entity under this Act. Paragraph 11 of the Freedom of Information Act provides for further restrictions on the right to information; for example, paragraph 2 (c) prohibits the provision of information where the protection of third parties' rights to the subject-matter of copyright would be infringed. Paragraph 12 of the Freedom of Information Act then states that any restriction on the right to information shall be carried out by the compulsory body by providing the required information, including accompanying information, after the exclusion of the information provided for by the law (the right to refuse information shall take only as long as the reason for the refusal persists; in justified cases, the compulsory body shall verify that the ground for refusal persists). The content of Section 12 of the Freedom of Information Act is therefore the rule of selection; This corresponds to the requirement that a legitimate restriction on access to information is always applied to the minimum necessary. Thus, this provision fulfils and guarantees the requirement to minimise interference with the fundamental right or freedom, not the contested standard, which essentially denies the fundamental right to information - in that case - at all.
59. Here you can also get reasoned reports on these provisions of the Freedom of Information Act. It says: "An exception to this rule will be the information the provision of which expressly excludes or limits, to the extent necessary, the draft law. This is particularly about information that is declared classified under the law or information that would violate the protection of the personality and privacy of persons... The provisions in question provide for exceptions to the right of access to the information expressed in the previous provisions. The restriction of the right of access to information shall be established in a constitutional manner. The Charter of Fundamental Rights and Freedoms allows the protection of information against the provision of" if the measures of a democratic society are necessary to protect the rights and freedoms of others, the security of the State and public security '(Article 17 (4) of the Charter), or affirms the positive right of everyone to protect himself or herself and to protect against unauthorised disclosure of personal data (Article 10 of the Charter). The exemption (restriction) in question guarantees the law by defining criteria for determining information which the compulsory body may or may not provide.' (cf. www.psp.cz).
60. The appellant also argues by reference to Article 96 (2) in fine Constitution, according to which "the judgment is always declared publicly." In this context, it logically argues that the judgment itself is merely a written copy of what has already been declared publicly.
61. Arguments of the Supreme Administrative Court are very unconvincing in this regard. It is essentially limited to the statement that the provision of information on the judgment and the terms of its public publication are two completely different legal institutes.
62. This, however, omits the maximum internal contradiction and consistency of the rule of law. The rule of law based on the principles of unity, rationality and internal content inconsistencies necessarily brings with it the imperative of the same view of comparable legal institutes, although adapted in different legislation or even sectors [cf., e.g. the finding of the Constitutional Court sp. zn. Pl. ÚS 72 / 06 of 29.1.2008 (N 23 / 48 SbNU 263; 291 / 2008 Coll.), paragraph 50. The Supreme Administrative Court itself was based on similar principles in its case law. For example, in sp. zn. 2 Afs 81 / 2004 (available at www.nsjus.cz), he said that "a rule of law, based on the principles of unity, rationality and internal content inconsistencies, necessarily brings with it an imperative of the same view of comparable legal institutions, albeit adapted in different laws or even sectors." In sp. zn. 5 Afs 138 / 2004 (available at www.nsjus.cz), the Supreme Administrative Court stated that "It is not possible to accept the interpretation that there is a substantial difference between public and private liability; This follows from the decision of the enlarged Senate of the Supreme Administrative Court (1 Afs 86 / 2004, next p. www.nsjud.cz). '
63. There is no doubt, however, that the purpose of the constitutional condition of the public announcement of a judgment without exception and the purpose of providing even an unjust judgment is similar; that is to allow public participation as a guarantee of public justice control. This was also dealt with by the Constitutional Court in the previous text of this finding (paragraph 44).
64. As already stated by the Constitutional Court in its finding sp. zn. Pl. ÚS 28 / 04 of 8.11.2005 (N 205 / 39 SbNU 171; 20 / 2006 Coll.), "General legal consciousness traditionally sees the right to public consultation as an instrument of public justice control. The purpose of public conduct" is for everyone to be able to convince themselves of how justice is done by the state, which is impossible to control the audience by the various faculties of the judges "(cf." Public, "Rieger's dictionary, IX, Prague 1872, p. 997). This purpose of public discussion has been considered only for a long time in Czech countries. In the case-law of the Czechoslovak Supreme Court, it is repeatedly stated that" the purpose that the law merely pursues by the provisions of the law on the public's main proceedings would not be to take place without allowing public scrutiny. In this single purpose of the public's main hearing, under the law, the difference between the proceedings before the jury and before the Senate and the law does not follow the intention, in particular in the case of the jury, would be a powerful impression of the mood of the audience in the jury "[cf. Decision No 4336 / 1932 in: F. Serious, Decision of the Supreme Court of the Czechoslovak Republic in criminal matters (" Serious "), XIII, 1932, p. 568]. Similarly, the First Publishing Supreme Court concluded that" the purpose of the law is the public controllability of the conduct of justice, the judgment on a white day, not in the darkness of the secrecy of court proceedings. The concept of public opinion is therefore contrary to secrecy and is merely a question of practicability, to what extent an audience may be allowed access to trial for the investigation of an inviolable postulate of inadmissibility of the effects adversely affecting the legal procedure and the factors on which it is based "(cf. Decision No 1729 / 1925, in: Serious, VI, 1925, p. 549). '
65. The appellant should therefore be given the truth in this regard that, even from the point of view of Article 96 (2) in fine of the Constitution, it is not possible for an appriorial exclusion to give unjust judgments to those who apply for them.
66. For all these reasons, the Constitutional Court granted the application and annulled the word "final 'in Article 11 (4) (b) of Act No. 106 / 1999 Coll., on Freedom of Access to Information, as amended, on the date of the publication of this finding in the Collection of Laws, for a contradiction with Article 17 (1), (2), (3), (4) and (5) and Article 4 (4) of the Charter of Fundamental Rights, and Article 10 (1) and (2) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
67. The Constitutional Court adds, for the sake of certainty, that the arguments and conclusions in this finding do not concern judgments annulled or amended [Note: in this case it cannot be a "judgment" within the meaning of § 11 (4) (b) of Act No. 106 / 1999 Coll., on free access to information, as amended, since the de jure judgment which has been annulled or amended will no longer exist - to the extent that it has been annulled or amended -].
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Vlasta Formánková, Pavel Holländer, Jiří Mucha, Jiří Nykodým, Pavel Rychetský and Michaela Židlická for the decision and for his reasons Judge Dagmar Lastovecká.
*) NB: Collection of finds and resolutions of the Constitutional Court, Volume 48, Found No 23, p. 263, published under No. 291 / 2008 Coll. (all decisions are available at http: / / nalus.ujud.cz / Search / Search.aspx)
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no 123 / 2010 Coll., on the application for annulment of the word "final 'in § 11 (4) (b) of Act No. 106 / 1999 Coll., on free access to information, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.04.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0