Found at the Constitutional Court of the Czech Republic No. 124 / 1996 Coll.
Findings of the Constitutional Court of the Czech Republic of 10 April 1996 concerning the application for annulment of the provisions of § 16 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service
Valid
The Constitutional Tribunal found
Text versions:
17.05.1996
124
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 10 April 1996 in plenary on the proposal of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the provisions of Section 16 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service, expressed in the words "physical and"
as follows:
Motion denied.
Reasons
A group of 46 Members of the Chamber of Deputies of the Parliament of the Czech Republic submitted a proposal to abolish part of the provision of Section 16 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service. The proposal is dated 18 October 1995 and was delivered to the Constitutional Court of the Czech Republic on 31 October 1995.
That law, cited in Paragraph 16 (1), allows the Security Information Service (BIS) to store, store and use data on natural and legal persons, if this is necessary for the performance of its tasks. This scope is laid down in § 5 (1) of Act No. 153 / 1994 Coll., on News Services, by providing, inter alia, information on the intentions and activities against democratic foundations, sovereignty and territorial integrity of the Czech Republic, on activities whose consequences may jeopardise the security or significant economic interests of the Czech Republic, as well as on organised crime and terrorism.
A group of Members, based on its authority given to it by § 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, proposed that on 1 October 1996 the words "physical and" should be deleted from the provisions of § 16 (1) of Act No. 154 / 1994.
The motion of a group of Members is justified in principle by the fact that the law does not provide for any age limit as regards natural persons and sees a lack of legal protection for the child, and thus the violation of Article 32 (1) of the Charter of Fundamental Rights and Freedoms guaranteeing special protection for children and adolescents, as well as the violation of Article 16 of the International Convention on the Rights of the Child, which provides that no child may be subjected to arbitrary interference in his private life, family, home or correspondence, or unlawful attacks on his or her honour and reputation. The proposal also refers to the legislation contained in § 25 paragraph 2 of the Act of the Czech National Council No. 527 / 1992 Coll., on the Security Information Service of the Czech Republic, which was repealed by the contested Act No. 154 / 1994 Coll.. It contained a provision which the new law did not take over: "Data on minors under the age of 15 may not be entered in the register. Data on minors over 15 years of age shall be reviewed after two years of entry and no later than five years of entry in such a way that no one other than the court has access to them, unless, after the completion of the maturity of those persons, the Security Information Service has acquired further knowledge in its field of competence. '
In this context, the proposal also refers to Article 19 (2) of Act No. 67 / 1992 Coll., on Military Defence Intelligence, (full version No. 216 / 1995 Coll.), which does not allow the entry into the Military Defence Intelligence Records (hereinafter referred to as the "VOC") of data on minors and its modification is fully identical to the above mentioned text § 25 (2) of the previously applicable Act of the Czech National Council No. 527 / 1992 Coll.
The motion of a group of Members also draws attention to some of the facts which they believe must be taken into account in this regard:
1. A natural person shall be fully eligible for legal action from the age of 18, with criminal liability beginning with the age of 15. It is accepted that a person under the age of 15 may behave in the manner described in Section 5 of Act No. 153 / 1994 Coll., but this behaviour is irrelevant in terms of legal liability and cannot be affected.
2. A number of laws allow the management of various special records of children, but these are data used for the benefit of children, with the consent of their legal representatives, and their confidentiality (secrecy) is protected by law. The Act No 154 / 1994 Coll. contains provisions on the protection of data contained in BIS registers, but this protection is in the interests of the BIS and not in the interests of children. The information collected is undetectable.
3. Children shall also be subject to the provisions of the Charter of Fundamental Rights and Freedoms - Article 7 on the integrity and privacy of a person, Article 10 (1) on the right to human dignity, personal honor, reputation and names, Article 10 (2) on the right to protection against unauthorised interference in private and family life and Article 10 (3) on the right to protection against unauthorised collection of data on their persons.
It takes it for granted that the protection of children should be enshrined directly in the law, and considers that the intelligence service would give priority to the interests of the service in the performance of its tasks over the rights of the child.
4. The divergent regulation of the rights of children and adolescents in the BIS Act and in the RTC is a violation of Article 4 (3) of the Charter of Fundamental Rights and Freedoms, according to which legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down.
As regards the formal implementation of the proposed regulation, the motion of Members states that the provisions of Paragraph 16 (1) contain a factual substance which is identical for two groups of objects: natural persons and legal persons. Therefore, it is not necessary and nor is it possible to repeal the entire provision as this would result in the revocation of the BIS authorisation for legal entities, which is not proposed. A group of Members therefore considers the legislation to be legislative in order to delete the words "physical and" from the provisions of Paragraph 16 (1). This amendment will abolish the whole of the provisions on natural persons. The Constitutional Court may not itself provide that the BIS may not enter data on minors under the age of 15 into its register. This adjustment can only be made by law. It is therefore necessary to grant the competent legislative authorities a reasonable period of time to amend Article 16 (1) of Act No 154 / 1994 Coll.
The Judge-Rapporteur examined the proposal of a group of Members on a formal basis. Act No. 154 / 1994 Coll. was approved on 7 July 1994 by the necessary majority of Members of the Parliament of the Czech Republic, signed by the relevant constitutional authorities and duly declared in the Collection of Laws of the Czech Republic.
The motion for a group of Members was signed by a prescribed number of Members of the Chamber of Deputies. At the same time, they agreed to be represented in the proceedings before the Constitutional Court by MEP JUDr. Jaroslav Ortman, who also verified the accuracy of their signatures on the draft.
The reasons for rejecting the proposal within the meaning of Article 43 (1) of Law No 182 / 1993 Coll. were not found.
The application was served on the party, i.e. the Chamber of Deputies of the Parliament of the Czech Republic, pursuant to § 42 (2) and § 69 of Act No. 182 / 1993 Coll. with a request for its observations.
The Chamber of Deputies of the Parliament of the Czech Republic, in its observations of 13 December 1995 signed by the President of the Chamber of Deputies, PhDr. Milan Uhdem responded to the motion of a group of Members and stated the following:
The implementation of the BIS tasks shall necessarily require its authorisation to store, store and use data on natural and legal persons. In this context, the BIS is required to ensure the protection of the data contained in its records from disclosure, misuse, damage, loss and theft. The detailed arrangements are set out in § 16 (1) of Act No. 154 / 1994 Coll. and § 5 (1) of Act No. 153 / 1994 Coll., as amended. The necessary information may undoubtedly also be contained in data affecting individuals under the age of 15; However, the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the Charter of Fundamental Rights and Freedoms, any other law or international treaty to which the Czech Republic is bound, does not prohibit the storage and storage of such data in BIS records. However, the storage, storage and possible use of such BIS data in specific cases, both for persons under 15 years of age and older persons, must undoubtedly be in accordance with the above-mentioned provisions of constitutional and other laws, as well as with the international treaties by which the Czech Republic is bound. For this reason, it should be considered that the BIS authorisation contained in Paragraph 16 (1) of the Act cited is in line with the Constitution and the constitutional order of the Czech Republic.
At the same time, it is noted that it is necessary to base the assessment of this matter on the definition of the competence of the intelligence services, according to which the BIS also provides information concerning the foundations of the Czech Republic. The scope and nature of the legal means used by the BIS to obtain the necessary information must therefore also correspond to these tasks.
The Constitutional Court also requested the text of the Government Bill on BIS and the text of the explanatory memorandum to that proposal.
The Government Bill on BIS contains, in a particular case, § 16 paragraph 1 of the wording, which in the same text was approved by the Chamber of Deputies of the Czech Parliament and is identical to the current text of this section in Act No. 154 / 1994 Coll.
As regards the explanatory memorandum to the Government Bill (print 1015), the Constitutional Court found that the contested wording, which, compared to the previous Act of the Czech National Council No. 527 / 1992 Coll., as amended by Act No. 316 / 1993 Coll., extended the competence of the BIS for the collection of data on natural persons and persons under 15 years of age, did not mention any reference in the explanatory memorandum or in the general section of the Act No. 16. Therefore, the Constitutional Court also paid attention to the Joint Report of the Committees of the Chamber of Deputies (Press 1058) and the record of the discussion of the Government Bill and the Joint Report of the Committees of the Chamber of Deputies. The Constitutional Court found that the joint report of the Constitutional Law Committee, the Defence and Security Committee and the Committee on Petitions, human rights and nationality did not affect the content and wording of Article 16, although a number of amendments to the overall bill were otherwise accepted. Similarly, no parliamentary proposal was recorded in the Chamber of Deputies on the same subject. The Chamber of Deputies approved this paragraph, as proposed, without amendment by the necessary majority.
Finally, the Constitutional Court requested the position of the BIS. Its observations of 8 February 1996, No BIS-24 / 1-96, respond to the various arguments of the group of Members and point out that the BIS's authorisation to store, store and use data on natural and legal persons is necessary for the performance of the tasks entailed by law for the BIS. In doing so, the BIS is obliged to secure the data contained in the records before disclosure, abuse, damage, loss and theft. The BIS is a state body and in no way is it, as a group of Members, a state repressive body, because it is not legally equipped with any repressive or executive powers.
As regards the need to keep records of persons under 15 years of age in accordance with the law, the BIS assumes that this necessity is based on current trends in the development of anti-civilisation phenomena. From various studies, such as the Ministry of the Interior, the Ministry of Education, Youth and Sports, the Ministry of Labour and Social Affairs, as well as the BIS's own activities, it is clear that children already tend to extremist groups around their 12 years of age. These are also various manifestations of racism and other extremist attitudes. Although persons under the age of 15 are not liable for criminal charges and therefore registration cannot serve and does not serve the purpose of criminal proceedings, it is important for the BIS to prevent and obtain information on these manifestations.
The Constitutional Court, having examined the motion of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic and having considered the observations of the President of the Chamber of Deputies and other supporting documents received or requested, reached the following conclusions:
The Group of Members invokes in justifying its proposal for certain provisions which, in their view, should have been infringed by current legislation, namely Articles 32 (1), 7 and 10 of the Charter of Fundamental Rights and Freedoms and Article 16 of the Convention on the Rights of the Child. However, it does not state what specifically the disposition of the BIS with data on children or persons under the age of 15 is in breach of constitutionality.
Article 32 (1) of the Charter of Fundamental Rights and Freedoms does indeed guarantee special protection for children and adolescents. However, as is apparent from Article 32 (6), the details are to be laid down by law and, in accordance with the provisions of Article 41 (1), that right may only be invoked within the limits of the laws implementing those provisions. At present, unlike in recent times, however, the special regulation was not included in the government proposal, nor was the law added to the issue of data protection for children and adolescents in the Chamber of Deputies. In the future, however, there is nothing to prevent the existing legislation from being amended in the ordinary legislative process where amendments, additions or repeal of laws or their individual provisions can be proposed. However, the submission of such a proposal is not conditional on the annulment of part of a provision of the Law by the Constitutional Court.
Article 7, as well as Article 10 (1) and (2) of the Charter of Fundamental Rights and Freedoms, shall have a broader, general character and concern the integrity of privacy and family life in general. The same character - but in relation to children - also has Article 16 of the Convention on the Rights of the Child. The Charter of Fundamental Rights and Freedoms, however, unlike international treaties on human rights and fundamental freedoms, contains special provisions on the arrangements for handling any data on persons. Article 10 (3) of the Charter of Fundamental Rights and Freedoms, while enshrined in Article 10 (3), provides for the right to protection against unauthorised collection, disclosure or other misuse of data on a person, but it means protection only against unauthorised handling of data, i.e. illegal conduct. No further conditions or restrictions on the Charter of Fundamental Rights and Freedoms are laid down in this provision itself. It is therefore clear from the current legislation that the Constitution has not been infringed and that no specific harm has been caused to the rights of the child. However, this does not mean that it is excluded that a specific case of manipulation of a particular personal figure of a private or family character should occur and be qualified, under specific conditions, as a violation of the rights under Articles 7 and 10 (1) or (2) of the Charter of Fundamental Rights and Freedoms, without apparently justifying the repeal of a provision of the law. The improper procedure of public authorities may be the subject of a hearing and a decision by the Constitutional Court, but does not automatically justify the repeal of the legislation under which such a body acted, unless it clearly and without exception imposes on the parties a form of conduct or conduct which would be contrary to the Constitution or the International Treaty pursuant to Article 10 of the Constitution.
The appellants also argue in the proposal that Article 19 (2) of Act No. 67 / 1992 Coll., which does not allow the registration of the VOC to contain data on the behaviour of persons under 15 years of age and contains a special layout of the disposition with data on minors aged over 15 (§ 19 (2)). They then claim that the absence of such an arrangement in the BIS Act is contrary to Article 4 (3) of the Charter of Fundamental Rights and Freedoms, according to which legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down. However, the Charter of Fundamental Rights and Freedoms does not lay down any further conditions for such a restriction in the present case. The restriction of the right, on the other hand, the right of a State authority to dispose of data, concerns various data that different authorities operate with for their specific purposes. Therefore, the issue is regulated in different laws. Article 4 (3) The Charter of Fundamental Rights and Freedoms cannot be interpreted as violating the principle of "equal validity for all cases which fulfil the conditions" being the different treatment of non-identical groups of cases for which the laws lay down different conditions, unless there is a breach of equality. Different, own regime or conditions of handling specific data are applied not only by Act No. 67 / 1992 Coll., but also by Act No. 135 / 1982 Coll., on reporting and recording of residence of citizens, Act No. 89 / 1995 Coll., on State Statistical Service, etc.
The appellants, other than those mentioned above, also point to the previously applicable regulation of the contested issues and see the legal context of this regulation in particular with criminal law. However, the Constitutional Court deals only with the constitutionality or compliance of laws with constitutional laws and international treaties pursuant to Article 10 of the Constitution and therefore does not consider that part of the argument to be legally relevant. However, they do not forget that persons of the age category concerned, although criminally irresponsible, may act in certain criminal forms otherwise in connection with organised crime in particular. According to the applicable law of the Criminal Act, it is not excluded that even a person who is not liable because of a lack of age should be a member of a criminal organisation and that the institute has a direct link to organised crime and therefore also to the provisions of Act No. 153 / 1994 Coll., which define the scope of the BIS.
For all these reasons, the Constitutional Court has no choice but to reject the motion of a group of Members because the contradiction with the constitutional order has not been demonstrated and could not be inferred directly from the articles of the Charter of Fundamental Rights or from the Convention on the Rights of the Child. Nor could the Constitutional Court leave aside the important provision of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Paragraph 1 of this Article confers on everyone the right to respect for his private and family life, residence and correspondence, but paragraph 2 provides, without doubt, for the possibility of significantly adjusting the scope of that right when expressly stating: "A State authority cannot interfere with the exercise of that right except where it is legally necessary in a democratic society in the interests of national security, public security, economic well-being of the country, the prevention of unrest and crime, the protection of health or morale or the protection of the rights and freedoms of others. '
The Constitutional Court had no reason to interpret this concept of the right to respect for private life, housing and correspondence contained in the European Convention differently.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 124 / 1996 Coll., on the application for annulment of the provisions of § 16 paragraph 1 of Act No. 154 / 1994 Coll., on the Security Information Service |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.05.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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