The Constitutional Court found No 160 / 2008 Coll.

I. Paragraph 7 (9) of Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Procedures and on the Archive of Security Services and on the amendment of certain laws, the words "properly or" shall be deleted from the date of publication in the Collection of Laws.

II. In others, the proposal is rejected.

1. A group of Members, in accordance with Article 87 (1) (a) of the Constitutional Act of the Czech National Council No. 1 / 1993 Coll., the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), proposed the repeal of Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Procedures and on the Archive of Security Services and on the amendment of certain laws (hereinafter referred to as "the Act") or its individual provisions, and the abolition of individual provisions of certain other laws. This Act establishes the Institute for the Study of Totalitarian Procedures (hereinafter referred to as the Institute) and the Archive of Security Services (hereinafter referred to as the Archive). The appellants point out that the law raises a number of doubts as to its consistency with the constitutional order of the Czech Republic (Article 112 (1) of the Constitution), which, in the view of the Constitutional Court, also includes the ratified and declared international treaties on human rights and fundamental freedoms [Found sp. zn. They therefore propose the repeal of the whole law, alternatively the repeal of some of its provisions in the petit explicitly indicated.

2. In the appellants' view, the establishment of the Constitution itself as a state institution, the activity of which is covered by a separate chapter of the state budget (Section 3 (3) of the Act), raises fundamental doubts. The Institute is an organisational part of the State (§ 3 (2) of the Act). There are several public institutions directly or indirectly financed by the state budget that carry out or can perform research tasks in the field of history and at the expense of which, as the applicants believe, the Institute will be financed. These are primarily higher education institutions, which are under Act No. 111 / 1998 Coll., on higher education institutions and on the amendment and addition of other laws (Act on Higher Education), as amended, the top centres of education and independent knowledge and which are given a key role in the scientific development of society (§ 1 of Act No. 111 / 1998 Coll.). It is also the Academy of Sciences of the Czech Republic (Act of the Czech National Council No. 283 / 1992 Coll., on the Academy of Sciences of the Czech Republic, as amended), which is an organisational component of the Czech Republic and whose activity is financed by the state budget of the Czech Republic (for budgetary purposes it is even the central authority of the Czech Republic). As a public research institution, the Institute of History of the CAS, the Institute for the Contemporary History of the CAS and the Institute of State and Law of the CAS has established among others. Another institution dealing with history is the Military Historical Institute Prague. The freedom of scientific research is guaranteed in Article 15 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ').

3. In the establishment of the Constitution and the Archive, the appellants see the nationalisation of historical research on the "period of deprivation 'and" period of communist totalitarian power' [§ 2 (a) and (b) of the Act], and this raises a real risk that its results will be considered "official '. They point out that the Council of the Constitution (hereinafter referred to as" the Council'), its highest authority, elects and rescues the Senate as one of the chambers of Parliament of the Czech Republic, and in this they see a de facto restriction of the constitutionally guaranteed freedom of scientific research. Although the law does not explicitly mention the priority and binding nature of the research results carried out by the Institute, it does, however, establish them in the face. According to the appellants, the prerogative of the Constitution, inter alia, with regard to the obligation imposed by law on all State bodies, the State's organisational bodies, state contribution organisations, as well as the authorities of the Territorial Authority and the local authorities of the Territorial Authorities, as well as the archives which they have in their possession documents and archives relating to the tasks of the Institute from the period defined by the law, without undue delay, to provide it with the necessary synergies free of charge (Section 5 (2) of the Act). This obligation is unprecedented in the case of any other scientific research institution.

4. The appellants of the law argue that the period to be examined by the Constitution does not only define its time-limits as it would be sufficient, but also uses superfluous terminology that is not scientific but ideological. For example, in the preamble there is talk of "totalitarian and authoritarian regimes of the 20th century," without noticing that, in the usual view of teaching, there is a more or less significant difference between them. (See e.g. Aron, R.: Democracy and Totalitarianism, Atlantis, Prague 1993, also Pavlicek, V. and Jirásková, V., in Pavlicek. V. et al.: Constitutional law and state, Part I. General State, Linde, Prague 1998.) As regards the period 1938 to 1945, the provisions of § 2 (a) of the Act referred to this period as "periods of non-freedom," although there was a fundamental difference between the still separate Republic and the later Protectorate of Bohemia and Moravia as part of the Grand German Empire. In the case of the period 1948 to 1989, the law (unlike the preamble) does not distinguish between the authoritarian regime and the totalitarian regime, but refers explicitly and unequivocally to the period of "communist totalitarian power" [§ 2 (b)], without distinguishing between the phases of that period, and into this "communist totalitarian power period" includes the period "preceding" the time period of 25 February 1948 to 29 December 1989, "in which preparations were made for totalitarian power grab by the Communist Party of Czechoslovakia." The definition of this period is completely uncertain, but it is attached to the tasks of the Constitution and, for example, its right to process personal data (§ 5 (1)). Furthermore, the appellants of the law argue that the section of Czechoslovak history between 25 February 1948 and 29 December 1989 authoritatively refers to the term "period of communist totalitarian power" and does not take into account that this period was variable in terms of the methods of exercising state power. The comprehensive assessment and explicit designation of the whole period from 25 February 1948 to 29 December 1989 as a period of "communist totalitarian power" according to the appellants does not correspond to the facts and contradicts the order which gives the Constitution, namely to examine and evaluate this period impartially, the law and priori calling that period a period of power "totalitarian."

5. The appellants argue that the scope of the Constitution is defined in the provisions of Section 4 of the Act in little clarity and clarity. In paragraph (a), in the first part of the sentence of the Constitution, "examine and impartially evaluate the period of infreedom and the period of communist totalitarian power '. In the next part of the sentence, however, he is ordered to investigate" the anti-democratic and criminal activities of the state authorities "and" the criminal activities of the Communist Party of Czechoslovakia, as well as other organisations based on its ideology. "Since this second part of the sentence relates to both periods, it is not clear which" authorities of the state "are concerned with the period of infreedom: authorities of the state still separate so-called second republic, the authorities of the Protectorate of Bohemia and Moravia, or the authorities of the Grand German Empire. Furthermore, the appellants criticise this provision for referring to" criminal activity, "which they consider inappropriate, since, in the legal terminology until 1950, it was a crime in the sense of committing a particular type of criminal offence which was explicitly distinguished in criminal law, whereas after 1950, that distinction had already fallen. The term" Nazi Crimes "is also used in the provision of Section 4 (e) of the Act, which not only cannot penalise the entire so-called period of non-freedom, but is in itself imprecise and inexact, because it would only make sense if it concerned not only" crimes "of the authorities of the Grand German Empire in the Protectorate [e.g. NSDAP is not mentioned in (a) or (e)] but also crimes committed by the authorities of the Protectorate Government and collaborating organisations and individuals. The term" Nazi and communist crimes "is considered ideological by the appellants. According to them, it is by its nature" journalistic, "and not legal, so that it does not carry out the task which it is likely to have, namely to define in a legal way the powers of the Constitution. The term" crime "in point (e) applies to the same as that referred to in point (a).

6. According to the appellants, from a constitutional point of view, doubt raises the condition of reliability for the purposes of the law in question as set out in Section 19 (1) (a), according to which the party who was a member or candidate of the Communist Party of Czechoslovakia or the Communist Party of Slovakia is unreliable. They argue that the reason for the inreliability is formal membership of these political parties, and they are no longer taken into account in the actual behaviour of these people, for example, whether they have committed acts contrary to general moral principles or even acts of legal crime. In so doing, membership of the Council is a public function under Article 10 of the Act and Article 21 (4) The Charter should have access to elected and other public functions on equal terms. In this context, they refer also to Article 15 of the International Covenant on Civil and Political Rights. The constitution of inreliability for membership of the Council of the Institute on the basis of purely formal characteristics based on the former political thinking of citizens, regardless of their real actions and positions, according to the draftsmen, the aforementioned fundamental right guaranteed by the Charter violates and also violates the obligations of the Czech Republic under the International Covenant on Civil and Political Rights.

7. They argue that the provision of Article 7 (6) of the Act, according to which "membership of the Council is incompatible with membership in a political party or in a political movement ', is contrary to the prohibition of discrimination within the meaning of Article 3 (1) of the Charter (political thinking) and constitutes a breach of the right to participate in public administration (Article 21 (1) and (4) of the Charter). At the same time, the obligations arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms (the right to freedom of thought and conscience under Article 9) and the International Covenant on Civil and Political Rights (the right to participate in the administration of public affairs without unjustified restrictions and without distinction, inter alia, in accordance with political or other sentiments - Article 25, equality before the law and prohibition of discrimination, e.g. by reason of political or other beliefs - Article 26) are violated. The limitation of these rights is only possible to the extent that the provisions of Article 44 of the Charter are applicable to the functions, employment and activities listed in the Charter.

8. They also discuss the provisions of Section 5 (1) of the Act under which "The Institute is entitled to process personal data to the extent necessary for the performance of the tasks of the Constitution ', and the provisions of Section 13 (3) of the Act which states that" The Archive is entitled to process personal data to the extent necessary for the performance of its tasks.'. The Charter provides (Article 10 (3)) that everyone has the right to protection against unauthorised collection, disclosure or other misuse of data concerning his or her person. According to the appellants, in the above-mentioned provisions of the law, the "authorisation 'of the Constitution and the Archive is formulated so unequivocally that there is a breach of the principles of legal certainty and the protection of citizens' trust in law, which is inseparably among the characteristics of the rule of law. This conclusion is based on the fact that the tasks of the Constitution, as defined in Section 4 of the Act as its competence, are set out indefinitely, such as its core competence" to examine and impartially assess the period of infreedom and the period of communist totalitarian power '[§ 4 (a)]. The term "to the extent necessary" is even less specific, which is extremely subjective and allows for arbitrary interpretation, e.g. also in relation to the scope of the Constitution under § 4 (f), ("The Institute provides the public with the results of its activities, in particular it publishes information... on the acts and destinies of individuals"). The appellants also have similar reservations regarding the competence of the Archive within the meaning of Article 13 (3) of the Act.

9. Under the provisions of Paragraph 9 (1) (a) of the Act, the Council of the Constitution is responsible for "laying down methods for the performance of the tasks of the Constitution '. The applicants argue that this provision is vague. The actual scientific examination and impartial assessment of the" period of infreedom and the period of communist totalitarian power, "which is the task of the Constitution under the provisions of Section 4 of the Act, cannot be the task of the Council and its members, but the staff of the Constitution. They state that" method "usually means, for example, an effective, objectively justified way of examining phenomena and achieving scientific knowledge, a systematic approach that leads to a target in a given area, etc. Therefore, if the Council - the body by its essence political because elected and dismissed by the Senate - is to establish the" methods' of that scientific examination and impartial evaluation, there is a real risk that, by establishing such "methods', the freedom of scientific research, as constitutionally guaranteed in Article 15 (2) of the Charter, may actually be affected. Furthermore, the appellants dispute the constitutionality of the provisions of Paragraph 9 (1) (e) of the Act, according to which the Council is to establish and appoint the Scientific Council as an expert advisory body the Director of the Institute for Research. The law does not provide for anything closer, however, from the fact that it is to be an expert advisory body of the Director of the Institute, it is submitted that the management of the research activities of the Institute by its Director is to be envisaged, while employees will be required to perform their own work under the employer's instructions, as provided for in Section 38 (1) of the Labour Code. The provisions of Paragraph 9 (1) (h) of the Act, under which the Council is responsible, are regarded as standardized by the provisions of Paragraph 9 (1) (h) of the Act, under which" to rule on appeals against decisions of the Constitution '. In fact, there is no provision in the law for the Institute (as an organisational part of the State) to take an authoritative decision in such a way that an "appeal' as a procedural remedy may be considered against its decision.

10. According to the appellants, there are fundamental doubts as to the status of the Security Services Archive. By amending Act No. 499 / 2004 Coll., on archiving and file service and amending certain laws, implemented by Part Three (§ 24) of the Act, the wording of § 42 (2) of Act No. 499 / 2004 Coll., was also amended by the Archive of the Security Services, which was included in the archive system as another public archive [§ 42 (2) (b) of that Act]. The position and scope of the Archive are therefore governed by the General Act on Archiving and File Service and by the special provisions of Act No. 181 / 2007 Coll. (in particular Sections 12 to 17). This adjustment results in some serious organisational and procedural ambiguities. According to Article 12 (2) of the Act, the Archive is an administrative office (Article 79 (1) of the Constitution), an executive body, but "is not directly governed by the" Ministry of the Interior (as National Archives and State Regional Archives), but by the Institute, which, unlike the Ministry of Interior, does not have the status of an administrative office, and is designated only as an "organisational component of the State '. It is therefore not an executive body. In doing so, the Archive" controls, inter alia, the performance of the file service at the Institute' [Paragraph 13 (1) (c) of the Act], namely the organisational body of the State to which it is "directly controlled ', which it is subject. This scope of the Archive is now explicitly mentioned in the provision of § 71 paragraph 1 (d) of Act No. 499 / 2004 Coll. According to Article 71 (1) of the Act, the control is carried out in accordance with the" special legislation', which is identified in footnote 27 as Act No. 552 / 1991 Coll., on State Control, although according to the provisions of § 3 (2) of the Act, the control carried out under the Act No. 552 / 1991 Coll. is not considered to be state control under the Act No. 552 / 1991 Coll. under the relationship of authority and subordination. According to the appellants, there is an absurd situation in which the subordinate administrative office controls and exercises jurisdiction over the management of the State's organisational body under that law (including decisions on any objections to the Constitution against the Protocol on Control and the decision on Order Penalties to natural persons which have caused the Institute as a controlled person to infringe its obligations under Paragraph 14 of that Law). Although the Archive is subordinate to the Institute, the Ministry of the Interior (§ 71 (1) (a) (2) of Act No. 499 / 2004 Coll., as amended by Act No. 181 / 2007 Coll.) carries out a check of compliance with the duties on archiving and the performance of file services. Furthermore, the appellants point out that, under the General Act on archiving and file service, inspection of archives and the acquisition of extracts, copies or copies of archives may be refused in accordance with a procedure for which the administrative rules do not apply; the dissent of the researcher is then decided by the competent administrative authority on the section of archiving and the performance of the file service (§ 38 (2), § 40 (3) of Act No. 499 / 2004 Coll.). However, when denied for the reasons set out in Article 15 of Law No 181 / 2007 Coll. the Director of the Archive decides "on the appeal against the decision to refuse," when the decision to refuse is likely to be made by the Chief Staff of the Archive, without the law establishing whether, in such a case, decisions are taken in the first and second stages of the administrative order (the scope of application of the administrative order for the matters governed by that law does not at all provide for the law).

11. Paragraph 17 of the Act, which provides that on 1 January 2030 the Archive (security forces) becomes part of the National Archive, is subject to a small regulatory certainty. It should be concluded from Article 17 of the Act that, on 1 January 2030, the Archives of Security Services as an Administrative Office will cease to exist and will be "disbanded" in the National Archive as an Administrative Office (thus merged). If the legislator has authoritatively stated that on 1 January 2030 the Archives of Security Services will become part of the National Archive, it must also provide for an adjustment to the consequences of this (change in the performance of the Constitution and the National Archive, change in the legal circumstances of the Archives staff, etc.). However, the legislator did not do so, so that Article 17 of the law is incomplete and uncertain, with unpredictable legal consequences.

12. The appellants consider that the provisions of Paragraph 21 (1) of the Act, under which the exercise of rights and obligations in the employment relations of employees of the Czech Republic, included in the work of the Ministry of Interior, the Ministry of Defence, including Military Intelligence, the Ministry of Justice, the Security Information Service, the Office for Foreign Relations and Information and the Police of the Czech Republic - the Office of the Documentation and Investigation of the Crimes of Communism, go on the first day of the seventh calendar month following the publication of this Act in the Archive, provided that these employees carry out activities which are carried out by the Archive from the date of application of this Act and fulfil the conditions under Section 18 of the Act. They point out, in particular, that the members of those security bodies are not in employment relations but are in public service relations with the Czech Republic, so that that provision cannot apply to them. In addition, they consider the forced transition of the rights and obligations of the employees of the Czech Republic from the employment relationship to be contradictory to the provision of Article 26 (1) of the Charter according to which everyone has the right to free choice of profession. In this context, they draw attention to a number of differences against the normal delimitation of administrative bodies, in particular the fact that the condition of transition is the reliability and integrity of the newly defined provisions of Paragraph 18 of this Law.

13. The applicants point out that under the conditions of the democratic rule of law the law must be certain, clear, clear, unambiguous, indisputable, linguistic and stylistically impeccable, as the Constitutional Court pointed out in a number of its findings [for example, the finding published under No 331 / 2005 Coll. (Note: the finding sp. zn. Pl. ÚS 23 / 04, the collection of findings and resolutions of the Constitutional Court [for example, the finding No 38, the finding of the Court of First Instance No 137], that it is necessary for the individual legislation to be understood and to result in foreseeable consequences [for example, the finding No 261 / 2000 Coll.], that only the legal effects of which are clearly foreseeable, fulfil the conditions laid down for the constitutional court [for the purposes of the Constitutional Court of law], and the resolution No. 137. If the law goes against these principles, the appellants consider it at least contrary to the principles of the democratic rule of law (Article 1 (1) of the Constitution).

14. On the basis of the above, the appellants propose

a) Cancel the entire Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Regime and on the Archive of Security Offices and on the amendment of certain laws, since many of its provisions are contrary to constitutional order and as a whole contravenes the requirements imposed on the content of laws in a democratic legal state.

b) Should the Constitutional Court fail to comply with the draft sub (a), the following provisions of Act No. 181 / 2007 Coll.:

- the words "totalitarian" or "totalitarian" (in their various forms) in the title of the law, in the heading of the first and in the title of the second and in the provisions of Sections 1, 2 (b) and (c), 4 (a), (b), (c) and (f), 13 (1) (d), 13 (2) (a);

- the words "Nazi and communist crimes" in § 4 (e);

- Paragraph 5 (2);

- Paragraph 7 (6) last sentence;

- Paragraph 9 (1) (a);

- Paragraph 9 (1) (h);

- Paragraph 13 (1) (c);

- § 15 last sentence;

- Paragraph 17;

- Paragraph 19 (1) (a);

- Paragraph 21 (1).

- in the third sentence of Section 10 (3) of Act No. 140 / 1996 Coll., on the making available of volumes arising from activities of former State Security, as amended by Act No. 181 / 2007 Coll.;

- in Sections 37 (6), 71 (1) (d) and 2 (1) (q) of Act No. 499 / 2004 Coll., on archiving and file services and amending certain laws, as amended by Act No. 181 / 2007 Coll.;

- in § 1 (f), in the title of Title Eight and in § 27c to 27e of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, as amended by Act No. 181 / 2007 Coll.;

- in Paragraph 3 (1) (b) (8) of the Czech National Council Act No. 589 / 1992 Coll., on Social Security Insurance and Contribution to State Employment Policy, as amended by Act No. 181 / 2007 Coll.;

- in § 5 (a) (9) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 181 / 2007 Coll.;

- in Article 5 (1) (i) of Act No. 155 / 1995 Coll., on Pension Insurance, as amended by Act No. 181 / 2007 Coll.;

- § 5 (a) (10) and § 92 (2) (k) of Act No. 187 / 2006 Coll., on sickness insurance, as amended by Act No. 181 / 2007 Coll.;

- in § 36 (zb) of the Act of the Czech National Council No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended by Act No. 181 / 2007 Coll.;

- Article 25 (1) (o) of Act No. 435 / 2004 Coll., on Employment;

- in Sections 124 (3) and 303 (1) (b) (15) of Act No. 262 / 2006 Coll., Labour Code, as amended by Act No. 181 / 2007 Coll.

15. The Constitutional Court sent the application to initiate proceedings in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.

16. The Chamber of Deputies informed the Constitutional Court of the progress of the approval process of the bill at the outset. The preparation of the legal regulation was very careful and involved also a wide-ranging professional public, with a significant response from the proposal. A comprehensive amendment was drafted on the original Senate proposal, which brought about fundamental conceptual changes. It was based, inter alia, on the conclusions of the seminar organised by the Security Committee on the proposal. The Chamber of Deputies has also pointed out that the law also takes into account a comparative point of view, as the Constitution already exists in Slovakia, Poland and Germany, i.e. in countries that have undergone similar historical developments. In general, the proposal criticises that it contains a number of reservations of substance and formal nature which are not constitutional.

17. In the opinion of the Chamber of Deputies, the appellants' complaints regarding the quality of the law are unfounded. Errors, contradictions and inaccuracies of laws will always be objected, but if these characteristics were to justify the repeal of the law by the Constitutional Court, this would mean that he would have the right to repeal any law without having to limit himself to the wording of the specific provisions of the Constitution. Such vague derogatory criteria would mean the uncertainty of citizens about the applicable law to be governed.

18. Interpretation of the period 1948 to 1989 contained in the application was rejected by the Constitutional Court earlier in the decision sp. zn. Pl. ÚS 19 / 93 (Collection of finds and orders of the Constitutional Court, Volume 1, Found No 1, Declared under No. 14 / 1994 Coll.), where he dealt with Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on the resistance against it. He stated here that the used wording "a regime based on communist ideology, which decided to manage the state and the fate of citizens in Czechoslovakia from 25 February 1948 to 17 November 1989, was criminal, illegitimate and reprehensible 'cannot be considered unconstitutional. The Chamber of Deputies further pointed out that the criticised connection of" communist totalitarian power "had already been used in our legal order before (Act No. 140 / 1996 Coll., on the disclosure of volumes arising from former State Security activities, as amended, Annex to Act No. 499 / 2004 Coll., as well as the criminal law in § 261a).

19. The Lower House also refuses that the law would restrict the freedom of scientific research. On the contrary, it actually extends it, as documents will also be stored in the newly established Archive, to which the research community has not yet had access. The Institute for the Study of Totalitarian Regime is just one of many institutions dealing with the historical period in question and the results of its work will have to compete with other researchers. Concerns about the nationalisation of historical research and the official nature of its results must be considered unfounded.

20. The Parliament of the Czech Republic was led in the drafting of the law by seeking to avoid doubts about the political independence of the Constitution. This is also the case with the current arrangements for the election of the members of the Council of the Constitution, the incompatibility of membership of the Board with membership of the political party or political movement, the establishment of the possibility of interfering with its activities only by law.

21. The Chamber of Deputies pointed out that the personal impact is limited and, in view of the purpose and nature of the legislation, such a definition is justified and constitutional. For example, Slovak legislation lays down conditions for integrity even more stringent.

22. Handling personal data is subject to the regime of Act No. 101 / 2000 Coll., on the Protection of Personal Data and on the amendment of certain laws; or the Act on archiving, of course, the limits contained in the Charter must be respected.

23. The regulation of control is based on the existing concept of the Act on archiving and file service, and the purpose of the Act was to maintain the structure, not to change it.

24. If it is argued that the Archive is an administrative authority subordinate not to the Ministry of the Interior, but to the Institute, which is not an administrative authority, it refers to the Institute of so-called independent administrative offices which are not under executive authority (the Office for the Protection of Personal Data or the Broadcasting Council).

25. As regards reservations against the provisions of § 17 of the Act, the Chamber of Deputies stated that the intention of the legislator was to declare the temporary existence of a separate Archive, with detailed arrangements for the technical aspects of the merger with the National Archive being adopted sufficiently in advance before 1 January 2030.

26. To the appellants' objection that the provisions on the transfer of rights and obligations from employment relations could not apply to members of the Security Corps and the Armed Forces, the Chamber of Deputies referred to the resolutions of the Government of the Czech Republic, which were imposed on the Ministers of the Interior, Justice and Defence and the Directors of the Security Information Service and the Office of Foreign Relations and Information, on 31 December 2007, to ensure that the activities that will be transferred to the Archive are carried out by civil servants so that the transfer of such persons can take place under Section 21 of the Act. The chosen solution is also considered by the Chamber of Deputies to be advantageous to employees.

27. The Chamber of Deputies concluded its observations by stating that the legislature had acted with conviction that the law adopted was compatible with the Constitution, the constitutional order and the rule of law.

28. The Senate of the Parliament of the Czech Republic also commented on the proposal. As regards reservations against the use of the concept of "totalitarian ', he stated that the legislator was based on a generally recognised definition of the concept of totalitarian state-policy regime, the characteristics of which had been shown throughout the period. Similarly, he considers political-acceptable terminology when the law works with the term" Nazi and communist crimes. "It is not relevant that the constitutional and criminal law in force at the time did not work with that term. The legislator wanted somehow to mark serious illegitimate state-political interference in people's lives, his intention was not to put the Institute in a judicial direction. In addition, the term" communist crimes "appeared earlier in the Czech legal order, namely in Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime, or in the Act on the Police of the Czech Republic, when marking the competence of a specialised police department called the Office for Documentation... of the Crimes of Communism.

29. Furthermore, the Senate does not agree that the authority of the Constitution to ask public institutions to cooperate in the acquisition of documents and archives relating to totalitarian regimes would jeopardise the freedom of research. The legislator's aim was to provide some kind of above-standard care for this issue in order to overcome gaps and delays in the detection of "classified chapters" of the past. The right of the Institute to obtain documents outside the Archives shall be minimal, proportionate to that objective. The authorisation in question is intended only to accelerate otherwise lengthy access to documents.

30. As regards the alleged inconstitutionality of the requirement for membership of the Council of the Constitution to be incompatible with membership of the political party, the Senate referred to cases where the legislature treated similarly; for example, with the inspectors of the Office for the Protection of Personal Data or with the Ombudsman. The Senate stresses that the legislation does not prefer or discriminate against this or the political sentiment or party affiliation, but calls for inpartiality as a structural element in achieving the independence of the Constitution. It is up to the people who are running for councilors to accept the terms and conditions thus set.

31. Unconstitutional restrictions on the freedom of scientific research cannot be seen in the methodological remit of the Council within the framework of the Constitution. In this context, the Senate recalls that the Institute's activities are not limited to research but also to documentation, publication or educational. The establishment of methods for fulfilling the tasks of the Institute is not by laying down scientific work procedures, but by generally ensuring that the Institute works effectively in all its functions. For the quality of its own research activity, a scientific council is then established, consisting mainly of personalities outside the Institute.

32. The Senate also admitted that during the amendments to the law, the majority of its original importance was lost by the provision that the Council decided on appeals against decisions of the Constitution. At the very least, the agenda of requests for information under Act No. 106 / 1999 Coll., on free access to information remains.

33. As regards the lack of legislation consisting of the concept of a relationship between authority and subordination of the Constitution and the Archive in the performance of the file service, the Senate stated that it was a professional activity under the Charter Act which was not part of the relationship between authority and subordination. The archive is part of a system of public archives, hence the respective mandate.

34. The Senate also refers to objections concerning the derogation of the system of appeals in decisions refusing access to archives from the general scheme based on the archiving law and the absence of provisions determining the application of the administrative order. According to the Senate, this is a special provision for the archival law governing the regime of so-called important archives. It also points to the principle of subsidiarity enshrined directly in the administrative order.

35. The Senate agrees with the criticised shortcomings in the legislation regarding the forthcoming merger of the Archive with the National Archive, considers it to be legally incomplete. However, it assumes that Parliament of the Czech Republic will make a correction in this respect in the future.

36. The Senate also addressed in its observations an objection to the violation of a constitutional order of equal access to public functions, where the law excludes period candidates and members of the KSČ and the KSS from the list of reliable persons. The Senate considers "past purity 'to be a natural requirement which, moreover, relates only to the narrow tip of the leadership of the Institute and the Archive. In this group of persons, the requirements are set out in a straight line and as a precondition for the performance of the duties and not as exclusion of persons already employed.

37. As regards reservations against the transfer of rights and obligations from employment relations, the Senate notes that any disagreements may be resolved by agreement or termination within the seven-month period. The Senate legislation only increases the legal certainty of employees.

38. As regards the appellants' dissatisfaction with the concise rule governing the processing of personal data, the Senate notes that this is merely a matter of defining what is the subject of the processing of personal data by the Institute. Detailed rules result from the General Data Protection Act.

39. Finally, the Senate recalled the general principles underlying the legislator's drafting of the law and briefly described the course of the legislative process. The Senate also took the view that the contested law was in accordance with the constitutional order of the Czech Republic.

40. As the whole law is being challenged at the same time, the classification of legal provisions which are alternatively challenged is not included.

41. The proposal to repeal the law or its individual provisions was submitted by a group of 57 Members of the Parliament of the Czech Republic and thus in accordance with the conditions contained in the provisions of § 64 (1) (b) of the Law on the Constitutional Court. In the present case, it can therefore be concluded that the conditions of active legitimacy on the part of the applicant are met.

42. The Constitutional Court is required, in accordance with the provisions of Paragraph 68 (1) of the Law on the Constitutional Court in proceedings for the control of laws or other legislation, to assess whether the contested legislation has been adopted and issued in a constitutional manner.

43. The content of the proposal, the content of the participants' comments, as well as the websites of the two chambers of Parliament of the Czech Republic, were the following. The bill was drafted by the Senate of the Parliament of the Czech Republic. The Chamber of Deputies ordered committees to discuss the proposal at first reading (7 November 2006). The outcome of the committee discussions was a comprehensive amendment which took the Chamber of Deputies as a basis for further reading (16 March 2007). The bill was then passed at 3rd reading (2 May 2007) by a majority of 92 Members of 118 present; 24 Members voted against the proposal.

44. The Senate voted on the proposal submitted after discussion in committees and plenary on 8 June 2007. In most cases 46 senators of the 50 present have approved it in the version referred to by the Chamber of Deputies; 3 Senators voted against the proposal and one abstained.

45. The Act was signed by the President of the Republic, the President of the Chamber of Deputies and the Prime Minister of the Czech Republic, on 12 July 2007 the Act was published in the Collection of Laws in the amount of 59 under the number 181 / 2007 Coll.

46. The Constitutional Court notes that the adoption and issue of the contested law took place in the prescribed manner.

47. During the public hearing held on 13 March 2008, the participants remained in their opinions on the proposal and on the comments. On the question whether, in the appellants' view, there was a time period from 25 February 1948 to 29 December 1989, in which the Communist Party of Czechoslovakia would refrain from applying its leadership role or distancing itself from the ideology of marxism, the Communist Manifesto or Lenin's State and the Revolution file, the representatives of the appellants pointed out that it could not be accurately characterised for such a long period, but it is necessary to examine how this scheme developed and changed. On the question of whether the leadership of the KSČ, after 1960, actively sought to abolish Article 4 of the 1960 Constitution, the representative of the appellants stated that "if we want to consider in substance the possibilities of change within the Communist regime, then we cannot take such a question seriously '. The Senate's representative on questions also stated that membership of NSDAP or Vlajka is not defined in the law because" people who were active at the time of occupation are already behind a professional renite and would certainly not be concerned. "He also stated that, in the case of former Communist party candidates," it would be difficult to examine how much they have dealt with their past. "The legal form of the Institute was based on Slovak experience.

48. The Constitutional Court first dealt with the general objection of the appellants, according to which the establishment of the Constitution itself as a state institution, the activity of which is covered by a separate chapter of the state budget, and where the appellants point out that more public institutions paid directly or indirectly from the state budget carry out historical research tasks. In the existence of the Constitution, they see the danger of postponement of historical research on the legally defined sections of history, and they question the wording that defines these periods in the law, as they are anticipating how this period is to be assessed, thereby effectively restricting the constitutionally guaranteed freedom of scientific research.

49. The Constitutional Court must state that the establishment of the Constitution itself has no constitutional dimension. It is a legitimate right of the State to establish such an institution, even though there are already other institutions dealing with similar issues. It cannot include in its considerations the question of the effectiveness of an institution set up by law, which is argued by the appellants, because such consideration falls within the scope of political decision-making and, if it were based on such consideration, it would violate the principle of division of power.

50. However, the constitutional dimension has an objection regarding the freedom of scientific research guaranteed by Article 15 (2) of the Charter. The Act defines in Paragraph 2 the two historical periods to be the subject of the study of the Constitution, namely the "period of infreedom ', which is from 30 September 1938 to 4 May 1945, and the" period of communist totalitarian power', which is the section of Czechoslovak history from 25 February 1948 to 29 December 1989, and the period which preceded this period of time and in which the words of the law "took place concerning preparations for totalitarian power grab by the Communist Party of Czechoslovakia '. According to the applicants, this definition already implicitly contains a historical assessment.

51. The designation of a certain historical section of history by the name always implies some simplification, but it also contains a certain characteristic of the period. For example, it is common to talk about the period of Habsburg rule or the period of Hussite wars. From the designation of the historical sections themselves, the names "period of non-freedom" and "period of communist totalitarian power" cannot be imported without any further indication of restrictions on scientific research concerning these periods, as they merely define the time period of history to be examined.

52. The appellants of the law argue that it uses terminology that is of relevance not only to scientific but also to ideological; The preamble specifically refers to "totalitarian and authoritarian regimes of the 20th century." They are concerned that the "period of non-freedom" is marked throughout the period 1938 to 1945, although, according to them, the fundamental difference between the still separate Republic and the later Protectorate of Bohemia and Moravia was marked as "period of communist totalitarian power" and that the period from 25 February 1948 to 29 December 1989 was marked as "period of communist totalitarian power," without considering that this period was variable in terms of the exercise of state power.

53. The fundamental lack of this argument by the plaintiffs is that they are the ones who attribute the text of the law to meaning that it does not actually have. Those provisions are not a "comprehensive assessment" in the law of defined historical periods, but are merely their name. The purpose of the Act is to create an institution which should only be dealt with in a comprehensive assessment of these periods under the conditions laid down in Section 4 of the Act, where it is expressly stated that this should be done impartially. The ambition of the law is not, nor can it be, a scientific treatise on the time. Its purpose is to create a state-paid institution to deal with this problem, with the reasons for this being expressed in the preamble to the law, in particular: "Knowledge of historical sources and other testimonies of these regimes and events leading them to better understand the consequences of the systematic destruction of the traditional values of European civilisation, the conscious violations of human rights and freedoms, the moral and economic decline accompanied by judicial crimes and terror against holders of different views, the replacement of functioning market economies by direct management, the destruction of traditional principles of property law, the abuse of education, education, science and culture for political and ideological purposes, and the reckless destruction of nature '. That these consequences occurred in those historical periods is an objectively identified fact that has no ideological effect.

54. The appellants' objections, which aim to abolish the law as a whole, express their concern about the abuse of such a emerging institution for political struggle. Such considerations, on the one hand, are legitimate as long as each institution can be misused for purposes other than those for which it was established. It is the periods to be studied by the Constitution that are, inter alia, filled with cases of such abuse. On the other hand, however, the possibility of such abuse depends on the conditions in which it is to operate. If they are democracy, abuse cannot happen. The applicants' concerns in this regard are, in essence, an expression of their distrust of democracy, although, as Members, they play a significant role in its face and implementation. It is therefore up to them to prevent any attempted abuse of the Constitution. However, its own decision to establish it is a political decision adopted by a legitimate majority of Parliament, and the Constitutional Court is not its third Chamber to intervene in this process.

55. The appellants question the constitutionality of the individual provisions of the law or parts thereof. In particular, they object to their contradiction with the principles of the democratic rule of law enshrined in Article 1 (1) of the Constitution of the Czech Republic and their ambiguity and the resulting unpredictability. Thus, the term "Nazi and communist crimes" which they propose to abolish is used in Article 4 (e) of the Act. They think it is an ideological expression, which is, by its nature, journalistic and not legal. They recall that, in legal terminology up to 1950, this was a type of crime, and it is therefore unclear whether, for the period up to that date, this type of crime is meant or merely a moral aspect of that activity. Therefore, this provision does not fulfil the task it is to have, namely to define in a legal way the scope of the Constitution. They also regard the term "totalitarian" as ideological and therefore propose to abolish it in all its different forms in the title of the law, in the heading of the first and the title of the second, in the provisions of Sections 1, 2 (b) and (c), 4 (a), (b), (c) and (f), 13 (1) (d), 13 (2) (a) and in all the laws listed in point 2 of the petition (see paragraph 14).

56. On a similar objection, the Constitutional Court delivered an opinion in the Pl. ÚS 19 / 93, published under No 14 / 1994 Coll., which decided on the application for annulment of Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its opposition. He stated here that "The constitutional establishment of a democratic state does not deny Parliament the right to express its will, as well as its moral and political views, in a manner which it considers appropriate and proportionate within the framework of the general legal principles - including, where appropriate, in the form of a legal law, if it considers it appropriate and appropriate in this legal form of an act to emphasise the social importance and scope of its declaration. This was the case, for example, in the Act of the First Republic, which stated that T. G. Masaryk had been responsible for the State." He stressed that this did not formulate any new facts of crime. Nor can anything like this be inferred from the wording of the law currently under examination. In addition, Article 40 (6) of the Charter applies as a general standard for the assessment of any offence in terms of its criminal nature, according to which the offence is assessed and the sentence is imposed under a law effective at the time when the offence was committed. It can therefore be concluded that, in the case of the law under consideration, this is a moral and legal political proclamation of Parliament, which, for this reason, cannot be ruled out as not using common legal terminology.

57. Furthermore, if the constitutionality of the provision of Section 5 (1) of the Act is further called into question under point F of the proposal, but it is not proposed to repeal the provision of Section 5 (2) of the Act (it is proposed to repeal only the provision of Section 5 (2) of the Act), the Constitutional Court does not have to make a substantive comment on the reservations against the provisions of Section 5 (1) of the Act. In addition to that, it notes, however, that the possible inclusion of that provision of the law in the petition would not lead to its depreciation. The designated provision is merely a supplement to the general arrangements for the protection of personal data contained in a separate law. Thus, the objection to 'concise' has no constitutional justification.

58. Furthermore, it is proposed that the provisions of Paragraph 5 (2) of the Act be repealed, which imposes on all State bodies, the State's organisational bodies, state contribution organisations, the local authorities' bodies, the regional authorities' contribution organisations and the archives they manage to provide the Institute with the necessary synergies free of charge with respect to the archives relating to its tasks from the period defined by the law. The appellants stress that such an obligation is unprecedented in the case of any scientific institution engaged in historical research and therefore see in this provision confirmation of the privileged position of the Constitution, which increases the risk that the results of its research will be considered official.

59. First, it follows from that provision that the synergies concern only the submission of requested documents and the Institute is legally entitled to make copies of them at its expense. Such an obligation does not go beyond the conditions of normal cooperation between state institutions and local authorities. There are no violations of constitutionally guaranteed rights. Nor does it give any reason to conclude that the freedom of scientific research is at risk. This provision does not create a monopoly on the study and processing of historical documents of the relevant period. These remain open to other researchers dealing with the history of this time, with the results of their work being confronted by the Institute's research results. This provision is not based on the competence of the Constitution, but on the terms and conditions of cooperation of the institutions listed in that legal provision in the collection of archival documents related to the periods covered by the Institute's research. This, however, does not mean all the documents stored in the archives of the designated institutions, but only those of a historical nature.

60. Furthermore, the appellants propose to repeal the provisions of Paragraph 7 (6) of the Act according to which membership of the Council of the Constitution is incompatible with membership of a political party or political movement. They point out that pursuant to Article 20 (2): Every citizen has the right to associate himself in political parties and movements, and the limitation of that right allows only in connection with the performance of certain functions, employment and activities listed in Article 44 of the Charter. According to them, there is no such case in connection with the Council of the Constitution and there is no case in respect of which the Charter allows restrictions on that fundamental right. It concludes that the contested provision infringes the prohibition of discrimination (Article 3 (1) of the Charter) and infringes the right to participate in the exercise of public functions in the administration of public affairs (Article 21 (1) and (4) of the Charter).

61. In order to assess these reservations, the purpose pursued by the establishment of the Constitution should be assessed first. This follows mainly from the preamble to the law in which Parliament of the Czech Republic declares that it establishes it, conscious of the obligation to deal with the consequences of totalitarian and authoritarian regimes of the 20th century. Under Paragraph 3 (2) of the Act, the Institute is an organisational body of a State whose activities can only be affected by the law, and according to paragraph 3 is an entity and its activities are covered by a separate chapter of the state budget. It is therefore a state organization legally endowed with a large degree of independence, which is further enhanced by independent funding from a separate chapter of the state budget. The Council of the Constitution, as is apparent from the provisions of Paragraph 9 (1) of the Act, has a fundamental influence on the functioning of this institution. In this situation, when the legislator's absolutely dominant will is within the means it has to achieve the maximum independence of the institution, it is perfectly legitimate to make it a condition for membership of the legislature to be unpartisan. The subject of the study of the Constitution is a period that is still politically sensitive, and its results can affect various political parties, including those in Parliament. The Constitutional Court found Pl. ÚS 9 / 01 (Collection of Found and Order of the Constitutional Court, Volume 24, Found No. 192, Declared under No. 35 / 2002 Coll.), formulated - although in a somewhat different context - the conclusion that a democratic state, not only in the transitional period following the fall of totalitarianism, may bind the individual to the administration and public services and remain in them to meet certain assumptions. This conclusion is important for the matter under consideration in the sense that it has allowed certain limits to the exercise of fundamental rights, where democracy is concerned. If we understand the Institute as an institution whose mission, as it is postulated in the preamble, is to protect democracy, then the aforementioned restrictions on fundamental rights for membership of the Council are legitimate.

62. The appellants also propose to repeal the provisions of Paragraph 9 (1) (a) and (h) of the Act, which provide that the Council is to "lay down methods for carrying out the tasks of the Constitution" and "decide on appeals against decisions of the Constitution." The Board's competence to establish methods for carrying out the tasks of the Institute sees a real risk of interference in the freedom of scientific research.

63. It can be said that, in general, there is always a risk of abuse of a legal provision. However, the Council cannot decide outside the constitutional framework which obliges it, inter alia, in Article 15 (2) of the Charter, to respect the fundamental right to free scientific research in its decision-making to fulfil the content of its competence. Only in the interests of this constitutional disposition may the Council exercise that power.

64. As regards the Council's decision on the appeal against the decision of the Constitution, the appellants consider that provision to be standardized because there is no provision in the law for the Institute to take an authoritative decision in such a way that its decision may be subject to appeal as a procedural remedy.

65. In addition, the Constitutional Court notes that the reference criterion for a decision to abolish a law or part thereof is a contradiction with the Constitution. The fact that the provision of the law is normally empty cannot logically contradict anything, even the Constitution. There is no constitutional justification for proposing the repeal of the above provisions. In addition, the Act establishes the competence of the Council as an appeal body; The Council will decide on appeals concerning refusal of information pursuant to Act No. 106 / 1999 Coll. The Constitutional Court can also imagine an interpretation according to which the Council further decides in accordance with the provisions of Paragraph 9 (1) (h) in relation to § 12 (2) of the Act, for example, in cases under § 13 (1) (f), (g), (h). However, the Constitutional Court is not called upon to adopt such interpretative conclusions without a link to the Constitution. It will depend on the practice of general courts to solve the problem.

66. Furthermore, it is proposed to repeal the provision of Paragraph 13 (1) (c) which provides for the competence of the Archive to monitor the performance of the file service at the Institute. According to the appellants, this creates a curious situation where the subordinate is controlling the file by the superior. This situation is based on the current regulation of the archiving and file services law. According to her, the Ministry of Interior manages the National Archive and the National Archive controls the performance of the file service at the Ministry of Interior.

67. According to the appellants, this is one of the provisions which, because of its ambiguity, contradictions or unpredictability, runs counter to the principles of a democratic rule of law. However, these concerns are at least relativised by the similar existing regulation of the Act on archiving and file service, according to which the Ministry of the Interior manages the National Archive, and the National Archive, as a subordinate component, controls the performance of the file service with the Ministry of the Interior, i.e. its management. This legislation and the underlying administrative relations have been effective for several years, and the Constitutional Court has not been aware of any difficulties in practice in terms of clarity, certainty, predictability. In essence, the appellants dispute the concept of subordination in the present case. The specific regulation of supervisory and subordinate relationships as one of the principles of public administration organisation depends on the legislator's discretion. It is up to him how individual subjects on the vertical subordination will organise, unless, of course, they break the basic constitutional principles, such as the principle of division of power. No such evidence was found in the present case. The Constitutional Court does not consider it absurd, all the more so from the point of view of constitutional law, the arrangements which the executor of a particular specialised public law agenda will be entrusted with the control of the performance of that agenda by the body which manages that executor in the case of his other activities. The Constitutional Court regards the case as a very eloquent example of a police officer, who, although subordinate to the police president, is checking whether he respects the rules on road safety and continuity; therefore also as a subordinate, controls the file by the supervisor. Finally, the Constitutional Court has doubts as to whether, in the context of the control of the performance of the file service, it is possible at all to speak about the relationship between authority and subordination. The content of the provision of Section 71 (1) of the archiving law gives rise to these doubts, according to which the verification of compliance with the obligations in the archiving sector and the performance of the file service is carried out in accordance with specific legislation. This is Act No. 552 / 1991 Coll., on State Control, as amended. However, the provision of Paragraph 3 (2) of the Law does not consider the control carried out in the context of supervisory and subordinate relations as State control. It follows that Law No 552 / 1991 Coll. excludes control of the performance of the file service from the regime of supervisory and subordinate relations. The nature of the appellants' objections is thus missing with the reality of the legislation.

68. If the last sentence of Paragraph 15 of the Act is further proposed to be deleted, according to which the Director of the Archive decides to appeal against the decision to refuse access to archives, there is no reason to do so. It is a functional provision governing the regime of consultation into a specific [in relation to the provisions of § 13 (1) (g) of the Act] category of archives, i.e. those for which the classification level has been abolished. The constitutional court did not find any constitutional defects in the legislation adopted, nor did the applicants raise any specific reservations.

69. Under Paragraph 17, the Archive becomes part of the National Archive on 1 January 2030. The appellants propose to repeal this provision because they consider it incomplete, vague and unforeseeable. There is no modification of the consequences of merging the archive with the National Archive. According to them, such an arrangement is contrary to the principles of the democratic rule of law on which the Czech Republic is founded pursuant to Article 1 (1) of the Constitution.

70. According to the Chamber of Deputies, this provision is merely of a declaratory nature and expresses the legislator's will to merge both archives within that time. It was added to the law in the processing of a comprehensive amendment as a conclusion to the discussion with the professional archiving community. Although the wording of that provision does not correspond to the intention to declare the merger only, it cannot be interpreted otherwise in the absence of a detailed adjustment to the terms of the merger. If they are to be interpreted in this way, then the crucial objection is that it is an incomplete and uncertain provision, the consequences of which cannot be predicted.

71. It is also proposed that the provisions of Paragraph 19 (1) (a) be repealed, which sets out one of the criteria of reliability for the election of a member of the Council of the Institute, for the appointment of the Director of the Institute, Director of the Archive and Head of the Institute and the Archive directly to the Director of the Institute or the Archive. For the purposes of this Act, a person who was not a member or candidate of the Communist Party of Czechoslovakia or of the Communist Party of Slovakia shall be regarded as reliable in accordance with § 19 (1) (a). Other employees of the Institute and Archive must meet the requirements of Act No. 451 / 1991 Coll., laying down certain additional conditions for the performance of certain functions in the state bodies and organizations of the Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic, as amended (so-called lustration law). The appellants argue that the reason for the unreliability is formal membership of those political parties, and they do not take any account of the actual behaviour of those parties. They also stress that membership of the Council is a public function (Section 10 of the Act) and that, in accordance with Article 21 (4), Each citizen has the right and the possibility to participate in the conduct of public affairs.

72. First of all, the Constitutional Court must reiterate at this point that, in its finding in sp. zn. On this basis, it concluded that a democratic state can bind an individual's entry into government and public services to meet certain assumptions. At the same time, however, the Constitutional Court stated clearly in its cited finding that "individual attitudes towards democratic establishment determine primarily its real actions." In this context, Act No. 198 / 1993 Coll., on the illegality of and opposition to the Communist regime, and the finding on that Act published under No. 14 / 1994 Coll. The quoted law calculates the crimes and other comparable facts that occurred in the territory of the Czech Republic today between 1948 and 1989, and in the operational part of its text attaches full joint responsibility to those "who promoted the Communist regime as officials, organizers and promoters in both political and ideological fields." In the preamble it notes the special responsibility of the pre-November KSČ, including its management and members. It is therefore clear that the close belonging of an individual to the pre-November regime and its repressive components is a fact which is capable of adversely affecting the credibility of the public function that this individual holds in a democratic state, as the Communist regime has been described by the Parliament of the Czech Democratic State as "criminal, illegitimate and repugnant." Although this law also mentions in the preamble the responsibilities of the members of the pre-November KSČ, in the normative part of the law it refers to as a threat to democracy as "belonging to the individual with the pre-November regime and its repressive elements."

73. The Constitutional Court notes that the quoted finding, sp. zn. It is for the legislator to determine the assumptions in a manner appropriate to the purpose for which the function is set up. It is not possible, however, that criteria for different, even very close functions are set differently while maintaining the elements common in certain specific conditions. In this respect, various models can be found, for example, a judge in an administrative justice review of a disciplinary decision against a lawyer is not required to be insured for damages as a lawyer - a member of a disciplinary senate, a judge of the Supreme Administrative Court cannot - unlike a lawyer - be an arbitrator, etc. The legislator should always ensure that its proper and constitutionally conformal functioning is guaranteed in the relevant field of public service or public service. It is not for the Constitutional Court to lead the legislature to unify the conditions for the exercise of various close functions, for example by bringing the age limit for judges and lawyers or the requirement of education for judges and representatives of the Ombudsman. In principle, it is also up to the legislator to address the question of the appropriateness of the criteria set. In the present case, it cannot be overlooked that, in the case of the Constitution and the Archive, these are institutions whose tasks are to process historical sources and materials of a period of time which stands at the very "frontier of history ', the period with the maximum degree of objectivity is to inform in order to examine, recognise and evaluate the practices of totalitarian regimes so that, in future, the characteristics of the totalitarian regime can be recognised in a timely manner and, in the framework of the protection of democracy, to prevent totalitarian regimes from being created. The question of membership of the Communist Party between 25 February 1948 and 15 February 1990, or others in § 19 (1) of the Act calculated forms of closer links to the totalitarian regime, is not legally based as a reason for general unreliability, since the definition of § 19 (1) only negatively defines reliability for the purposes of the Act. It is thus quite clear that this provision does not disqualify and degrade, nor should it disqualify or degrade those who are not eligible within the meaning of Paragraph 19 (1) of the Act, in any other sphere, including the possibility of access to other public functions. The Constitutional Court takes the view that, according to the content, this is more of a form of bias of sui generis than of reliability or unreliability seen only by the visual angle of language interpretation. The Constitutional Court then measured the proportionality between the right of access to public functions within the meaning of Article 21 of the Charter, on the one hand, and the principle of the protection of democracy, on the other. He concluded that the public interest in protecting democracy prevails. He concluded that the belonging of the persons referred to in Paragraph 19 (1) of the Act to the totalitarian regime and the institutions listed in the Act is still relevant circumstances which may call into question political loyalty and impair the credibility of institutions such as the Constitution and the Archive. A certain analogy can be found in the institution of bias of the judge (evidence = archival materials are collected here, evidence is evaluated = facts found are analysed and decisions are taken = justifications are given for conclusions made from the heuristics of the information obtained). As a judge from time to time, he cannot be a judge in his own affairs, he who is active in the field of historiography, and in particular where the conditions for fulfilling the activities of the Constitution and the Archive, which have the legal status of impartial and objective institutions, could be called into question by the whole institution itself and by him for its belonging to the regime that the Institute and the Archive are to investigate. Indeed, whoever was involved with the regime seems rather than a historian to be a memorial or chronicler. In the present case, the Constitutional Court took into account that the object of the study was a regime that deliberately and artificially shaped its image with the help of censorship and other undemocratic methods under the leadership of the KSČ [Article 4 of the Constitution of the Czechoslovak Socialist Republic (Constitutional Act No. 100 / 1960 Coll., as amended)] and produced documents that were to become historical sources in such a way that the view of future generations on this regime was false, glorifying and obscuring its totalitarian nature. Thus, even if anyone was needed briefly, for example, a member or a candidate of the KSČ or the KSS, there is a" reason to doubt his unbiased nature, "and the evidence that would be held against this doubt cannot - without a historical analysis of the regime - yet be relativised. The Constitutional Court is aware of the idea of American philosopher George Santayana that" those who are not aware of the past are doomed to relive them. "According to the Constitutional Court, doubts about loyalty would call into question the activities of the Constitution and the Archive even if its activities did not appear to be sufficiently effective, fast, sufficiently funded or managerial. In measuring the intensity of interest in the protection of democracy and in the recognition of the past, compared to the right of access to a very narrowly defined public function, taken into account for the shrinking circle of persons, the Constitutional Court has found that the public interest in the protection of democracy is more intense at the moment, i.e. at the time of its decision. Last but not least, it cannot be overlooked that the contested § 19 of the Act does not concern researchers working in the Constitution, but only members of the Council and managers within the meaning of § 18 of the Act. The Constitutional Court took into account that, for researchers, freedom of research is fully guaranteed in the Constitution and that even those who would fail because of the obstacle given in § 19 of the Act as a candidate for a legally defined range of functions have the opportunity to address the subject as an internal or external researcher.

74. That interpretation can therefore be concluded by stating that the provision of Article 19 (1) (a) of the Act does not conflict with the law guaranteed by Article 21 (4) in conjunction with Article 4 (3) of the Charter.

75. In the case of the provisions of Paragraph 21 (1) of the Act, which deals with the exercise of rights and obligations in the employment relations of employees of the Czech Republic affected by the creation of the Archive, the appellants question its constitutionality for its incomprehensiveness and partial imfeasibility. The provision only refers to employment relations, the subject of which is the archives where the service is carried out by members of the armed corps who are in service. In relation to civil servants, the appellants then express their doubts as to whether the transfer of rights and obligations from employment relationships under the law, without their consent, is in accordance with Article 26 (1) of the Charter. They point out that there is to be a transition from a number of different offices to a completely different office, which is organised in a system of state administration quite differently than, for example, ministries, and therefore, an employee from the Ministry could legitimately view this as dehoming. In addition, the transition of the former is only subject to the conditions of reliability and integrity, or compliance with the condition laid down by Act No. 451 / 1991 Coll.

76. The Constitutional Court understands the proposed contested provision in particular as a provision for the protection of workers. Infringement of Article 26 (1) of the Charter cannot be considered as the law was declared on 12 July 2007 and the rights and obligations arising from employment relations are transferred to the Archive until the first day of the seventh calendar month following the date of publication of the law, i.e. 1 February 2008. Each employee had sufficient time to exercise his or her right to open up his or her employment so that he / she did not have to go to the employer against his / her will. As regards the question of members of the armed corps, it is clear that, if they did not become employees in employment between 12 July 2007 and 1 February 2008, they continue to remain in service with existing employers. It follows from the Chamber of Deputies that they have been given the opportunity to go from employment to employment.

77. Furthermore, when assessing the contested legislation, the Constitutional Court concluded that the limit of constitutionality is out of line with the provisions of Section 7 (9) of the Act under which the Senate may revoke a member of the Council, unless it has performed its duties properly or for more than six months in the words "properly or" with an accent on the proper performance of its duties. The Constitutional Court states here that it did not forget to consider whether the scope of the review as defined in the proposal was exceeded by the derogation of the provision in question, in other words, whether the provision in question was at all capable of a meritorial review. While it is true that the appellants did not mention the provisions of Paragraph 7 (9) of the Act in the list of those which they propose to abolish alternatively to derogate from the entire law. Thus, neither was the provision in question provided a separate argument of non-constitutionality. However, one of the notable reasons for which the repeal of the law as a whole is proposed is the institutional possibility of political influence on the activities of the Constitution, thereby intervening in the freedom of research. The provision in question, for the reasons set out below, identified the risk of such political interference in the Institute's activities in the form of unjustified interference in the composition of its Council, which is to say, the authority that directs the research methodically. In this sense, the Constitutional Court considers that the appellants have taken the burden of claiming unconstitutionality.

78. The legal regulation of scientific research in the Czech Republic is based on the constitutional bail-outs contained in Article 15 (2) of the Charter and is contained in particular in Act No. 111 / 1998 Coll., on universities and on the amendment and addition of other laws (Act on Higher Education), as amended, Act No. 283 / 1992 Coll., on the Academy of Sciences of the Czech Republic, as amended, and Act No. 130 / 2002 Coll., on the promotion of research and development from public funds and on the amendment of certain related laws (Act on the promotion of research and development), as amended. As scientific research is conceptually linked to the category of freedom (see Article 15 (2) of the Charter), all statutory scientific institutions are built on the principle of autonomy, autonomy and separation from state authority. The institutions of these institutions (universities, the Academy of Sciences of the Czech Republic) are thus formed by the scientific community (e.g. at universities by the academic community). In this respect, the scientific purpose of the Constitution is in conflict with the way in which its top body - Council is created. Under Section 7 (1) of the Act, its members are elected and dismissed by the Senate of the Parliament of the Czech Republic. The Constitutional Court still considers it acceptable to choose the members of the Council, as there is at least a degree of variability between those who propose candidates, including those outside the political environment. The question of selecting individual candidates is more or less a question of political culture and maturity, namely whether voters can abstract and prioritise professional criteria from political aspects. However, the way in which members of the Council are removed must be identified as unacceptable in terms of guarantees of free research. The Senate, under paragraph 9 of that legal provision, "may revoke a member of the Council if he does not properly... perform his duties," which creates unlimited scope for appeal. The standard is that, if the law provides for the protection of independent institutions (institutions) not in the form of self-governing but political bodies (as is the case in this case), their independence is then determined by guarantees of irrevocability (otherwise, when the appointment and the appeal are cumulated, the relationship of subordination is established). It has been stated above that membership of the Council is a public function. Article 21 (4) On equal terms, citizens have access to elected and other public functions. The Constitutional Court has previously interpreted (see page II of the judgment of 12 September 2006) that Article 21 (4) The Charter does not only apply to access to public office in the sense of the establishment of a function, but also covers the right to its uninterrupted exercise, including the right to protection against unlawful deprivation, since participation in public administration, which is the purpose of the whole of Article 21, is not exhausted by the mere acquisition of a function, but logically persists for the entire duration of that function. In relation to the case now under consideration, it follows that the members of the Council must, in accordance with Article 21 (4): The Charter is also protected against the State's misgivings during the entire term of office, including the definition of the reasons for its demise. However, the determination of the provision in question does not correspond to that.

79. Therefore, the Constitutional Court annulled part of the provision of Paragraph 7 (9) of the Law in the words "properly or ', since the wording of that plea, for which the possibility of the Senate withdrawing members of the Council is based, is contrary to Articles 15 (2) and 21 (4) of the Charter. Derogation takes place with effect on the date of publication of the finding in the Collection of Laws.

Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge František Duchoň, Pavel Holländer, Vladimir Krórek, Jan Musil, Jiří Nykodemí, Pavel Rychetský and Eliška Wagner for a decision and for his reasons Judge Vojen Güttler.