The Constitutional Court found No 212 / 2019 Coll.
The Constitutional Court found of 2 July 2019 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
30.08.2019
212
FIND
The Constitutional Court
On behalf of the Republic
On 2 July 2019, the Constitutional Court decided, under point Pl.
as follows:
The proposal to repeal the provisions of Section 26 of Act No. 186 / 2013 Coll., on Citizenship of the Czech Republic and amending certain laws (Act on Citizenship of the Czech Republic) is rejected.
Reasons
Definition of the case
1. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), the Supreme Administrative Court (hereinafter referred to as the Law on the Constitutional Court) proposed the repeal of Article 26 of the Act No. 186 / 2013 Coll., on the citizenship of the Czech Republic and on the amendment of certain laws (the Act on the citizenship of the Czech Republic).
2. The appellant stated that the complainant A.C. ("the complainant ') in the appeal proceedings under sp. zn. 2 As 64 / 2017 pointed out the inconstitutionality of that provision of the law, which makes it impossible for a group of unsuccessful applicants to grant citizenship to review the negative decision.
3. The complainant requested, through the Regional Office of the South Moravian Region on 13. 8. 2014, to grant citizenship of the Czech Republic. The complainant, who has the citizenship of the Russian Federation, has been in the Czech Republic since 1999 and has been in business here through several companies. He is allowed a permanent residence on the territory of the Czech Republic as of 2 February 2001, he is divorced, he has two children with his former wife L. C., they are both nationals of the Czech Republic. The Ministry of the Interior ("the Ministry ') stated that the complainant fulfilled the conditions under § 14 (1) to (8) of the Act on Citizenship. In accordance with Section 22 (3) of the Act on Citizenship, the Ministry requested the opinions of the Czech Police and Intelligence Services (" Security Services'). On the basis of these opinions, the Ministry concluded that the complainant was threatening the security of the Czech Republic and therefore rejected his request under Section 22 (3) of the Citizenship Act. The Minister for the Interior has re-assessed the negative opinion of the relevant security service, assessed the reasons for this opinion in relation to the complainant's personal situation and concluded that the security risk persists and is of such a nature as to prevent the grant of citizenship of the Czech Republic. For this reason, the breakdown provided for in § 152 (5) (b) of Act No 500 / 2004 Coll., the administrative order, as effective until 30 June 2017, (as effective from 1 July 2017, is paragraph 6) was rejected.
4. The complainant brought an action against the decision on decomposition. By order of 10 February 2017 No 8 A 28 / 2017- 15-17, the Municipal Court in Prague rejected it pursuant to § 46 (1) (d) of Act No. 150 / 2002 Coll., the Administrative Rules, in conjunction with § 68 (e) and § 70 (f) of the Administrative Code and § 26 in conjunction with § 22 (3) of the Act on Citizenship. According to the contested Section 26 of the Citizenship Act, the decision to reject the application for citizenship pursuant to Section 22 (3) of that Act is excluded from the review by the court.
5. On the complainant's application that the municipal court should, in accordance with the procedure referred to in Article 95 (2): The Constitution submitted to the Constitutional Court an application for annulment of Paragraph 26 of the Act on Citizenship, the Municipal Court stated that if, in accordance with the constitutional order of the Czech Republic, the administrative authority does not need to justify the decision under Section 22 (3) of the Act on Citizenship and the administrative file does not contain the opinion of the Security Service, the Municipal Court does not have any doubts as to the compliance of Section 26 of the Act on Citizenship with the constitutional order.
6. The complainant contested the order of the City Court of Cassation. It argued that Paragraph 26 of the Act on Citizenship was unconstitutional, as there is no constitutional reason for a group of persons seeking the same treatment to be prevented from having access to the provision of judicial protection of their rights. In the absence of judicial review of these decisions, an independent and impartial court may allegedly take the view that the administrative authority is in a mood and abuse of the limits of administrative discretion. He claims that he has no knowledge of any conduct that could threaten state security.
7. The Supreme Administrative Court concluded that Paragraph 26 of the Act on Citizenship, which is required to apply it, cannot be interpreted in a constitutional manner. In view of the fact that that provision is contrary to the principle of democratic rule of law under Article 1 (1) of the Constitution, the prohibition of discrimination pursuant to Articles 1 and 3 (1) of the Charter of Fundamental Rights (hereinafter referred to as "the Charter ') and the right of access to the Court under Article 36 (1) and (2) of the Charter, the Constitutional Court made a request for its annulment.
8. The appellant is aware of the fact that no constitutional guaranteed fundamental right is infringed by the failure to grant citizenship to the Czech Republic. Nor does the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention ') give the applicant a right to citizenship (cf.
9. The appellant shall analyse in detail the evolution of the case law of the Supreme Administrative Court on the review of the administrative discretion of the Ministry when deciding on the granting of citizenship. The NSS gradually concluded that absolute discretion is unsustainable in the rule of law and that administrative discretion is also limited by the principle of proportionality, prohibition of forbearance and order to take decisions in similar cases mutatis mutandis and in the same cases [cf. NSS judgments No 31 / 2005-78, No 4 As 75 / 2006-52, and by analogy Recommendation of the Council of Europe Ministers No (80) 2 concerning the exercise of administrative discretion by administrative authorities]. The case-law of the Supreme Administrative Court was subsequently held that the decision to grant citizenship concerned public subjective rights and can therefore be examined by a court in the administrative judiciary. Absolute discretion cannot exist in the rule of law (cf. Resolution No 6 A 25 / 2002-42 of the extended Senate of the NSS, followed by the judgment of the NSS of the same file mark in which the court has made a substantive review of the decision not to grant citizenship and found it illegal because of a breach of the principle of legitimate expectations of the applicant). In another decision, the NSS stated that, although there is no legal claim to the granting of citizenship (so that an applicant who has fulfilled all the legally stipulated conditions cannot "automatically" have access to the State to be granted citizenship), there is a subjective right to it (so that a stranger can apply for citizenship and the Ministry must decide on this request with the exclusion of the libel, discrimination and other impropriety of the forbidden public authority of the democratic rule of law). The list of the conditions explicitly set out in Act No. 40 / 1993 Coll., on the acquisition and renunciation of citizenship of the Czech Republic, as amended, the Supreme Administrative Court declared it to be taxative and ruled out that the Ministry could "consider" new, even if it were in the interest of the State (cf. NSS judgment No 31 / 20058- 78). In the view of the Supreme Administrative Court, it was this willingness to the rights of applicants for citizenship that became a reason for the difficult absorption of that case-law by the Ministry and was an incentive to try to amend the legal regulation of the issue.
10. Thus, the competitive exclusion of judicial review appears unacceptable to the Supreme Administrative Court in this situation, as it is contrary to all legal certainty standards achieved so far. This makes it possible to legalize complete insolence, as abuse of the set procedure is unidentifiable by the court. The general need to protect certain information from access to persons concerned is acceptable, but the method chosen is clearly disproportionate.
11. The consequence of non-nationality is a secondary concern of the constitutionally guaranteed rights of unsuccessful applicants. For example, the active and passive right to vote, the extent of the freedom of association or the right of access to elected and other public functions and the right not to be discriminated against [in this context the Supreme Administrative Court refers to the case-law of the Constitutional Court, namely the finding of 9.12.2008 sp. zn.
12. Pursuant to Article 12 of the European Convention on Citizenship (published under No 76 / 2004 Coll.), each Contracting State shall ensure that decisions on the acquisition, maintenance, disposal, re-acquisition or verification of its citizenship can be properly or judiciously reviewed under its national law. The possibility of turning to court is certainly not absolute. In the present case, it is possible to submit a breakdown, which is decided by the Minister for the Interior, against the decision not to grant citizenship for the threat to national security. However, it is de facto a review by the same authority which issued the contested decision and which is moreover not independent and impartial.
13. The Supreme Administrative Court does not in any way call into question the outcome of the proportionality test in relation to the justification of a negative decision under § 22 (3) of the Act on Citizenship [cf. the finding of the Constitutional Court of 11.10.2016 sp. zn.
14. An exclusion from judicial review creates unfounded inequality between applicants. In fact, a failed applicant under Paragraph 22 (3) of the Act on Citizenship is already at a disadvantage compared to other unsuccessful applicants in relation to the submission of a proper remedy, since it is not given the grounds against which it may oppose. Nor can an administrative action be brought against such a decision. On the contrary, all other negative decisions which contain proper reasons for which the unsuccessful applicant is guaranteed all procedural rights are subject to judicial review. The legislator thus created two groups of applicants without any relevant reason, thereby violating the prohibition of discrimination.
15. Act No. 326 / 1999 Coll., on the residence of foreigners in the Czech Republic and on the amendment of certain laws, as amended, (hereinafter referred to as "the Act on the residence of foreigners") contains in § 169m (3) an amendment similar to § 22 (3) of the Act on Citizenship, according to which, if it becomes apparent from classified information that the alien is a threat to the security of the State, the reasons for the decision not to grant a long-stay visa shall be stated only that the reason for not granting the visa is a threat to the security of the State. However, the judicial review of such a decision is not excluded, as is apparent from Paragraph 172 (9) of the Aliens' residence law, and classified information shall be kept separate from the file.
16. Similarly, Act No. 412 / 2005 Coll., on the protection of classified information and on security competence, as amended, regulates the so-called security procedure in which the issue / revocation of a natural person's certificate is decided on whether he can access classified information. This is accompanied by a condition of safety competence which is met by a person who has no safety risk. The law contains specific provisions on the reasoning of decisions (Section 122 (3) of the Act on the Protection of classified information and on security competence) and the provision that a party and his representative have no right to consult the part of the security union which contains classified information. The judicial review of decisions based on classified information is also not excluded here. In addition, the law does not generally exclude evidence of the content of classified information, but, where this is not possible, it contains specific arrangements for the separation of part of the file for the purposes of legal proceedings (Section 133 (3) of the Act on the protection of classified information and on security competence). In this context, the Supreme Administrative Court refers to the judgment (NSS No 7 As 31 / 2011-101) in which it stressed the need for effective judicial control involving access by a judge to all the information on the basis of which it was decided in the security proceedings, even where access to classified information is refused where necessary. Under these circumstances, according to the NSS, it must be the court which subdues the activity of the party and examines the relevance of classified information from all aspects which appear to be important in view of the nature of the matter.
17. In the view of the Supreme Administrative Court, the legislator is thus in a position to adopt legislation where individual and public interests are balanced.
18. In the view of the Supreme Administrative Court, the argument that, if the reasons for the refusal are not stated in the decision, the court has nothing to review (which was also indicated by the municipal court in the case under examination) cannot be considered as sustainable. Taking into account security risk is nothing new in the process of granting citizenship. The obligation to examine the application for citizenship was already the responsibility of the Ministry under the previous legislation on citizenship. According to her, classified information was not part of the State's civil file and the party to the proceedings had no opportunity to acquaint itself with it. At the time when the judicial review of those decisions was not ruled out by law, the Ministry's approach was such that those decisions justified at least and did not provide classified information to the courts. However, that practice of the Ministry was not tolerated by administrative courts. The case-law states that the documents containing classified information must exist and the court must have them at its disposal (cf. judgments of the Municipal Court in Prague No 7 A 129 / 2010-51 and No 5 A 83 / 2011-39).
19. As regards the exclusion of the risk of arbitrariness, which is ensured by the signing of the opinion by the Director of the Special Branch of the Police of the Czech Republic and the Intelligence Service, the Supreme Administrative Court also refers to its case law according to which the position of the originator of the classified fact cannot, in itself, lead to a conclusion on its credibility, persuasion and relevance (cf. NSS judgment No. 4 Azs 255 / 2015-49 and the Resolution of the extended Senate No. 4 As 1 / 2015-40).
20. In the view of the Supreme Administrative Court, the law may refuse access to classified information but may not at the same time withdraw judicial review of decisions based on them.
Observations of the parties
21. The Constitutional Court, in order to examine the case, invited the parties to submit their observations on the application for annulment of the contested provision.
22. The Chamber of Deputies of Parliament, in its observations on the proposal, summarised the legislative process, which it stated that the draft Act on Citizenship had passed the constitutional procedure prior to its declaration. In particular, the Chamber of Deputies stated that the draft Act on Citizenship had been circulated to Members as Press No. 827 on 10 October 2012. The first reading of the draft law was made on 4 December 2012, when the deadline for discussing the draft committees was set for 60 days. Within that period, the Constitutional and Security Committee discussed it and advised the Chamber of Deputies to approve the draft law as amended by their proposed amendments, none of which were affected by the contested provision. The bill passed both general and detailed discussions at the second reading on 20 March 2013. In a detailed debate, four Members spoke with their amendments, with Mr David Kadner proposing an amendment to Paragraph 26 of the draft law in one of his amendments (SD 5986) in order to allow for judicial review of the decisions to reject a request for citizenship based on classified information. The motion to dismiss was not filed.
23. The third reading of the draft Act on Citizenship was carried out on 27 March 2013 when the draft Act was approved as amended. Mr David Kadner's amendment to Paragraph 26 was rejected (out of 144 Members present, only 10 Members voted in favour and 124 were against the proposal). The Chamber of Deputies passed the Senate Bill on 24 April 2013. The Committee on Foreign Affairs, Defence and Security has discussed the draft law and recommended that it be approved by the Chamber of Deputies. The Constitutional Law Committee has discussed the draft law and recommended it to be approved in the wording of the amendments adopted by it, including the amendment of Paragraph 26 in order to allow for a judicial review of the decision to reject the application for citizenship on grounds of a threat to national security. The Senate discussed the draft law at its 10th meeting on 16 May 2013 and returned it to the Chamber of Deputies, as amended by its adopted amendments, including the proposal to amend Article 26 of the Act. The bill approved by the Senate was delivered to the Chamber of Deputies on 27 May 2013. The Chamber of Deputies voted on the bill as approved by the Senate on 11 June 2013 and maintained the original bill. The President of the Republic signed the proposal on 20 June 2013. Subsequently, the bill was delivered for signature to the Prime Minister on 26 June 2013.
24. The Senate of Parliament, as a party to the proceedings, stated in its observations that the draft Act on Citizenship had been forwarded to the Senate by the Chamber of Deputies on 24 April 2013. He was assigned a number of 87 in the Senate Register (9th term of office). The Guarantee Committee established a Committee on Foreign Affairs, Defence and Security, which recommended the Senate to approve the bill as referred to it by the Chamber of Deputies by Resolution 52 of 15 May 2013. The Constitutional Legal Committee discussed the bill at its meeting on 15 May 2013 and adopted Resolution 62 recommending the Senate to return the bill to the Chamber of Deputies with amendments. One of the amendments adopted by the Committee was the amendment of Paragraph 26 of the Act in order to allow judicial review of those administrative decisions when the refusal of the application for citizenship of the Czech Republic was due to a threat to the security of the state. At the same time, it established a regime to protect any classified information contained in the opinion of the security services. In particular, it suggested that the Ministry would always forward to the court the opinion of the security services containing classified information in addition to the administrative file. In order to protect them, the Ministry should have indicated that classified information which it claimed could not be waived and the President of the Chamber decided that the part of the judicial file to which such classified information is subject would be separated if the activities of the security services could be compromised or seriously compromised. The examination of a separate part of the file should have been refused to the party, his representative and the person involved in the proceedings. It should also have been the case that the Court carried out the taking of evidence in such a way as to investigate the obligation to maintain confidentiality regarding classified information contained in the opinion of the security services.
25. The Senate discussed the draft Act on Citizenship at its 10th meeting on 16 May 2013.
26. At the outset, Martin Kuba, the representative of the appellant, Minister of Industry and Trade, made a negative comment on the amendment introducing a judicial review of the decision to reject a request for citizenship because of a threat to the security of the state, arguing that there is no legal right to grant citizenship.
27. A rich general debate followed, in which the question of the possibility of judicial review of decisions played a fundamental role. Senator Vladimir Dryml pointed out that the protection of classified information would be weakened mainly because of the expansion of the circle of people who would come into contact with them, while pointing out the possibility of an intolerable administrative burden on the courts. Senator Pavel Lebeda has similarly expressed his negative opinion on the part of the amendment in question, as "there is no legal right to grant citizenship. And judicial review is just a guide to corrupt practices..." In the opposite sense, Senator Eliška Wagner, who questioned the constitutionality of the Government proposed by Paragraph 26, referring to the principles of the rule of law. In particular, it drew attention to the contradiction with the prohibition on the likes of the executive or the likes of the administrative authorities and stressed that "the rule of law must treat all applicants equally and equally '. The opposite approach would lead to an unlimited discretion that would question the very importance of legality. The judicial review therefore considered it a way to prevent such a situation. In response, Senator Vladimir Dryml stated that the adoption of that part of the amendment would mean" interference with the state's intrinsically clear security issues. The state is responsible. They're not judges. "In support of the amendment, Senator František Bublan spoke shortly, who pointed out the specific content of the proposed regulation and outlined the mechanism contained for protecting classified information, which he considered to be adequate to prevent the leak of the information. At the same time, he stressed the need to prevent abuse of state power by an executive without the possibility of control by an independent court. Senators Jiří Chunek and Jiří Dienstbier expressed a positive opinion on the possibility of judicial review.
28. Following the conclusion of the general debate, the amendment contained in the resolution of the Constitutional Legal Committee was voted, inter alia, on. The motion (paragraph 9 of resolution 62) was decided on in separate voting block 3. In vote 8, the Senate expressed its willingness to approve the amendment, as out of the 66 senators present, 43 voted in favour and 13 opposed. After deciding on other amendments, the Senate finally voted in favour of the proposal to return the bill as amended to the Chamber of Deputies in vote 13, when 52 of the 65 senators present voted in favour and 5 opposed.
29. The Chamber of Deputies voted on the bill returned by the Senate on 11 June 2013 at the 54th session (6th term). The House insisted on the original proposal (vote 45, resolution 1699). Finally, the Senate notes that, when discussing the draft law, it acted within the limits of the Constitution for prescribed powers and in a constitutional manner.
Opinion of the Government and the Ombudsman on the proposal
30. In accordance with Article 69 (2) and (3) of the Law on the Constitutional Court, the Constitutional Court sent an application for the initiation of proceedings to the Government and the Ombudsman (hereinafter referred to as "the Ombudsman '), indicating the legal period within which they may intervene as interveners and, where appropriate, comment on the application.
31. On 31 January 2018, the Constitutional Court received a communication from the Minister of Justice, Robert Pelikan, that the Government, at its meeting on 31 January 2018, had discussed its application for entry into the proceedings before the Constitutional Court under sp. pl. ÚS 39 / 17 and had adopted with him Resolution 75 approving its entry into that procedure, proposing the rejection of the NSS proposal, authorising the Minister of the Interior to represent it in the proceedings in question and authorising the Minister of Justice to draw up, in cooperation with the Minister of the Interior, a detailed statement by the Government on the proposal which he attached.
32. The Government stated at the beginning of its observations on the case that the exclusion of a narrow group of decisions not to grant citizenship from the possibility of judicial review is solely for the protection of the essential security interests of the State and is therefore a legitimate and proportionate restriction otherwise at the constitutional level of the regulated right to judicial review of administrative decisions. The protection of those interests makes it impossible to include and refer to information obtained from operational investigations by police and intelligence services in the justification of administrative decisions. If classified information is to be fully protected against disclosure, it is necessary to minimise the possibility of leakage of classified information in the context of legal proceedings. It is not clear to the Government how the courts could even review and evaluate this specific information.
33. It stresses that classified information may also be obtained from the activities of foreign intelligence services. The possibility of discussing this information in the context of legal proceedings would lead to a major threat to the functioning of cooperation between the intelligence services of the Czech Republic and foreign states.
34. The judicial review of decisions on citizenship is not even required in Article 12 of the European Convention on Citizenship, as it considers that each Contracting State will ensure that decisions on the acquisition, maintenance, disposal, re-acquisition or verification of citizenship can be properly or judiciously reviewed under its national law. This requirement is already fulfilled by the possibility of decomposition against the decision of the Ministry of Interior, which rejected the application for citizenship of the Czech Republic for reasons of state security.
35. The Act on Citizenship expressly states that there is no legal right to grant citizenship and that there is no fundamental right [cf. Order of the Constitutional Court of 8.3.2000 sp. zn. IV. ÚS 586 / 99 and order of 17.5.2007 sp. zn. II. ÚS 624 / 06 (not published in the SbNU, available in the same way as the other decisions of the Constitutional Court at http: / / nalus.ujud.cz), ECHR judgment of 12.1.1999 in Karassev v Finland]. Therefore, there is nothing to prevent the law from establishing a judicial exclusion (within the meaning of Article 36 (2) of the Charter).
36. Consideration that a judicial lockout would be inadmissible even in cases where rights and freedoms would be affected in any way indirectly would result in the provision of Article 36 (2) of the Charter becoming practically obsolary.
37. The Government adds that the status of the applicant does not change by not granting citizenship - he may continue to reside in the territory of the Czech Republic, the extent of his rights and obligations remains preserved [unlike the situation of foreigners, when it is decided on their administrative expulsion, cf. the finding of the Constitutional Court of 9 December 2008 sp. zn. Pl. ÚS 26 / 07 (N 218 / 51 SbNU 709; 47 / 2009 Coll.) and is very close to the extent of the rights of Czech citizens.
38. The right to judicial review is not absolute (Article 36 (2) of the Charter). Protection of state security is a legitimate reason for the lockout. In the case under consideration, there is no second concern for constitutional rights. The complainant's situation has not changed in any way by not granting citizenship. In this context, the Government refers to the judgment of the ECHR in the Regner case against the Czech Republic, in which the court stated that, in general, the certification of a natural person (on access to classified information) is a privilege, not a right. The derogation concluded that, in the particular case, it was a potential concern for the civil rights of a natural person (as a result of which Article 6 (1) of the Convention is applicable), from the fact that it was not the granting of the relevant certificate to a natural person who does not yet have it (privilege) but the revocation of the relevant certificate already granted to the natural person, which had already had an impact on the civil rights of the natural person. In the present case, a natural person did not have and does not have citizenship of the Czech Republic. Its failure to grant it is not a privilege, not an intervention in (civil) law.
39. As regards equality, the Government generally notes that law treats legal entities by classifying them according to different criteria and linking them to different legal consequences, thereby actually making differences between legal entities. The impossibility of classifying legal entities would therefore mean denying the very nature of the law as a regulatory system (because ultimately it would mean that everyone has a right to everything, or that no one has to do anything). The absolute equality between the subjects is thus not possible, as confirmed by the Constitutional Court [cf. the finding of the Constitutional Court of 17.2.1999 sp. zn. Pl. ÚS 16 / 98 (N 25 / 13 SbNU 177; 68 / 1999 Coll.)]. When assessing constitutional conformity, it is assessed by legislation which introduces the aspects of the differentiation of bodies and rights in terms of the exclusion of lean. As a rule, the violation of another fundamental right is also linked to the violation of equality, which has the intensity to affect fundamental human rights. However, in the view of the Government, such a case does not occur in the contested case.
40. The Government admits that there is a difference between a group of persons in respect of whom intelligence services or police have found knowledge that they pose a threat to the security of the state and a group of persons in respect of whom these authorities have not been identified. In addition, this difference concerns the interest in the protection of state security and the protection of classified information and therefore has a constitutional legal relevance [cf. point 55 of the Constitutional Court's finding of 11.10.2016 sp. zn. Since no fundamental right is infringed by the non-citizenship, the legislator could conclude that a judicial lockout could be established. It could also be relevant to this consideration that intelligence services have specific information options at their disposal by default, but that cannot normally be verified.
41. In the context of the possible control of state security opinions documented in the framework of administrative proceedings, the procedure under Section 12 of Act No. 153 / 1994 Coll., on the Intelligence Services of the Czech Republic, as amended, hereinafter referred to as "the Act on Intelligence Services', may be used. For the purposes of the activities of the intelligence services, the body of independent control of the intelligence services of the Czech Republic shall establish itself as a special body responsible for checking the legality of the intelligence activities, including the control of respect for fundamental rights and freedoms. This authority could thus minimise the risk of the approval of intelligence services. Another similar body is the special supervisory authority for the control of the activities of the Office for Foreign Relations and Information established by Sections 12 and 12a of the Intelligence Act. These authorities will not be the appeal authorities in respect of the refusal of an application for citizenship, but it is not excluded that the unsuccessful applicant should refer to them with complaints about the intelligence process. These authorities will certainly be closer to the issue of intelligence than judges of administrative courts, and they can take systemic measures to remedy this.
42. The Government is aware that Act No. 150 / 2002 Coll., the Administrative Rules, as amended, provides for a special procedure for inspection of the file in cases where documents or records have been kept separate from the file in proceedings before the administrative authority and which were subject to inspection provisions. It points out, however, that even in such cases, the court (President of the Chamber) may provide classified parts of the file for inspection to the parties and therefore it cannot be excluded that the classified information is jeopardised. If foreign intelligence were to know this possibility, it could be assumed that this would result in a threat to cooperation with them and could ultimately result in a threat to the security of the Czech Republic.
43. In view of the above, the Government does not find any contradiction between the contested provision and the constitutional order. The Government persists in the view that the exclusion from judicial review in cases where the grounds for refusal of an application for citizenship is a state security opinion is justified by the protection of state security. It therefore recommends rejecting the proposal to abolish Paragraph 26 of the Act on Citizenship.
44. By letter dated 5 January 2018, the Ombudsman informed the Constitutional Court that she would exercise her right to intervene. In her observations, she stated that the fundamental opposition to the judicial exclusion referred to in the contested provision was already expressed by the Ombudsman Pavel Varvařovský in an inter-ministerial comment procedure on the government bill. Further reservations about the contested provision were expressed by the Senate during the next legislative process. The Ombudsman agrees with the proposal by the Supreme Administrative Court to repeal the contested provision. In its view, it infringes the right to judicial protection guaranteed in Article 36 of the Charter and is contrary to the principles of the democratic rule of law resulting from Article 1 (1) of the Constitution. The guardian deals with the issue of the decision not to grant citizenship for state security reasons for a long time. Even with the effectiveness of the previous legislation on the acquisition of citizenship, at a time when judicial review was not possible, some unsuccessful applicants turned to the protector. In the course of his inquiries, the Ombudsman used the authority to acquaint himself with classified information which was the basis of a negative decision, which allowed applicants to know whether or not the Ministry's conduct in their case was arbitrary. The use of this authorisation was understood by the Ombudsman as an emergency solution replacing the non-judicial review at that time. Following the change in the case-law of the NSS, which led to the judicial review, the Ombudsman's view was that the situation in this respect had been satisfactorily resolved. However, the case of 2013 (cf. The Ombudsman's report of 24.6.2013 sp. zn. 6171 / 2012 / GTC) shows that even a judicial review may not prevent arbitrary action by an administrative authority. In that case, the Ministry rejected the application for citizenship three times and the Municipal Court in Prague annulled its decision twice and returned the case to further proceedings. The Ministry did not submit to the court the basis on which it rejected the application for citizenship and gave the reasons for the decision. In the last decision, he resigned any reasonable reasoning and basically told the complainant that he was already so integrated that he did not need citizenship. However, such a decision cannot be reviewed, thereby effectively denying the party the right to judicial protection.
45. The Protector met (in 2016) for the effectiveness of the new legal regulation on the acquisition of citizenship with a refusal of the Ministry to use its authority under Act No. 412 / 2005 Coll., on the protection of classified information and security competence, as amended, and to check whether the decision not to grant citizenship is an expression of insolence. Subsequently, the Minister of the Interior gave her access only to the opinion of the Police of the Czech Republic, on the basis of which the Ministry did not comply with the request, and made access to the opinions of the intelligence services conditional on their agreement. Since then, the protector has only had the opportunity to familiarize herself with two opinions of the Police of the Czech Republic, which was the basis for rejecting the request due to a threat to state security. In the first case, the Minister of the Interior, after the initiation of the investigation, may have considered that the security risk had passed, and ultimately complied with the applicant's decomposition. In the second case, the Minister of Decomposition rejected on 31 May 2017, although the opinion of the Czech Police was very general. It consisted of approximately two sentences and it was not possible to identify the nature or intensity of the threat to state security interests. From this, the defender claims that the Ministry does not always evaluate the opinions submitted and does not take into account the individual level of security risk.
46. The contested provision thus legalized earlier practice. Many unsuccessful applicants claim that they are not aware of any conduct that could threaten state security.
47. The Protector supports the NSS's argument regarding the sub-issue of the constitutionally guaranteed rights of unsuccessful applicants within the meaning of Article 36 of the Charter. The cumulative effect of Paragraph 22 (3) of the Act on Citizenship and the contested provision results in infringement of the applicant's right to judicial protection. The subject of the procedure for granting citizenship shall be the subjective public law of the applicant. The procedure should therefore comply with its essential requirements to ensure protection against the arbitrage of public authorities. In the case of the contested provision, it is not appropriate to measure the individual's interest in communicating the reasons for the rejection decision and in protecting the security of the Czech Republic, since no compelling reasons have been put forward to exclude judicial review, on the contrary, from the comments made in the inter-ministerial comment procedure and from the amendment to the constitutional legal committee of the Senate, it is clear that the judicial review could be maintained.
48. The protector agrees with the NSS's view that the review of the administrative decision given in the decomposition procedure does not provide independent and impartial control of executive power. Although the appellant's inquiry may reveal arbitrary action by public authorities, it cannot, in the absence of the applicant's powers of order, replace the judicial protection of the rights of the applicants. The administrative authority's reluctance to cooperate in these matters illustrates the former Ministry's refusal to consult the security authorities' opinions, the use of proxy grounds to reject the application and the Ministry's reluctance to submit to the administrative courts, in addition to the administrative file, those opinions containing classified information.
49. In the Ombudsman's view, the denial of the right to judicial protection significantly opens up the scope for any arbitrary procedure by the administrative authority in the procedure for granting citizenship. If a judicial review is excluded, there is no one to counterbalance the role of security forces in the process of granting citizenship ("who would watch the watchman"). The Ombudsman therefore shares the concerns about the excessive concentration of power with the authority of the executive and uncontrollable procedure expressed by the judges of Vojtěch Šimělek and Kateřina Šimáková in point 6 of the different opinion on the finding of the Constitutional Court of 11. 10. 2016 sp. zn.
50. The Ombudsman therefore proposes that the Constitutional Court annul the contested provision.
51. The Ombudsman subsequently added her observations on the communication that, in a further inquiry on the basis of a specific complaint, she found that, from the underlying opinion of the Police of the Czech Republic on the application for citizenship, which she had become aware of, the nature and intensity of the threat to the security interests of the State were not evident. The Ministry of the Interior therefore informed the Minister of the Interior by letter of its conclusion that, in this case, the Ministry of the Interior did not evaluate the opinion submitted for proportionality in the sense of the Constitutional Court's finding of 11 October 2016. The reply of the Minister of the Interior alleged that another more detailed opinion was requested for the Decomposition Decision on the basis of which the Minister of the Interior rejected the Decomposition. Submission of a more detailed opinion by the intelligence services on the request of the Ombudsman, the Minister of the Interior, was subject to the approval of the security services concerned. The document of the protector was not disclosed, although the Minister of the Interior, Lubomir Metnar, promised to discuss the matter with the intelligence authorities in a personal hearing. In an inquiry into a further complaint concerning a negative decision to grant citizenship for civil reasons, the new Minister of Interior Jan Hamáček refused to give the defender the views of the security forces, which were the basis for a breakdown decision, on the grounds that he did not consider it appropriate. The Protector concludes that the suggested practice of the Minister of the Interior makes it impossible to conduct investigations in an area falling within its scope as defined by law. This effectively prevents any independent external control. This condition further strengthens the defendant's legal opinion on the need to repeal the contested provision which introduced the judicial lockout.
Replication of the applicant
52. The above observations, except in addition to those sent by the Ombudsman, were notified by the Constitutional Court to the appellant and to a possible reply. The appellant did not use the reply to the Constitutional Court. The reply of the Ombudsman was taken into account by the Constitutional Court but was not subsequently sent to the appellant because its original conclusion supporting his proposal remained unchanged.
Abandonment of oral proceedings
53. After the above-mentioned course of the procedure, the Constitutional Court concluded that there was no need to hold oral proceedings in the case, as it would not have brought any further or better clarification of the case than it had been aware of from the written acts of the appellant, the parties and the interveners. In view of the wording of Article 44 of the Constitutional Court Act, the Constitutional Court decided without holding oral proceedings.
Derogation of the contested provision
54.
Judicial review
The decision to reject the application for citizenship of the Czech Republic pursuant to Paragraph 22 (3) shall be excluded from the review by the court. '
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the applicant's active legitimacy
55. The Constitutional Court first focused its attention on whether the procedural conditions for the substantive examination of the application, namely the question of whether the Supreme Administrative Court was actively legitimised.
56. Under Article 95 (2) If the Constitutional Tribunal concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court for consideration; In accordance with Article 64 (3) of the Law on the Constitutional Court, Article 64 (3) of the Law provides that an application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities.
57. The General Court is thus given the opportunity not to have to apply a law or an individual provision of law which it considers to be unconstitutional and which makes it impossible to achieve a constitutional consensus outcome. This condition was clearly met at the time of the proposal. Only the annulment of the contested provision could open up the scope for a substantive hearing of the complainant's application to the Supreme Administrative Court, thereby eliminating the constitutional deficit which has affected the current action against the administrative decision in his view. The applicant therefore had active legitimacy to submit the proposal.
Constitutional conformity of the legislative process
58. The Constitutional Court, as required by Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., also assessed whether the contested provision was adopted within the limits of the Constitution established competence and in a constitutional manner. In view of the observations made by the two chambers of Parliament, the available descriptions of the legislative procedure for the adoption of the relevant law, as well as the fact that the legislative procedure is not even questioned by the appellant, it can be concluded that the condition of the constitutional conformity of the legislative process has been met.
Assessment of the reasons for the proposal
59. Article 36 (1) The Charter may be invoked by any person in accordance with the procedure laid down in his or her right in an independent and impartial court and in specified cases by another authority. Article 36 (2) The Charter may be applied to the court to examine the lawfulness of such a decision, unless otherwise provided for in the law, who claim to have been shortened on his rights by a decision of a public authority. However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. Article 4 The Constitution is fundamental rights and freedoms under the protection of judicial authority. The Constitutional Court notes first of all that Article 36 (2) cited The Charter represents a general guarantee of the right to judicial protection and therefore also of judicial review of decisions of public authorities, but also provides the legislator with the scope to rule out judicial review of the legality of decisions of the public authority. However, even in the form of a law, it is not possible to rule out the review of decisions concerning fundamental rights and freedoms under the Charter [finding of 24 April 2012 sp. zn. Pl. ÚS 23 / 11 (N 86 / 65 SbNU 161; 234 / 2012 Coll.)].
Prohibition of the exclusion of judicial review
60. In the absence of a constitutional guarantee of the right to citizenship, the decision on the proposal is a substantial answer to the question as to whether the decision to reject a request for citizenship can interfere with a fundamental right or freedom guaranteed by the Charter or by a constitutional order.
61. It follows from the case-law of the Constitutional Court that, in cases where a civil relationship does not arise ex ante but at the discretion of the competent authority of the State, the State has the sovereign right to decide whether to grant citizenship to a person and, if it does not, does not infringe any fundamental rights. In other words, there is no fundamental right which a sovereign state could infringe in such a case by not granting citizenship by its decision (the finding of 11 October 2016 sp. zn. Pl. ÚS 5 / 16, the resolution of 8.3.2000 sp. zn. IV. ÚS 586 / 99 or the resolution of 17.5.2007 sp. zn. II. ÚS 624 / 06).
62. The Constitutional Court does not in any way call into question the conclusions of the case-law of the Supreme Administrative Court, which the appellant points out and according to which the decision on the granting of citizenship affects public subjective rights - the application must be decided with the exclusion of libel, discrimination, etc. (recital 9 to this finding). However, this is not the case where, pursuant to Article 36 (2) of the Charter of the Decision, the fundamental rights are concerned. It would have to be a specific fundamental right, because otherwise practically judicial exclusions would not be taken into consideration, because the respect for the rights and freedoms of the person and citizen on which the State is based pursuant to Article 1 (1) of the Constitution affects any activity of the State [cf. the finding of 16 December 2014 sp. zl. ÚS 9 / 14 (N 228 / 75 SbNU 539; 14 / 2015 Sb.)].
63. Prohibition of exclusion from judicial review under Article 36 (2) The Charter applies only to cases in which it must not only be a specific fundamental right, but at the same time the decision of the public authority of such a specific fundamental right must actually concern [cf. the finding of the Constitutional Court of 16.12.2014 sp. zn. In this context, the Constitutional Court points out the above-mentioned finding of 24 April 2012, sp. zn. In that finding, the Constitutional Court concluded that it could in fact interfere with private and family life only with a decision directly leading to the forced abandonment of a country which has only just broken the ties created, while the visa itself does not have that effect. In the present case, therefore, the fact that the granting of citizenship permanently changes the status of the applicant - the possibility of implementing and developing personal, family, social and economic ties that constitute private and family life - is not in itself sufficient to fulfil the requirement to ban the exclusion from judicial review. Therefore, the argument put forward by the applicant and the Ombudsman (recitals 11 and 47 to this finding) that the prohibition in question is already satisfied by the fact that the failure to grant citizenship is a secondary matter to the constitutionally guaranteed rights of unsuccessful applicants, should therefore be rejected, since those fundamental rights are not covered by the decision to reject the application for citizenship within the meaning of Article 36 (2) of the Charter.
64. The Constitutional Court therefore concludes in part that the decision not to grant citizenship for the threat to the security of the State does not interfere with fundamental rights and freedoms and, if the legislator excludes that decision from judicial review, it does not conflict with the prohibition of the exclusion from judicial review under Article 36 (2) of the Charter.
Compliance with the rule of law
65. Subsequently, the Constitutional Court examined whether the exclusion from judicial review in question was constitutionally consistent, regardless of the fact that the decision in question did not concern fundamental law under Article 36 (2) of the Charter.
66. Article 36 (2) of the Charter, except in the case of a prohibition of an exclusion from judicial review, provides "unless otherwise provided by law" for legislators to exclude judicial review of a decision of a public authority by law without specifying the purpose of such an exclusion. The legislature therefore has a certain scope for which decisions of the public authority and to what specific extent it accedes to the restriction, but it is not and cannot be absolute. In its discretion, Article 1 (1) of the Constitution, which guarantees the maintenance of the fundamental principles of the democratic rule of law [finding of 16 June 2015 sp. zn. The Constitutional Court has therefore assessed whether the contested provision is also constitutional in that regard.
67. According to the explanatory memorandum to the Act on Citizenship, the contested provision "assumes that a full judicial review of the decisions concerning applications for citizenship of the Czech Republic will be maintained, except where the grounds for refusal of the application were grounds of State security based on opinions of the Czech Police and Intelligence Services of the Czech Republic, which are not part of the file because they are subject to confidentiality under another legislation. The purpose of this provision is to give preference to the protection of the security interests of the State in matters concerning the granting of citizenship of the Czech Republic."
68. The Constitutional Court notes first of all that Article 36 (2) The Charter has adopted the principle of general judicial review of administrative decisions which means that all administrative decisions are judicial, unless the law excludes them from such review; The purpose is a more effective guarantee of the legality of public administration activities (rather than on the basis of the principle of enumerative and therefore more limited judicial review). The legislator reflected here the necessity of the executive control rule - in which, although it is incumbent on it to intervene authoritatively in the legal sphere of natural and legal persons, there are no elements of independence, etc. - of independent judicial power. It is therefore essentially about the protection of the subjective public rights of everyone (granted by the judicial authority), namely the protection against unlawful decisions of the public authority [e.g. the finding of 29.1.2008 sp. zn. ÚS 72 / 06 (N 23 / 48 CollNU 263; 291 / 2008 Coll.)].
69. Contrary to the above-mentioned interest of the individual in the protection of subjective public rights of jurisdiction, the above-mentioned security interest of the State, explicitly expressed in Article 1 of Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic, according to which the safeguarding of the sovereignty and territorial integrity of the Czech Republic, the protection of its democratic foundations and the protection of the lives, health and property values is a fundamental duty of the State. The security interest of the State is also a protected value of [the protection of the interests of the Czech Republic as a sovereign State pursuant to Article 1 (1) of the Constitution; cf. the finding of 11.2.2004 sp. zn. Pl. ÚS 31 / 03 (N 16 / 32 SbNU 143; 105 / 2004 Coll.)]. This state interest represents an existential interest which legitimises certain limitations in the legal sphere of the individual; After all, as a result, it is a state that protects the status of an individual. If the Constitutional Court has ruled that the Constitution of the modern democratic rule of law constitutes a social treaty based on a minimum value and institutional consensus [cf. sp. zn. Pl. ÚS 33 / 97 of 17.12.1997 (N 163 / 9 SbNU 399; 30 / 1998 Coll.), p. 407], this concept can, inter alia, be understood as meaning both the interest of the State and its protected persons in its own safe existence; in order to protect this interest, the State must have the relevant instruments. One of them is the area of protection of classified information (the finding of 11 October 2016 sp. zn. Pl. ÚS 5 / 16).
70. In the light of the above, it is therefore not possible, on the one hand, to allow an exclusion from judicial review of any - arbitrarily elected - decisions of public authorities, on the other hand, to reflect a legitimate public interest in the protection of classified information and, therefore, in this respect, a restriction in the form of an exclusion from judicial review of such decisions of public authorities whose judicial review or submission of classified information to that effect would jeopardise such an interest. The Constitutional Court must therefore assess whether, taking into account these considerations, the applicant's interest in granting citizenship and the State's security interest in the contested legislation is taken into account in a constitutional manner, or whether they are mutually balanced [cf. the finding of the Constitutional Court of 12.7.2001 sp. zn.
71. The contested provision does not exclude from judicial review all decisions not to grant citizenship, but by reference to Paragraph 22 (3) of the Act on Citizenship only those which rejected the application for citizenship on grounds relating to the security of the State based on opinions of the Czech Police and Intelligence Services of the Czech Republic, the content of which is classified information according to which the applicant threatens the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health or property value. In all other cases, the refusal of an application for citizenship for failure to comply with the conditions laid down by the Act on Citizenship shall not preclude judicial review.
72. The Constitutional Court has already dealt with the legal regulation of the decision to reject a request for citizenship on grounds relating to the security of the State when it rejected the application for annulment of Paragraph 22 (3) of the Act on Citizenship, which requires the Ministry not to disclose in the justification of such a refusal the reasons for not complying with the request for citizenship resulting from such opinions of the security services. The Constitutional Court concluded in this regard that "the procedure in question is intended to lead to the fact that specific reasons for failing to comply with the application will not be disclosed to citizens only in cases where there is a real concern that their disclosure could jeopardise the security of the State or third parties. In view of the above, the contested legislation pursues a legitimate objective which is the State's security interests' (finding of 11.10.2016 sp. zn.
73. With regard to the objective of the contested legislation, in view of its consistency with Paragraph 22 (3) of the Act on Citizenship, it is the same, i.e. the State's security interests - to minimise the possibility of leaking classified information. As already stated in the above mentioned finding, from which the Constitutional Court has no reason to depart in the present case, such an objective can be considered legitimate. The contested legislation - excluding from judicial review only those decisions that rejected a request for citizenship because of classified information about a threat to state security - cannot therefore be regarded as a manifestation of the legislature's insolence. Thus, the Constitutional Court does not consider the contested provision to be contradictory even with the principle of a democratic rule of law within the meaning of Article 1 (1) of the Constitution.
Conclusion
74. On the basis of the reasons set out above, the Constitutional Court rejected the application for annulment of § 26 of the Act on Citizenship (§ 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Ludvik David, Kateřina Šimáková, Vojtěch Šiměl and David Uhíř took a different position.
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Regulation Information
| Citation | The Constitutional Court found No. 212 / 2019 Coll., on the application for annulment of § 26 of Act No. 186 / 2013 Coll., on citizenship of the Czech Republic and on the amendment of certain laws (Act on citizenship of the Czech Republic) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.08.2019 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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