The Constitutional Court found no 220 / 2005 Coll.
The Constitutional Court found of 26 April 2005 on the application for annulment of § 77k (6) of Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended
Valid
The Constitutional Tribunal found
Contents
I. Rekapitulace návrhu a jeho přípustnost
II. Rekapitulace vyjádření
III. Ústavnost legislativní procedury a legislativní historie posuzovaného zákona
IV. Vymezení předmětu řízení
V. Je Kolegium možno považovat za soud?
VI. Je soudní přezkum nutný?
VII. Provizornost ZOUS
VIII. Závěr
IX. Obiter dictum
220
FIND
The Constitutional Court
On behalf of the Czech Republic
On 26 April 2005, the Constitutional Court, in plenary composed of JUDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner (Judge.
as follows:
Paragraph 77k (6) of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, shall be deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), the Regional Court of Brno requested the annulment of Paragraph 77k (6) of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, (hereinafter referred to as" the ZOUS'), because when deciding the action of Ing. P. against the College on the protection of classified information at the Supreme Prosecutor's Office (hereinafter referred to as "the College '), it concluded that the provision in question is contrary to the constitutional order of the Czech Republic. This proposal was maintained by the Regional Court, even though, in the meantime (since the action of the contested decision), part of the Law on the Prosecutor's Office was annulled, which prescribed an assessment of the competence of the prosecutors (part of the ninth Act No. 283 / 1993 Coll., on the Prosecutor's Office, in its version in force at that time), the existence of which was the primary reason for the application to initiate proceedings pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (" the Law on the Constitutional Court'). Now, according to the regional court, it cannot be argued that an assessment of the state's professional competence may affect his career process, but there are still reasons for another (also mentioned in the original proposal). In addition, in the present case, the College decided on the original legislative conditions.
The Constitutional Court first noted that the application was lodged by an authorised body in accordance with § 64 (3) of the Constitutional Court Act and that it was admissible (§ 66 of the Constitutional Court Law per elimination).
By its proposal from the Regional Court, its doubts about the College as an independent and impartial tribunal capable of conducting a fair trial within the meaning of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) and Article 36 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) are essential. The College shall decide on the appeal against the decision of the Director of the National Security Office (hereinafter referred to as "the NSA ') or the Minister of Interior, the Director of the Intelligence Service or the Police President (§ 77a ZOUS), the decision on the complaint of security-cleared persons against the termination of a certificate or certificate (§ 75 and § 76 and their paragraphs 1, 2 and 5 of the ZOUS), the fulfilment of the conditions enabling classified information to be disclosed. The possibility of examining the above decisions was initially not permitted by the legislation by an independent body. It was only after the intervention of the Constitutional Court that their explicit judicial lockout [the finding of 12 July 2001 sp. zn. Pl. ÚS 11 / 2000, published in the Collection of Finances and Order of the Constitutional Court (" the Reports of the Judgments'), Volume 23, p. 105; published under No 322 / 2001 Coll.; in electronic form at www.kordatura.cz]. The amendments to the Zous Act No 151 / 2002 Coll., amending certain laws in connection with the adoption of the Code of Administrative Procedure and No 310 / 2002 Coll., amending Act No. 148 / 1998 Coll., on the Protection of classified facts and on the Amendment of Certain Laws, as amended, Act No. 101 / 2000 Coll., on the Protection of Personal Data and on the Amendment of Certain Laws, as amended, Act No. 18 / 1997 Coll., on the Law No. 455 / 1991 Coll., on the Peaceful Use of Nuclear Energy and Ionising Radiation (Trade Act), as amended, and Act No. 140 / 1961 Coll. According to Article 77k (6) of the ZOUS, the final decision of the College is not subject to judicial review. These legislative interventions have created a very unclear situation, in particular as regards the possibility of an independent review of the decision not to issue certificates (§ 75 (5) ZOUS), which is likely to be challenged by an administrative action (§ 73 (2) ZOUS) and an appeal to the College (§ 77a of the Act cited); All decisions of the College (including decisions on appeals against other decisions as described above) are not explicitly subject to judicial review (§ 77k (6) of the Act cited). Moreover, according to the Regional Court, the lack of clarity as to whether an action can be challenged by a final administrative decision issued under Paragraph 75 (1) and (5) of the Act on the protection of classified information, since only that individual administrative act issued in respect of the issue of a certificate can be considered a decision - no decision on the issue of a certificate shall be taken.
The Regional Court drew attention to the judgment of the European Court of Human Rights ("the ECHR ') in the Incal case against Turkey, where doubts were raised regarding their independence in the case of military judges, regardless of the legislative prohibition on interfering with their powers. The doubts also concerned a four-year renewable mandate. In conclusion, the Regional Court drew attention to the above-mentioned finding of the Constitutional Court, in which the need for adequate safeguards to be implemented by the Court (or any other independent and impartial tribunal) was found, although, according to the nature of the case and taking into account the nature of the function in question, protection would be both highly specific and differentiated.
The procedure for the application was suspended by the order of the plenary of the Constitutional Court of 23 March 2004 because the Constitutional Court was insufficiently filled. On 16 June 2004, when the President of the Republic appointed the 12th Judge of the Constitutional Court, the impediment to hearing the application fell. The Constitutional Court continued the proceedings on 22 June 2004 and the Judge-Rapporteur requested, in accordance with the provisions of Sections 42 (4) and 69 (1) of the Law on the Constitutional Court, as amended, the observations of the two chambers of Parliament of the Czech Republic and the expression of the person whose rights were affected by the application of the provisions which are required to be repealed.
A. Chamber of Deputies of the Parliament of the Czech Republic, represented by President PhDr. Lubomír Zaorálk, stated in her observations of 26 July 2004 that she could not give the arguments of the appellant any truth. First, it considered whether the appellant acted in accordance with Article 95 (2) of the Constitution, according to which the General Court only concluded that the law to be applied was contrary to the constitutional order. The concept of constitutional order is specifically defined in the Constitution and does not include international treaties. However, the applicant repeatedly requests an assessment of the question whether the College meets the requirements laid down by the Convention. Notwithstanding the above circumstances, however, the Chamber of Deputies does not agree with the conclusion of the appellant that the College is not an impartial and independent tribunal, as referred to in Article 6 of the Convention. According to the Chamber of Deputies, the ECHR's caselaw assesses the independence of a tribunal according to individual circumstances and any conclusions cannot be set flat, as is also to be demonstrated by the appellant of the Incal case against Turkey, when the judges, by a narrow majority, have reached a conclusion on the lack of independence of a court composed of active military officers, who assessed the actions committed by civilians. The Chamber of Deputies stated that there is no reason to question the subjective independence of the members of the College, with the College meeting objective independence criteria.
Even if the so-called proficiency assessment had not been deleted from the Prosecutor's Act, it would not have been possible to draw a conclusion from the evaluation mechanism on the breach of the independence of the College. The performance of the tasks of a member of the College could not be the subject of an assessment of competence. The legal wording under which the performance of a member of the College is considered to be the performance of a prosecutor must be understood "only as a legal guarantee of the recognition of an activity carried out by the Prosecutor of the College... if that is not the case, the Prosecutor would be obliged to perform the duties of a member of the College in his spare time '. Furthermore, the Chamber of Deputies referred to the absence of a service subordination of a member of the College in relation to the Supreme Prosecutor (in particular Section 7a (4) of the Prosecutor's Office Act). The criteria of independence of the Tribunal formulated by the ESLP cannot be applied mechanically. The mere fact of appointment by the executive body cannot be considered a threat to the independence and impartiality of the College. Finally, the selection and appointment of judges are provided and carried out by the executive bodies.
It is a fact that the term of office of members of the College is two years, which could be interpreted as a sign of the existence and decision-making dependence of its members. This is not the case in the specific case of the members of the College. His members, as prosecutors working with the Supreme Prosecutor's Office, are persons of general seriousness, with a stable employment not dependent on the duties of the College. The performance of the function does not bring any material benefits or other benefits. A member is not materially motivated to remain in office and, on the contrary, membership means an additional workload and a limitation on the possibility of dealing with the normal agenda. When a member of the College performs his duties, he "does so only out of a sense of responsibility for the implementation of the Act on the Protection of classified information '. The Chamber of Deputies stressed that it fundamentally rejects the idea that the executive could put pressure on members of the College to make certain decisions on a case-by-case basis. There is no way to exert effective pressure on a member of the College to make certain decisions. The eventual non-extension of the term of office does not cause any damage to the member, but is rather relieved of the workload. Membership in the College is a moral choice rather than an act that would improve career or material status. It cannot reasonably be assumed that a member of the College would have been influenced in the performance of his duties or would have been subject to any pressure. It is therefore not possible to talk about objectively justified doubts about the independence of the College as required by the ECHR case law.
The President The Chamber of Deputies added that the legislation in force is marked by a feature of the provisional nature, when the very existence of the College depends on the decision of individual prosecutors to become members or remain in the College, which cannot be forced to do. At the time of adoption, the adjustment was not expected to apply on a permanent basis. The Act was to expire on 31 December 2003 and is currently extended until 30 June 2005. The interim arrangements dealt with the situation which occurred after the adoption of the decision on page 5 of ÚS 11 / 2000, when, following the cancellation of part of the ZOUS, sufficient time had been provided to the Government to prepare a completely new legislation for the protection of classified information and the security clearance procedure. That is why the term of office of the members of the College was two years. Despite possible material shortcomings, the Chamber of Deputies does not share the view that the regulation of the position of the College and the procedure before it is not in accordance with the constitutional order or Article 6 of the Convention.
B. Senate of the Parliament of the Czech Republic, represented by the President of the Court. Dr. Petr Pithart, in his statement of 30 July 2004, stated that in the Senate, which was well aware of the findings of the Constitutional Court in the Pr. Some doubts about the appropriateness of this solution were dispelled by the advocates of the view described by reference to the limited validity of the law, with the possibility that the construction in question could be improved or replaced by another during the period of year and a half. The bill in question was returned by the Senate to the Chamber of Deputies for other reasons.
On the other hand, the Senate noted that the criteria for assessing the degree of independence and impartiality of the court (tribunal) set up by the theory of constitutional law and by the case law of the ECHR and the Constitutional Court regard the democratic environment, the division of power and the necessary existence of legal certainty. The independence of judges is guaranteed by their exclusive appointment without the essential influence of the government and legislation (in the Czech Republic the President of the Republic), by the time-long (unlimited) mandate of the judge, by guaranteeing the resilience to the possibility of receiving instructions for the performance of the judicial function (irrevocability, non-objectivity, etc.). The impartiality of judges is then linked to the exclusion of bias (to persons and items), the incompatibility of the function of a judge with other functions and other gainful activities, and guarantees to eliminate any legitimate doubts about impartiality. In a subjective level of impartiality, credibility and autonomous decision-making is required (the judge undertakes to decide according to his "consciousness and conscience"). On the outside, impartiality is ensured by the prohibition of its endangerment (e.g. the prohibition of petitions to courts). When comparing the criteria with the adjustment of the requirements to ensure the independence and impartiality of the College and the status of the Attorney General of the Supreme Prosecutor as a member of the College, no quantitatively significant differences were found by the Senate. According to the Senate, a qualitative lack of independence of the College is the appointment of the government and the framework integration into the state's attorney's relations, and therefore the executive, "although in other commitments considered, this request may be somewhat relativated."
The Senate pointed out that, according to the case law of the Constitutional Court, the Charter contains certain fundamental rights, which are, by their nature, social values fulfilling the function rather than just ideally typical categories of target ideas. The right to a free profession is one of those rights. While the right to safety, life and health are fundamental rights without further delay, the right to free choice of profession is provided for by law. From this point of view, the Senate appears to be constitutional in conformity with the restrictions on access to general courts in matters of security clearance, if value-increased law can be protected in this way. The characteristics of the material are not compatible with the usual judicial practice. The security clearance is not always based on undoubted evidence, it is often based on very free consideration under the rule "in doubt against the person under consideration." The review of the decision is intended primarily to exclude gross subjectivism or malfeasance "essentially decisions." The classified facts discussed in the review shall also be effectively protected. The Senate pointed out that if the ECHR had declared an infringement of Article 6 of the Convention on the requirements of independence and impartiality of the Court, it was in principle always criminal courts or authorities which applied criminal law (cf. Incal against Turkey, Findlay against the United Kingdom). The review of decisions not to issue classified information certificates shall not be in a comparable position of gravity.
C. The observations were also called upon by Ing. P. P., whose rights were affected by the application of the contested provision and whose case was defined by a specific subject-matter before the Constitutional Court. Ing. P. P. stated in his observations that he had to have level II security clearance as a soldier, which he did not obtain, his commitment was not extended and, in the event of the impossibility of obtaining a place corresponding to his qualifications, he was excluded from his service with the Army of the Czech Republic on 31 December 2003.
D. Without notice, or on the basis of the activities of the Chamber of Deputies, the Director of the National Security Office Mgr. J. M. of the Constitutional Court is known from the proceedings in the case sp. zn. Pl. ÚS 41 / 02 that the Government of the Czech Republic places the processing of legislative drafts on the classified matters section of the NBÚ (see, for example, the draft new legal regulation sent to the Constitutional Court in the case sp. zn. Pl. ÚS 41 / 02 or the Government resolution No 88 of 22.1.2003 No. 615 / 2003- NBÚ / 80 or No 293 of 31.3.2004, see the document portal www.vlada.cz - in the explanatory proceedings have therefore a fundamental influence of the NBU's views). In the light of these circumstances, the Constitutional Court considered it relevant to address this unsolicited statement. In particular, the Director of the NBÚ stated that the applicant mistakenly considered the College to be an administrative body. The College is an independent body and the judicial review of its decisions therefore appears redundant. This body shall, as far as possible, include both independence from the executive administrative apparatus (either the NSA, its director or its intelligence services) and independence from other authorities of the State where the Supreme Prosecutor's Office (hereinafter referred to as "NSZ ') is to be included. This simply guarantees the objectivity of the decision-making process and does not mean that the classified information can be accessed by the person to whom the decision is made or by its legal representative. The protection of classified information shall be balanced in relation to the procedural status of the person to be decided on. By denying the" principle of secrecy', the classified information may be submitted to a person not authorised. Both international cooperation in the area of intelligence services and investigative bodies may be disrupted, as well as, in theory, a direct threat to life, such as intelligence agents, witnesses, etc. This is contrary to the international obligations of the Czech Republic. "Standard court proceedings in matters of security clearance, including the unrestricted execution of evidence, are threatening to give serious disclosure of classified information. In theory, it would even be possible for a court case to be brought by certain persons solely to cover classified information by legal means."
In a further part of the statement, the Director of the NSA referred to similar arguments in the proceedings in the case of the finding in the sp. zn. Pl. ÚS 11 / 2000, which resulted in the annulment of the ban on judicial review of decisions in matters of security clearance. The decision not to issue or issue certificates does not, according to the NSA, involve any interference in the field of fundamental rights. After all, even the Constitutional Court did not conclude that such decision-making would directly infringe the right to free choice of profession. The certificate as a positive result of the security clearance is nothing more than the demonstration of a specific qualification. There is no legal entitlement to access to classified information; the holder of the certificate may, again only in cases where there is a reason for such access to classified information. Only the State decides what is and is not a classified fact and "it should therefore only be the State (i.e. the State Administration) that allows access to such a fact." Only the State should assess the suitability of the person to whom such access may be granted. The College is a sort of superstructure over the state administration and completely supersedes the position of the court. The NBU further stated that the conflict between the national security and the human rights level was partly addressed by the Constitutional Court in its finding, sp. v. Pl. ÚS 11 / 2000, where it admitted that the very clear security interest of the State could be a legitimate justification for a certain degree of interference with individual rights. However, according to the NCU, the Constitutional Court touched this conflict very easily, rather merely stating it, did not provide a further theoretical analysis to date. The NSA considers that the College deals with conflict. On the contrary, it raises a fundamental objection to the judicial review because, pursuant to Article 45 (5) of Act No. 150 / 2002 Coll., the Administrative Rules, as amended, (hereinafter referred to as "p. '), the disclosure of the classified information to a person which the State does not consider to be acceptable for the disclosure of classified information (§ 45 (5) (b):" Parts of the file... which have not been excluded from the inspection may only be consulted by the participant and its representative, and, where appropriate, by a person who can be proved by a certificate for the appropriate classification of the facts under consideration'; § 45 (4) of the EC Treaty: "Parts of the file which have been or will be carried out by a court may not be excluded from the examination. Furthermore, those parts of the file to which the participant had the right to be consulted in proceedings before the administrative authority may not be excluded from the inspection. ') This situation is hindered by Paragraph 36 (8) of the ZOUS (" If any of the grounds for not issuing or withdrawing certificates are classified information, the notification shall contain only a reference to the documents on which the Office relied'). According to the NSA, secrecy is legitimate in this case.
Legislation on the verification of natural persons is entrusted exclusively to national arrangements in EU and NATO states. Nevertheless, the NSA pointed out that full judicial review is not customary. Even where the Supreme Review Body is a court, the person concerned or his representative shall not be allowed to be aware of the results of the investigation which was the basis for not issuing the authorisation or even for the decision on the termination of the authorisation. In France, it is not for the court to know classified information. If they were the basis of the decision, they would only be stated without further action. In Denmark, the case is under review by the Ministry of Justice and the person is not given the opportunity to become familiar with sensitive facts. The lawsuit is not admissible. In Dutch court proceedings, the procedural rights of the person examined are severely limited. Only a judge shall have access to classified or sensitive information. The Slovak legislation has a judicial review (analogous to that of the Czech Republic under the title of the Fifth Civil Code) without full jurisdiction and without considering the substance of the case. Only the legality of the procedure is assessed without the court being informed of classified information. The Lithuanian regulation limits procedural rights as well as the Dutch regulation.
In Turkey and Spain, the screened person does not have the opportunity to interfere in any way in the course of the examination, does not have the opportunity to know the reasons for the decision 'and, of course, does not have the opportunity to make any objections or appeals'. A similar trend is now taking place in Italy. These countries, too, are bound by the Convention and the provisions in those countries are similar to those in Article 36 (2) of the Charter. In those countries, it was recognised that the relevant legislation did not conflict with the right to a fair trial guaranteed by the Convention. Although it is impossible to obtain a comprehensive international comparison of the material in question, the principle outlined in the quoted finding of the Constitutional Court, namely the limitation of the procedural rights of individuals with (allegedly) a clear priority for protecting classified information, is generally considered legitimate in Europe. There is a different approach to the material. Historically, the development of Western democracies has not brought substantial mistrust in the state administration, or in the activities of security forces, or citizens, as a result of a different perception of the correctness of official decisions, do not show mistrust in such an important area as security, as evidenced by the number of remedies. In the United Kingdom, France or Belgium, there were several submissions per year (up to ten), in the Czech Republic only last year there were about a hundred. In conclusion, the NSA stated that it considered the provisions of § 77k (6) of the Act to be consistent with the constitutional order and the international treaties by which the Czech Republic is bound.
The Constitutional Court asked the Director of the NBU (1) whether there had already been cases where, in the same case, the College had decided to appeal (§ 77a - 77k ZOUS) other than the General Court brought pursuant to § 73 (2) of the ZOUS, and (2) if this had already been done, as the NBU followed up or accepted the decision. The first question was answered that this had so far happened in one case where the Court annulled the decision while the College rejected the appeal. In the other four cases, the court dismissed the action. However, the NSA also objected to the fact that the court here "did not respect the impediment to the judgment 'because the College considers that the College is an impartial and independent judicial body. In the event of different decisions, the NSA is told not to know which ones to respect. The second question could not be answered by the NSA because it has not yet been delivered to a decision that has established diversity. He pointed out, however, that by decision of the College he was expressly bound by the law (§ 77j (1) ZOUS). Without further arguments, he also pointed out that the annulment of the contested provision would open the way to damage the interests of the Czech Republic in the field of cryptography. In conclusion, the procedural questions of the security interview from which the protocol is drawn up were clarified. The subject or her lawyer shall be informed of the reasons for the non-verification. The NSA has indicated that it is in principle indifferent to which authority will review the decision, but it must be prevented that the audited person or his representative becomes aware of the classified information and it is desirable that the procedure be conducted within a fixed period. It also noted that the smaller the number of persons who are familiar with the file material in the review, the lower the risk of disclosure and the lower the cost of secrecy.
The Constitutional Court asked the parties to consent to the abandonment of the oral hearing (Paragraph 44 (2) of the Constitutional Court Act) since further clarification of the case could not be expected from the oral hearing. It was then possible to proceed to a substantive hearing.
In accordance with Article 68 (2) of the Law on the Constitutional Court, the Constitutional Court had to deal with the fulfilment of the formal requirements of the adoption of the relevant legal standard before assessing the content of the contested provision of the law from the point of view of its compliance with the constitutional laws. However, the legislative process of the adoption of Act No. 310 / 2002 Coll. was found by the Constitutional Court to be constitutional in conformity with the decision of 28 January 2004 sp. zn.
Paragraph 77k (6) was inserted into the Act on the Protection of classified information by Act No. 310 / 2002 Coll., which was created as a parliamentary initiative responding "to practical problems arising in connection with its current application, namely the impossibility of independent control or the examination of a negative decision of the National Security Office in the framework of a security clearance under this Act '(explanatory report of 10.7.2001). During the hearing of this proposal, the Constitutional Court's finding, sp. zn. By inserting paragraphs 77a to 77k into the ZOUS, the proposal addressed the problem of the absence of an independent review by setting up the College and defining procedural rules in proceedings before the College. After the Parliamentary motion was approved by the Chamber of Deputies on 27 March 2002, the Senate decided on 3 May 2002 to return it to the Chamber of Deputies with amendments, one of which proposed the annulment of the pending judicial review (cf. C of Senate Resolution 372 of 3 May 2002). By order of 13.6.2002, The Chamber of Deputies remained on the original bill, which was published in the Collection of Laws on 12 July 2002, when it also became effective.
In the meantime, Parliament's Government submitted a draft law amending certain laws in connection with the adoption of the Administrative Rules of Procedure (Act No. 151 / 2002 Coll.). By this Act (the Chamber of Deputies approved it on 15.2.2002, the Senate on 21.3.2002 and published in the Collection of Laws on 17.4.2002), the provision of Paragraph 73 (2) was inserted into the ZOUS, according to which an action against a decision not to issue a certificate may be brought within 15 days of the date of service of the decision, when the parties involved in the proceedings are not allowed to take part in the proceedings. This adjustment took effect on 1.1.2003. However, on 27 September 2002 the Collection of Laws was circulated, in which, on the basis of the authorisation contained in Act No. 310 / 2002 Coll., Prime Minister under No. 418 / 2002, the full text of the Act on the Protection of classified information was published, in which Paragraph 73 was not divided into paragraphs and did not mention the possibility of judicial review.
The application examined by the Constitutional Court was based on proceedings before the General Court in which the person examined by the NSA brought an administrative action against the decision of the College. The application contends that the provisions of § 77k (6) of the Act on the Protection of classified information are almost identical to the Constitutional Court repealed by § 73 (2) of the Act cited. On 1 January 2003, the new text of Paragraph 73 (2) of the Act cited entered into force, which allows for judicial review of the decision not to issue certificates.
The impact of security clearance into the sphere of fundamental rights and freedoms has already been dealt with several times by the Constitutional Court [cf. the findings in cases sp. zn. Pl. ÚS 44 / 02, sp. zn. Pl. ÚS 36 / 01 and sp. zn. I. ÚS 577 / 01 (see below), sp. zn. I. ÚS 752 / 02 (Reports of decisions, volume 30, p. 65), or sp. zn. II. ÚS 142 / 03 (Reports of decisions, p. 31, p. 45)]. First of all, however, in the quoted finding of the sp. zn. Pl. ÚS 11 / 2000 stated that "it respects the fact that, in view of the specificities and importance of decision-making in classified matters, where the State's security interest is very clear, it is not always possible to guarantee all normal procedural guarantees of a fair process (e.g. public hearing). However, even in this type of procedure, the legislature's task is to enable the implementation by a court (or other independent and impartial tribunal within the meaning of Article 6 (1) of the Convention) of adequate safeguards, even if, depending on the nature of the case and taking into account the nature of the function in question, for protection and for a very specific and differentiated nature." (cf. Reports of the Decision, Volume 23, p. 105, or No 322 / 2001 Coll., or the electronic version of the finding on www.jakitura.cz).
The Constitutional Court, cited above, annulled, inter alia, the decision of the executive authorities on security clearance as a constitutionally non-conformal legal exclusive of judicial review. The legislator responded to the situation as a result of the acceptance of a general judicial review (§ 73 (ZOUS) and the introduction of a procedure before the review body of the sui generis which became the College (§ 77a to § 77k ZOUS). The present case concerns the right to verify the relevant procedure, not the 'right to obtain security clearance', which is obviously not guaranteed.
It follows from the case-law of the Constitutional Court that, from the point of view of the protection of fundamental rights and freedoms, the public interest in the investigation of a decision which directly limits the possibility of pursuing a particular profession cannot be a ground for exempting that decision from the scope of Article 36 (2) of the Charter and Article 6 (1) of the Convention establishing the right to judicial protection. Although the Constitutional Court has admitted that the judicial control of security clearance is of a specific nature, in assessing the constitutionality of Section 77k (6) of the ZOUS, in addition to the provisions of Article 4 (4) of the Charter, it is necessary to take account of Article 1 (1) of the Constitution, which declares the Czech Republic as a democratic rule of law based on respect for the rights and freedoms of man and citizen, thereby establishing, inter alia, both the fundamental manner of exercising public authority and the fundamental attributes of the right to judicial protection. Although the judicial control of security clearance is an area which admits certain restrictions on fundamental rights, the Constitutional Court recalls that the material in question must be viewed in the light of the enforcement of a constitutional prohibition of discrimination (Article 1 (1) of the Constitution, Article 1 and Article 3 (1) of the Charter), which implies at least the right to examine whether the conduct and outcome of the security clearance, which is fully in the hands of the executive with the application of a broad discretion, were not discriminatory and whether they were not affected by libel. In addition to the right to choose a profession modified in the above sense, Article 21 (4) of the Charter provides that "Citizens shall have access to elected and other public functions on equal terms, without doubt, for certain categories examined. '
A. The contested provision of Paragraph 77k (6) of the ZOUS, which prohibits judicial review of the decision of the College, is contrary to the provision of Paragraph 73 (2) of the ZOUS which guarantees judicial review. The Regional Court in Brno has brought the case before the Constitutional Court on the basis of the conclusion that the relationship between the two conflicting provisions without indicating which proceedings are to take place earlier is unclear and that the relationship between the decision of the College and the decision of the Court is not addressed, even in a situation where those decisions do not correspond. Before assessing the result of the conflict between the two provisions, the question of the nature of the College had to be answered.
The constitutional order of the Czech Republic (Articles 81 and 82 of the Constitution) provides that the judiciary is carried out only by independent and impartial courts, or by independent and impartial judges governed by the fundamental rules of a fair trial (Article 1 (1) of the Constitution, Title Five of the Charter). These provisions may be interpreted as institutional guarantees of the material exercise of judicial authority and therefore, in view of the right to a fair trial, it is not necessary that in all cases it be a court within the meaning of Paragraph 36 (2) The Charter is exclusively an institution incorporated into a system of general courts, but must be an independent body whose members have independence and impartiality in their decision making. In addition, it must have an unfounded approach to examining all relevant aspects of the matter (both factual and legal) and respect the fundamental principles of a fair process (i.e. no one must be a judge in their own case or the principle must be heard by both parties), while the enforceable decision cannot be reversed by another power act (definition of the judiciary in material terms). The present case-law of the Constitutional Court referred to the independence and impartiality of the Constitutional Court as necessary attributes, the fulfilment of which is typically guaranteed in the jurisdiction of the courts, with the fact that they cannot be fulfilled by the various executive bodies [cf., for example, the finding of 23 November 1999 sp. zn. The Constitutional Court, in particular in cases of review of laws governing the organisation of the judicial authority (see, for example, the finding of 18.6.2002 sp. zn. ÚS 7 / 02 (Reports of decisions, Volume 26, p. 273; published under No. 349 / 2002 Coll.). For the first time, the Committee of the Constitutional Court fully assesses the impartiality and independence of the Sui Generis Tribunal, even if it does so with the natural support provided by the findings of the Constitutional Court below, as well as (also referred to below) the decisions of the European Court of Human Rights.
Independence and impartiality are ideal types that can never be fulfilled absolutely - they can only be approached - which is due to their social nature. Independence is the exclusion of the possibility of effectively acting on the free creation of the will of judges, impartiality (independence of the parties) constitutes the absence of a relationship between the court and one of the parties to proceedings, where the concept of a party to proceedings can be understood in both general and specific terms. Independence is a reference category which is closely linked to the concept of power understood as the possibility of imposing the will of others (Weber, M., Authority, Ethics and Society, Young Front, 1997, p. 49; originally in Wirtschaft und Gesellschaft, Tübingen, JCB Mohr Siebeck 1972, p. 541 - 544). The long-term legal and political development of liberal democracies has generated from the experience of indicators of independence and impartiality, from which objective criteria can be formed to assess the fulfilment of the characteristics of independence and impartiality, because, in the subjective position of the psychological (conscious or unconscious) state of the determining entity (at this level, the undesirable influence of free judgment) cannot be seized by legal instruments. Impartiality and independence in an objective position shall be assessed at a general level in relation to other power elements (principle of division of power), in terms of the ability of the actors (with a potential interest in a given outcome or course of the dispute) to influence the formation, duration and termination of the function of a member of the judicial authority (tribunal). Therefore, judges and members of judicial bodies must have a sufficiently independent status, which excludes direct or intermediate involvement in decision-making. The existence of protection against external pressures is assessed, for example, from the point of view of the existence of a potential possibility of influencing the career of a judge and of the possibility of causing the loss of his office. The status of independence certainly includes the guarantee of financial independence. It is only then that he receives a formal order not to follow any foreign instructions of material content, and that is the only way to ensure neutrality and distance from parties.
For the sake of completeness, it should be added that the prohibition of action on judicial decisions (forcing others to act, ignore or suffer) is supported by both restrictions on petitions and collecting rights where their implementation could affect judicial decisions and the level of criminal law where such action is classified as a criminal offence (Section 169a of the Criminal Law). The absence of independence or impartiality can be established both in the general (type) and in the specific (relationship of a specific judge to a particular case or person). The procedural rules therefore provide for the possibility of objecting to bias where one of the participants is in doubt about impartiality, or imposing a compulsory exclusion of the judge from the case for the ratio to the case or for the parties, thereby ensuring impartiality where justified doubts are already given on the basis of specific facts.
In the case of the administrative judiciary, where disputes between executive bodies of the State and persons governed by private law are most often decided, which is also the case in the present case, the maximum of independence and impartiality require the existence of effective and convincing safeguards to break the potentially undesirable ties to executive power, which is guaranteed by the judges, inter alia, by establishing the incompatibility of the performance of a judge with the exercise of a wide range of activities in which the type of activity is intended to affect free judgment, since the exercise of those activities follows an interest which is incompatible with the ability to decide fairly in a dispute in which each of the parties advocates an opposing interest. In assessing impartiality and independence, it is not entirely possible to ignore the phenomenon of a case where the so-called appearance of independence and impartiality for third parties is also considered a valid criterion, as this aspect is also important to guarantee confidence in judicial decisions. This criterion also reflects the social nature of judicial decision-making, which implies that, even if, in fact, there is no real reason (both subjective and objective) for doubting impartiality and independence, the possible existence of a collective belief that such a reason exists (see also the ECHR decision cited below of 23 June 1981, Le Compte, Van Leuven and de Meyere against Belgium, No 6878 / 75). Even in relation to justice, general sociological knowledge, Thomas' theory (e.g. Collectiv, Great Sociological Dictionary, I., Prague, Karolinum, 1996, p. 171) applies, according to which if a situation - there is a lack of independence or impartiality - is defined by people as real, then it is also real in its consequences - there is no general confidence that the decision is a fair decision by an independent and impartial tribunal. However, trust in law is one of the fundamental non-legal attributes of the rule of law (cf., for example, the finding of 11 November 2003 sp. zn. IV, ÚS 525 / 02, ECR 31, p. 173).
B. The Constitutional Court has taken action to analyse the independence and impartiality of the College on the section for the protection of classified information established at the Supreme Prosecutor's Office.
The Constitutional Court notes that (from a formal point of view) the decision of the College of prima facie is not a judicial decision. The Prosecutor's Office is constitutionally divided into executive powers (Article 80 of the Constitution is classified in its Title of the Third, which defines executive powers) and is constitutionally established to represent the criminal prosecution. In view of the stated specificity of the area of security clearance, the Constitutional Court addressed the question of whether the College could be considered a court in a material sense. It is necessary to testify to the objections that the Prosecutor's Act does indeed contain guarantees of the independence of the members of the College. However, it is necessary to further examine whether these formal guarantees are also materially fulfilled, or whether they are sufficient to defend against potential external pressures and whether they are capable of creating a general belief of independence.
It cannot be overlooked that membership of the College of Accessors is bound to be assigned to the Supreme Prosecutor's Office; The Minister of Justice (Section 19 (2) of the Prosecutor's Office Act) decides on the assignment. The Supreme Prosecutor, to whom the members of the NSZ are subordinate (cf. § 18 (2) of the Prosecutor's Office Act, as amended), also appoints and without the need to state the reasons (sic!) the Government (cf. § 9 (1) and (2) of the Prosecutor's Office Act). The members of the College must be security cleared by the NSA (§ 7a (2) sentence of the Third Prosecutor's Act), the clearance is limited in time to five years [§ 37 (1) (d) ZOUS] and at any time removable [§ 37 (2) (b) ZOUS]. The relationship of the Director of the NBU to the Government is defined as with the Supreme Prosecutor (§ 7 (2) and (3) of the ZOUS). The Director of the NBÚ is directly responsible to the Prime Minister, who is responsible for his duties and oversees the activities of the Office (§ 7 (3) of the ZOUS). The application to open disciplinary proceedings against the public prosecutor assigned to the NSZ shall be submitted by the Attorney General or by the Minister of Justice (§ 8 (3) (a) of Act No 7 / 2002 Coll., on proceedings in the case of judges and prosecutors, as amended). These legal instruments objectively form a line allowing for the potential influence of the free judgment of the members of the College, on which they cannot change anything in the law contained in the guarantee of formal independence.
The mandate of the members of the College is two years old (which, according to the Chamber of Deputies, was linked to the fact that the modification was considered temporary). The approval of the members of the College is carried out by the Government on a proposal from the Minister of Justice on an ad hoc basis (cf. Government Resolution 704 of 14 July 2004, by which the Government approved the candidate for the Chair of the College with a change to that decision by Resolution 898 of 15 September 2004, when it approved the President of another - cf. www.vlada.cz). After all, the Chamber of Deputies also stated in its statement that "the very existence of the College depends on the decision of individual prosecutors to become members, or to remain in the College, to which they cannot be forced." From this point of view, the College will not meet the requirements of relative stability of its composition, which is designed to prevent the outcome of the decision-making process from being affected by a change in the composition of the College, which implies that it cannot meet the demands for the stability of the decision-making body, which have found an expression in principle of a legal judge (Article 38 (1) of the Charter).
It must also be considered as a fundamental fact that the members of the College must be subject to security checks, which may be amended (Section 36 (5) and (7) of the ZOUS). The selection of the members of the authority controlling the proper conduct of security clearance can therefore be very effective in interfering with the NSA, whose activities are to be monitored, regardless of the fact that the chosen design creates a potential threat of a continuous line of selection which is entirely in the hands of the executive body. The conclusion that there is no effective way of exerting coercion is contrary to the concept of verification itself, in which it is established, inter alia, that there are no facts by which an unauthorised person could influence future decisions of the persons examined. In a situation where the law is based on the general experience of unproven presumption of imputability to the work of the administration (the NSA here), the fact that the NSA, as an executive body, has a remarkable potential for power through the concentration of sensitive information of a personal nature, cannot be overlooked from the point of view of the principle of brakes and balances in the standard control procedure. This only increases the urgency of a truly independent control to verify both the proper exercise of security clearance powers and, for example, to ascertain whether there is no need to hide facts (i.e. whether the taxonomy of secrecy is excessively strict and whether the restriction of rights is really necessary).
In the context of the present case, which is seen from the point of view of the necessary balance of public interest in security with the protection of individual rights and freedoms, it cannot be overlooked that prosecutors are personally committed by law and promise to protect the public interest (Paragraph 18 (3) of the Prosecutor's Act), which may lead to legitimate doubts as to their impartiality in assessing the conflict of fundamental rights and freedoms with the public interest in the security protected in the case at hand by secrecy. In fact, prosecutors in criminal proceedings (particularly in the case of preparatory proceedings and in the case of links) benefit from procedural secrecy because they also have access to those parts of the file reserved for the regime compared to the defence. Their position on utility and confidentiality is not neutral. These aspects of potential conflicts of interest among judges normally eliminate the application of the principle of incompatibility with the performance of duties. The sui generis tribunals provide such a composition of the tribunal, which neutralizes the application of various, most unknowingly, interests by their heterogeneity (for example, § 5 of Act No. 7 / 2002 Coll., on the proceedings in the case of judges and prosecutors).
It is also clear from the explanatory memorandum to Act No 310 / 2002 Coll. that the review by the College was not included in the law in order to ensure the judicial review of administrative decisions made in the security screening of persons, but to increase the credibility and objectivity of the executive security screening:... "the negative decision of the NSA has a very serious impact on the professional but also the personal life of the subject, the appellants believe that an external control element in the form of an independent appeal body, which will be entitled to review the decision of the NSA, should be introduced throughout the security clearance system. Moreover, the establishment of an independent supervisory authority will bring a higher degree of credibility and objectivity into the security clearance process than has been the case until now, without at the same time complicating the whole process significantly over time or otherwise. '(See also Šiměl V.," Review of decision not to issue a security certificate "in Dančák, B., Šiměl, V., Security of the Czech Republic, MPÚ, Brno, 2002, p. 150).
In the light of the above, the Constitutional Court had to reply in a negative way to the question whether the College was still able to conduct a fair trial, while respecting the specifics of security clearance. (The Constitutional Court therefore found it unnecessary to address the quality of procedural guarantees in proceedings before the College). It cannot be concluded that the doubts about the independence and impartiality of the College of State Representatives are not legitimate. Members of the College shall not have institutional conditions for appropriate distance from the executive authorities. This conclusion is objective and there is no need to demonstrate specifically how effective pressure can be exerted on the members of the College. For the sake of completeness, it should be added that the discretion of the members of the College is not supported by the same criminal protection as that of judges (§ 169a of the Criminal Act). If the Senate and the Chamber of Deputies consider the review by the College to be sufficient (or the NSA considers it unnecessary), it should be recalled that Article 36 (2) The Charter guarantees a review of administrative decisions by the courts, which may not necessarily in all cases constitute institutions incorporated into the judicial system, but must nevertheless be institutions which fulfil basic guarantees of impartiality and independence and which respect the principles of fair process. However, the College cannot be regarded as a court, not even in the material concept, as doubts about independence arise structurally in an objective way, but at the same time it does not call into question the independence of prosecutors carrying out the tasks of the public action, nor does it call into question the professional and human qualities of existing or past members of the College.
A. The Constitutional Court also addressed the argument of the NSA that the judicial review of the executive decision in the field of security clearance is not common, which was supported by the NSA by reference to foreign regulations. Therefore, the Constitutional Court also applied comparative interpretation methods and examined access to judicial control of security clearance in countries that have undergone similar legal developments and have taken on the same international obligations to protect classified information as the Czech Republic.
The Constitutional Court of the Slovak Republic, by decision of 11.2.2004, annulled those parts of the Act on the Protection of classified information (Law No 241 / 2001 Z. z., on the protection of classified facts), which, although allowing for judicial review of decisions on termination of security clearance but without the person concerned being able to request judicial review of the decision on knowledge of specific grounds, so called termination of security clearance without comment, and also repealed the provision which prevented the person concerned from requesting judicial review of the decision on the so-called termination of validity of observations (cf. e-version of the Constitutional Council of the Slovak Republic of 11.2.2004 sp. sp. zn. The Constitutional Court of the Slovak Republic has stated that it recognises the integrity of the security interests of the State and recognises the means chosen by the Law on the Protection of classified information to achieve this purpose, but does not agree that the purpose of the Act is achieved by denying the rule of law or at the expense of the fundamental rights of the individual. Part of the rule of law is, according to the Constitutional Court of the Slovak Republic, to subject the intervention of a public authority into the rights of an individual to effective control, which must be ensured at least in the last instance by the judicial authority, since it provides the best guarantees of independence, impartiality and regularity of proceedings (p. 15 of the cited finding). The Constitutional Court has allowed a certain limitation of the reviewability (p. 16 of the cited finding), but only in such a way as to guarantee a real and not merely fictitious implementation of the fundamental right to judicial protection, and to give sufficient guarantees of protection against arbitrage (p. 17 and 18 of the cited finding). The Constitutional Court of the Slovak Republic has thus come to the clear conclusion that even an interest in security cannot justify the denial of the right to review before an independent and impartial court, which is the result of the fact that the person examined does not at least know the essential information on the grounds of the decision. For the sake of completeness, it should be added that the Constitutional Court of the Slovak Republic refused to place the case under the scope of application of the right of free access to the profession, which was not agreed by two judges in their different opinions. One judge disagreed with the refusal to review the case at a visual angle of the right to information.
Similarly, the Constitutional Court of the Republic of Poland's finding of 10 May 2000 annulled that part of the Act on the Protection of classified information (ustawa of 22 stycznia 1999 r. o ochrony informacji niejawnych), which did not allow the judicial review of the decision on security clearance, in the light of the constitutional right of access to the court and the right of access to the public service as well as of Article 13 of the Convention (cf. the electronic form of the judgment of 10 May 2000, Sygn. K. 21 / 99 issued at http: / / www.trybunal.gov.pl). The Polish Constitutional Court stated that the security clearance itself, as well as the outcome thereof, could directly interfere with the fundamental rights and freedoms of individuals (p. 36 of the cited finding).
Trybunał Konstytucyjna, on the basis of an analysis of its administrative case-law, the ECLP case-law (pp. 25-27 and 29 of the cited finding), and on the basis of the comparison of foreign arrangements submitted by an expert of law (pp. 24-25 of the cited finding), has stated, by reference to its established interpretation of the right to a fair trial (pp. 33-35), that the rights of security-cleared persons, in the context of the guarantee of equal access to the public service (Art. 60 of the Constitution of the Republic of Poland), are subject to a constitutional ban on the refusal of access to the court (Art. 77 (2 of the Constitution of the Republic of Poland) because they fall within the framework of constitutionally protected rights and freedoms. Therefore, the provisions of the Act on the Protection of classified information (Paragraph 42 (1)), which prevented the review by the Supreme Administrative Court without expressly conferring such cases under the jurisdiction of the General Courts, were found to be contrary to Articles 45 (1) and 77 (2) of the Constitution of the Republic of Poland, which lay down the right to judicial review of decisions affecting fundamental rights or freedoms (p. 38 of the cited finding). The Polish Constitutional Court stated that the international standards of the guarantee of the right of access to the court are minimum standards which are lower than those of Polish law in the area (p. 29 of the cited finding).
The Constitutional Court could not attest to the NSA's objection that foreign computation implies that the judicial review of security clearance is not normal. After all, the NSA itself gave examples of countries where the review is possible (Netherlands, Lithuania). In addition to the absolute figures on the number of appeals referred to by the NSA, it should be added that, without a standard statement of the number of places covered by the need for verification, these data are irrelevant.
B. The Regional Court relied, inter alia, on the case-law of the European Court of Human Rights, but the observations made questioned its relevance. First of all, an objection based on the finding that the Convention on the Protection of Human Rights and Fundamental Freedoms is not part of the constitutional order of the Czech Republic cannot be accepted and therefore it is not appropriate to argue the case-law of the ESLP, which makes binding interpretation of the Convention. The Constitutional Court has already in its decision of 25.6.2002 sp. zn. Pl. ÚS 36 / 01 (ECR 26, p. 317; published under No. 403 / 2002 Coll.), as well as in the other [cf. sp. zn. Moreover, in each individual case, the nature of the contested provision is in conflict with the courts guaranteed by the Convention, which must be applied as a matter of priority in relation to the law. In addition, the Regional Court also objected to the infringement of Article 36 (2) of the Charter and the Constitutional Court, taking into account the developments brought about by the extension of national standards of judicial protection, see no reason why the guarantees of a fair process attached to Article 6 (1) of the Convention should not apply on the basis of Article 36 (2) of the Charter. It cannot also be argued that the Incal case against Turkey (decision of the Grand Chamber of 9.6.1998, retrievable in electronic version under point 22678 / 93 in the official database of ESLP HUDOC http: / / www.echr.coe.int) cannot be argued as the assessment of impartiality and independence must respect the individual circumstances of the case and therefore the ECHR's conclusion has limited validity. Here, the Constitutional Court notes, on the other hand, that the adoption of such a general position on the case-law would in fact make it impossible to interpret it and would result in a reduction of legal certainty, since it would, above all, open the way for the courts themselves to make different decisions in essentially the same cases, namely arbitrariness or appetites in decision-making. The courts, if they are to decide fairly, must consider the same cases in the same way. It should also be noted that the judicial decision is a judicial decision, no matter how close a majority it was adopted. After all, the same principle is applied in relation to other decisions of public authority (Parliament, government, etc.), i.e. the achievement of a Constitution or a statutory majority.
The Constitutional Court considers that the ECHR has already expressed its views on a number of aspects which are also highly relevant in assessing the human rights dimension of security clearance.
In the case of Incal against Turkey (cf. HUDOC in http: / / www.echr.coe.int, § 65, § 67 - 8; note all electronic versions of the ECHR decisions cited in this finding were obtained in the English version subdivided into numbered paragraphs), the question was, inter alia, positively answered whether doubt about the impartiality of judges could be given in terms of their institutional relationship to the subject matter of the dispute and whether the judges had a particular professional relationship with the protection of the public interest which they should have assessed, i.e. whether they were primarily capable of protecting the State's interest in security rather than exercising justice. The Constitutional Court also notes that the principle applied by the ECHR in the Incal case, according to which the assessment of independence cannot be satisfied with formal guarantees, is so firmly linked to the idea of fair decision-making that it cannot be limited to criminal proceedings. This principle is also firmly linked to our constitutionality, which is based on the concept of the material rule of law [cf., for example, the finding of 21.12.1993 sp. zn. Pl. ÚS 19 / 93 (Reports of Decisions, Volume 1, p. 1; published under No. 14 / 1994 Coll.]. The Senate argued that the infringement of Article 6 (1) of the Convention on the requirements of independence and impartiality of the courts had always been in principle criminal courts or criminal law authorities. The review of decisions not to issue classified information certificates shall not be in a comparable position of gravity. However, the frequent citations of this decision in other cases decided by the ECHR suggest that the Incal case was included in the so-called leading cases and therefore the principles contained therein cannot be ignored by reference to the fact that they were expressed in the criminal case assessment. Although the distinction between the gravity of the interventions in fundamental rights is legitimate, the Constitutional Court cannot, moreover, ignore the fact that, for example, in the past, it regarded as a breach of the "right to the court 'of the legal exclusion of judicial review in the cases of so-called" baguatal offences' for which a fine of up to CZK 2000 could be imposed [cf. the finding of 17 January 2001 sp. zl. ÚS 9 / 2000 (ECR 21, p. 55; published under No 52 / 2001 Coll.)].
The ECHR applied (and found a breach) Article 6 (1) of the Convention even in the event of a review of the administrative decision (decision of the plenary of 22.10.1984, Sramek v Austria, 8790 / 79: § 34). The concept of the Court was interpreted in a material sense and, in assessing independence and impartiality, highlighted the view as an important criterion, which may raise doubts about independence, when it is necessary to have a guarantee of protection against external pressures (§ 42 of the cited decision, or also Berger, V.: ECHR, Prague, IFEC, 2003, p. 193, or Sudre, F.: International and European Human Rights Law, Brno, MU, 1997, p. 177, or Čapek, J.: European Court and European Commission for Human Rights, Prague, Linde, 1995, p. 395). Mrs Sramko's case was decided by a tribunal whose member was hierarchically subordinate to one of the parties, thereby violating Article 6 (1) of the Convention. The ECHR also followed the same approach in the case of Tinnelly & Sons and others against Britain (Grand Chamber Decision of 10.7.1998, 20390 / 92: § 72 and 78), when the restriction of the right of access to a court which was to verify the "fairness" of the award of a public contract in Northern Ireland (§ 12) was for reasons of public interest in security. The Court of First Instance subjected this limitation to the proportionality test (§ 76 of the judgment cited) and held that Article 6 (1) of the Convention granted complainants the right of access to the Court.
The Constitutional Court in case sp. zn. Pl. ÚS 11 / 2000 found that the ECHR, in the case of special groups of civil servants (only), admitted that disputes between the employees of the State 'whose employment is characterised by specific activities of the public administration are excluded from the scope of Article 6 (1) of the Convention, to the extent that such administration acts as a public authority holder in charge of the protection of the general interests of the State or of other public communities. An obvious example of such activities is the armed forces and police "(cf. Decision of the Grand Chamber of the ECHR of 8.12.1999, Pellegrin v France No 28541 / 95: § 66; also Summary of judgments of the European Court of Human Rights No 1 / 2000, p. 7 et seq., or Berger, op. cit. p. 280). The ECHR also took into account previous case-law, which did not call into question certain discretionary prerogatives of the State administration, but pointed out that the exemptions from the application of Article 6 (1) of the Convention should continue to be interpreted strictly.
However, in the case of Will against Liechtenstein (Grand Chamber Decision of 28.10.1999, 28396 / 95: § 41), the ECHR stated that "the right of access to public office was deliberately omitted in the Convention. Therefore, refusing to appoint someone to public office in itself cannot be the basis of a complaint based on the Convention. However, this does not imply that a person appointed to office could not challenge his or her dismissal if he or she was in violation of any of the rights guaranteed by the Convention. Persons in public functions shall not be excluded from the scope of this instrument. The Convention specifies in its Articles 1 and 14 that, to anyone subject (...) to the jurisdiction of the Contracting States, they are recognised, without discrimination based on any grounds of 'rights and freedoms referred to in Title I. Article 11 (2) in fine, which allows the States to impose specific restrictions on the exercise of the freedoms of assembly and association, members of the armed forces, police and government', and moreover confirms that the guarantees of the Convention generally apply to persons in public functions' (see also the decision of the plenary of 28.8.1986, Glasenapp and Kosiek against Germany, § 49, 9704 / 82: § 35, or Berger, op. cit. p. 518; or the decision of the Grand Chamber of 26.9 1995 Vogt v-Germany, 17851 / 91: § 43, or Berger, op. cit, p. p.
In fact, the concept of civil rights and obligations contained in Article 6 (1) of the Convention does not constitute a restrictive interpretation, but includes all procedures which determine the outcome for the rights and obligations of a private nature (cf. Decision of 28.6.1978 in plenary, König v Germany, 6232 / 73: § 90; also Sudre, op. cit. p. 174, or Berger, op. cit. p. 270). Where decisions taken by administrative authorities which decide on civil rights and obligations themselves do not comply with the requirements of Article 6 of the Convention, it is necessary for such decisions to be subject to the subsequent control of a judicial authority with full jurisdiction which guarantees the protection of this Article (for all cases, the decision of the plenary of 23 June 1981, Le Compte, Van Leuven and de Meyere against Belgium, 6878 / 75, § 41 et seq., or in Berger, op. cit. p. 185). In the case of Kingsley v VB (judgment of the Chamber of 7.11.2000, 35605 / 97, which was confirmed in substance by the Grand Chamber's decision of 28.5.2002), the administrative decision to withdraw the certificate for the operation of the casinos (§ 15 and § 45 of the Chamber's decision, or § 18 of the Grand Chamber's decision) was clearly included under the concept of full jurisdiction (in the event that the impartiality of the Tribunal is questioned) the power of the Court to revoke the administrative decision and order the case to the impartial court against the Grand Chamber (Kingsley: § 32 of the Grand Chamber's decision). When deciding whether an authority may be considered independent of the executive authority, account must be taken of the method of appointment and duration of the mandate of its members, the existence of safeguards against external pressures and the appearance of independence (see Le Compte, § 55, or the decision of the Chamber of 28.6.1984 Campbell and Fell against the UK, 7819 / 77: § 78; or even Sudre, op. cit. p. 176). The ESLP naturally does not regard the design of judges by decision or recommendation of public authorities or Parliament as a fact without further questioning their independence. In the case cited by Campbell & Fell, the Committee of Prison Inspectors (for which a heterogeneous composition is guaranteed both from a professional point of view and from a relation to the executive and from other aspects - cf. the decision cited, § 32) was found to be fit to conduct a fair trial (cf.
It cannot be forgotten that even in the event of a conflict of fundamental rights with an interest in security, the ESLP often recalls the need to ensure the possibility of refuting possibly false information about private life, even if it is classified information (decision of the Senate of 26.3.1987, Leander against Sweden, 9248 / 81: § 48), when it is necessary to ensure independent supervision, which is best ensured by the court, as stated in the Rotar decision against Romania (decision of the Grand Chamber of 4.5.2000, 28341 / 95, § 43, § 46 and § 72, Czech Collection of Judgments of the European Court of Human Rights in Strasbourg 1 / 2003). The ESLP noted that there is a need to ensure that adequate and sufficient safeguards are in place against the misuse of the collected false information, as the secret surveillance system, designed to protect national security, carries the risk of undermining, or even destroying democracy on the grounds that it protects it (cf. the decision of 6.9.1978 in plenary, Klass and others against Germany, 5029 / 71: § 49 - 50 or Berger, op. cit. p. 449 - 450). In order for the secret surveillance system to be compatible with Article 8 of the Convention, it must contain legal guarantees which are applicable to the control of the activities of the relevant services. Control procedures must respect as faithfully as possible the values of democratic society, in particular the privileged status of the right to which the preamble to the Convention explicitly refers. "This implies, inter alia, that the interference of executive power in individual rights must be subject to effective control, which must normally be provided, at least in the last instance, by the judicial authority, as it offers the best guarantees of independence, impartiality and regulatory proceedings (see Class and Ost. Against Germany, § 55, quoted according to Rotar, § 59).
The Constitutional Court notes that the ECHR case law pays particular attention to the need to ensure independent and impartial control of classified data on its own person. (Not to mention the fact that although the Swedish Government succeeded in the Leander dispute and the court preferred the public interest, it was to be found - contrary to the assurances given by the Swedish Government - that the classified information concerned only the complainant's political activities and not national security. The Swedish Government publicly apologized to the complainant in 1997 and provided compensation (Töllborg D. in Greenwood, D., Huisman, S.: Transparency and Accountability of Police Forces, Security Services and Intelligence Services, George C. Marshall Association, Sofia, 2004, p. 119, or Mendel, T.: Freedom of Information: A Comparative Legal Survey, UNESCO 2003, pp. 11-12). It should also be noted that the Constitutional Court in the case sp. zn. Pl. ÚS 11 / 2000 confirmed (as well as the Constitutional Court of Poland) that the standard of judicial protection provided by the Constitution and the Charter is wider in this area. In the context of the conduct and outcome of security clearance, fundamental rights other than those considered in the case of Pellegrin may also be affected, since potential interference with the right to information about the person concerned, the right not to be discriminated against or the right to privacy goes beyond the scope of the labour dispute, as confirmed by the Leander case (§ 76), when the ECHR also assessed the case from the point of view of Article 13 of the Convention, which confers the right to an effective remedy (cf.
In the proceedings before the Constitutional Court, the provisional nature of the Act on the Protection of classified information was again referred to, which was likely to explain its shortcomings.
Law No 310 / 2002 Coll. in its Article IX stated: "Act No. 148 / 1998 Coll., on classified information, expires on 31 December 2003." Because the amendment of the House Defence Committee to Act No. 310 / 2002 Coll. (Resolution No 206 of 15.3.2002, which the House accepted on 25.3.2001, contained the sentence: "This law takes effect on the date of its publication and expires on 31.12.2003." (see House Press 1000 / 4), it is reasonable to believe that the original intention was only to limit the validity of the amendments to the ZOUS, which responded to the finding of the Constitutional Court, sp. v. Pl. ÚS 11 / 2000 (cf. speaking in the House debate on 22.3.2002)... in the Act on the protection of classified facts is a number of other problematic places and will have to be thoroughly revised after the elections. Therefore, the Committee proposes to limit the validity of this amendment to 31 December 2003, thereby motivating the next government to work quickly on a very thorough amendment (in www.pspp.cz - Chamber of Deputies: 1998 - 2002: House Press 1000: conduct of discussions), but the adopted version of Act No. 310 / 2002 Coll. limited the validity of the entire Act on the Protection of classified information (as well as Šimělek V., p. 150). Subsequently, the legislator by Act No. 436 / 2003 Coll., amending Act No. 555 / 1992 Coll., on the Prison Service and the Judicial Guard of the Czech Republic, as amended, and certain other laws, with effect from 1.1.2004 extended the Act on the Protection of classified information until 30.6.2004. This was a proposal adopted on the basis of the resolution of the House Committee on Defence and Security (No 89 of 1 October 2003). It was noted in the House debate that there was a real risk that no legislation on the protection of classified information would apply in the legal order of the Czech Republic at least for a certain period of time (see the record of the House debate on 22 October 2003). Finally, by Act No. 386 / 2004 Coll., amending Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended, the legislator, with effect from 29 June 2004, moved the expiry of the Act on the Protection of classified information by one year until 30 June 2005, with the following justification: "a proposal for a new law on the protection of classified information and on the security capability... At its meeting on 12 February 2004, the Legislative Council of the Government decided to return... the material submitted to the petitioners for revision in the intentions of its opinion. This recasting will take time. Subsequently, the proposal should be put back into the legislative process, which would actually threaten that... from 1 July 2004, the legal system would not contain any rules on the protection of classified information. In order to be able to make a responsible adjustment to the two original proposals in the intentions of the comments of the Legislative Council of the Government, while ensuring the existence of legislation on the issue of the protection of classified information after 30 June 2004" (see explanatory note to Act No 386 / 2004 Coll.).
The Constitutional Court, whose plenary review of Act No. 148 / 1998 Coll. for the third time, has always been assured that a new regulation will soon be adopted. However, this still has not happened. A bill drawn up under the authority of the Government of the NSA was submitted to the Chamber of Deputies on 27 January 2005. On 30 March 2005, the Chamber of Deputies extended the Act on classified information until 31 December 2005 (Resolution No 1619, 42nd Meeting of the Chamber of Deputies, House Press 735; Editorial note: In the meantime, from the decision of the plenary to the announcement of this finding, this law was also passed by the Senate at its 5th meeting - see Resolution 113 of 28.4.2005). The Constitutional Court notes that the uncertainty associated with the extension of the provisional period does not benefit either the protection of fundamental rights and freedoms or the interest in State security. On the other hand, it is certain that the bill submitted to the Chamber of Deputies has not been actually adopted and that the provisional procedure will continue.
After it was found that the College would not meet the claims of a materially understood court foreseen by Article 36 (2) of the Charter, the Constitutional Court, in its intentions, examined the relationship between the provisions of Paragraph 73 (2) of the ZOUS, which allows the judicial review of decisions in the field of security clearance, with the provisions of Section 77k (6) of the ZOUS, which excludes the decision of the College from the framework of judicial review. With regard to Article 36 (2) The Charter is also open to judicial review of the decisions of the College.
The legal possibility of a procedural parallel raises uncertainty about which means to protect their rights must be exhausted by the person concerned before turning to the general court. This creates undesired uncertainty incompatible with both the principles of a fair process and the general principles on which the legislation of each rule of law must be based. In this regard, the mere existence of Paragraph 77k (6) is undesirable. The argument by the Director of the NSA that the decision of the College represents res iudicata is unsustainable from a constitutional point of view. The regulation violates the constitutional principles of legal certainty and the predictability of law.
The Constitutional Court finds that the prohibition of judicial review provided for in the still applicable provision of Paragraph 77k (6) of the Law on the Protection of classified information is contrary to constitutional law because it runs counter to the constitutionally guaranteed right of judicial protection (Article 36 (2) of the Charter) and further contradicts the principles of legal certainty and the predictability of the law resulting from the concept of the rule of law (Article 1 (1) of the Constitution). This statement is not an expression of underestimating the security interests of the Czech Republic, the provision of which, after all, allows the peaceful realisation of fundamental rights and freedoms, but is an expression of respect for fundamental rights and freedoms, among which the right to judicial protection is an irreplaceable place. It is not for the Constitutional Court to take part in the legislative process and cannot prejudge the form of an adjustment which will take effect after 31 December 2005, yet, in view of the objections contained in the observations, it summarises certain reasons (other than those mentioned above) which led it to issue earlier findings.
In the case sp. zn. Pl. ÚS 16 / 99 The Constitutional Court stated that the Convention 'clearly requires that a court or a court like that should rule on the law (i.e. on the substance and not merely on the legality of the previous administrative act). Thus, in our regulation, the court can remove only an illegal decision, but not a factually defective one. In other words, the administrative discretion of the dependent authority cannot be replaced by an independent judicial consideration. If this is the case in matters, civil rights and obligations' a, administrative punishment 'within the meaning of the Convention, this situation is unconstitutional, it will stand up in other matters' (ECR 22, p. 329; published under No 276 / 2001 Coll.).
The Constitutional Court is aware of the delicacy of the problem and, to some extent, understands the concerns of the NSA about the destruction of the purpose of the ZOUS, which is to protect the security of the Czech Republic. Indeed, in the case sp. zn. On the other hand, even the specificities of protecting classified information cannot lead to a conscious resignation from the constitutional protection of the rights of persons examined. Therefore, where Article 36 (1) and (2) of the Charter and Article 6 (1) of the Convention guarantee everyone the fundamental right to a fair trial and where a review of decisions relating to fundamental rights and freedoms under the Charter must not be excluded from judicial review, the legislature must also guarantee, in this case, a review of administrative decisions by an independent judicial authority, even if not a normal type of procedure which is sufficiently differentiated by individual cases cannot be excluded. The current legislation, in its consequence, means that there is a significant concentration of power in the process of carrying out the security clearance with a single executive body, and its decision may significantly interfere with the individual sphere of the subject "(Reports of Decisions, Volume 23, p. 105; published under No 322 / 2001 Coll.). However, a later procedure before the College did not meet these requirements. In the light of the observations of the Regional Court in Brno, the Constitutional Court considers it appropriate to add that the notification of the non-certification or of the withdrawal of the verification must be regarded as a contested administrative action (by analogy to the finding of 25.11.2003 sp. zn. I. ÚS 577 / 01, ECR 31, p. 223). In the case sp. zn. II ÚS 28 / 02 it was noted that" The decision of the NSA that the person examined ceased to comply with the conditions laid down in the provisions of § 18 of Act No. 148 / 1998 Coll., is by its nature also a decision relating to Article 26 (1) of the Charter. "(Case 25 / 6 / 2003, ECR 30, p. 447).
As regards the concerns raised by the NSA regarding the extension of the range of persons who are familiar with the classified facts in the court proceedings, it can be concluded that, in the case sp. zn. The Constitutional Court recalled the solution to this issue in the civil and judicial rules of the administration and found no reason why these intentions should not apply to all legal proceedings. It is common ground that a judge must also remain silent, and therefore it cannot be said that if he becomes familiar with classified information, there will be a breach or threat to security.
The Constitutional Court has no reason to deviate from these conclusions and notes that it considers the judicial review of the security clearance process to be compatible with the interest in the security of the Czech Republic and its international credibility, while imagining an adjustment which, when restricting access to classified information in judicial review in accordance with the principle of proportionality, will choose a differentiated approach to ensure that the extent of the limitation of fundamental law in a particular case is, as far as possible, consistent with the degree of seriousness of the protected interest. The classified facts discussed in the review must also be effectively protected, but it is difficult to make a rule out of the inaccessibility of classified facts to judicial review.
Only within the framework of obiter dicta available in the initiated parliamentary process of adopting a government bill on the protection of classified information and security competence (House Press No. 880 - cf. www.psp.cz, Parliament of the Czech Republic, Chamber of Deputies since 2002) was there to assess whether the proceedings before the College were necessary. It was therefore necessary to submit the provisions of § 77a to 77k of the ZOUS to the proportionality test.
The proportionality test, which is both in the continental and Anglo-Saxon legal field, is a standard instrument used by the courts, inter alia, in assessing conflicts of public interest with individual rights or freedoms, the Constitutional Court has brought many of its findings (cf. Polish and Slovak Constitutional Court decisions as well as numerous ECHR decisions). At the finding of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 The Constitutional Court, referring to the preamble and the first article of the Constitution, stated that, in cases of conflicts of fundamental rights or freedoms with public interest, or with other fundamental rights or freedoms:... "the purpose (objective) of such intervention must be assessed in relation to the resources used, the criterion for this assessment being the principle of proportionality (proportionality in the wider sense), which may also be called a prohibition of excessive interference in rights and freedoms. This general principle includes three criteria for assessing the admissibility of intervention. The first is the principle of eligibility for the purpose (or suitability), according to which the measure in question must at all be capable of achieving the intended objective of protecting another fundamental right or public good. It is also the principle of necessity, according to which the use of only the most gentle - in relation to the fundamental rights and freedoms concerned - is permitted by several possible means. The third principle is the principle of proportionality (in the narrowest sense), according to which the damage to the fundamental right must not be disproportionate in relation to the intended objective, i.e., measures limiting fundamental human rights and freedoms must not, if there is a conflict of fundamental right or freedom of public interest, exceed, by its negative consequences, the positive effects which constitute a public interest in those measures" (ECR 27, p. 177; published under No 405 / 2002 Coll.).
The Constitutional Court further notes that ensuring the security of the State is certainly a legitimate objective. However, the constitutive proceedings before the College do not meet the requirements of the criterion of eligibility for the purpose (or suitability), according to which the measure must at all be able to achieve the intended objective of protecting another fundamental right or public interest. As much as it allows protection of the security interest to be achieved, it is not eligible to meet the requirements of Article 36 (2) of the Charter and to ensure judicial protection of the rights which may have been affected in the context of security clearance. This objective makes it best to achieve a judicial review whose role is not to replace the review carried out by the College.
In a situation where a decision of the College must be subject to judicial review, it is clear that the proceedings before the College will not stand even in the light of the criterion of necessity, since it must be further examined by the Court, and the introduction of such proceedings only extends the number of persons who are familiar with both classified information (see also the abovementioned reply to the questions put by the Director of the NSA) and the private details of the subject (Article 10 (2) and (3) of the Charter). It must be added that even from Article 7 (1) of the Charter guaranteeing the integrity of privacy, there is a maximum limitation on the number of persons who are familiar with the information on the subject (often of a highly intimate nature) and the need to ensure independent control of the whole process. According to the principle of necessity, the use of only the most gentle - in relation to the fundamental rights and freedoms in question - is permitted by multiple means. Driving before the College is not such a means. Since the Constitutional Court concluded that the proceedings before the College did not meet the criteria of suitability and effectiveness, the purpose of examining whether the proceedings would have met the principle of proportionality in a narrower sense was no longer taken. The Constitutional Court merely recalls that according to the data provided by the NSA, security clearance from November 1998 to February 2002 affected 15 352 individuals and 563 "organisations' (cf. Resolution 274 of the State Security Council of 27.3.2002 available at www.vlada.cz). The procedure before the College is superfluous and, in view of the failure to comply with the proportionality criteria, it cannot be argued that this excess does not harm.
For all the above reasons, the Constitutional Court in Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, repealed the provisions of § 77k (6) on the date of the publication of this finding in the Collection of Laws (see operative part). Since others in the law of the existing provision meet the purpose of the deleted provision and the law itself will cease to apply on 30 June 2005 (Note: 31 December 2005 respectively - see the editorial note in the last paragraph of Part VII of this finding and Act No. 190 / 2005 Coll., amending Act No. 170 / 2002 Coll., on War Veterans, and Act No. 148 / 1998 Coll., on the protection of classified facts and on the amendment of certain laws, as amended, which was published in the volume of the 70 Reports of Laws published in the Official Journal of 23 May 2005), the Constitutional Court did not find a reason to defer the enforceability of that decision.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Contents
I. Rekapitulace návrhu a jeho přípustnost
II. Rekapitulace vyjádření
III. Ústavnost legislativní procedury a legislativní historie posuzovaného zákona
IV. Vymezení předmětu řízení
V. Je Kolegium možno považovat za soud?
VI. Je soudní přezkum nutný?
VII. Provizornost ZOUS
VIII. Závěr
IX. Obiter dictum
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Regulation Information
| Citation | The Constitutional Court found No. 220 / 2005 Coll., on the application for annulment of § 77k (6) of Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.06.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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