The Constitutional Court found No. 226 / 2010 Coll.

Motion denied.

1. By a proposal received by the Constitutional Court on 23 April 2009 pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and under the provisions of § 64 (3) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), the Municipal Court in Prague, acting under the jurisdiction of JUDr. Luboš Vrba, President of the Chamber (hereinafter referred to as "the Proposer"), sought the annulment of the provisions of § 58 (6) of Act No. 412 / 2005 Coll., on the Protection of classified information and on security, as amended.

2. In the proposal, the appellant stated that, in the context of the proceedings of the criminal case L. P. and Ing. J. T. under sp. zn. 42 T 22 / 2008, the defendant Ing. J. T. was to commit a criminal offence against classified information pursuant to § 106 of Act No. 140 / 1961 Coll., as amended, by giving away part of the content of the North Atlantic Treaty (hereinafter "NATO") Directive, which entered into force for the Czech Republic on 12 March 1999 and was published in the Collection of Laws under No. 66 / 1999 Coll., No AEP 54 L. P., which was to use this information in the commercial activity of POHORELEC, s. r. o., dealing with, inter alia, the development and sale of protective chemical resources for the Czech Republic Army. There are also two annexes to the file proposing the execution of evidence in the main proceedings at the "reserved 'and" confidential' stages, which are classified information in relation to NATO. The defendants of the two defendants object to the shortening of their clients' rights of defence on the ground that they were rejected, by reference to Article 58 (6) of Law No 412 / 2005 Coll., the possibility of familiarisation with the paper material which forms an annex to the file material, on the ground that the defendants and defendants do not hold a valid certificate of the National Security Office for access to classified information of foreign power. The appellant considers that making access to classified information by holding a valid National Security Office certificate conditional upon the conduct of ongoing criminal proceedings is unacceptable and even absurd in cases of criminal offences under Sections 105 and 106 of the Criminal Act. Questions to the Czech Bar Association and the National Security Office were found by the applicant that they did not have a register of lawyers holding the relevant security authorisations. It is therefore not possible, in the case of a defence, to establish a lawyer so examined for the part of the main trial where a classified fact is to be dealt with, nor is it possible to choose such a lawyer who is accused pursuant to § 33 (1) and § 37 (2) of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended.

3. The appellant further stated that, under the provisions of § 51b of the Code of Criminal Procedure, as amended by Act No. 413 / 2005 Coll., on the amendment of the laws relating to the adoption of the Act on the Protection of classified information and security competence, when classified information is being discussed in criminal proceedings, the interpreter, the accused, the legal representative of the accused, the lawyer, the interested party, the agent of the injured party, the defendant's confidant, the expert, the persons submitting the professional observations, as well as other persons legally required to take part in criminal proceedings must be informed in advance in accordance with the provisions of § 58 (5) of Law No. 412 / 2005 Coll. Persons referred to in § 51b of the Code of Criminal Procedure, if they do not hold a valid certificate of a natural person for the relevant classification level, shall be able to be informed of the content of classified information after being instructed in accordance with § 9 of Act No. 412 / 2005 Coll. However, this procedure cannot be applied to classified information relating to "foreign power" within the meaning of the provision of § 2 (g) of Act No. 412 / 2005 Coll., since the contested provision § 58 (6) of Act No. 412 / 2005 Coll. precludes that. In the appellant's view, it is not possible for the legislation in force to be acquainted with documentary evidence during the criminal proceedings in which classified information is discussed, the defendants and their defenders, unless they hold a valid certificate issued by the National Security Office. The appellant therefore considers such an arrangement to be inadmissible in the context of criminal proceedings, since it is contrary to the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter '), namely Article 38 (2), which provides that everyone has the right to have his case dealt with in his or her presence and to be able to express his or her views on all the evidence carried out, as well as Article 40 (3) of the Charter, which guarantees the right of the defendant to have his or her time and the opportunity to prepare his or her defence and to defend himself or her by means of an attorney, and also Article 37 (2) and (3) of the Charter, according to which everyone has the right to legal aid before the courts from the outset of the proceedings and all parties to be equal in the proceedings. At the same time, the contested provision is in line with the conclusions reached by the appellant with the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention'), which guarantees everyone the right to defend himself personally or with the assistance of a lawyer of his choice, and with Article 14 (3) (d) of the International Covenant on Civil and Political Rights (hereinafter referred to as "the Covenant '), which provides that anyone accused of a crime is to be tried for his or her presence and defend himself or through a lawyer chosen by him.

4. The appellant considers that the contested provision of Paragraph 58 (6) of Act No. 412 / 2005 Coll., which is to be applied in the resolution of the case and the use of which is relevant in the criminal case in question for the decision on guilt and punishment is contrary to the constitutional order. According to the appellant, the contested provision makes it impossible, on the one hand, for the defendants to defend themselves and, therefore, for a fair trial as such, and, on the other, for the execution of evidence subject to the appropriate classification of foreign power in the main proceedings by reading them. Therefore, by order of 5 February 2009, sp. zn. 42 T 22 / 2008, the appellant suspended the criminal proceedings of the two defendants and brought the matter before the Constitutional Court for consideration and decision on the annulment of the contested provision.

5. The Constitutional Court first examined whether the formal grounds for the substantive assessment of the application were met and therefore addressed the question whether the appellant was actively legitimate in the present case in order to submit the application.

6. According to Article 95 (2) of the Constitution on which the application is based, if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. The Constitutional Court finds that direct application of the contested provision by the appellant is necessary in the case at hand. The application was therefore submitted by the applicant.

7. The contested provision of § 58 paragraph 6 of Act No. 412 / 2005 Coll., which was inserted into Act No. 412 / 2005 Coll. by Act No. 119 / 2007 Coll., amending Act No. 412 / 2005 Coll., on the Protection of Classified Information and on Security Eligibility, with effect from 24 May 2007 reads:

"The persons referred to in paragraphs 1 and 4 shall not, with the exception of the President of the Republic, the President of the Senate of Parliament, the President of the Chamber of Deputies of Parliament, the Prime Minister and the Minister of Foreign Affairs, have access to classified information of a foreign authority. ';

8. From the observations of the two chambers of Parliament of the Czech Republic, the annexed annexes and the documents available by e-mail at www.psp.cz, the Constitutional Court found:

- Government submitted the bill to the Chamber of Deputies on 9 November 2006

- First reading took place on 28 November 2006 at the 7th meeting of the Chamber of Deputies

- the Committee on Defence of the Chamber of Deputies has discussed the bill and issued a resolution to Members on 23 January 2007 as press 84 / 1 (amendments)

- 2nd reading took place on 30 January 2007 at the 11th meeting of the Chamber of Deputies, the amendments tabled were processed as print 84 / 2, which was circulated on 31 January 2007

- 3rd reading took place on 7 February 2007 at the 11th meeting of the Chamber of Deputies, the bill was passed (vote 133, resolution 219)

- The Chamber of Deputies referred on 15 February 2007 to the Senate Bill as print 23 / 0

- the proposal was discussed at the 4th Senate meeting on 8 March 2007, the Senate returned the bill to the House with amendments

- the bill returned by the Senate was voted on on 24 April 2007 at the 14th meeting of the Chamber of Deputies. The Chamber of Deputies adopted the law (vote 41, resolution 271)

- the President of the Republic signed the Act on 11 May 2007

- The Act was published on 24 May 2007 in the Collection of Laws in the amount of 44 under No. 119 / 2007 Coll.

The Constitutional Court notes that the adoption and publication of Law 119 / 2007 Coll. took place in the prescribed manner.

9. Following this finding, the Constitutional Court took the view that the content of the contested provision of Act No. 412 / 2005 Coll. was in conformity with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution].

10. Pursuant to Articles 42 (4) and 69 (1) of the Constitutional Court Act, the Constitutional Court sent the proposal in question to the Chamber of Deputies and to the Senate of the Parliament of the Czech Republic.

11. The President of the Chamber of Deputies of the Parliament of the Czech Republic Ing. Miloslav Vlček, in his observations dated 25 September 2009, described the legislative procedure for adopting Act No. 119 / 2007 Coll. and stated that the assessment of the compliance of the contested provision with the constitutional order of the Czech Republic is a matter for the Constitutional Court.

12. The President of the Senate of the Parliament of the Czech Republic MUDr. Přemysl Sobotka, in his statement of 7 October 2009, stated that, in the debate on the amendment to Act No. 412 / 2005 Coll. at the Senate meeting, the subject was not directly open at all, i.e. the exclusion of the defendants and their defendants from access to classified information of foreign authority in the course of the prosecution, unless they have a special certificate. The Government's representative, at the beginning of the hearing, recalled that the amendment was aimed at a major reduction of persons with privileged access to classified information of foreign power, i.e. in particular the North Atlantic Alliance and the European Union (only the President, the Presidents of Parliament, the Prime Minister and the Foreign Minister remain free). It was also recalled in the introduction that the amendment was a response to criticism by the NATO Security Office following an inspection of the fulfilment of the obligations of the Czech Republic under the Agreement between the Parties to the North Atlantic Information Security Treaty published in the Notice of the Ministry of Foreign Affairs No 75 / 2001 Coll. s. ("the Information Security Agreement '). As a result, the Government presented its response in the form of a legislative initiative as an extremely urgent measure. The rapporteur's report on the amendment to the law only referred in a comment to a certain awareness that certain comments concerning its constitutionality were made in the previous legislative process in the opinion of the Prime Minister on the draft law. In that sense, it was a reminder of the rule of Article 6 of the Convention, pointing out that an application for the exclusion of a judge, lawyer, party to proceedings, expert, etc. from access to certain classified information of foreign authority relevant to judicial proceedings may not comply with that rule. From the previous debate of the Committee on Foreign Affairs, Defence and Security, it can then be remembered that the adoption of special arrangements for classified information by foreign authorities may have problematic contexts. It is noted that it is not possible to" appoint "a judge or" exclude "an elected lawyer for a particular case, stating that the first has and the other does not have a certificate of access to classified information, not to mention regulating the status of the accused in that sense. The questions raised earlier from the perspective of the Constitutional Court, such as whether lawyers may be subject to" state consent' (meaning a special certificate) for the exercise of legal representation in cases of classified information, or the question of so-called special courts or courts of secrecy, contrary to the principle that no one may be removed from his judge. However, the comments made in the panel meeting subsequently found themselves out of the Senate's main way of thinking about the draft law. The Senate has discussed the amendment to Act No. 412 / 2005 Coll., under which the contested provision also became applicable, in the belief that it is doing so within the limits of the Constitution and in a constitutional manner. It is for the Constitutional Court to assess the constitutionality of the draft contested provision and to rule.

13. The Constitutional Court delivered a proposal to the Ministry of Defence of the Czech Republic and the Security Information Service to take their position in accordance with the provisions of Section 48 (2) of the Law on the Constitutional Court.

14. The opinion delivered by the Ministry of Defence to the Constitutional Court on 6 October 2009 states that the contested provision of Paragraph 58 (6) of Act No. 412 / 2005 Coll. was supplemented by Act No. 119 / 2007 Coll. on the basis of the audit findings of the NATO Office of Security in 2006 (No D9 / 2008 / DP-2015-NATO), in which it was found that approximately 5 000 individuals were allowed to familiarise themselves with classified information directly from the law, i.e. without a valid certificate of a natural person. The possibility of a specific approach to a wide range of natural persons without verification of classified NATO information, which allowed the wording of Section 58 of Act No. 412 / 2005 Coll. before its amendment by Act No. 119 / 2007 Coll., was considered to be contradictory with the wording of Article 3 (1) of the Information Security Agreement, which reads: "The Parties shall ensure that all persons who have their nationality and the fulfilment of their duties require access or persons who may have access to the information identified by the classification of confidential and higher shall be appropriately investigated before fulfilling their obligations. ', i.e. with the international obligations of the Czech Republic to NATO. Given that this situation and the principle for NATO, i.e. the possibility for a wide range of individuals to have access to NATO classified information without a valid natural person certificate, was totally unacceptable, this legislative deficit was corrected by a radical reduction in the possibility of individuals having access to classified information from outside power (five constitutional officials). In the context of the abbreviated interministerial comment procedure, which took place on the draft law amending Act No. 412 / 2005 Coll., the Ministry of Defence based on the belief that the submitted proposal was in accordance with the constitutional order of the Czech Republic and its international obligations.

15. In its observations of 16 October 2009, the Security Information Service informed the Constitutional Court that the purpose of the contested provision was to comply with the requirements imposed on the Czech Republic by international law and European Union law. In particular, the Agreement on Information Security and NATO Security Standards - Security Directive C-M (2002) 49 - Security within NATO, April 2002 ("NATO Security Directive '). The provisions of the European Union are Council Decision 2001 / 264 / EC adopting Commission security directives, as well as Council Regulation No 1958 / 3 implementing Article 24 of the Treaty establishing the European Atomic Energy Community. Repeal of the contested provision would mean that the Czech Republic would not have complied with those obligations. At the same time, it would reduce the credibility of the state authorities of the Czech Republic, which receive classified information provided by foreign authorities. This information is handled by the originator principle, which means that the recipient of the information respects the originator's instructions as to who and under what conditions the information is disclosed. The contested provision does not allow an exception to the need to hold a valid certificate of access to classified information not only for individuals in criminal proceedings, civil proceedings and administrative proceedings, but also for persons referred to in § 58 (1) of Act No. 412 / 2005 Coll. However, the absence of special access to classified information of foreign power for such persons is not in any way related to alleged infringements in the draft provisions of the Charter, the Convention and the International Pact, since all these provisions protect the right to a fair trial. In the event that the Constitutional Court considers that the contested provision in its current version is in conflict with the protection of the rights of the parties to the proceedings, the Security Information Service has proposed that only the words" and 4' be deleted from the contested provision and the rest of the provision was left in force.

16. The Security Information Service, since Act No. 412 / 2005 Coll. is part of the Administrative Office's gesture, which is the National Security Office, has also requested comments from that Office. In its opinion of 14 October 2009, the National Security Office stated that the adoption of Law No 412 / 2005 Coll., with the provision of access to classified information of such a large range of individuals without a valid certificate of a natural person of the relevant classification level, immediately became a target of NATO security authorities ("NATO NOS '). Those authorities monitor closely the legislation and the practical implementation of the protection of classified information in each Member State, since ensuring a minimum standard of protection of classified information is a necessary condition for the competent State to be able, if necessary, to provide NATO classified information without any fear of compromise and thus be able to fulfil the obligations arising from its membership of NATO and to participate accordingly in its activities as provided for by the North Atlantic Treaty. Thus, during the NATO NOS security inspection held in April 2006, the National Security Authority was denied insufficient respect for the originator's principle, one of the main principles of protecting classified information, assuming that classified information made available or transmitted by the originator will be provided at least at the level of protection provided by that originator (in this case NATO). In the case of the Czech Republic, however, the NATO security authorities did not see a guarantee that classified information provided to the Czech Republic or NATO Member States would not fall into the hands of natural persons who did not meet the conditions for access, since our legislation allowed access to this information not only to around three thousand representatives of state bodies (pursuant to the provisions of § 58 paragraph 1 of Act No. 412 / 2005 Coll.), but also to an unspecified range of other unknown persons in various procedures, the procedural arrangements of which were referred to in § 58 paragraph 4 of Act No. 412 / 2005 Coll. In so doing, the Information Security Agreement does not recognise such exemptions from the validity of a certificate for access to classified NATO information, nor does it recognise NATO implementing security regulations (see in particular NATO Security Directive, Annex C - Human Security Directive). In practice, access to classified information without a valid certificate of a natural person of the relevant classification level shall be tolerated only with senior officials of the State. For the reasons set out above, the National Security Office has adopted an amendment to Section 58 of Act No. 412 / 2005 Coll. and Act No. 119 / 2007 Coll. has been added to this provision paragraph 6. Paragraph 58 (6) of Act No. 412 / 2005 Coll. therefore, ensuring the highest possible level of protection of classified information by means of maximum restrictions on access to this information without a valid certificate of a natural person. It is precisely because of the need to reflect the international obligations of the Czech Republic in the area of protecting classified information in national legislation that the legislator did not make an exception to access to classified information as if it had access to" national "classified information. In relation to the provisions of § 51b (1) of the Code of Criminal Procedure, the provision of § 58 (6) of Act No. 412 / 2005 Coll. must therefore be understood as a special provision, just as the law in this regard is a special law for the Code of Criminal Procedure. A person who does not fulfil the conditions of access to classified information of a foreign authority laid down by law may not be granted access to such classified information. In the light of the foregoing, the National Security Office considers that the repeal of the contested provision, as requested by the applicant, would constitute a disproportionate interference in the legislation ensuring compliance with the international obligations of the Czech Republic, mainly arising from NATO membership. In addition, in the event of the annulment of the whole of the contested provision, there would be an extension of special access to classified information of foreign power without a valid certificate of a natural person not only to persons implementing procedural rights, but also to other persons referred to in § 58 (1) of Act No. 412 / 2005 Coll. These persons are in no way concerned with the exercise of the right to a fair trial, so that the fulfilment of the international obligations of the Czech Republic in the field of the protection of classified information should clearly prevail. The National Security Office therefore considers that the application for annulment of the contested provision as submitted cannot be complied with. Such interference with the legislation would result in adverse effects to that effect and would therefore be disproportionate. If the Constitutional Court would then find it necessary to resolve the contention raised by Paragraph 58 (6) of Law No 412 / 2005 Coll. with the provision of § 51b of the Code of Criminal Procedure, from the point of view of the guarantee of the procedural rights of the parties to the criminal proceedings, the National Security Office considers that this contradiction could be resolved if only the words" and 4' referring to the provisions of § 58 (4) of Act No 412 / 2005 Coll., which address the issue of access to classified information in the context of the implementation of the procedural law, were deleted from the provision of Article 58 (6) of Law No 412 / 2005 Coll. In conclusion, the National Security Office stated that, in view of the fact that it exercises, pursuant to Article 136 (1) of Act No. 412 / 2005 Coll. of the State Administration in the field of the protection of classified information and security competence, it is necessary that the Constitutional Court also requests its own observations on the matter.

17. On 18 December 2009, the National Security Office added its observations to the invitation of the Constitutional Court, in which it reiterated the opinion already expressed on 14 October 2009 and confirmed that it remained on it.

18. Under Paragraph 44 (2) of the Law on the Constitutional Court, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. Since both the appellant and the parties to the proceedings expressed their consent to the termination of the oral hearing, the oral hearing in the present case was dismissed.

19. After the Constitutional Court assessed the arguments of the appellant contained in the proposal and confronted them with the contested provision of Paragraph 58 (6) of Law No 412 / 2005 Coll. and Paragraph 51b (1) of the Code of Criminal Procedure, it concluded that the proposal was not justified.

20. In its proposal, the appellant states that the contested provision of Paragraph 58 (6) of Act No 412 / 2005 Coll. in its application in the context of criminal proceedings is inadmissible, since the regulation makes it impossible for classified information of a foreign authority, the defendants and their defendants to be acquainted with classified documentary evidence without a special certificate of the natural person to be dealt with, and is therefore contrary to the right of defence. In particular, the appellant supports its conclusions by claiming that there is no registration of lawyers with a special certificate. The appellant therefore relies on the priority of the protection of the right of defence, with the emphasis on the principle of the independence of the lawyer from the State, against the public interest in ensuring the protection of classified information by foreign authorities.

21. The right of defence is one of the most important fundamental rights of the persons against whom criminal proceedings are being conducted and seeks to achieve a fair decision made not only in the interests of the person prosecuted but undoubtedly also in the interests of a democratic rule of law, based on respect for the rights and freedoms of man and citizen. The right of defence is governed by all fundamental international documents dealing with fundamental human rights and freedoms. Article 37 (2) Each Charter shall have the right to legal aid in proceedings before courts, other national or public authorities, from the beginning of proceedings. Article 40 (3) The defendant shall have the right to be given time and opportunity to prepare the defence and to defend himself or through a lawyer. Pursuant to Article 6 (3) (b) and (c) of the Convention, anyone who is accused of a criminal offence shall, inter alia, have the right to reasonable time and the opportunity to prepare his defence and the right to defend himself personally or with the assistance of a lawyer of his choice. Those provisions lay down certain basic procedural guarantees of the right to fair treatment, which are an indispensable part of the concept of the rule of law. The State must therefore ensure that those principles can be implemented by means of the relevant procedural guarantees as a lawyer and defendant [cf. the Constitutional Court finding of 3 April 2008 sp. zn. II. ÚS 2445 / 07, Collection of finds and resolutions of the Constitutional Court ("the Reports'), Volume 49, Found No 65, p. 15]. The Constitutional Court dealt with the right of defence in a number of its decisions, stating that the constitutionally guaranteed right of defence, together with the presumption of innocence (Article 40 (2) of the Charter), are fundamental conditions of a fair criminal process, and these constitutional guarantees are also reflected in the criminal order, which is established in accordance with the Constitution on the basis of the priority of the choice of lawyer (§ 33 (1), § 37 (2) of the Criminal Code), which the defendant is entitled to apply at any stage of the pending proceedings (§ 37 (2) of the Criminal Code). If evidence were then carried out in criminal proceedings with which the defence and the accused would not be aware, they could not be taken into account for the breach of the fair trial.

22. The issue of the protection of classified information [previously classified information under Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain acts, as amended, (Act No. 148 / 1998 Coll.)] was also addressed by the Constitutional Court in its findings, in particular in the Found of 28 January 2004 sp. zn. Pl. ÚS 41 / 02 (Collection of Decisions, Volume 32, Found No. 10, p. 61, Declared under No. 98 / 2004 Coll.), in the Found of 11 February 2004 sp.

23. In the finding sp. zn. Pl. ÚS 41 / 02, the Constitutional Court discussed the application by the District Court in Přerov to abolish the provision of § 42 paragraph 1 of Act No. 148 / 1998 Coll. The Constitutional Court rejected the proposal in this respect concerning the security clearance of lawyers, as it applied the principle of the priority of constitutionally conformal interpretation prior to the deregation, judging in the second sentence that the investigation of defenders in criminal proceedings for the purpose of familiarisation with classified information by the National Security Office is contrary to Articles 37 (3), 38 (2), 40 (3) of the Charter and Article 6 (3) (c) of the Convention. The Constitutional Court here specifically addressed the issue of disclosure of the classified facts to the defendant and his defenders, and also recalled here 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 judicial proceedings. At the same time, the Constitutional Court stated in this finding that... "as a negative legislator, within the limits of its competence, it can only decide to repeal laws or their individual provisions if they are contrary to constitutional order. In the present case, there has been a conflict of two principles, namely the principle of the protection of the interests of the State and of international interests in the security field, that is to say the public interest in ensuring the protection of classified information and the principle of the protection of human rights and freedoms, namely the right of defence in criminal proceedings, which includes the right of the defendant to acquaint himself with documentary evidence and the free choice of lawyer. If, on the one hand, the simple right under consideration pursues the protection of one of the constitutionally protected values, but on the other hand, it limits another to conclude, in the event of a conflict of fundamental rights or public good as a principle, contrary to a possible conflict of the standards of simple law, that is to say, the Constitutional Court follows the order of optimisation, i.e. the postulate of minimising restrictions on fundamental law and freedom, or public good. Its content is a maximum, according to which, in the event of a conclusion on the merits of the priority one before the other of the two in a collision of standing fundamental rights or public goods, it is a necessary condition for a final decision, also to use all possibilities of minimising intervention in one of them. The order for optimisation can normally be derived from Article 4 (4) of the Charter according to which fundamental rights and freedoms must be investigated in the application of the provisions on the limits of fundamental rights and freedoms, thus also analogous to their limitations as a result of their mutual conflict. 'The Constitutional Court therefore concluded that the constitutional inacceptability of the security clearance of lawyers in order to allow the disclosure of classified information in the role of defence defenders in criminal proceedings, as well as the acceptability of the conditions for the disclosure of classified information which are enshrined in the Code of Criminal Procedure and which do not restrict the fundamental rights of defence, equality of arms and the right of expression of all evidence.

24. The Constitutional Court then dealt with the judicial control of the security clearance in the decision of page Pl. ÚS 11 / 04 (see above), in which, on the basis of a proposal from the Regional Court in Brno, the Constitutional Court annulled the provisions of Section 77k (6) of Law No 148 / 1998 Coll. and stated that... "ensuring the security of the State is certainly a legitimate objective, the present case being seen from the point of view of the public interest in security with the protection of individual rights and freedoms." The Constitutional Court also stated that... "the judicial review of the security clearance process is compatible with the interest in the security of the Czech Republic and with the interest in its international credibility, while it is possible to imagine an adjustment which, when restricting access to classified information in a judicial review, will, in accordance with the principle of proportionality, choose a differentiated approach in order to ensure that the extent of the limitation of fundamental law in a particular case is, as far as possible, correlated to the degree of gravity of the protected interest. The classified facts discussed in the review must also be effectively protected, but a rule can hardly be made of the inaccessibility of classified facts to judicial review. '

25. The Ombudsman's proposal to abolish the provisions of point 18 of Annex 3 to Government Decree No. 246 / 1998 Coll., establishing the lists of classified information, was discussed in the sp. zn. The Constitutional Court did not comply with the proposal because, in its view, the appellant came out of an inappropriately narrow concept of a democratic rule of law. Legal certainty and predictability of acts of public authority should be maintained in relation to other bodies of international law. [...], Predictable 'for these other states will be such a legal framework for the procedure of public authorities of the Czech Republic, which will be capable of leading to compliance with its international obligations in the field of secrecy. On the contrary, "Unpredictable' will be such a framework that the secrecy of the facts that the Czech Republic has legally committed itself to protecting internationally will not be able to ensure in all cases. The Czech Republic, however, bears international responsibility to the allies only for the result: it will break its commitment when it has not ensured the protection of an individual fact which was subject to confidentiality under the international treaty." Article 1 (1) and (2) of the Constitution was the constitutional basis for this interpretation, on the basis of which it did not find the contested provision to be contrary to the constitutional order.

26. Based on the conclusions set out in the above mentioned findings, from which the Constitutional Court has no reason to derogate even in the present case, it can be concluded that a constitutional obligation laid down in Article 1 (1) and (2) and Article 10 of the Constitution, i.e. the obligation of the Czech Republic to respect its obligations under international law, enters into conflict of defence and interest in protecting classified information.

27. In the Information Security Agreement, NATO Contracting Parties have undertaken to protect and safeguard classified information originating in NATO (Article 1 (I)) and to ensure that all persons who have their nationality and the fulfilment of their duties require access or persons who may have access to information classified by a CONFIDENTIAL and higher level are appropriately examined before carrying out their duties (Article 3 (1)). The Czech Republic, which has assumed the international obligations of the parties to the confidentiality of certain important and sensitive information in respect of its allies, has fulfilled its obligation by transferring those international obligations under the contested provision to national law in order to ensure that it is classified by means of adequate information of foreign power. In this case, it is therefore necessary to compare the right of defence and the interest of the State in concealing certain information with the international obligation of the Czech Republic arising from its membership of NATO.

28. From the explanatory note to the draft Act No. 119 / 2007 Coll., which entered the contested provision into Act No. 412 / 2005 Coll. and from the above observations, it is stated that the purpose of the adoption of the contested provision was to restrict access to classified information to persons without a valid certificate. This leads to the conclusion that the purpose of the contested provision is to legally secure classified information from outside power and thus to comply with obligations under international law and not to reduce the right of defence. The Constitutional Court has already explained in its finding in sp. zn. Pl. ÚS 31 / 03 (see above) that: "The Czech Republic has assumed the international obligations of the parties to the secrecy of certain important and sensitive facts vis-à-vis its allies. It shall transfer those international obligations to national law and ensure that they are kept confidential. In order for the Czech Republic to be able to meet its international obligations in the field, its authorities must have the right to assess whether or not a fact is to be classified under the international agreement. If the Czech Republic is not able to provide such a specific assessment and subsequent secrecy, due to the content of its national law, it is unpredictable for the contractual partners to act, and it distorts legal certainty in international legal relations. The contractual partners need not disclose certain sensitive facts to the Czech Republic, or to the detriment of its security or other essential interests protected by Article 1 (1) of the Constitution. '

29. If part of the Agreement on the Security of Information has been transposed into the legal order of the Czech Republic, it is essential that the Czech Republic is able to comply with its international legal obligations which it has assumed under international contract law. By allowing access to classified information from outside power to persons other than those defined by the contested provision (i.e. the President of the Republic, the President of the Senate of Parliament and the President of the Chamber of Deputies of Parliament, the Prime Minister and the Minister of Foreign Affairs) without a valid certificate, there may be a breach of the obligation under the Information Security Agreement for the Czech Republic.

30. In assessing each other's contradictory provisions, whereby, as mentioned in paragraph 26, the mutual conflict of standing constitutional values, namely the principle of the protection of human rights and freedoms, namely the safeguarding of the right of defence in criminal proceedings, which includes the right of the defendant to acquaint himself with documentary evidence and the free choice of lawyer, and the principle of the protection of the interests of the State in the secrecy of certain information, the international commitment of the Czech Republic in the security field cannot be taken into account but the seriousness of the interference in the existing public interest in compliance with an international legal obligation.

31. The Constitutional Court may only exercise state authority in cases and limits laid down by law in the manner provided for by the law (cf. Article 2 (3) of the Constitution, Article 2 (2) of the Charter). The powers of the Constitutional Court are given by Article 87 of the Constitution and under the Constitutional Court Act. The Constitutional Court has pointed out many times that the basic reasoning methods of the Constitutional Court's procedure in the standard control procedure include the principle of the priority of constitutionally conformal interpretation prior to deregation, according to which, in a situation where a provision of legislation allows two different interpretations, one being consistent with the constitutional order and the other being contrary to it, there is no reason to repeal that provision. When applying the law, it is then the task of all state bodies to interpret it in a constitutional way. This method is based on the principle of the division of power and the associated principle of restraint, i.e. the principle that, if the safeguarding of constitutionality can be achieved by alternative means, the Constitutional Court elects one who limits the legislative power to the minimum (cf. the finding of the Constitutional Court of 29 January 2008 sp. zl. ÚS 69 / 06, ECR 48, p. 243, published under No 269 / 2008 Coll.). In this context, the Constitutional Court points out that the reason for the unconstitutionality is not, in principle, any interpretative difficulties in interpreting the law.

32. According to the settled case law of the Constitutional Court, a solution to the conflict of fundamental rights, or a constitutional order of protected public goods, provides the principle of proportionality. In the decision of 1 March 2007 sp. zn. The Constitutional Court has repeatedly held that, in cases of conflicts of fundamental rights or freedoms of public interest or of other fundamental rights or freedoms:... "it is necessary to assess the purpose (objective) of such intervention 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 ban on 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 fundamental law 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 with the public interest, exceed, by its negative consequences, the positive effects which constitute a public interest in those measures. 'The obligation to respect the principle of proportionality shall not only apply to legislators but also to public authorities in their decision-making activities.

33. It follows that the constitutional assessment is based on the application of both the principle of proportionality and the principle of the priority of a constitutionally conformistic interpretation before derogation.

34. The Constitutional Court considers that a provision restricting access to classified information by persons without a valid certificate is certainly a legitimate objective and the contested provision is eligible to comply with the requirements laid down in the Preamble and Article 1 of the Constitution.

35. However, it is also necessary to examine the need for the chosen device from the point of view of its fairness in relation to the fundamental rights which, in the appellant's view, are infringed, i.e. the right of defence and the choice of a lawyer. From the point of view of the principle of necessity, according to which the use of only the most considerate of the multiple means is permitted, whereby, in relation to the interest of the State in concealing certain information from outside power, ensuring respect for international legal obligations, it can be concluded that there is a rational link between the objective and the means chosen to enforce it. The means used to achieve the goal are gentle and necessary.

36. In the light of the third criterion, namely the proportionality criterion (in the narrow sense), which states that 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, if the conflict of fundamental rights or freedoms with a public interest is to exceed, by its negative consequences, the positive effects which constitute a public interest in those measures, the Constitutional Court has not found that the contested provision, compared to other measures enabling the same objective to be achieved by a non-constitutional procedure, limits the right of the accused to a fair trial or is contrary to constitutional order. Of course, the legislator had scope to consider allowing persons access to classified information from outside power, with the obligation to ensure that the procedure chosen was based on objective and reasonable grounds (legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means to achieve it (legal advantage). The Constitutional Court recognises that the amendment made by Act No. 119 / 2007 Coll. marked substantial changes in the access of persons to classified information of foreign power without a valid certificate of a natural person, but these changes do not in any way contradict the adequacy of the resources used in relation to the legally required level of protection of the interests of the State and the constitutional principle of compliance with the obligations arising from international law for the Czech Republic. According to the established case law of the European Court of Human Rights, the purpose of Article 6 (1) of the Convention is not to create new substantive rights lacking legal basis in the State concerned, but to provide procedural protection for the rights conferred by national law, which alone does not provide for the rights and obligations afforded by the laws of the Contracting States to be specific in substance. In the light of the third principle of proportionality (in the narrowest sense), it can be concluded that, in the present case, the measures selected are proportionate in relation to the intended objective.

37. The Constitutional Court has not found that Article 58 (6) of Law No 412 / 2005 Coll. infringes the principle of proportionality in respect of all the three components under consideration, nor that its application would result in abuse of the right protected by constitutional order. The Constitutional Court notes that the contested provision pursues a legitimate objective of protecting classified information from outside power, namely the protection of the interests of the State and of international interests in the security field.

38. On the basis of the indicated aspects of the constitutional assessment of the issue in the absence of a contradiction of the contested provision with the constitutional order of the Czech Republic, the Constitutional Court concluded that the interpretation prescribed by the appellant could not be accepted. The repeal of the contested provision would not in any way open up the scope for the disclosure of classified information to NATO, which would continue to be protected by the international treaty in force and the resulting commitment under Article 1 (2) of the Constitution. It cannot be said that the principles of fair trial and presumption of innocence also apply to the present case, so that the law enforcement authorities cannot use as evidence anything to which the defence would be denied, which, by the way, also applies to the court itself, for which, in the present case, even the provisions of Section 58 (1) (e) of Act No 412 / 2005 Coll. The international commitment under the Information Security Agreement takes precedence, and it is up to the law enforcement authorities to be able to conduct criminal proceedings while maintaining them or to refrain from such proceedings.

39. The Constitutional Court admits that the application of the contested provision may, in specific cases, give rise to certain problems and doubts, as was the case with the appellant, but it cannot be omitted that, in order to ensure a fair trial, the defendant must be taken into account in the course of the criminal proceedings in order not to restrict his procedural right of defence. In a situation where the right of the accused to acquaint himself with documentary evidence relates to the evidence contained in the file, it is the law enforcement authorities which decide, taking into account the nature and gravity of the offence, the evidence left on the file, which they exclude or implement and whether they evaluate as applicable to the proceedings (Article 2 (5) of the Code of Criminal Procedure), so as not to conflict with the relevant provisions of the Code of Criminal Procedure and to provide the defendant with the protection of all his procedural rights.

40. In summary of the above, the Constitutional Court rejected the application for annulment of § 58 (6) of Law No 412 / 2005 Coll. pursuant to § 70 (2) of the Law on the Constitutional Court.