The Constitutional Court found no 322 / 2001 Coll.
The Constitutional Court found of 12 July 2001 on proposals to repeal certain provisions of Act No. 148 / 1998 Coll., on the Protection of classified information and amending certain laws, as amended
Valid
The Constitutional Tribunal found
Text versions:
07.09.2001
322
FIND
The Constitutional Court
On behalf of the Czech Republic
On 12 July 2001, the Constitutional Court decided in plenary on the proposals of Mgr. J. T. and JUDr. V. R. for the annulment of certain provisions of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended by Act No. 164 / 1999 Coll., Act No. 18 / 2000 Coll., Act No. 29 / 2000 Coll., Act No. 30 / 2000 Coll., Act No. 363 / 2000 Coll. and Act No. 60 / 2001 Coll.,
as follows:
On 30 June 2002, in Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, the provisions of Paragraph 23 (2) in the word "in particular ', the provisions of the third sentence of § 36 (3) and the provisions of § 73 (2) shall be deleted.
The proposal for the annulment of the sentence of the first provision of § 73 paragraph 1 of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, is rejected.
Reasons
By decision of 24.11.1999 No 780 / 1999-BIS-1, the Director of the Security Information Service (BIS) reviewed the decision of the Deputy Director of the BIS of 4.11.1999, No 242-13 / 1999-BIS-37, by which the complainant Mgr. J. T. was not given a certificate of contact with classified facts pursuant to § 36 (3) of Act No 148 / 1998 Coll., on the protection of classified facts and on the amendment of certain laws, and found that the contested decision was justified and in accordance with the law. That's why he rejected the complaint against him.
In a constitutional complaint, the complainant Mgr. J. T. submits in particular that the contested decisions infringed Article 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). These decisions were given as a result of the heading of the cited provisions of Act No. 148 / 1998 Coll., and therefore the complainant seeks their annulment because the word "in particular" mentioned in the provision of § 23 (2) of Act No. 148 / 1998 Coll. is contrary to Article 26 (2) of the Charter and the provision of § 73 (2) of Act No. 148 / 1998 Coll. is contrary to Article 4 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 36 (2) of the Charter.
The complainant submits that, as a result of the contested decisions, he has lost the opportunity to pursue the profession which he has freely chosen. According to the provisions of Paragraph 17 (1) of Act No 148 / 1998 Coll., a natural person may acquaint himself with classified information if those conditions are met, one of which is the issue of a certificate. Compliance with these conditions is therefore a prerequisite for the pursuit of such a profession where it is necessary to be familiar with classified information. Among the conditions for issuing the certificate [§ 18 (f) of Act No. 148 / 1998 Coll.] is that it is a person of security reliability and is not considered to be a person of security security risk (§ 23 of Act No. 148 / 1998 Coll.). Paragraph 2 of that provision sets out a demonstration list of security risks which "allows the Office or the Intelligence Service to be fully extended, without limitation, by essentially any other activity or fact '. The complainant considers the formulation of some security risks and the concept of" interest of the Czech Republic "for the purposes of Act No. 148 / 1998 Coll. (§ 2 (1)) to be problematic. The decision to issue or not to issue a certificate is thus at the same time a decision on access to the profession and Article 23 (2) of Law No 148 / 1998 Coll. is contrary to Article 26 (2) of the Charter, according to which the law may lay down conditions and restrictions for the pursuit of certain professions or activities. The contested provision explicitly envisages the existence of additional conditions which are not expressly enshrined in the law.
Paragraph 73 (2) of Law No 148 / 1998 Coll. excludes a decision under that law (with the exception of a decision on fines) from judicial review. In this regard, the complainant sees a contradiction with Article 36 (2) of the Charter, since, under that provision, the review of decisions relating to fundamental rights and freedoms must not be excluded from the jurisdiction of the Court, while the right to freedom of employment is certainly among the fundamental rights. Therefore, the contested provision is also contrary to Article 4 of the Constitution, according to which fundamental rights and freedoms are protected by judicial authority.
For all the above reasons, the complainant Mgr. J. T. proposes to repeal those decisions in the header, to repeal the word "in particular 'in Paragraph 23 (2) and to repeal the provision of § 73 (2) of Act No 148 / 1998 Coll.
By notification of 5.9.2000 No 896 / 2000-NBÚ / PFO-1, the Director of the National Security Office (hereinafter referred to as the "NBÚ ') informed the complainant JUDr. V. R. that, in accordance with the provision of § 36 (3) of Act No. 148 / 1998 Coll. a level III security clearance was carried out on his person, which was verified that he did not meet the conditions for certification under § 18 of Act No. 148 / 1998 Coll. At the end of that notification, the complainant was informed that" there may be a complaint within the meaning of Article 75 (1) of the Law which must be lodged within 15 days of the date of receipt of the notification'.
By decision of 19.10.2000 No 896 / 2000- NBÚ / PFO-1, the Director of the NBU examined the above notification and rejected the complainant's complaint against it. In the reasons for this decision, he stated that the security clearance was initiated on 22.6.1999 and 5.9.2000, the complainant was notified of non-compliance with the conditions for certification. Since the progress and evaluation of the security clearance were reported to be consistent with the condition established, he rejected the complaint.
In the constitutional complaint, the complainant JUDr. V. R. first of all draws attention to the fact that the two contested decisions are signed by the Director of the NSA, which he considers absurd because the notification was communicated to him by the same person as the one who decided on his complaint as the appeal body. The complainant is said to have been in the administration since 1982 and has been a person intended for contact with state secrets for many years before the Act No. 148 / 1998 Coll. was issued. He is not aware that there are any safety risks in his life within the meaning of the provisions of § 23 of Act No. 148 / 1998 Coll. The complainant worked as Director of the Department of International Financial Relations of the Ministry of Finance and was removed with effect from 25 November 2000 due to the failure to issue a security certificate. The complainant submits that, in addition to not being able to carry out his previous employment, he is damaged on a human basis, even if he does not know the reason for which the certificate in question was not issued to him.
The complainant considers that Paragraph 36 (3) of Act No. 148 / 1998 Coll., according to which the NSA is not obliged to state the reasons for the non-certification, is contrary to Article 36 of the Charter. The complainant is thus deprived of the right to any legal protection because he does not know why his rights have been decided negatively. The dispute with Article 36 of the Charter is also seen by the complainant in the provision of § 73 of Act No. 148 / 1998 Coll., according to which decisions under this Act are not covered by the administrative order and there is no possibility of review by the court. The absence of a certificate has allegedly infringed its right to freedom of choice under Article 26 (1) of the Charter and, in this situation, the application of Article 36 (2) of the Charter cannot be excluded. The procedure is also alleged to be contrary to Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). The complainant is of the opinion that, where a security clearance is a condition for the pursuit of a profession, a legal right is given to those who are denied such a profession solely because of a breach of the terms of the security certificate in order to be aware of the reasons for its non-publication. At the same time, it must have the possibility of judicial review whether or not these reasons are given and whether the competent authority has taken decisions objectively and fairly in its case.
Therefore, the complainant JUDr. V. R. proposes that those decisions and the contested provisions of Law No 148 / 1998 Coll. be annulled.
1. In accordance with the provisions of Section 74 of Act No 182 / 1993 Coll., on the Constitutional Court, a motion for the annulment of a law or other law or any provision thereof may be filed together with a constitutional complaint where, according to the complainant's claim, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or to another law, if any.
Since the complainant Mgr. J. T., together with the constitutional complaint, filed a motion to abolish the word "in particular 'in Paragraph 23 (2) and a proposal to abolish the provision of Paragraph 73 (2), that the complainant JUDr. V. R. lodged a motion to abolish the third sentence of Paragraph 36 (3), to abolish the sentence of the first provision of Section 73 (1) and Section 73 (2) of Law No 148 / 1998 Coll. and that, in the view of the Constitutional Court, the proceedings concerning the constitutional complaint Mgr. J. T. and the Constitutional Court of the Constitutional Tribunal under the provisions of Section 78 (1) of Law 182 / 1993 Coll. ECR 738 / 2000 of 16. The complainant's proposal by JUDr. V. R. to abolish the provision of § 73 paragraph 2 of Act No. 148 / 1998 Coll. By order of 10.1.2001 sp. zn. I. ÚS 738 / 2000, the Constitutional Court rejected the litispendence (§ 35 (2) of Act No 182 / 1993 Coll.), since the Constitutional Court has already acted on the annulment of the same provision in the light of the application by Mgr. J. T..
2. The BIS stated in its observations on the proposal by Mgr. J. T. that this complainant did not use up all the procedural means to protect its rights before the decision to release him, since it had lodged a constitutional complaint before the decision to release him, but that objection was not justified. In the present case, the constitutional complaint is not directed against the decision to discharge the service, but against the decision not to issue a certificate of contact with classified information and against the decisions rejecting the decision. Although it cannot be overlooked that the decision to release the complainant from the service of a BIS member could in fact have been made as a result of the issuing of the contested decisions not to issue a certificate of non-disclosure, it is necessary to respect the fact that these are two separate procedures. If the complainant Mgr. J. T. lodged a constitutional complaint against a decision which could no longer be challenged by any procedural means to protect his rights, that constitutional complaint is admissible under Law No 182 / 1993 Coll. and it cannot be successfully argued that the complainant did not use up all procedural means to protect his rights if he had lodged a constitutional complaint before the second, de jure separate, procedure for dismissal. Therefore, the Judge-Rapporteur did not reject the constitutional complaint of Mgr. J. T. for that reason [§ 43 (1) (e) and contrario and § 75 (1) of Act No. 182 / 1993 Coll., as amended].
3. The two proposals for the annulment of the cited provisions of Law No 148 / 1998 Coll. were referred to the full court of the Constitutional Court for a decision under Article 87 (1) (a) of the Constitution. However, since the two proposals relate to the same law and therefore relate in substance to each other, the Constitutional Court found that, in the interests of the economy of the proceedings, there is a reason for bringing the two cases together pursuant to § 112 (1) of the Civil Code (hereinafter referred to as "o.s. ') in conjunction with § 63 of Act No 182 / 1993 Coll. Therefore, by order of 6 February 2001, Pl. ÚS 11 / 2000, Pl. ÚS 3 / 01 brought the two cases together for joint proceedings and decided that this joint proceedings would continue to be conducted under the Pl. ÚS 11 / 2000.
The parties to the proceedings, which are pursuant to § 69 (1) of Act No. 182 / 1993 Coll., as amended, the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, have commented on the application for annulment of the provisions cited.
The Chamber of Deputies, in its observations on the proposal by Mgr. J. T., stated that by selecting a demonstrative list of possible security risks, the legislator had dealt with the difficult task of generalising possible forms of security-risk activities "so that they would not be too casual and, on the other hand, too general and vague." Their interpretation belongs to the competent authorities of the state administration. It can be said that these possibilities of interpretation are too broad and therefore also the government and parliamentary draft amendment of Act No. 148 / 1998 Coll., which also modifies the provisions of § 23. However, as regards the provisions of Paragraph 73 (2) of Act No 148 / 1998 Coll. the Chamber of Deputies does not agree with the proposal, since a judicial review in these cases is not possible because it would "undermine the overall meaning and concept of the law in a situation where a matter constituting a classified fact subject to a special treatment regime would be the subject of judicial proceedings'. According to the explanatory memorandum to this Act, the provisions of the Administrative Code apply only to fines proceedings, including the possibility of judicial review. For other measures and acts, the administrative rules and judicial review shall be excluded in the light of the fact that there is no legal claim to the disclosure of classified information and the security of the State.
On the proposal of JUDr. V. R. to abolish the third sentence of § 36 paragraph 3 and § 73 paragraph 1 of Act No. 148 / 1998 Coll. The Chamber of Deputies stated that the alleged contradiction with Article 26 (1) of the Charter was not established because, pursuant to paragraph 2 of that Article, the law may lay down conditions and restrictions for the pursuit of certain professions or activities. Since, in the present case, the right of the applicant, JUDr. V. R., to choose the profession has not been infringed, "there is no prohibition of the review of a decision concerning fundamental rights and freedoms under the Charter '. The fact that the administrative order and judicial review apply only to proceedings on fines and not to other measures and acts is allegedly due to the absence of a legal claim to the disclosure of classified information, as well as to the security of the State.
Law No 148 / 1998 Coll. was approved by the necessary majority of Members of the legislature, the law was signed by the relevant constitutional authorities and was duly declared in the Collection of Laws.
Finally, the Chamber of Deputies states that it is up to the Constitutional Court to examine their constitutionality in the context of the proposal for the annulment of the provisions cited and to give a decision thereon.
In his observations on the proposal of Mgr. J. T., the Senate stated that it dealt with the Act at its 4th session of the first parliamentary term on 11.6.1998 when the Government expressed an interest in its rapid adoption in order to fulfil the necessary conditions for the exchange of classified information with NATO and EU partners. In support of the adoption of this Act, the Senate Government Representative stated that "the price of this Act is higher than its partial shortcomings." The design of the law in question in matters of the verification and certification of security reliability of persons is said to be based on the principle that doubt proves to the detriment of a positive examination of a person, and the justification of decisions on the matters in question, including the procedure by which they are brought up, is classified. The disclosure of classified information or the performance of a public service function associated with it is not a right of a person or specifically a right of free choice of profession. The demonstration list of safety risks according to the provisions of § 23 paragraph 2 of Act No. 148 / 1998 Coll. The Senate stated that any other dangerous fact not directly named by law cannot be recognised as a risk solely on the basis of "coincidences or odds," since its application is "bound by the concept of security risk," the content of which is imported from the types of risks explicitly mentioned.
On the proposal of JUDr. V. R. to abolish the third sentence of the provisions of Sections 36 (3) and 73 (1) of the first sentence of Act No. 148 / 1998 Coll. The Senate further stated that the Government's explanatory report on these provisions was based on the position that access to classified information was not a citizen's right. On the other hand, the pursuit of a profession or activity requiring the disclosure of classified information may be subject by law to the acquisition of a special permit, which is mainly due to the State's security interests. These are also based on the exclusion of general rules of administrative procedure and the exclusion of judicial review. This argument was said to have been accepted by the Senate in the debate on the matter by a majority, but it also expressed concern about the failure of the 'secret' decision making. In the context of the discussion of the amendment to Act No. 148 / 1998 Coll., the issue of the lack of protection of persons against the possibility of an error (subjective, disproportionate, affected) of the NSA decision not to issue a certificate, which may already be given by the definition of safety risks in accordance with the provisions of § 23 of Act No. 148 / 1998 Coll. The debate indicated that the solution should consist not of a typical judicial review, but of a "remedy 'of the Special Independent Commission (Tribunal) of" trusted experts, while maintaining the classified nature of the procedure and the justification for the decision'. The Senate adopted an accompanying resolution on the amendment to Act No 148 / 1998 Coll. in which it asks the Government to propose, in the future forthcoming amendment to Act No 148 / 1998 Coll., a solution to the problem of the lack of protection of persons against the possibility of a defective decision by the NSA on the non-issuance of a certificate or confirmation of the authorisation to acquaint itself with classified information, or against the decision to terminate the validity of that certificate because the person has ceased to fulfil the conditions for their publication, "i.e. the lack of possibility of recourse to an independent and impartial institution in the matter." This resolution was adopted by a majority of 59 votes in favour when 68 senators took part and no vote was against it. Although the Senate returned to the Chamber of Deputies both the draft of the Act cited and its amendment with amendments, it "did not intervene directly in the issue of an independent review of the NSA decision, knowing that it was a question requiring more extensive preparation of a solution that was more in line with the executive tools'.
Pursuant to Articles 48 (2) and 49 (1) of Law 182 / 1993, the Constitutional Court also requested comments on the BIS proposal, the Ministry of Interior and the NSA.
In its observations on the proposal, the BIS stated in particular that the use of the word 'in particular' in the introductory wording of Article 23 (2) of Law No 148 / 1998 Coll. constitutes a more general problem in whether the legal provision is to be so rigid as to 'not to allow any interpretation' or to be so "free 'that the applicant authorities can work with it, and it seems necessary to find a compromise. If that list of risks were to be taxative," then it would necessarily have to be almost without end, and the practice would certainly have discovered other risks that were not covered by the law. "Thus, the law would allegedly lose its fundamental meaning, i.e. it would stop protecting classified facts. Demonstrative lists of security risks are said to allow" to identify as a security risk something the law would otherwise forget. "It is therefore necessary to base the concept of" safety risk', which is to determine the intensity of the action of the external or internal environment, including the phenomena and processes in progress, which significantly negatively, realistically or potentially affect the protected interest, and then apply it to each particular case. Those who apply the law must have some freedom of assessment, "which, however, is limited by the spirit, by the concept of the law as an overall adjustment to a certain area of relationships." The BIS also argues that the concept of "in particular" is a term of frequency in the legal order of the Czech Republic and its launch wherever it occurs would cause considerable problems.
As regards the alleged infringement of Article 26 of the Charter (right to freedom of choice of profession), the BIS states that that right does not imply that the choice of profession must be carried out with a guaranteed result, but only that the citizen must not be discriminated against when choosing the profession. In any event, however, it is not contrary to this provision of the Charter if the law lays down conditions for certain professions which must be fulfilled; This is also the case with Act No. 148 / 1998 Coll., according to which the relevant conditions are laid down for certain working positions in which classified information must be dealt with. In a particular case, the complainant was said to have chosen his profession freely, but did not fulfil the legal requirement for his performance.
With regard to the possible judicial review, the BIS considers that its exclusion does not eliminate the right to freedom of choice of profession, because it does not always have to result in the absence of a certificate of contact with classified information being impossible to pursue a particular profession. The decision of the State authority is therefore not to infringe the freedom of choice of profession in the present case, but it is concluded that the person concerned does not fulfil the legal conditions for the issue of a classified information certificate, which implies that he cannot pursue a profession in which he would necessarily have to familiarise himself with classified information. The exclusion of judicial review is based on the idea that the State's interest is a protected interest. Only the executive authority can therefore decide who to certify and designate to contact what is protected in the interests of the State. This body may not be an independent court which "cannot order a State to require a natural person to be familiar with classified information if the person concerned by the protected interest (State represented by the state authority of executive power) does not intend to disclose its secrets to such person '. That would contradict the principle of division of power. The judicial review in these cases could, from a practical point of view, lead to a very lengthy hearing of legal disputes between an employee and an employer, as well as the mistrust of allies (e.g. NATO)," in the interests of which we have undertaken to protect certain secrets', and ultimately to a threat to the security of the state. Therefore, the BIS considers that, in order to rule out a possible vote by the directors of intelligence services, a review of their decision by a special authority set up by or directly by the Committee of the Government of Intelligence could, if necessary, be used, but this is a legislative subject for the authorities of power.
The BIS finally states that the complainant, Mgr. J. T., lodged a constitutional complaint and did not use up all the procedural means to protect his rights, since he lodged a constitutional complaint before the decision to release him was taken, which took place only on 13.7.2000.
The Ministry of the Interior notes in its observations that, during the reminder procedure on the draft law on the protection of classified information, it applied comments also to the effect that the conditions of security reliability must be established in a taxic, unequivocal and differentiated manner, depending on the degree of security clearance, since, because of the requirement of legal certainty, the person examined should be identified as security unreliable only for a statutory reason. It was also alleged that it was opposed to excluding judicial review. On these comments, the NSA stated that it would only be applied when processing the so-called "large" amendment of the Act in 2000.
The NSA stated on the proposal of Mgr. J. T. that the current wording of the provision of Article 23 of Law No 148 / 1998 Coll. is not contrary to Article 26 (2) of the Charter. In fact, free access to the choice of profession can be restricted by legislation and in practice this is the case for a wide range of professions, and the specific implementation and assessment of professional competence must be carried out by the competent authority. In the present case, however, the issue or not of the certificate is not a relationship comparable to the relationship between the employee and the employer, because the BIS in these cases follows the lex specialis and not the provisions of § 22 of Act No. 154 / 1994 Coll., on the Security Information Service. The relationship subject to the regulations on service will be only when the intelligence service assesses the outcome of the previous evaluation process. The security clearance itself consists in a concrete evaluation of the facts of a person in terms of the risks to the interests of the Czech Republic and the interests of foreign powers that the Czech Republic has undertaken, always taking into account the specific work or service classification and the heading of classified information that the person should be exposed to. It is from the point of view of these risks that a demonstration and not a tax adjustment are needed.
On the application for annulment of the provision of § 73 (2) of Act No. 148 / 1998 Coll., the NSA states that the only possibility of possible judicial review would be the procedure under Part Five of the Act, i.e. in the context of the administrative judiciary (§ 244 (3) and § 245 (2) CS). It would be said to be a "partial 'reviewability in which the court would assess whether the specific decisions of the public authorities were not out of the limits and aspects laid down by law. Such a decision could only be challenged for a breach of the principle of material truth imposing on the administrative authority a precise and complete determination of the actual situation of the case, so that it would also be the duty of the court to examine whether the administrative authority provided appropriate evidence for the decision. The judicial control in the field should not interfere with the veracity of the act because" it is not and cannot be a matter for the court to rule on the substance of the case, namely that the person concerned is or is not entitled to contact classified information at a specific level of secrecy'. Therefore, the judicial review would be limited to establishing whether the facts of the case were complete and true, while "the assessment of safety risks is no longer subject to justice '.
Access to classified information (i.e. the issue of the relevant certificate) cannot be granted any legal entitlement. The determination of personal qualifications must be decided by the employer and the objectivity of this assessment is also guaranteed by the procedure provided for in Section 75 of Act No. 148 / 1998 Coll.
The NSA also draws attention to the fact that facts underlying the issue or non-issuance of certificates may in itself contain classified facts and data of a strictly personal nature, including on third parties. "A judicial review of whether such data collected may be considered sufficient to justify a decision to issue or not to issue certificates would infringe the rights and legitimate interests of those third parties irreparably." In the case of judicial review, the court would also have to examine the procedure of intelligence services and methods which are themselves subject to certain levels of secrecy. This would again lead to unintended disclosure and, therefore, to a threat to sources of information, to disclosure of forms and methods of work of the intelligence service, which could lead to irreparable infringements of third party rights, in particular where the non-certification of the person concerned is directly linked to the findings found on that third party. Since the facts of a different degree of secrecy would be the subject of judicial review, any legal counsel before the hearing would have to be the subject of a security clearance itself if it were not a person not covered by this obligation under the law.
The NSA considers that any judicial review in this area would be self-effective because it would not lead to the protection of the interests of the person concerned. If it has not been certified, it cannot be included in the relevant post of employment or service and ultimately cannot pursue a specific profession, or it must be assigned to another job. This situation allegedly constitutes a fully legal instrument of the State to protect classified information and cannot be regarded as a violation of the Constitution or the Charter. Any judicial review may only lead to a re-conduct of a security clearance, the outcome of which is highly uncertain and "cannot provide any assurance of a previous or requested job or job or service '. The certificate itself cannot be separated from the designation of the person concerned by the statutory authority of the competent institution and not from the safety clearance authority.
Finally, the NSA states that access to classified information cannot be regarded as a fundamental human right and that the absence of judicial review in such cases "may be considered to exceed the framework laid down in § 248 (1) and (2), in particular (h) o. s., but such an excerpt is justified and required," since the priority of the law is the protection of the relevant classified information, which is important both in the area of national and international.
On the proposal of JUDr. V. R. to abolish the third sentence of the provision of § 36 paragraph 3 of Act No. 148 / 1998 Coll. The NSA stated that when assessing whether or not a certificate will be issued to the applicant, it is a specific assessment of the case on the basis of the factual findings of a specific rated person (or persons close to) as well as the environment in which it moves. The evaluation of the knowledge obtained shall be carried out in the light of the specific work or service classification and the specific heading of classified information to be brought into contact with that person, with safety protection being the priority in the evaluation. There is also a risk of a security threat if there is doubt about the security reliability of the person being examined, which may allegedly result from, for example, a lack of openness, non-credibility, etc., in the provision of data. In such a case, the consideration of the safety clearance authority must be decisive. The NSA also points out that even the specific facts underlying the decision in this case may contain classified information or personal data, including on third parties, and could therefore have serious interference with their rights when stating the reasons for not issuing certificates. Moreover, specific findings are often the result of the procedures of the intelligence services and of the methods of reporting which themselves are subject to certain levels of secrecy, and therefore it cannot be accepted that sources of information and disclosure of the forms and methods of the work of the intelligence services are at risk. Therefore, the NSA considers that the provision of Act No. 148 / 1998 Coll. is not unconstitutional and constitutes "an entirely legal part of the legal instruments which serve to ensure the protection of classified information and thus the security of the state '.
On the proposal by JUDr. V. R. for the annulment of the sentence of the first provision § 73 paragraph 1 of Act No. 148 / 1998 Coll. The NSA stated that the legal order of the Czech Republic knows a number of cases where a special law excludes the application of the administrative order and a number of procedures of public authorities are outside the regulation contained in the administrative order. "The reason for this is in particular that their specificities are conditional on the cases at issue which prevent the application of the administrative order as a whole '. The area of the protection of classified information is said to be a specific issue - given the priority of this protection - and it is said that this must be respected.
Even before the Constitutional Court dealt with the proposal formically, it focused on the question of whether all the assumptions for such discussion were given formal.
The Constitutional Court found that, in the present case, the reason for initiating the procedure for the so-called specific control of standards under § 64 (1) (d), in conjunction with § 74 of Law No 182 / 1993 Coll. was given, since the contested legal provisions were actually applied by the competent authorities of the State in the cases in question, i.e. the application of which led to both constitutional complaints.
The Constitutional Court also dealt with the question whether Law No 148 / 1998 Coll. was adopted and issued within the limits of the Constitution established competence and by the constitutionally prescribed manner pursuant to the provisions of § 68 (2) of Act No 182 / 1993 Coll. In this respect, he found that the Chamber of Deputies approved Act No. 148 / 1998 at its meeting held on 20 May 1998, when of 174 Members present, 140 Members voted against and 33 voted against. It was further demonstrated from the short-term report of the 4th Senate meeting held on 11, 12 and 18 June 1998 that Law No 148 / 1998 Coll. was approved by a majority of the votes of 51 Senators (for) and 5 Senators voted against it in the presence of 73 Senators.
The Constitutional Court therefore notes that Law No 148 / 1998 Coll. has been properly adopted and issued by the Parliament of the Czech Republic within the limits of its Constitution of the defined competence and in a constitutionally prescribed manner pursuant to Article 68 (2) of Act No 182 / 1993 Coll. After the adoption of Act No. 148 / 1998 Coll. was signed by the President of the Republic and properly published in the amount of 52 Collection of Acts of 2 July 1998. This Law became effective on the first day of the fourth calendar month following its publication, i.e. on 1 November 1998.
The Constitutional Court also found that, following the submission of constitutional complaints linked to the proposals for the annulment of certain provisions of Act No. 148 / 1998 Coll. the Act was amended by Laws No. 363 / 2000 Coll. and No. 60 / 2001 Coll. (Note: earlier amendments, which had taken effect before the submission of the constitutional complaint, were cited in the header). However, since the amendment of the contested provisions of Law No 148 / 1998 Coll. did not affect, the contested provisions did not expire before the termination of the proceedings before the Constitutional Court, so that no reason was given for the termination of the procedure under Article 67 of Law No 182 / 1993 Coll.
When considering whether the contested provisions of Act No 148 / 1998 Coll. are constitutionally conformal, the Constitutional Court based in particular on the following ideas of a more general nature.
A. The purpose of Act No. 148 / 1998 Coll. is to define the facts which must be classified in the interests of the Czech Republic, the way in which they are protected, the powers and powers of the authorities of the State in the exercise of State administration in the field of the protection of classified information, the obligations of the authorities of the State, the rights and obligations of natural and legal persons and the responsibility for the breach of statutory obligations (§ 1). This means that even when assessing the various provisions and legal institutes contained in this law, it is necessary to respect their purpose and importance in terms of the purpose and meaning of this law as a whole, not only in isolation.
B. In some of its earlier decisions, the Constitutional Court has repeatedly held that individual fundamental rights need to be assessed according to the principle of balance, since, in a particular case, the discharge of one fundamental right could also result in a simultaneous breach of the fundamental right of another (typically the relationship between the right to the protection of personality and the right to freedom of expression). The principle of the mutual balance of certain fundamental rights and freedoms reflects the need for a balance of individual and collective interests, between which there is (or may exist) potential or open tension, and which may reflect the accentuation of the protection of one or the other fundamental right. In the present case, the Constitutional Court also found that there is a relationship between a certain tension between the interest of an individual on the one hand (e.g. his right to protection against unauthorised interference in private and family life and the right to protection against the unlawful collection, disclosure or other misuse of data on his or her person under Article 10 (2) and (3) of the Charter) and the interest of the State on the other hand. This interest of the Czech Republic is defined in Article 2 (1) of Act No 148 / 1998 Coll. as "the preservation of constitutionality, sovereignty, territorial integrity, the safeguarding of state defence, public security, the protection of important economic and political interests, the rights and freedoms of natural and legal persons and the protection of life or health of natural persons."
C. The Constitutional Court takes the view that the conflict between the two values cannot naturally be abstract from the security interests of the State which must be respected. It is clear that the above-defined state interest represents an existential interest which legitimises certain restrictions on the private sphere of an individual; After all, as a result, it is a state that protects the status of an individual. If the Constitutional Court has ruled that the Constitution of the Modern Democratic Rule of Law constitutes a social agreement based on a minimum value and institutional consensus (cf. Sp. zn. Pl. ÚS 33 / 97, Constitutional Court of the Czech Republic: Collection of finds and resolutions, p. 9, p. 407), this concept can be understood, among other things, as regards the interest of the State and its protected persons in its own safe existence; in order to protect this interest, the State must have the relevant instruments. One of them is the area of protecting classified information.
D. From the idea that the security interests of the State should be respected, however, it cannot be concluded that the State can behave arbitrarily towards its citizens and that it can approach the restriction of fundamental rights beyond what is strictly necessary. Here too, the general principles enshrined in the Charter are that everyone can do what is not prohibited by law, and no one must be forced to do what the law does not impose (Article 2 (3)), that in violation of the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated and that such restrictions must not be misused for purposes other than those for which they have been established (Article 4 (4)). This means that, when restricting fundamental rights and freedoms, the State must respect both the formal conditions of the restriction (i.e. "the law ') and the material conditions (i.e. the substance and meaning of fundamental rights).
E. The concept of Act No. 148 / 1998 Coll. is based on the principle that only a natural person who necessarily needs it for the performance of his activities and has been granted a certificate or security authorisation (unless otherwise provided for by this Act) and is a designated person. Compliance with these conditions is a prerequisite for the pursuit of an occupation where it is necessary to familiarize yourself with classified information (§ 17). This means that access to classified information is only possible by the State to a very limited number of persons, always according to a functional criterion, that is to say only if the person concerned needs it to carry out his work. In view of the importance of classified information, it is therefore natural that the law imposes certain requirements on such persons that they must fulfil. In other words, limiting access to classified information to persons who fulfil the statutory conditions, the State seeks (and must seek) to protect its above-defined interests. This objective is considered by the Constitutional Court to be fully legitimate.
F. It can therefore certainly be concluded that the establishment of adequate legal requirements for persons who have access to classified information cannot be considered unconstitutional. As, for example, he has judged - in a somewhat different context - the European Court of Human Rights ("the Court of First Instance '), the employees of the State hold part of the sovereignty of a State which has a" legitimate interest in demanding a special bond of trust and loyalty from these employees'. Therefore, in the view of the Court of First Instance, 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 the 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. Pellegrin v France, Overview of the European Court of Human Rights judgments No 1 / 2000, p. 7 et seq.).
G. However, the Court of First Instance has also repeatedly held that national law must provide certain protection against arbitrary interference by state authorities, with the risk of insolence arising particularly clearly where a power of executive is exercised in secret. "The law would be against the prerogative of the law if the discretion given by the executive authority had no limit. Therefore, the law must define the scope and conditions of the exercise of such powers sufficiently clearly, having regard to the legitimate objective pursued, in order to provide individuals with adequate protection against insolence '(see Malone's judgment against the United Kingdom, cited in Rotar's judgment against Romania, Overview of the European Court of Human Rights judgments No 5 / 2000, p. 211; Amann v Switzerland, cited above, No 3 / 2000, p. 128).
H. In interpreting Article 26 of the Charter, the infringement of which the appellants rely in particular, it must be borne in mind that, pursuant to Article 41 (1): The Charter may be invoked "only within the limits of the laws implementing those provisions." The legislature therefore has a relatively wide scope for a specific definition of the content and manner of implementation of this Article. However, even in this case it is bound by constitutional maximum, the main of which is Article 4 (4) of the Charter, according to which "When applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. Such restrictions shall not be misused for purposes other than those for which they have been established. '; In other words, even the relative freedom of the legislature resulting from Article 41 (1) cannot lead to a breach by law of the substance and meaning of Article 26 of the Charter guaranteeing to any person the right to freedom of choice of the profession and to the preparation thereof, as well as the right to engage and pursue other economic activities.
The Constitutional Court was also guided by these more general considerations when assessing the constitutionality of the contested provisions of Act No 148 / 1998 Coll.
On the proposal of Mgr. J. T. to abolish part of the provision of Paragraph 23 (2) of Law No 148 / 1998 Coll. in the word "in particular" the Constitutional Court states the following:
1. the text of Paragraph 23 (2), as in force at the time of the contested decision, reads:
"The security risk shall be considered in particular:
(a) action against the interests of the Czech Republic and against the interests which the Czech Republic has undertaken to protect;
(b) activities aimed at the suppression of human rights or freedoms and, where appropriate, the promotion of such activities;
(c) contact with a person who, after 1 January 1990, has been or has been active against the interests of the Czech Republic, possibly in the environment of persons who are engaged in such an activity;
(d) behaviour and manner of life which may affect the integrity, credibility or ability to conceal facts;
(e) a fact which may lead to extortion;
(f) final convictions not listed in the extract from the Register of Penalties,
(g) ongoing prosecution; or
(h) use of another identity. "
The text of the provision of § 23 paragraph 2, as amended by Act No. 363 / 2000 Coll., reads:
"The security risk shall be considered in particular:
(a) action against the interests of the Czech Republic and against the interests which the Czech Republic has undertaken to protect;
(b) activities aimed at the suppression of human rights or freedoms and, where appropriate, the promotion of such activities;
(c) contact with a person who, after 1 January 1990, has been or has been active against the interests of the Czech Republic, possibly in the environment of persons who are engaged in such an activity;
(d) behaviour and manner of life which may affect the integrity, credibility or ability to conceal facts;
(e) a fact which may give rise to extortion; or
(f) use of another identity. "
2. It is clear from the above that the cited amendment to the Act on the Protection of classified information did not change the contested word "in particular 'in Article 23 (2) of Law No 148 / 1998 Coll. in any way, and that the fundamental change did not take place from the point of view of the content of that provision or from the point of view of its context. The provision cited is essentially a list of individual safety risks. The meaning of the word' in particular 'in the introductory phrase of this provision clearly means that the listing of individual safety risks is not a taxative but a demonstration. Therefore, the complainant Mgr. J. T. contends that, in view of this word, the law expressly foresees the existence of additional conditions which are not expressly enshrined in the law.
3. The Constitutional Court notes that one of the fundamental principles that legislation in a democratic rule of law must fulfil under Article 1 of the Constitution is the principle of predictability of the law. In other words, only a law whose consequences are clearly predictable meets the conditions laid down for the functioning of a materially understood democratic rule of law. However, this is not the case here.
The Constitutional Court is aware that, in view of the situation, the legislator had a difficult task to generalise possible forms of activities that are security-sensitive in such a way that, on the one hand, they were not too case-by-case, but that on the other hand they were not too general and vague (cf. the Chamber of Deputies' comments cited and to some extent BIS). The legal definition of security risks must therefore, without doubt, be general enough to allow for the due consideration of the competent authority and, in particular, the possible subordination of a particular case to a particular security risk. On the other hand, the fact that the purpose of the security clearance is to determine whether the person under investigation actually presents any of the security risks. It is therefore clear that the definition of security risks is directly linked to the focus of the security clearance and, in particular, its scope, the implementation of which constitutes an interference with the personality rights under Article 10 of the Charter. Therefore, it is not possible to accept such a legal regulation which allows a verification of the existence of any, even alleged, and not of the real security risk not mentioned in the law.
The Constitutional Court respects the fact that the definition of security risks must be very general, since it is clear that the importance of individual specific security risks may change over time and that it is even conceivable that certain security risks will appear completely new and, on the contrary, some of their importance will go back to the background. The legislature must take into account this certain dynamics of the processes mentioned and therefore the general nature of the definition of safety risks is fully appropriate and in line with the State's interest. At the same time, however, this interest of the State cannot go so far as to legitimise the creation of an area for security risks, which would be constituted not by legislative power, but only by the competent authorities falling within the power of executive by their nature. In other words, only the legal general definition of security risks is constitutionally permissible, within which a wider framework will leave sufficient scope for the discretion of the competent authorities, but not the lawful provision of a space for creating security risks entirely new, which the legislator did not anecrate. The unpredictability of the consequences of the cited law in the sense pursued opens up to the potential insolence of the competent authorities, which is unacceptable in a democratic rule of law.
Therefore, if the NSA, in its observations on the proposal, argues that the assessment of the level of safety risks must be consistent with the diversity of risks for individual persons depending on their function, or if the BIS in its statement states that a possible exhaustive list of safety risks "would necessarily have to be close to an end" (as the practice would have constantly discovered additional safety risks), it can be concluded, in the view of the Constitutional Court, that an appropriate individualisation of the assessment of safety risks can reasonably ensure their general legal definition, but not just a demonstration of the principle of predictability and certainty of the law.
The Constitutional Court therefore considers that part of the provision of Paragraph 23 (2) of Law No 148 / 1998 Coll. in the word "in particular 'is contrary to Article 1 of the Constitution.
4. However, the Constitutional Court first of all points out that the contested provision is in the word "in particular '- for similar reasons as stated above - contrary to Article 26 (2) of the Charter. Under that provision, the law may lay down conditions and restrictions for the pursuit of certain professions or activities. The purpose of this provision is therefore, in particular, to enable the legislator to restrict or restrict the exercise of certain professions or activities by means of law. However, it is clear that the legal condition or restriction of the pursuit of certain professions or activities must be clearly and predictably established and cannot provide room for any insolence by a public authority which may provide for additional, expressly specified conditions or restrictions. The need to define transparent and predictable conditions for the pursuit of certain professions already in the law is mainly due to the fact that the article in the Charter clearly empowers the legislator - not other state bodies - to determine the closer conditions and limitations of certain professions or activities. In the present case, however, the legislature opened the scope for imposing restrictions on others by a demonstration of security risks, thus delegating de facto the right to determine further conditions of power executive, which is manifestly contrary to the substance of the article cited. Therefore, the Constitutional Court found that the contested provision laid down a demonstrative list of security risks - in a situation where the existence of a security risk in its consequences may impair the exercise of a particular profession or function - created an area for (possible) arbitrary and not a clearly defined restriction on the exercise of certain professions and activities, contrary to the substance and meaning of Article 26 (2) of the Charter.
For the sake of completeness, the Constitutional Court also draws attention to Article 1 (2) of the European Social Charter, according to which the Contracting Parties undertake to protect effectively the right of workers to earn their livelihood in a freely chosen employment, Article 15 (1) of the Charter of Fundamental Rights of the European Union ("Everyone has the right to employ and pursue a profession which they have freely chosen or adopted ') and Article 52 (1) thereof (" Any restriction on the exercise of the rights and freedoms declared in this Charter must be based only on a law which respects the core of those freedoms and rights. In accordance with the principle of proportionality, those restrictions may only be implemented if they are necessary and are of genuine general interest to the Union or if they result from the need to protect the rights and freedoms of other persons. ") It is clear from the provisions cited that the guarantee of free choice of employment is not only part of the national catalogue of human rights, but is strongly reflected in international law.
On the proposal of JUDr. V. R. to abolish the third sentence of the provision of § 36 paragraph 3 of Act No. 148 / 1998 Coll. The Constitutional Court states the following:
1. The text of the whole provision of Paragraph 36 (3) reads as follows:
"Where the Office has verified through security clearance that the proposed person does not meet one of the conditions set out in Paragraph 18 (2), it shall not issue the certificate and notify the proposed person of the result. If the proposed person does not comply with the conditions for issuing the certificate for the level of secrecy requested, the Office shall issue a certificate for the classification level for which the proposed person fulfils the conditions. The grounds for not issuing certificates shall not be indicated in the notification by the Office. ';
2. The contested provision regulates cases where the Office, on the basis of the security clearance carried out, concludes that the person examined does not meet one of the conditions set out in § 18 (2) of Act No 148 / 1998 Coll., therefore does not issue a certificate to the proposed person and notifies him of that result. The complainant challenges the third sentence of the provision cited, according to which the reasons for not issuing the certificate do not appear in the notification.
According to the provisions of Paragraph 18 (2) of Act No 148 / 1998 Coll. the conditions for certification proposed to the person for the "Confidential," "Confidential" or "Top Secret" classification are met by a person who meets the cumulative conditions laid down in paragraph 1; i.e., he is a national of the Czech Republic, is eligible for legal action, has reached the required age and is impeccable (compliance with the conditions referred to in paragraph 1 is sufficient for the classification level "Reserved"); for the issue of a certificate for the classification level referred to in paragraph 2 of the provision cited (i.e. "Confidential '," Secret', "Top Secret '), it is also necessary that a person is personally competent and security-dependable. It is therefore clear that, in the event of failure to comply with one of those conditions under the current arrangements, a certificate cannot be issued to the proposed person, and the reasons for this decision are not communicated to him in the notice of non-certification.
3. As already follows from the foregoing considerations, the Constitutional Court fully respects the need to maintain a balance between the protection of the fundamental rights and freedoms of citizens on the one hand and the interests of the Czech Republic (as defined by Act No. 148 / 1998 Coll.) on the other. The Constitutional Court is also fully aware that the proper and detailed justification for the notification of the non-certification could in some cases seriously jeopardise the interests of the State or third parties. However, even in this - very specific - case cannot be resigned to protect the fundamental rights of an individual. The current classification of the contested provision in its consequences also leads to the fact that the reasons for the non-certification are not disclosed to the proposed person in any way, even if the important interests of the State or of third parties are clearly not affected by this. The reason for not issuing a certificate under the statutory provision cited above may be, for example, the fact that the proposed person is not a national citizen of the Czech Republic, is not eligible for legal action, has not reached the required age or is not fair, which is clearly not information that would be justified (from the proposed person) to hide. Moreover, in the view of the Constitutional Court, it is not always appropriate not to disclose to the proposed person the reasons why it was not found to be personally incompetent or security unreliable, because not always - by the nature of the case even exceptionally - the communication of these reasons may lead to a real threat to those interests (e.g. personality competence under the provisions of § 22, which consists in psychological examination of the proposed person, and in some cases safety reliability under the provisions of § 23 of Law No 148 / 1998 Coll.). Nor can it be overlooked that, as a result of the current legal regulation, the proposed person is practically prevented from removing the reasons for which the certificate was not issued, even in cases where it could remove them and where their notification, the interests of the State, or the interests of third parties, would not jeopardise them. In doing so, it is clear that the consequences of not issuing certificates are very sensitive in the personality of the proposed person, both from a legal point of view (e.g. withdrawal from office, grounds of notice, etc.) and in fact (e.g. negative reactions of coworkers and loved ones).
As the Constitutional Court has already stated above, one of the fundamental principles of the material rule of law must be respect for the principle of the predictability of the law and the exclusion of space for possible arbitrage by executive power. Article 26 (2) While the Charter may lay down conditions and restrictions for the pursuit of certain professions or activities, it is clear that those conditions and restrictions must also be transparent and predictable and that anyone whose rights are decided should be able to defend themselves adequately against interference with their rights. However, if, according to the contested provision of the Act, the executive administrative body (i.e. the Office) never states the reasons for the non-certification, and the proposed person does not need to know or even know at all whether or not he or she was, for example, found to be incompetent or incompetent, in addition to the situation in which the legal formulation of security risks continues (i.e. even after the annulment of part of the provision of Section 23 (2) of Act No 148 / 1998 Coll. The Constitutional Court) remains very general, the Constitutional Court had to conclude that the contested provision was contrary to the principles of the material rule of law and thus to Article 1 of the Constitution and Article 26 (2) of the Charter. For all these reasons, therefore, it cannot be accepted - which is provided for in today's law - that there is an absolute and unconditional ban on stating the reasons for not issuing certificates. On the other hand, it is of course necessary to reflect the legitimate public interest in protecting classified information and not to include (in the notice of non-certification) in particular those reasons whose disclosure would jeopardise such interest or affect the legitimate interests of third parties. It is up to the legislature - taking into account these considerations - to find in the new legislation an appropriate way in which both the private interest (applicant) and the public interest would be reflected and reconciled in a constitutional way.
On the proposal by JUDr. V. R. for the annulment of the sentence of the first provision § 73 paragraph 1 of Act No. 148 / 1998 Coll. The Constitutional Court states:
1. The text of the provision of Paragraph 73 (1) reads as follows:
"Decision-making under this Act is not covered by Act No 71 / 1967 Coll., on Administrative Procedure (Administrative Regulation), except for decisions on fines under Sections 71 and 72. Decisions on fines shall not be subject to the provisions of Part Four, Section Two, Section Three and Part Five of Act No 71 / 1967 Coll. '
2. The appellant JUDr. V. R. considers that the contested provision excluding decisions under Law No 148 / 1998 Coll. from the scope of the administrative order is contrary to Article 26 (2), Article 36 of the Charter and Article 6 (1) of the Convention. This is because, in the present situation, there is supposed to be a withdrawal of the possibility (applicant) to pursue its profession and because security clearance is a condition for the pursuit of certain professions, the proposed person must be provided with effective scope to defend his rights.
3. In addition, the Constitutional Court states that there are a number of cases in the area of procedural administrative law which are not covered by the administrative order, which is rightly stated by the NSA in its observations. The Administrative Regulation constitutes a general procedural law which, by its nature, does not have to correspond to all forms of administrative proceedings; In a particular case, it may therefore appear useful, depending on the nature of the case, to adapt certain types of administrative procedures in a specific way. The Constitutional Court notes, however, that - from a constitutional point of view, it is essentially in the legislature's hands, which, in the form of administrative procedures, will leave an adjustment to the administrative rules and which will regulate administrative procedures in a specific way. It is not the task of the Constitutional Court to assess the appropriateness or effectiveness of the legislation chosen but only its constitutionality.
Also in the case at issue The Constitutional Court found that the method of carrying out the security clearance of natural persons and also other procedures under Act No. 148 / 1998 Coll. are, for obvious reasons, regulated in a specific way and therefore - except for decisions on fines under the provisions of Sections 71 and 72 of Act No. 148 / 1998 Coll. - the administrative rules do not apply. In the case of a natural person's security clearance, the procedural arrangements shall be made in such a way that the Office either delivers a certificate to the proposed person (Paragraph 36 (1)) or notifies him that it does not meet any of the conditions under Section 18 of the Act (Paragraph 36 (3)). Such notification shall constitute a specific type of administrative decision which the proposed person may challenge within 15 days by means of a written complaint to the Director of the Office, who shall examine it and either comply or reject the complaint. This decision of the Director of the Office shall also be notified to the complainant in writing (see Section 75 (1) et seq.). According to the settled case law of the Constitutional Court, it is not decisive how the decision is marked, but whether it actually interferes in the legal sphere of the individual. The designation "decision 'is therefore not a technical designation, and the precondition of rectitude is therefore not a form but its content (cf. Resolution sp. zn. III. ÚS 16 / 96, Constitutional Court of the Czech Republic: Collection of finds and resolutions, p. 7, p. 327 - 328; similarly also Bureš / Drápal / Mazanec, Civil Code - commentary, C.H. Beck 2001, p. 1041 - 1042).
It is clear that Law No 148 / 1998 Coll. provides for a special administrative procedure which is different from that laid down in the general administrative order in the case of the conduct of security checks on natural persons (which was the case of both applicants). However, as is apparent from the foregoing considerations, the mere exclusion of this type of administrative procedure from the general rules of the administrative system cannot be regarded as contradictory with the constitutional courts cited, since it is decisive - from a constitutional point of view - whether this special procedure is subject to the constitutional guarantees of the fundamental rights of the persons concerned or not. However, it is in this respect that the Constitutional Court has found no objections to the appellant JUDr. V. R. justified, since the exclusion of this type of procedure from the general procedural arrangements is not contrary to the right to a fair trial, the right to freedom of choice of profession or other constitutional principles. In fact, if the Constitutional Court came to the contrary, it would have to take the view - in its consequences obviously absurd - that any provision of an administrative procedure which is out of the scope of the administrative order is for that reason already unconstitutional. Also a contradiction with Article 26 (2) The documents in the present case cannot be given because the contested provision provides "only 'for the exemption of the procedure provided for in Law No 148 / 1998 Coll. from the scope of the administrative order, whereas Article 26 (2) of the Charter provides that the law may lay down conditions and restrictions for the pursuit of certain professions or activities. It is clear that there is no direct link between the two provisions and that therefore there can no longer exist between them - by the appellant JUDr. V. R. alleged - a contradiction.
On the proposal of Mgr. J. T. i JUDr. V. R. to abolish the provisions of § 73 paragraph 2 of Act No. 148 / 1998 Coll. The Constitutional Court states:
1. the text of the contested provision reads:
"Decisions, measures and other acts under this law shall not be subject to judicial review, except in the case of decisions on fines. '
2. The complainants consider that the provision cited is contrary to Article 26 and Article 36 (2) of the Charter, Article 4 of the Constitution and Article 6 (1) of the Convention. Article 26 (1) Each Charter shall have the right to free choice of profession and to prepare for it, as well as the right to undertake and pursue other economic activities. Paragraph 2 of that Article provides that the law may lay down conditions and restrictions for the pursuit of certain professions or activities (paragraphs 3 and 4 do not clearly affect the case of complainants). Article 36 (2) The Charter may be applied to the court to examine the lawfulness of such a decision, unless otherwise provided for in the law, who claim to have been shortened on his rights by a decision of a public authority. However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. Article 4 The Constitution is fundamental rights and freedoms under the protection of judicial authority. Article 6 (1) of the Convention, guaranteeing the right of any person to have his case dealt with fairly, publicly and within a reasonable period of time by an independent and impartial tribunal established by law, which shall decide on his or her civil rights or obligations or the validity of any criminal charges against him.
3. First of all, the Constitutional Court notes that Article 36 (2) of the Charter (and, mutatis mutandis, Article 6 (1) of the Convention) constitutes a general guarantee of the right to a fair trial and therefore also of the judicial review of decisions of public authorities, but also provides the legislator with the possibility to rule out judicial review of the lawfulness of decisions of a public authority by law. However, even in the form of a law, it is not possible to exclude the review of decisions concerning fundamental rights and freedoms under the Charter. Also Article 4 The Constitution refers to fundamental rights and freedoms, in the sense that it guarantees their protection by judicial authority.
The Constitutional Court therefore finds that the substance of the case is whether or not the decision to issue or not to issue a certificate of contact with classified information is a decision relating to fundamental rights and freedoms under the Charter. In fact, it is only a legal regulation that precludes judicial review of decisions of the public administration which, by their nature, fall outside the scope of fundamental rights and freedoms under the Charter. If the law ruled out judicial review of those decisions that interfere with the constitutionally guaranteed fundamental rights or freedoms, it would clearly go beyond the limits of constitutionality.
4. The appellants argue that, as a result of the contested decisions, they have lost the possibility of continuing to pursue their former professions and that the decision to issue or not to issue a safety certificate is at the same time a decision on access to the profession which should not be excluded from judicial review. It is therefore clear from the content of the two proposals that it is a fundamental right which should not be excluded from judicial review pursuant to Article 36 (2) of the Charter, the complainants consider Article 26 (1) of the Charter, according to which everyone has the right to free choice of profession and to prepare for it, as well as the right to undertake and pursue other economic activities.
The fact that the absence of a security certificate may lead to the loss of a particular profession arises from the provision of § 17 (2) of Act No 148 / 1998 Coll., which clearly shows that the requirement for the pursuit of an occupation where it is necessary to be familiar with classified information is the issue of a certificate or security authorisation. If a certificate or security authorisation is not issued to the person concerned, it is clear from the nature of the case that he no longer has the capacity to pursue his original profession and that, for example, he may be transferred to another place of employment (if possible), his removal from office or, for example, his dismissal or termination of employment. It is therefore clear that the decision not to issue a certificate of contact with classified information constitutes a significant interference with the relevant employment (or service) relationship and hence, in its consequences, the fundamental right to free choice of profession under Article 26 (1) and (2) of the Charter. Pursuant to paragraph 2 of the provision cited, the law may lay down conditions and restrictions for the pursuit of certain professions or activities. It is precisely this condition and, at the same time, the restriction on the pursuit of certain professions that security clearance is necessary, so it is clear that this - very specific - area falls under the guarantee of the right to a fair trial (see Article 36 (1) and (2) of the Charter).
5. Although, according to the Constitutional Court's conviction (and in line with the above-mentioned more general bases), the protection of classified information and the conditions imposed on persons handling such information is such a specific area that even from a constitutional point of view it is not possible to guarantee all procedural rights of such persons to the extent that other professions and labour disputes between their employees are not possible. 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 Constitutional Court considers that these cases may need to be dealt with by specific procedural arrangements, since the specifics of the case clearly do not correspond to the general procedural arrangements made in the existing civil and administrative rules.
6. The current legislation, in its consequences, means that there is a significant concentration of power in the security clearance process with a single executive body, and its decision may significantly interfere with the individual sphere of the subject. The Security Clearing Office, which is responsible for verifying the conditions for issuing the certificate - and which therefore carries out a certain "service" of the State and clearly represents its interests - also decides on the issue of an administrative decision and the appeal against it. In the absence of a review by an independent and impartial body, the person examined is practically subject to the will of a single institution, which, by the nature of the case, cannot be considered as independent or impartial (cf. also the provisions of § 7 paragraphs 2 and 3 of Act No 148 / 1998 Coll.). It is therefore clear that the contested legal regulation (i.e. Article 73 (2) of Act No 148 / 1998 Coll.) essentially contradicts the very meaning of Article 36 (2) of the Charter (and, moreover, Article 6 (1) of the Convention and Article 4 of the Constitution), which consists in deciding on fundamental issues relating to the individual sphere of the individual, carried out by an administrative authority, being subject to review by an independent and impartial body which is normally a court. Therefore, the Constitutional Court cannot, in a general position, identify itself with the BIS's legal opinion in its observations on the proposal that any judicial review in this area would be contrary to the principle of division of power. In the view of the Constitutional Court, it is necessary to distinguish carefully between deciding who will be certified and intended to deal with classified information, which is indeed the responsibility of executive power and the possible judicial control of this process, which - from a constitutional point of view - can only exercise independent judicial power. The Constitutional Court 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 adequate safeguards to be implemented by a court (or other independent and impartial tribunal within the meaning of Article 6 (1) of the Convention), even if, depending on the nature of the case and taking into account the nature of the function in question, it is also highly specific and differentiated.
In assessing the constitutionality of the exclusion of judicial review under the contested provision, the Constitutional Court could not overlook the overall context of Act No 148 / 1998 Coll. This means that the exclusion of judicial review must be seen from a constitutional legal point of view even more sensitively in the existing legal situation, where the decision to issue a certificate is governed by a specific non-standard procedural procedure than if the natural person concerned had other possibilities of protecting his rights.
7. Therefore, the Constitutional Court concludes that the exclusion of judicial review of all decisions under Law No 148 / 1998 Coll. is contrary to Article 36 (2) of the Charter, Article 4 of the Constitution and Article 6 (1) of the Convention.
Constitutional Court - in summary - on the issue of the annulment of the provision of § 36 paragraph 3 third sentence of Act No. 148 / 1998 Coll. ("Reasons... The Office... does not specify) and Paragraph 73 (2) of Act No. 148 / 1998 Coll. (" Decision... not subject to judicial review... ') adds:
Article 88 (2) The Constitution of the Constitutional Court judges shall be bound in their decisions only by constitutional laws and international treaties pursuant to Article 10 of the Constitution and by the law referred to in paragraph 1. This means Act No. 182 / 1993 Coll., on the Constitutional Court. It follows that the Constitutional Court is in principle bound by the various types of statements governed by Law 182 / 1993 Coll. (The proposal rejects or repeals the individual provision - Sections 70 paragraphs 1 and 2 of Act No. 182 / 1993 Coll.). In the present case, the Constitutional Court had no choice but to abolish Article 36 (3), third sentence and Article 73 (2) of Law No 148 / 1998 Coll.. However, the Constitutional Court points out that, when preparing a new legal regulation, it may be necessary - depending on the nature of the case and taking into account the citizen's role - to distinguish between cases which result from other, albeit exceptional, cases in which the exclusion of judicial review (or the absence of grounds for not issuing certificates) may continue to be regarded as constitutionally conformal (e.g. for workers of certain specific categories in the armed forces, for certain intelligence services).
The Constitutional Court - beyond that text - adds that reservations can be made against Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended, as a whole. However, no proposal has been made in this respect. However, the Constitutional Court assumes that Parliament of the Czech Republic will deal with Act No. 148 / 1998 Coll., as amended, comprehensively and not only with the contested provisions which abolish this finding.
The Constitutional Court considers that the immediate abolition of some of the contested provisions of Law No 148 / 1998 Coll. could overshadow the potential advantages of that could be overshadowed by its disadvantages, in particular taking into account the State's security interests specified in the law in question. It is necessary to provide the necessary time for the new legislation, particularly in view of its complexity. Therefore, the Constitutional Court takes advantage of the possibility offered to it by the provisions of Sections 58 (1) and 70 (1) of Law No 182 / 1993 Coll. and defers the enforceability of this finding on 30 June 2002.
Conclusion
A. 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, annulled on 30 June 2002:
● Paragraph 23 (2) in the word "in particular"
● Provisions of the third sentence § 36 (3)
● Paragraph 73 (2).
B. Application for annulment of the sentence of the first provision § 73 paragraph 1 of Act No. 148 / 1998 Coll. The Constitutional Court dismissed.
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | found by the Constitutional Court No. 322 / 2001 Coll., on proposals for the annulment of certain provisions 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 | 07.09.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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