The Constitutional Court found no 35 / 2002 Coll.
The Constitutional Court's finding of 5 December 2001 on the application for annulment of Act No. 451 / 1991 Coll., laying down certain additional conditions for the exercise of certain functions in the state bodies and organisations of the Czech Federal Republic, the Czech Republic and the Slovak Republic, as amended, Act No. 279 / 1992 Coll., on certain other preconditions for the exercise of certain functions contained in the provisions or appointment of members of the Police of the Czech Republic and members of the Choir of Correctional Education of the Czech Republic, as amended, Act No. 422 / 2000 Coll., amending Act No. 451 / 1991 Coll., laying down certain additional preconditions for the exercise of certain functions in the state bodies and organisations of the Czech and Slovak Federative Republic, as amended by Act No. 424 / 2000 Coll.
Valid
The Constitutional Tribunal found
35
FIND
The Constitutional Court
On behalf of the Czech Republic
On 5 December 2001, the Constitutional Court decided in plenary on the proposal of a group of 44 Members to repeal Act No. 451 / 1991 Coll., laying down certain additional conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, as amended, Act No. 279 / 1992 Coll., on certain other conditions for the exercise of certain functions contained in the provisions or appointment of members of the Police of the Czech Republic and members of the Association of Correctional Education of the Czech Republic, as amended, Act No. 422 / 2000 Coll., amending Act No. 451 / 1991 Coll., which provides for certain additional conditions for the performance of certain functions in the state bodies and organisations of the Czech Republic and Slovak Federal Republic, as amended Act No. 424 / 2000 Coll.
as follows:
The provisions of § 3 (1) (d), § 3 (3), § 3 (4) and § 5 (2) of the ČNR Act No. 279 / 1992 Coll., on certain other preconditions for the performance of certain functions contained in the provisions or appointment of members of the Police of the Czech Republic and members of the Association of Correctional Education of the Czech Republic, as amended, shall be deleted from the date of the declaration of findings in the Collection of Acts.
The rest is rejected.
Reasons
On 2 March 2001, the Constitutional Court received a motion from a group of 44 Members represented by Prof. JUDr. Zdeněk Jičinský, DrSc., by which the applicants sought annulment:
- Act No. 451 / 1991 Coll., laying down certain other conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic, as amended, (hereinafter the "Great Luggage Act"),
- Act No. 279 / 1992 Coll., on certain other preconditions for the performance of certain functions contained in the provisions or appointment of members of the Police of the Czech Republic and members of the Association of Correctional Education of the Czech Republic, as amended, (hereinafter referred to as the "Small Luggage Act,"),
- Act No. 422 / 2000 Coll., amending Act No. 451 / 1991 Coll., laying down certain other conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic, as amended,
- Act No. 424 / 2000 Coll., amending Act No. 279 / 1992 Coll., on certain other preconditions for the performance of certain functions included in the provisions or appointment of members of the Police of the Czech Republic and members of the Czech Correctional Education Corps, as amended.
The appellants sent a letter to the Constitutional Court, which he had reached on 19 November 2001 and in which they entrusted their further representation in the proceedings before the Constitutional Court of Mgr. Bohuslav Sobotku.
The intention of the appellants is for reasons further developed in order to remove the laws in the future from the law of the Czech Republic for their contradiction, in particular with the provisions of Article 1 of the Constitution of the Czech Republic No 1 / 1993 Coll. (hereinafter referred to as "the Constitution '), Articles 1, 4 (2) and 4 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), Article 4 of the International Pact on Economic, Social and Cultural Rights (hereinafter referred to as "the Covenant ') and the Convention of the International Labour Organisation on Discrimination (Employment and Occupation) No 111 of 1958 (hereinafter referred to as" Convention No 111').
On a proposal from 99 Members of the Federal Assembly of the CSFR in 1992, the Constitutional Court of the CSFR examined the constitutionality of the Grand Luggage Act. By its finding of 26.11.1992 sp. zn. Articles 2 (3), 3 (2) and 13 (3) of the contested law do not comply with Article 1 of the Charter and Articles 11, 12, 13 (1), (2), (4) and (5), 18 (1) and 20 of the contested law do not comply with Articles 37 (1) and 38 of the Charter and Article 98 (1) of the Constitution of the CSFR No 100 / 1960 Coll., as amended by Constitutional Law No. 326 / 1991 Coll. The legal provisions cited have ceased to apply on 15 December 1992.
When assessing the constitutionality of Act No. 451 / 1991 Coll., as stated in the proposal, the Constitutional Court of the CSFR based on the situation at the time of its adoption (4.10.1991) or about a year later. In particular, this law pursued the objective that in public and public bodies and in workplaces that have a bearing on the security of the state, persons who held leadership even under the previous regime could be replaced by persons from whom loyalty can be expected with the democratic principles on which the State is built. It should also help to avert the risk of subversion or possible recurrence of totalitarianism or at least its limitation. The Constitutional Court of the CSFR also underlined its view on the vouchers for a limited period of validity of the lustration law. In his finding, he stated: "The conditions laid down by law for the exercise of such functions (in the law mentioned) are also limited in time to the period in which the completion of the democratic process is foreseen, i.e. until 31.12.1996. The essence of this law is to lay down, in the future, conditions for the exercise of certain closely defined functions or activities specified in the law, not absolutely, but only temporarily."
In January 1999, the Chamber of Deputies of the Parliament of the Czech Republic rejected the parliamentary draft law, which should have repealed the Grand Luggage Act (PS 1998, 3rd Election, Press No. 74). In its explanatory memorandum, the opinion of the Management Board of the International Labour Office (No GB. 252 / 16 / 19) was also stated. It included an invitation to the Government of the CSFR to take the necessary measures to abolish or amend (large) lustration law and to ensure compensation for damages to all persons who have been unfairly affected by it. The explanatory memorandum also points out that the lustration law is constantly being criticised in the Council of Europe, in the European Parliament and in European and global NGOs, and therefore it is most desirable to abolish this superfluous standard. In assessing the situation related to the implementation of the lustration of the International Labour Organisation (ILO) investigation panel in 1995, it noted that only minor progress had been made in the implementation of the 1992 ILO Board's recommendations. It expressed its deep regret that the Law was extended until 2000, regardless of the opinion of the Administrative Council of the ILO. The Commission recommended to the Administrative Council of the ILO, inter alia, to call on the Government of the Czech Republic to take action to repeal or amend those provisions of Act No. 451 / 1991 Coll., which are incompatible with Convention No. 111.
The constitution of the small lustration law has not been reviewed, so it remains valid and effective even in those parts that correspond to the parts of the large lustration law which the Constitutional Court of the CSFR declared unconstitutional. He was also to be affected by a bill filed in 1998 as House Press No. 73, which aimed to abolish it; the Chamber of Deputies rejected this proposal.
The Group of Members sees the essence of its proposal in the time factor of social dynamics between November 1989 and 2000, in which some of the democratic elections (to regional councils) took place, and in the changes that took place at this time. In the appellants' view, legislative, executive and judicial powers have already been definitively established on democratic foundations, leading positions in state and other public bodies and institutions have no longer been occupied for a long time by the persons who have set up the former political regime, thereby losing merit over the course of the period for the reasons of the two lustration laws, if they were to change the range of those occupants. Leaders are usually filled by a selection procedure, in which the loyalty of the applicant to the Czech Republic as a democratic rule of law can be taken into account, also evidenced by his actual behaviour in the period after November 1989; This is even more true in matters relating to the public service relations in the armed forces and the security forces decided on in the administrative procedure. Only natural persons certified may be informed of classified information of all levels of secrecy. It follows from the conditions for its publication that a natural person is security-reliable, i.e. that he has not been identified as a security risk consisting, for example, of activities aimed at the suppression of human rights or freedoms, possibly in the promotion of such activities [Sections 17, 18 and 23 of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, hereinafter referred to as "the Act on classified information '].
The appellants consider that the risk of subversion or possible recurrence of totalitarianism, the existence of which in 1992 the CSFR Constitutional Court in relation to the public activities of persons associated with the previous regime is no longer in danger. Information on possible intentions and activities against the democratic foundations of the Czech Republic is required to provide intelligence services within the meaning of Act No. 153 / 1994 Coll., on the Intelligence Services of the Czech Republic, as amended, (hereinafter referred to as "the Act on Intelligence Services'). Indeed, as the applicants recall, the Communist Party of Bohemia and Moravia is legally a political party in the Czech Republic with considerable electoral support in parliamentary and municipal elections. In doing so, the law allows political parties, seeking to eliminate the democratic foundations of the state or seeking to seize and hold power preventing other parties and seeking power by constitutional means, to be suspended by the court or dissolved by the court's decision. The Czech Republic, in which the 'democratic process has been completed', is currently facing serious risks of a completely different kind, which are exemplary economic crime, organised crime, corruption and racial hatred.
Article 3 The Constitution is part of the constitutional order of the Czech Republic. It is also possible to deduce the binding nature of the decision of the Constitutional Court of the CSFR, which was issued on the basis of the Charter. The Court recognised the nature of the adjustment made by the Grand Luggage Act as constitutionally conformal in view of the state and society's situation at that time, that is, the situation shortly after the fall of the previous regime and the restoration of democracy, and the fact that the restrictions introduced by this law are not to apply absolutely, but only for a transitional period, i.e. until 31.12.1996. In this context, the CSFR Constitutional Court recognised in 1992 that the interest of the company and the State (public good) in changing persons in certain publicly important functions and in applying measures to avert the risk of subversion or possible recurrence of totalitarianism takes precedence over the fundamental right of citizens to have access to elected and other public functions on equal terms (Article 21 (4) of the Charter) or to pursue employment or occupation without discrimination within the meaning of Convention 111.
Since the public interest (public good) from which the Federal Constitutional Court was based in 1992 was no longer concerned, the reasons for the restrictions on the fundamental rights and freedoms guaranteed by the Charter and the international treaties under Article 10 of the Constitution have also ceased.
The large and small lustration law, as well as their amendments No. 422 / 2000 Coll. and No. 424 / 2000 Coll., which extended the validity and effectiveness of the two lustration laws to an indefinite period of time, limit the abovementioned fundamental rights without due cause, and are thus in particular contrary to Article 4 (2) and (4) of the Charter, as well as Article 1 of the Constitution, according to which the Czech Republic is a democratic legal State. For all these reasons, therefore, a group of Members proposes that the Constitutional Court should abolish all four of those laws by finalising the finding.
The Constitutional Court, pursuant to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the "Act") requested comments from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as participants.
The President of the Chamber of Deputies of the Parliament of the Czech Republic, Václav Klaus, said, inter alia, on the proposal:... "any democratic state is entitled to adopt, within the limits of its constitutional order and international commitments, such an arrangement that protects and promotes the principles on which it is founded. The determination of the period for which such a regulation is being adopted is not only a matter of law, but, in my opinion, primarily a matter of policy, relating to the situation in our society. At the same time, account must also be taken of the fact that there is no right to any power functions in a democratic state, nor can there be a right to any power functions, as it is a matter of the State according to which criteria it will occupy them. It is clear that these criteria must be established in advance and must apply in the same way to all cases which fulfil the conditions laid down. On the other hand, the Chamber of Deputies also assumed that every citizen had the right to refer to the court with a request for a decision to examine his possible cooperation with the Communist regime. The purpose of these laws is currently, to a certain extent, fulfilled by other applicable laws; However, their full replacement can only be expected in the context of the adoption of the Civil Service Act, which should include a provision that only persons who have not been personally guilty of violating human rights and freedoms may hold designated functions in the administration. On the basis of the above, I have no choice but to express my belief that the legislature has adopted the above-mentioned laws in the belief that they comply with the constitutional order and the relevant international treaties. '
In his opinion on the second amendment to the two Laws (Acts No. 422 / 2000 Coll. and No. 424 / 2000 Coll.), the President of the Senate of the Czech Republic Petr Pithart said, inter alia: "The Senate committees, which were ordered to negotiate amendments, recommended the Senate to approve them... The Senate debate was not limited to its own content of minor amendments (extending the validity of the laws), but it took place, to a decisive extent, as a dispute over the" Luggage Laws... "The argument to reject the amendments was that, in particular, the exclusion of citizens from the possibility of applying for office in the administration is directly based on formal, group characteristics, not an individual assessment of persons under the legally established criterion, whether they are capable of respecting democratic principles or not... The critics of the amendments in question also presented that these laws probably did not cover all the categories of persons they should have included, and also some that apparently should not have... general doubts were raised as to whether a solution could be found that would not allow discrimination while ensuring the detection of those responsible for communist repression and could jeopardise the transition to democracy. The argument for approving the amendments... was that each state had the right to lay down the conditions of staffing in its administration by law. Such a condition is also... loyalty to the way of government. The democratic way then requires a guarantee that its officials will, under all circumstances, respect the democratic rights of citizens. This guarantee is... just" lustrations... "Those who knowingly participated in the repression of citizens' rights are a potential danger to democratic society and therefore do not meet the conditions for important places in government... for the performance of civil service functions is not a legal claim... Luggage laws... do not restrict anyone when entering political office (representatives, Members, Senators, etc.)... in the Laws of Laws it is not about establishing guilt and punishment. In cases where the instrument of" lustration "is the register of State security co-workers, the person concerned may refer to the court in which the registration is true. Finally, the advocates of approval of the amendments were given the view that it is in principle the right and duty of democracy to defend themselves. The criterion of the duration of such a defense is, then, whether what should be natural in society works itself. If this is not the case, the law must continue to be used to define the necessary rules. '
The reply of the plaintiffs to the observations of the two participants states: "Both... Luggage laws... limit the rights of citizens already under certain circumstances of a formal nature without any examination of how the citizen actually behaved between 25.2.1948 and 17.11.1989... This formalistic approach, 11 years after the fall of the Communist regime, is constitutionally totally unacceptable and differs significantly from the legal arrangements adopted in other... post-communist states (e.g. Poland), as well as from those adopted in the Federal Republic of Germany in relation to former workers and workers of Stasi. 'As regards the judgments of the General Courts in cases of actions for the protection of personality in relation to lustrace, the reply points out that..." such a judgment (that is to say, containing a statement on unlawful registration by StB) is merely a moral fact, and not a legal one, since the fact of registration does not change, and the law of lustration continues to apply to such a person. The fact that the consent to the register was forced on someone, perhaps even by blackmail, but such a person did not actually provide any cooperation to State Security is de jure without any meaning. "The appellants further point out that" the democratic rule of law is undoubtedly entitled and obliged to protect itself from persons who undermine the democratic foundations of the state or who would probably do so if they were given the opportunity to do so. If this is done by limiting fundamental rights and freedoms, the extent and duration of such restrictions cannot be merely "political considerations" of the parliamentary majority: only those restrictions which are necessary in a particular situation in a democratic society and which do not otherwise fall outside the limits of constitutional admissibility (...). Formalistically designed lustration laws of 1991 and 1992, whose validity has now been extended by ad infinitum, do not meet these requirements, especially since both the social situation and the rule of law have changed significantly since then, which protects the state in that way by numerous (and sometimes even more efficient) ways.' The appellants consider the argument against the abolition of lustration laws and their amendments based on the adoption of the Civil Service Act to be "purely purposeful...; the fact itself shows that this law should only apply to certain civil servants, which are far from all those who restrict the Luggage laws in their application." They also add: "Tendence of certain political circles the scope of the application of lustration laws to expand has been shown, for example, in Act No. 147 / 2001 Coll., which extended the scope of Act No. 451 / 1991 Coll. also to public universities... However, private higher education is not covered by the lustration law (like all other types of private business at all). The legislature is therefore clearly only about certain functions in a particular type of higher education, not about which persons will participate in the provision of higher education." The appellants conclude their reply by noting that Paragraph 19 of the Grand Luggage Act is, from the point of view of lex imperfecta's practice, "for example, the publication of so-called lustration lists, i.e. State Security Records, is not considered a public offence."
The Constitutional Court also requested, on the one hand, the opinion of the Ministry of the Interior on the proposal and, on the other, the opinion of the same Ministry on the litigation for the protection of persons who have been brought against the Czech Republic by persons who have received a positive lustration certificate and on the outcome of proceedings concerning the issue of factually incorrect negative lustration certificates.
The Deputy Minister of the Interior said on the motion of a group of Members that he had no comments on that proposal. It considers that legal arguments have already been put forward in the past, both opponents and supporters of this legislation, including the Constitutional Court's finding on the case. 'The Ministry of the Interior did not notice... "any entirely new legal view to support or challenge the existence of the contested law."
The Ministry of the Interior further stated that, on the basis of the contested laws, it issued a total of 366 980 lustration certificates from 1991 to 5 September 2001, 3,45% of which were positive. The Ministry records a total of 692 actions for the protection of personality under positive lustration certificates issued by the Ministry at different stages of the procedure over the period. It shall not, however, keep a special record of final disputes and of the outcome of those disputes for reasons which it has more detailed in its observations. On the basis of the correctness check carried out, the Ministry of the Interior has identified 117 cases of incorrectly issued certificates. New certificates have been issued to all the persons concerned and at the same time the obligation to submit them to the employer has been brought to the attention of the employer in case they hold functions which are subject to the lustration laws regime. New certificates have not been issued to persons who are currently nationals of the Slovak Republic. Written materials related to these persons were de-limited to the Ministry of Interior of the Slovak Republic under the Interstate Agreement between the Czech Republic and the Slovak Republic.
Pursuant to § 68 (2) of Act No. 182 / 1993 Coll. The Constitutional Court, when deciding on the annulment of laws and other legislation, shall examine the content of those provisions in terms of their compliance with constitutional laws, international treaties, as provided for in Article 10 of the Constitution, and shall determine whether they have been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. For legislation issued prior to the entry into force of the Constitution of the Czech Republic No. 1 / 1993 Coll., the Constitutional Court is entitled to review only their content compliance with the existing constitutional order, but not the constitutionality of the procedure for their formation and observance of standard competence [see the find sp. zn.
In the present case, the Constitutional Court therefore limited itself to assessing the constitutionality of the procedure of the creation of amendments to the two lustration laws (Acts No. 422 / 2000 Coll. and No. 424 / 2000 Coll.) and did not assess the constitutionality of the procedure of the creation of Acts No. 451 / 1991 Coll. and No. 279 / 1992 Coll.
The bill amending Act No. 451 / 1991 Coll., as amended, was discussed at the 27th meeting of the Chamber of Deputies of the Parliament of the Czech Republic. The vote on it took place on 21 September 2000. It is noted from the requested report on that meeting that of the 178 Members present voted in favour of the Bill 99, against. The Senate discussed the bill at its 22nd meeting and voted on 25 October 2000. It is noted from the requested report on the course of the meeting that out of 68 senators and senators present, 47 voted in favour of the bill, 17 voted against. The President of the Republic exercised his right under Article 50 (1) of the Constitution and returned the law to the Chamber of Deputies on 16 November 2000. By its resolution of 28 November 2000, it remained on the returned law by an absolute majority of all Members, when 115 Members and Members voted for the returned law, against 71. The resolution of the Chamber of Deputies on the stay on the law was published in the Collection of Laws under No 423 / 2000. The Act was adopted and declared valid on 13 December 2000 in the Collection of Laws under No 422 / 2000.
The bill amending Act No. 279 / 1992 Coll., as amended, was discussed by the Chamber of Deputies of the Parliament of the Czech Republic at its 27th meeting. The vote on it took place on 21 September 2000. It is noted from the requested report on the course of the meeting that, of the 178 Members present, they voted in favour of the Bill 99, they voted against. The Senate acted and voted on the bill at its 22nd meeting on 25 October 2000. It is noted from the requested report on the course of the meeting that out of 63 senators and senators present, 43 voted in favour of the bill, 13 voted against. The President of the Republic exercised his right under Article 50 (1) of the Constitution of the Czech Republic and returned the law to the Chamber of Deputies on 16 November 2000. By its resolution of 28 November 2000, the law persisted by an absolute majority of all Members, when 109 Members and Members voted for the returned law, against 73. The resolution of the Chamber of Deputies on the stay on the law was published in the Collection of Laws under No 425 / 2000. The Act was adopted and declared valid on 13 December 2000 in the Collection of Laws under No 424 / 2000.
The Constitutional Court considers it necessary, at the outset of its assessment, to recall its resolution of 15 August 2000 sp. zn. The Constitutional Court points out that the amendment does not have a separate legal existence and is becoming part of the amended law. In the present proposal, therefore, the Constitutional Court cannot express itself on Amendments No 422 / 2000 Coll. and No 424 / 2000 Coll., but only on Acts No 451 / 1991 Coll. and No 279 / 1992 Coll., the two amendments of which became components. Therefore, it will also deal exclusively with Act No. 451 / 1991 Coll. and No. 279 / 1992 Coll., both as amended.
The Constitutional Court first had to deal with the fact that Law No. 451 / 1991 Coll. was assessed from the point of view of its constitutionality by the Constitutional Court of CSFR.
The proposal of 99 Members of the Federal Assembly of the CSFR also requested that the Constitutional Court of the CSFR declare that Law No 451 / 1991 Coll. has ceased to be effective on 31 December 1991, or that the Act - once again as a whole - is not in line with the various provisions of the Charter of Fundamental Rights and Freedoms, other provisions of a constitutional nature and certain provisions of several international treaties on human rights and fundamental freedoms. The Constitutional Court of ČSFR therefore dealt with Act No. 451 / 1991 Coll. as a whole (i.e. all its provisions) within the scope of its powers as set out in Article 2 (a) and (b) of the Constitutional Act No. 91 / 1991 Coll. It is not bound by the justification of the motion of Members, it has assessed this law from the point of view of everyone in view of the constitutional laws and international treaties on human rights and fundamental freedoms, including those which the proposal of Members did not specifically specify. He completed his proceedings by finding out that some of the provisions of Law No. 451 / 1991 Coll. were not in conformity with the Constitution of the Czech Republic, the Charter and the International Covenant on Economic, Social and Cultural Rights. These provisions expired on 15.12.1991 and the Czech Republic took over the law in such a polished form.
The current proposal of a group of Members calls for the issue of a finding which would repeal Act No. 451 / 1991 Coll. as a whole and further repeal Acts No. 279 / 1992 Coll., No. 422 / 2000 Coll. and No. 424 / 2000 Coll. However, Law No. 451 / 1991 Coll. was already reviewed by the Constitutional Court of the CSFR and the results of the review were embodied in its quoted findings.
As a result, the Constitutional Court had to answer the question whether or not Article 35 (1) of Act No 182 / 1993 Coll., was applicable in relation to the part of the parliamentary proposal in which the annulment of Act No. 451 / 1991 Coll., was proposed, which reads as follows: "The application to initiate proceedings is inadmissible if it concerns a matter already decided by the Constitutional Court and in other cases provided for by that Act."
The Constitutional Court had to state whether the "Constitutional Court 'within the meaning of Paragraph 35 (1) could be regarded as the" Constitutional Court of the CSFR'. By the Constitutional Act No. 542 / 1992 Coll., on the demise of the Czech and Slovak Federal Republic, (Article 3 (1)), ex constitutione ceased the activities of all CSFR institutions. According to Article 6 (2) of the same Constitutional Act, the competition of the Constitutional Court of the CSFR has been transferred to the Supreme Court of the Czech Republic and the Supreme Court of the Slovak Republic, unless the constitutional laws of the two successor states have otherwise been established. The latter provision became obsolent at the time of the establishment of the Constitutional Court of the Czech Republic on the basis of Article 83 - 89 of the Constitution of the Czech Republic. Neither the Constitution of the Czech Republic nor any other constitutional law of the Czech Republic provides that the jurisdiction of the Constitutional Court of the Czech Republic should be transferred to the Constitutional Court of the Czech Republic in relation to the Czech Republic. The constitutional existence of both constitutional courts is therefore mutually independent. There is no formal constitutional continuity among them.
Law No 182 / 1993 Coll. is a regulation whose approval is foreseen by Article 88 (1) of the Constitution of the Czech Republic, which reads: "The law specifies who and under what conditions is entitled to bring proceedings and other rules on proceedings before the Constitutional Court." Systematic interpretation leads to the conclusion that only the Constitutional Court of the Czech Republic is referring to the provision, as it is part of that part of the Constitution of the Czech Republic which establishes the Constitutional Court of the Czech Republic. On the contrary, the Constitutional Court of the CSFR was established by the Constitutional Law No. 91 / 1991 Coll. and the rules on proceedings before it were governed by Act No. 491 / 1991 Coll., on the organisation of the Constitutional Court of the Czech and Slovak Federal Republic and on the proceedings before it.
Act No. 182 / 1993 Coll. thus operates in the system of judicial protection of constitutionality established by the Constitution of the Czech Republic, i.e. in a system other than the similar system established by the Constitutional Act No. 91 / 1991 Coll.
Although the Constitutional Court of the Czech Republic is to deal with this, as the Constitutional Court of the Czech Republic did in 1992, Act No. 451 / 1991 Coll., is not, in his view, the same thing. In this context he recalls his view expressed in the finding of 24.1.2001, which repealed certain provisions of Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and amending and supplementing certain other laws, as amended (see Act No. 64 / 2001 Coll.). He concluded in it that under certain circumstances the same thing may appear somewhat different after more than 4.5 years, in particular if social changes have occurred during this period of time. Such a phenomenon does not go beyond constitutionality. The proposal by the Group of Members in the matter of lustration laws, which is now being examined by the Constitutional Court in 2001, points to significant changes in society that occurred more than eight years after the Constitutional Court's finding of the CSFR, and the Constitutional Court does not in any way question these changes. It therefore considers its conclusion in the finding on the Election Act to be relevant in this case. In addition, the fact that the Constitutional Court assesses the amended version of Act No. 451 / 1991 Coll., as well as the fact that this Act should be assessed now and in the light of the instruments which were not valid at the time of the finding of the Constitutional Court. This applies mainly to the Constitution of the Czech Republic, and possibly also to some international treaties that became binding on the Czech Republic and the Czech Republic after the publication of the Found in 1992.
In view of the above, the Constitutional Court of the Czech Republic concluded that the finding of the Constitutional Court of the CSFR of 26.11.1992 does not constitute an obstacle to rei iudicatae pursuant to § 35 paragraph 1 of Act No. 182 / 1993 Coll. The Constitutional Court of the Czech Republic is thus formally entitled to examine the submitted proposal of a group of Members in its entirety.
The Constitutional Court of the Czech Republic also summarized its relationship with the case law of the Constitutional Court of the Czech Republic. In its finding on the difference between restitution and expropriation from 24 May 1994 sp. zn. Pl. ÚS 16 / 93, the Constitutional Court of the Czech Republic quotes from the decision of the Constitutional Court of the CSFR the sentence devoted to the principle of equality. It states to them: "Because pursuant to Article 3 The Constitution of the Czech Republic is a Charter of Fundamental Rights and Freedoms part of its constitutional order, it is also possible to deduce the binding nature of the decision of the Constitutional Court of the CSFR, which was issued on the basis of it." This conclusion of the Constitutional Court of the Czech Republic is also explicitly invoked by the applicants.
However, the opinion of the Constitutional Court of the Czech Republic on the binding nature of the decision of the Constitutional Court of the CSFR has only a limited impact in practice, given that, in the abstract control of the constitutionality of the laws, the Constitutional Court generally measures the legal text not only by the Charter or other constitutional laws which constitute constitutional order (Article 112 (1) of the Constitution), but also by international treaties on human rights and fundamental freedoms, which are not part of constitutional order. In this way, the Constitutional Court of CSFR has also acted in the past, even in the case of Act No. 451 / 1991 Coll. The application of the conclusion on the binding nature of the decision of the Constitutional Court of the CSFR would thus lead to an impractical and logically unsustainable conclusion that its finding in the case of the lustration law of 1991 is partly binding, partly not.
After all, the Constitutional Court of the Czech Republic, in its subsequent decisions, took decisions less formally by its Czechoslovak predecessor. It is considered a continuation of its material concept of constitutionality in the Czech Republic, although it is not formally its legal successor. It has designed this in a number of its findings, in which the case-law of the Constitutional Court of the CSFR is consistently relied upon, without having considered it necessary to make its statement on the binding nature of its decisions based on the Charter (see, for example, the findings of the sp. zn. I. ÚS 68 / 93 of 21.4.1994, sp. zn. I. ÚS 108 / 93 of 30.11.1994, sp. zl. ÚS 5 / 95 of 8.11.1995, ECR, Volume 1, Found No 17; Volume 2, Found No 60; Volume 4, Found No 74, published under No 6 / 1996 Coll.).
The finding of I. ÚS 56 / 95 (Reports of decisions, Volume 5, Found No 2), which states: "For the sake of completeness, the Constitutional Court also took into account the complainant's objection, which relied on the finding of the Constitutional Court of the CSFR of 21 December 1992. However, this reference is incorrect... In view of this, the Constitutional Court of the CSFR also dealt with the assessment of the obligation of instruction of the court according to § 5 o. s." The quoted finding is therefore not applicable to the solution of the case as its substance concerns a completely different problem. "It is clear from this quote that the Constitutional Court of the Czech Republic treats the findings of the Constitutional Court of the CSFR de facto as its own and does not seek formal reasons to exclude or allow such findings.
The Constitutional Court of the Czech Republic thus promotes in its practice the idea of continuity of the protection of constitutionality in democratic Czechoslovakia and in the democratic Czech Republic, which is its successor state. It was not only a spontaneously created consensus with the individual judges of the Czechoslovak Constitutional Court, but also an imperative arising from Article 1 of the Constitution of the Czech Republic, according to which the Czech Republic is "a democratic legal state." The fundamental attributes of the rule of law in a democratic state include its predictability, which is closely linked to the categories of continuity in law and legal certainty. The constitutionality in both democratic Czechoslovakia and the democratic Czech Republic has been and is consistently based on the values guaranteed by the Charter of Fundamental Rights and Freedoms and international treaties on human rights and fundamental freedoms. There is therefore no real reason for the concept of constitutionality of the Constitutional Court of the CSFR and the Constitutional Court of the Czech Republic to differ substantially and fundamentally.
Thus, although the findings of the Constitutional Court of the CSFR do not formally create an obstacle for the Constitutional Court of the Czech Republic under Article 35 (1) of Act No. 182 / 1993 Coll., they constitute for him a real authority based on the fact that the Constitutional Court of the CSFR was a "judicial body for the protection of constitutionality" with an effect on the territory of the Czech Republic, which is now the Constitutional Court itself.
This phenomenon combining spontaneous conceptual compliance with the imperatives of the rule of law or the rule of law can also be seen in the case law of the current European Court of Human Rights ("the European Court '). Analogy with relations between the Czechoslovak and Czech Constitutional courts is obvious. The former and current European Court are two distinct bodies. The first was established by the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950 (" the European Convention'), the second by the 11th Protocol of 1994. Driving ahead of them is very different. They shall assess the conformity of the conduct of the Contracting States with the European Convention. 11. The Protocol does not contain any provision on the binding nature of the judgments of the former European Court for the present European Court.
The current European Court, which began its activities in 1998, did not consider it necessary to address in any way the question of the binding nature of the judgments of the previous court. He simply solved it by referring from his first judgments to the judges of his predecessor as if it were his own decision. In its judgment of 21 January 1999 in the Geyseghem case against Belgium, it confirms without any explanation that the principle applied in the case at issue in the Lala and Pelladoah case against the Netherlands in 1994 applies and further refers to the Poitrimol case against France in 1993.
The post of continuity of the protection provided, which is indicative of the decision of the judicial authority which enters the place of the body which is deceased or cancelled, has two pages. On the one hand, the new court allows it to derogate from the legal opinion of the previous court if the circumstances in which the previous court had taken its decision have changed, on the other hand it requires it not to question the decision of the previous court if such a change of circumstances has not occurred.
The Constitutional Court then applied its view on the degree of review of the findings of the Constitutional Court of the CSFR on its finding of 26.11.1992 and assessed in its light the proposal of a group of Members. The appellants state in it: "The signed Members therefore have no choice but to propose to the Constitutional Court that they repeal the provisions of Articles 1 of the Constitution, Articles 1, 4 (2) and 4 (4) of the Charter of Fundamental Rights and Freedoms, Article 4 of the International Covenant on Economic, Social and Cultural Rights and the Convention on Discrimination (Employment and Occupation) of 1958 (No 111), which is undoubtedly an international treaty within the meaning of Article 10 of the Constitution."
Act No. 451 / 1991 Coll. was amended twice after 26.11.1992: Act No. 254 / 1995 Coll., which provided for its validity until 31.12.2000, and Act No. 422 / 2000 Coll., which, on the one hand, annulled the precisely cited provision on the period of validity amended in 1995, and also excluded from the scope of § 1 to 3 of the Luggage Act citizens born after 1 December 1971. The only provisions of Act No. 451 / 1991 Coll., whose constitutionality was not judged by the Constitutional Court of the CSFR in 1992 and which are now part of it, are the provisions contained in its current § 20 and introduced into it by Act No. 422 / 2000 Coll.
The Constitutional Court of the CSFR assessed the constitutionality of Act No. 451 / 1991 Coll. according to all the provisions of the forthcoming provisions of the Charter as well as the international treaties on human rights and fundamental freedoms, including the International Pact on Economic, Social and Cultural Rights and Convention No. 111, to which the appellants explicitly refer. Moreover, the assessment of compliance with the two international treaties explicitly requested a proposal from the Group of Members of the Federal Assembly and the Constitutional Court of the CSFR made clear its finding on them both.
The applicants further state the contradiction of Act No. 451 / 1991 Coll. with Article 1 of the Constitution of the Czech Republic, which naturally could not serve as a measuring instrument for the Constitutional Court of the CSFR in 1992. Article 1 of the Constitution states that "the Czech Republic is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen '. At the time when the Constitutional Court of the Czechoslovak Republic assessed the constitutionality of the Grand Luggage Act, Article 1 of the Constitution of the Czechoslovak Federal Republic was worded as follows:" The Czech and Slovak Federal Republic is a democratic rule of law, consisting of the Czech Republic and the Slovak Republic "(see Constitutional Act No. 493 / 1992 Coll. of 8.10.1992 amending and supplementing Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation, as amended, and some other constitutional laws). Thus, the common central concept of both Articles 1 is the concept of a' democratic rule of law 'when respect for the rights and freedoms of man and citizen at that time and now has secured and ensured the Constitutional Charter of Fundamental Rights and Freedoms. There is no doubt that the Constitutional Court of the CSFR assessed the constitutionality of the Great Luggage Act from the point of view of Article 1 of the then Constitution, namely from the point of view of the attributes of the democratic rule of law, and did not find any inconsistency with it. Indeed, it refers to the concept of a democratic rule of law many times in the justification of its finding, particularly as regards its value framework. For example, the quoted finding states that" the rule of law, which is linked to democratic values created after the fall of totalitarianism, cannot be seen... as amorphous in terms of values. "
Act ČNR No. 279 / 1992 Coll., i.e. a small lustration law, was not assessed from the point of view of its constitutionality by the Czechoslovak and Czech Constitutional courts. According to the explanatory memorandum it is based on the overall concept of Act No. 451 / 1991 Coll. The reason why it had to be approved - as a lex specialis for the Great Luggage Act - was in Article 27 of the Constitutional Law on the Czechoslovak Federation. According to him, the establishment of their own armed corps and the modification of their status were within the exclusive competence of each of the Republics, i.e. the legislative competence of the Czech National Council. The construction of a small lustration law is identical to the construction of a large lustration law. The small lustration law contains a list of functions within the Police of the Czech Republic and the Department of Correctional Education of the Czech Republic, in which it is not possible to establish or appoint a citizen who does not meet some of the requirements set out in Section 3 of Act No. 279 / 1992 Coll. (for a function in the Police of the Czech Republic) or in Section 5 (for a function in the Department of Correctional Education of the Czech Republic).
It is proposed that the Constitutional Court of the Czech Republic should repeal the entire Act No. 279 / 1992 Coll. The appellants do not state the specific reasons in which they see the contradiction of its provisions with the Charter or international human rights treaties, that is, the grounds which would be originating only in this small lustration law, but not in Act No. 451 / 1991 Coll. Under these circumstances, the Constitutional Court of the Czech Republic does not find any reason to exceed the control that the Constitutional Court of CSFR carried out in 1992 in connection with Act No. 451 / 1991 Coll. With reference to the arguments set out in the preamble to the finding of the Constitutional Court of the CSFR of 26 November 1992, the Constitutional Court of the Czech Republic finds that the provisions of § 3 (1) (d) and § 3 (3) of Act No. 279 / 1992 are inconsistent with the provisions of § 2 (1) (c) and § 2 (2) of the Act No. 451 / 1991 Coll., with Articles 2 (3) and 4 (1) and (3) of the Charter and Article 4 of the International Covenant on Economic, Social and Cultural Rights. Also with reference to the arguments in the reasoning of the finding of the Constitutional Court of the CSFR, the contradiction between § 3 (4) and § 5 (2) of Law No 279 / 1992 Coll. on the granting of exemptions with Article 1 of the Charter. Both the latter provisions are essentially identical in terms of their content to the provisions of Sections 2 (3) and 3 (2) of Act No. 451 / 1991 Coll., whose non-compliance with Article 1 of the Charter was established by the Constitutional Court of the CSFR. While the provisions of the Grand Luggage Act foresee a breach of the "important security interest of the State ', the corresponding provisions of Law No 279 / 1992 Coll. only a breach of the" important security interest of the service' (§ 3 (4) or "important interest of the service '(§ 5 (2)), this distinct expression is irrelevant from the point of view of the constitutional assessment. In the case of Act No. 451 / 1991 Coll. the provisions cited constituted an unjustified inequality between the workers of two departments (interior and defence) and the other persons concerned by the Act. In the case of Act No. 279 / 1992 Coll. on the contrary, there is an unfounded inequality between the workers of the departments of the interior and justice, which can still be granted an exemption on the one hand, and the other persons concerned by the lustration legislation, i.e. Act No. 451 / 1991 Coll., in which the provision on the granting of exemptions as a result of the finding of the Constitutional Court of the CSFR has lost its validity in the past, on the other hand.
The opinion of the Constitutional Court on the abolition of those provisions of the Small Luggage Law for their conflict with the Charter and international treaties on human rights and fundamental freedoms also affects certain other provisions of the Law which refer to the repealed provisions. In particular, the provisions of Articles 6 (1), 8 (1) and 9 (5) are concerned. Since the substantive scope of these provisions is not exhausted by reference to the provisions which the Constitutional Court found to be unconstitutional and only narrowing it down, those provisions continue to have meaning and place in Law No 279 / 1992 Coll.. Moreover, the fact that a provision refers to another provision which was found to be unconstitutional does not constitute the unconstitutional nature of the referring provision. The Constitutional Court therefore found no reason to repeal those reference provisions. He also found no reason to delete those parts of the text of Act No. 279 / 1992 Coll., which refer to the content of the provisions of Act No. 451 / 1991 Coll., which lost its validity as a result of the finding of the Constitutional Court of CSFR. These are especially provisions relating to the findings of the so-called independent commission established pursuant to § 11 - 13 of Act No. 451 / 1991 Coll. The references to the findings of the commission include e.g. the provisions of § 6 (1) in fine or § 8 (1) of Act No. 279 / 1992 Coll. The Constitutional Court is a judicial body for the protection of constitutionality and is not to implement editorial amendments to the laws which have been submitted to it for consideration. It would interfere with the legislator's powers.
In parallel with the amendment of the Great Luggage Act, Act No. 279 / 1992 Coll., Act No. 424 / 2000 Coll., was similarly amended in 2000. The amendment pursues the same objective as Amendment No 422 / 2000 Coll. of the Great Luggage Law, and other conclusions of the Constitutional Court therefore relate together to both Laws.
The promoters propose that both the large and small lustration law be "removed from the legal order of the Czech Republic." The substance of their arguments is summarised in Section V. of the proposal. They are based on the findings of the Constitutional Court of CSFR from 1992. They state: "The Constitutional Court of the CSFR recognised the nature of the regulation made by Act No. 451 / 1991 Coll. as being constitutionally conformal in view of the state and society's situation shortly after the fall of the previous regime and the restoration of democracy and since the restrictions introduced by the law are not to apply absolutely but only for a transitional period, i.e. until 31 December 1996. A similar opinion would have been taken by the Constitutional Court of the CSFR against the Act No. 279 / 1992 Coll., had it been dealt with. Under these circumstances and conditions, the Constitutional Court of the CSFR in 1992 recognised that the public interest (public good), consisting of the need for society and the State to change persons in certain public functions and to apply measures to avert the risk of subversion or possible recurrence, took precedence over the fundamental rights of citizens, which further specifies the proposal. Furthermore, the appellants conclude from the substantial assessment of the finding of the Constitutional Court of the CSFR on which their proposal provides various arguments. This conclusion is worded as follows:" Because... the public interest (public good), from which the Constitutional Court of the CSFR based its existence in 1992, has passed, and the reasons for the restrictions on fundamental rights and freedoms... which relied on the existence of this public interest have passed. "In other words, the appellants believe that the time factor in assessing the constitutionality of lustration laws plays a key role. By extending their validity and effectiveness to an indefinite period, fundamental rights and freedoms are currently" without due cause "and are therefore contrary to certain provisions of the Constitution, the Charter and international treaties on human rights and fundamental freedoms.
The Constitutional Court attests to the appellants' view that a substantial interference in their content has taken place by amending the Luggage Laws, which removed the provisions on their limited period of validity. This intervention undoubtedly represents a significant change in circumstances in terms of assessing the constitutionality of both lustration laws. Therefore, the Constitutional Court cannot take over without further taking over all the conclusions contained in the finding of the Constitutional Court of the CSFR, but must first answer the question whether the limitation of the period of validity of Law No 451 / 1991 Coll. by the end of 1996 for the Constitutional Court of the CSFR was such a significant factor that it influenced its decision, in which most of the provisions of the Act did not find any inconsistency with the Constitution, the Charter or international treaties on human rights and fundamental freedoms.
In this respect, the Constitutional Court considers that the proposal inaccurately and in particular incompletely impacted the substance of the argument used by the Constitutional Court of the CSFR in the reasoning of its finding and cannot therefore identify its interpretation by the appellants. It is true that the Constitutional Court of the CSFR recognised the justification of the need for society and the State to change persons in certain public functions and to apply measures to avert the risk of subversion or possible recurrence of totalitarianism. It also highlighted the relevance of the time limitation of the lustration law.
However, the finding of the Constitutional Court of the CSFR also sets out other arguments which completely overlook the application. The Constitutional Court of the CSFR stresses that, in "stabilised democratic systems, it is part of the requirements required for persons seeking employment in the service of the State, in public services and in workplaces considered to be at risk from the point of view of the security and stability of the State, as well as the fulfilment of certain civil assumptions, signaling consensus and loyalty to the interests of the State and the democratic principles on which the State is built '. In the light of this maximum, the legislature's practice, which" has rightly taken the view "that, to the extent necessary, it cannot be assumed that the values of democratic constitutional principles" will be brought to life without further and unreservedly by members of former power structures. "Finally, it expresses the belief that the State cannot be denied to establish conditions or assumptions for the performance of management or otherwise decisive functions in which it" takes account of its own security, citizens' security and other democratic developments. "
The argument of the Constitutional Court of the CSFR is therefore infinitely richer and more diversified than the proposal of a group of Members. Some of his arguments are linked to the needs of the state and society under conditions of transition from totalitarianism to democracy, which he has taken full account of. In this context, the Constitutional Court of the CSFR also referred to the time-limited validity of the lustration law, without necessarily binding the end of its validity for 1996. The time-limited validity of the law merely states and in 1996 it refers to the year "in which the completion of the democratic process is envisaged." It thus takes over a work hypothesis on the pace of the dynamics of the development of democracy in CSFR. The motion of a group of Members provides a number of figures that are convincing to show that the development of democratic transformations after 1992 is turbulent and that, as they expressly state, the 'democratic process has been completed'. However, the Constitutional Court considers it necessary to add to these data that determining the degree of development of democracy in a particular state is a question of social and political and not constitutional law. Therefore, the Constitutional Court is unable to examine the claims of "completion 'or" failure' of the democratic process at its disposal. However, it can confirm in some agreement with the applicants that the public interest inherent in the needs of the State during the period of transition from totalitarianism to democracy has lost its intensity and urgency since 1992.
Secondly, the proposal by a group of Members of the omitted group of reasons set out by the Constitutional Court of the CSFR relates to the need for a democratic society and a democratic state to protect its government and public services against the entry of persons who do not meet certain conditions. Among these assumptions, it explicitly mentions' loyalty to the interests of the state and the democratic principles on which the state is built '. The establishment of such assumptions is a measure that is owned not only by the states during the transition from totalitarianism to democracy, but also by all "stabilised democratic systems." He finally expressed the belief that such loyalty could not be "expected without further and unreservedly" from "members of former power structures" and from those "who were" assigned to significant state, social and economic functions on the basis of conflicting value criteria only to serve as representatives of previously ruling ideology to maintain the power monopoly of a ruling bureaucratic apparatus. "
The Constitutional Court of the CSFR expressed its arguments in support of another public interest (public good), which is the right and duty of the democratic state to actively defend its democratic establishment, including by limiting access to state and public services using the conditions of loyalty of its representatives and employees. This public interest is clearly attributed by the Constitutional Court to the democratic state in general, both in the stage in which its democratic establishment is being built and in the stage in which democracy is being completed (in "stabilised democratic systems").
The task of the Constitutional Court of the Czech Republic was therefore to state whether the public good is "timeless," and is therefore also relevant now, ten years after the approval of Act No. 451 / 1991 Coll. First of all, the Constitutional Court notes that the justification of the idea of "democracy capable of defending itself '(wehrhafte Democracy, démorat apte and se défendre, democracy capable of defending itself) has repeatedly been recognised by the European Court in its decisions. The European Court considers its implementation to be a" legitimate objective', the fulfilment of which allows states to limit, within reasonable limits, the rights guaranteed in the European Convention. At the same time, he has repeatedly emphasised that the authors of the European Convention knowingly omitted the right of an individual to have equal access to the public services of the States (see, for example, the Glasenapp judgment against Germany in 1986). On the issue of the loyalty of persons in public administration and public services, the European Court of Justice stated in its judgment in Vogt v Germany in 1995: "The Court is based on the assumption that a democratic state is entitled to require its officials to be loyal to the constitutional principles on which it relies. In this respect, it takes account of Germany's experience during the time of the Weimar Republic and during the bitter period following the collapse of the scheme until the adoption of the Basic Law in 1949. Germany wished to exclude these experiences from being repeated and therefore based its new state on the idea of democracy capable of defending itself... It is understood that these circumstances have added weight to this essential concept and to its corresponding obligations of political loyalty imposed on officials. '
The two judges of the European Court thus draw some conclusions on the question:
1) Promoting the idea of "democracy capable of defending itself" is a legitimate objective of the legislature of every democratic state at any stage of its development.
2) The requirement of political loyalty for persons in public administration and public services is considered to be an undoubted part of the concept of "democracy capable of defending itself."
3) The specific level of loyalty required depends on the historical, political and social experience of each individual state and the current level of threat to democracy in that State. In this context, the European Court of Justice, in Vogt, notes that no State in Europe in the 1980s (at the time of the assessment) required loyalty with such stubbornness as Germany, and suspended from the "absolute nature 'of this requirement under German conditions, since the German courts applied the requirement of loyalty equally to all civil servants, regardless of their functions and classification in the hierarchical structure of public services.
However, the European Court of Justice has also expressed its claim for loyalty to civil servants in other cases where the complaint was directed against a consolidated democratic state. The Constitutional Court recalls at least the judgment in the Pellegrin case against France of 1999, in which the European Court of First Instance held that the State had a "legitimate interest 'in demanding a" special bond of trust and loyalty' from the State's employees, since these employees in their own way hold part of its sovereignty.
Thus, on the basis of its exchange into the case law of the European Court of Justice, the Constitutional Court can conclude: a democratic state, not only in the transitional period following the fall of totalitarianism, may bind the individual to and remain in the administration and public services to meet certain assumptions, in particular to meet the requirement of (political) loyalty. This is also demonstrated, for example, by legislative or judicial practice in the United States of America (see the US Supreme Court ruling in Adler v Board of Education).
The Constitutional Court takes the view that the concept of "loyalty" must be interpreted - like other nodal concepts such as impartiality and independence of the courts - in two complementary ways. The concept of loyalty covers, on the one hand, the state of loyalty of each individual active in public services and, on the other, the state of loyalty of public services as a whole. It is not only whether public services are truly loyal but also whether they appear loyal to the public. To do this, there must be no doubt about their loyalty. Such doubts undermine public confidence in public services and, consequently, in the democratic state that embodies these services. Untrustworthy public services and public administration threaten democracy in their consequences, and the democratic state is entitled to defend itself against such a threat by ensuring that public services cannot appear untrustworthy, by eliminating reasons for doubt.
The Constitutional Court further addressed the question whether the close belonging of an individual with a power apparatus and repressive elements of a totalitarian state can be regarded as an expression of disloyalty to a democratic state or at least as a relevant reason to question loyalty in the eyes of the public.
First of all, the Constitutional Court draws attention to Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime and its finding on that Act published under No. 14 / 1994 Coll. The quoted law calculates the crimes and other comparable facts that occurred in the territory of the Czech Republic today between 1948 and 1989, and in the operational part of its text attaches full joint responsibility to those "who promoted the Communist regime as officials, organizers and promoters in both political and ideological fields." In the preamble it notes the special responsibility of the pre-November KSČ, including its management and members. It is therefore clear that the close belonging of an individual to the pre-November regime and its repressive components is a fact which is capable of adversely affecting the credibility of the public function that this individual holds in a democratic state, as the Communist regime has been described by the Parliament of the Czech Democratic State as "criminal, illegitimate and repugnant."
In this context, the Constitutional Court considers it an impossible objection by the applicants that the current Communist Party of Bohemia and Moravia is a "legally active party with a non-negligible electorate." The Lusatian legislature takes a position only on the pre-November KSČ, and only on the basis of qualified forms of involvement in it does so.
The Constitutional Court of the CSFR, in its 1992 finding, pointed out that other European states, in which the totalitarian regime of monopoly power broke down in the 1980's and 1990's, were also in possession of lustrage legislation. Since no international court has yet ruled on the compliance of lustration laws with international treaties, the Constitutional Court considers it desirable to use other international and foreign indications to answer the above question.
The common feature of the 'lustration laws' approved in Europe during the 1990's is that they concentrate on the position and / or behaviour of an individual at a time of totalitarianism and draw negative consequences for it in terms of its involvement in public life in the current democratic state. Such laws were approved in the Federal Republic of Germany (Law on the Basis of the Stasi of 20.12.1991), Bulgaria (Law on the Additional Conditions concerning Scientific Institutions and the High Verification Commission of 9.12.1992), Hungary (Law on the background checks of persons holding certain key functions from 9.3.1994), Albania (two laws of 22.9.1995 and 30.11.1995), Poland (Act on the recognition of the employment or service of persons who hold public functions in the security forces of the State or cooperate with them in the period 1944 - 1990 of 11.4.1997), Romania (Act on the access of citizens to their personal file kept by Securitate and intended to reveal the character of this organisation as a political police of 20.10.1999) and to a limited extent in other Central and Eastern Europe. Without going into the details of individual laws, the Constitutional Court notes that virtually all of those laws consider that persons are relevant to, or co-operate with, the secret police of a totalitarian state, some of which are the functions of persons in a party or state apparatus (Albanian or Bulgarian law). The Parliamentary Assembly of the Council of Europe, in its Resolution 1096 (1996) (paragraph 11), essentially recognises the compatibility of lustration laws with the attributes of a democratic rule of law, provided that their aim is not to punish those concerned, but to protect the forming democracy.
In the light of the foregoing, the Constitutional Court has reason to believe that certain behaviour and / or position of an individual in a totalitarian state is generally considered to be a risk to the impartiality and credibility of its public services and therefore has a restrictive effect on the possibilities and modalities of involving "positive 'persons in them.
In addition, the Constitutional Court asked itself whether a certain behaviour and / or position of an individual in a former totalitarian state constituted a "timeless" "temporary risk in the interests of a democratic state which was established in its place. The Constitutional Court is aware that the individual's attitude towards democratic establishment is determined primarily by his real actions. The longer the period since the collapse of the totalitarian regime has passed, the more and more thoroughly the individual's attitude towards a democratic state will be examined by his daily interaction with him and with a democratic society. In other words, with time progressing, the relative importance of attitudes and the position of people in a totalitarian state certainly does not disappear, but it certainly does shrink. There is clearly a consensus in this regard in Europe. The temporal scope of individual lustration laws or individual measures based on them is generally limited in Europe, either by the temporary validity of the law (Albanian - by the end of 2002), or by the setting of the period in which individual lustrations can be carried out, which according to the available data in Hungary by the end of 2004, Germany by the end of 2006, Romania by the end of the six-year existence of the lustration body established by the abovementioned Act in 2000, i.e. 2006 (renewable by Parliament), or finally by reducing the temporal effects of individual lustration measures. This is the case in Poland, where the effects of the relevant court decision last for ten years. While the Constitutional Court is convinced of the temporary nature of the lustration legislation, it notes at the same time that, in the vast majority of other European states which have dealt with the same problem over the past decade, the Laws still apply and are effective.
Then, when the Constitutional Court answered all the questions which it set out as a preliminary question, it took the view of the constitutionality of Acts No. 451 / 1991 Coll. and No. 279 / 1992 Coll., exclusively in the light of their amendments No. 422 / 2000 Coll. and No. 424 / 2000 Coll., which deprived them of their temporary period of validity.
The Constitutional Court does not share the legal opinion of the appellants, according to which the public interest (public good), of which the Constitutional Court of the CSFR was based in 1992, was no longer and the reasons for the restriction of the fundamental rights and freedoms which relied on the existence of this public interest were no longer present.
The great and small lustration law still protects the existing public interest, or, in other words, pursue a legitimate objective of actively protecting a democratic state from the dangers that could bring it insufficiently loyal and untrustworthy public services. Both laws pursue their legitimate objective by establishing certain conditions for the performance of certain functions in state bodies and organisations, in the Police of the Czech Republic and in the Department of Correctional Education of the Czech Republic. The legislative measure of this kind is currently not an exception in Europe and is explicitly permitted by, for example, Recommendation No (2000) 6 of the Council of Europe Committee of Ministers, in which the Czech Republic also meets. This Recommendation regulates the position of public authorities. In the preamble to the recommendation, it is recalled that public administration plays a major role in democratic societies and that persons in it are subject to specific obligations and obligations because they serve the state. Point 4 explicitly recognises that both general and specific assumptions may exist for access to public functions, provided that they are provided for by law.
The two lustration laws provide for special conditions for access only to some (essentially only management or significant) functions in public or public services. This method of selection of functions, the performance of which is subject to special preconditions, is common in a democratic state and is applied in the Czech Republic for example in the context of Act No. 148 / 1998 Coll., to which the applicants refer.
The specific assumptions introduced by the lustration laws reflect the individual's position during the period of totalitarian establishment 1948-1989. If this status meets the features listed in the Laws, this makes it impossible for a dedicated individual to access the public functions listed by them. The Constitutional Court of the Czech Republic, in agreement with its Czechoslovak predecessor, still considers the close involvement of persons with a totalitarian regime and its repressive components to be a relevant circumstance which may call into question political loyalty and damage the credibility of public services of a democratic state and, consequently, jeopardise such state and its establishment. Similarly, other new democratic European states are looking at this aspect of the past of their public representatives and officials.
The Constitutional Court considers that the relevance of that precondition has been reduced over time since the fall of the totalitarian establishment and therefore considers that the lustration legislation is temporary, as is the case in the Federal Republic of Germany and in the various states of Central and Eastern Europe. The question is therefore whether the restrictions on certain rights introduced by them are "necessary in a democratic society," in other words, whether these restrictions are still appropriate to the legitimate objective they pursue.
The Constitutional Court takes the view in its assessment that the lustration assumptions apply only to a limited range of vital functions and, on the contrary, do not restrict the individual's access to most of the functions in public administration and public services. It also takes note of the declining tendency to apply lustration laws in practice. As is apparent from the opinion of the Ministry of the Interior requested by the Constitutional Court, approximately 5 800 certificates were issued in the first eight months of 2001, of which about 2% were positive. In practice, therefore, the Luggage Law limited access to listed public functions to approximately 120 individuals between January and August 2001.
In particular, the Constitutional Court notes, however, that the imperative embodied in Article 79 (2) of the Constitution has not yet been fulfilled, according to which "the legal situation of civil servants in ministries and other administrative offices is governed by law '. The Civil Service Act has not yet become part of the Czech legal order. The two Lusatia laws thus, to a limited extent and by establishing a specific precondition for civil service activities, provide for the absence of the key law required by the Constitution and their existence is therefore still necessary in the Czech democratic society. With the exception of certain laws, e.g. No. 483 / 1991 Coll., on Czech Television, No. 6 / 1993 Coll., on the Czech National Bank, No. 335 / 1991 Coll., on courts and judges, No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, and No. 455 / 1991 Coll., on business (Trade Act), regulate access to the elected, appointed and established functions specified in the Laws of Laws, and, moreover, only these Laws.
However, the Constitutional Court does not consider this current situation to be optimal. The legislature should rapidly adjust the assumptions for access to public functions in their entirety and establish, in a standard with such general scope, personal assumptions directly in relation to democratic society, not only through mediation and negatively - with reference to past overloyalty to the totalitarian state and its repressive elements. This is the case, for example, in the Federal Republic of Germany (Article 7 (1) (2) of the Bundesbeamtengesetz). In this context, the Constitutional Court also draws attention to the explanatory memorandum to Act No. 422 / 2000 Coll., under which "the validity of the current Act No. 451 / 1991 Coll. should not be terminated until the adoption of the Civil Service Act '. The Constitutional Court welcomes this promise of the explanatory memorandum, with the approval of the general preconditions for access to public functions being considered urgent in view of the temporary and subsidiary nature of the specific preconditions laid down in the Luggage Law.
The Constitutional Court considers, in view of the arguments put forward by the proposal, that the appellants did not dispute separately with the Charter or with international human rights treaties in the case of the amended § 20 of Act No. 451 / 1991 Coll. and its corresponding § 10a in Act No. 279 / 1992 Coll. (citizens of birth are excluded from the application of the Laws after 1.12.1971). These provisions narrow the scope of the two laws and thus, in a way, follow the direction that the appellants themselves follow to a much wider (absolute) extent. Therefore, it is not considered necessary to comment further on Article 20 of the Grand Luggage Act and Article 10a of the Small Luggage Act.
For all the above reasons, the Constitutional Court annulled § 3 (1) (d) and § 3 (3) of Act No. 279 / 1992 Coll., on certain other assumptions for the performance of certain functions included in the provisions or appointment of members of the Police of the Czech Republic and members of the Association of Correctional Education of the Czech Republic, as amended, for their contradiction with Article 2 (3) and Article 4 (1) and (3) of the Charter and Article 4 of the International Pact on Economic, Social and Cultural Rights, further repealed § 3 (4) and § 5 (2) of the same Act No. 279 / 1992 Coll.
President of the Constitutional Court:
JUDr. Kessler v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Judge JUDr. Antonín Procházka took a different position on the first part of the operative part of the judgment.
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Regulation Information
| Citation | Findings of the Constitutional Court No. 35 / 2002 Coll., in the case of the application for annulment of Act No. 451 / 1991 Coll., laying down certain additional conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, as amended, Act No. 279 / 1992 Coll., on certain other preconditions for the exercise of certain functions contained in the provisions or appointment of members of the Police of the Czech Republic and members of the Association of Correctional Education of the Czech Republic, as amended, Act No. 422 / 2000 Coll., amending Act No. 451 / 1991 Coll., laying down certain additional conditions for the performance of certain functions in the state bodies and organisations of the Czech and Slovak Federal Republic, as amended Act No. 424 / 2000 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.01.2002 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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