The Constitutional Court found No 393 / 2016 Coll.
The Constitutional Court's finding of 11 October 2016, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
07.12.2016
393
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 5 / 16 on 11 October 2016 in a plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk (Rapporteur), Josef Fiale, Jan Filip, Jaromír Jirsy, Jan Musil, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáčková, Vojtěho Šimíček, Milady Tomková, David Uhlíř and Jiří Zemáří Zemánek, on the proposal of the Czech Republic, represented by Mgr. et Bc. Filip. Schmidt, LLM, a lawyer, with the Parliament of the Czech Republic, as participants in the proceedings and the Government of the Czech Republic, and the public defender of the rights of the proceedings,
as follows:
The proposal to repeal the provisions of § 22 paragraph 3 of Act No. 186 / 2013 Coll., on citizenship of the Czech Republic and on the amendment of certain laws (Act on citizenship of the Czech Republic) is rejected.
Reasons
Recital of the applicant's constitutional complaint and conduct of proceedings before the Constitutional Court
1. In a timely constitutional complaint of 1 September 2015, the applicant seeks the annulment of the decision of the Minister of the Interior of 30 June 2015 No. MV- 22900-4 / VS-2015 and the decision of the Ministry of the Interior of 1 December 2014 No. VS-66 / 835.3 / 2-2012. The proceedings for a constitutional complaint shall be conducted under point III of ÚS 2660 / 15. With the proposal to repeal those decisions, the appellant also requests the annulment of § 22 paragraph 3 of Act No. 186 / 2013 Coll., on Citizenship of the Czech Republic and on the amendment of certain laws (Act on Citizenship of the Czech Republic) (hereinafter referred to as "the Act on Citizenship '), in particular for the following reasons:
2. By decision of the Minister of Interior of 30 June 2015 No. MV-22900-4 / VS-2015, the complainant's breakdown against the decision of the Ministry of Interior of 1 December 2014 No. VS-66 / 835.3 / 2- 2012, which rejected the complainant's request to grant citizenship to the Czech Republic on grounds of State security pursuant to Article 22 (3) of the Civil Citizenship Act (hereinafter referred to as "the contested provision").
3. In its constitutional complaint, the appellant states that the reason for rejecting his application for citizenship was that the opinions of the Czech Police and intelligence services of the Czech Republic, which the Ministry of the Interior requested under the contested provision in the procedure for the granting of citizenship, contained information that the complainant was threatening the security of the state. Since it was classified information under Act No. 412 / 2005 Coll., on the Protection of classified information and on security competence, as amended, ("the Act on the Protection of classified information '), these opinions did not become part of the file in accordance with the contested provision, and the reasons for the decision of the Ministry of Interior merely stated that the request was rejected because of a threat to State security. In this context, the appellant contends that it does not knowingly interfere with the security of the State in any way, but does not have the ability to defend itself effectively against the procedure under the contested provision, as its right to a fair trial or the right to information and justification of the decision is neglected. According to the appellant, therefore, it is necessary for persons applying for citizenship to have the possibility of a proper, constitutionally consistent review of the reason for an administrative decision or at least the possibility of knowing the reasons for such a decision.
4. In the context of that objection, the appellant refers to the judgment of the Supreme Administrative Court of 20 June 2007, sp. zn. The appellant also points to the finding of the Constitutional Court, sp. zn. Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 SbNU 61; 98 / 2004 Coll.), concerning the security clearance of lawyers according to which "the position of defence in criminal proceedings, i.e. in particular its procedural authorisation, depends on the defendant's status (s). The fundamental question remains open to lawyers through the eventual provision of an exception, namely the access of the defendant to classified information which is the content of evidence in criminal proceedings. Restrictions on such an approach from the perspective of Articles 37 (3) and 38 (2) of the Charter and Article 6 (3) (c) of the Convention are hardly imaginable '. It also points out the finding of sp. zn. Pl. ÚS 11 / 2000 of 12.7.2001 (N 113 / 23 SbNU 105; 322 / 2001 Coll.), in which the Constitutional Court stated that, according to its conviction," although 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 it is the case for other professions and labour disputes of their employees. 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'.
5. In its constitutional complaint, the appellant further states that the opinions of the Czech Police and Intelligence of the Czech Republic could not be made known, stated or objected to, and that judicial protection is also denied, since under Section 26 of the Act on Citizenship, the decision to refuse the application for citizenship of the Czech Republic under the contested provision is excluded from the review by the court. In this context, the complainant points out the judgment of the Supreme Administrative Court of 25 November 2011, sp. zn. 7 As 31 / 2011, according to which "in the security procedure, a balance must be found between two legitimate but conflicting interests. On the one hand, an interest in ensuring a fair process for the person whose security is being examined and, on the other, an interest in the confidentiality of information needed to protect the public interest. However, such a balance cannot be achieved in any event unless an effective judicial and, therefore, an executive independent and in dispute between the party and the executive impartial control of the relevance of the information on the basis of which the security procedure is based... A party cannot effectively object to the illegality of certain findings, even if it does not know what their content is. In this specific situation, on the other hand, it must be a court which 'replaces' the activity of a party to the proceedings and examines the relevance of classified information from all aspects which, given the nature of the matter, seem important '.
6. In its constitutional complaint, the appellant points out that the guarantee of the granting of citizenship is not required, but argues that in its case, the non-granting of citizenship was in an arbitral manner, in which he was unaware of the grounds for non-award and could not seek to review the decision not to grant it by any other means than formalised decomposition.
7. In the light of the above, the appellant, in its constitutional complaint to the Constitutional Court, proposes that the decision of the Minister of the Interior of 30 June 2015 No. MV- 22900-4 / VS-2015 and the decision of the Ministry of the Interior of 1 December 2014 No. VS-66 / 835.3 / 2- 2012 be annulled and also proposed, within the meaning of § 64 (1) (e) and § 74 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended ("the Law on the Constitutional Court '), to adopt a decision repealing the provisions of § 22 (3) of the Act on Civil Citizenship.
8. By order of 16.2.2016 in sp. zn.
Observations of the parties
9. In order to assess the case, the Constitutional Court called on the parties to comment on the application for annulment of the contested provision.
10. The Senate of the Parliament of the Czech Republic ("the Senate"), as a party to the proceedings, stated in its observations that the draft Act on Citizenship was referred to the Senate by the Chamber of Deputies on 24 April 2013. The Senate Organizing Committee ordered this proposal, as Press No. 87 (in the 9th term), to discuss the Committee on Foreign Affairs, Defence and Security as a committee to guarantee and also to the Constitutional Law Committee. The Guarantee Committee discussed the draft law at its meeting on 15 May 2013 and adopted Resolution No 52 recommending the Senate to approve the draft law as referred to it by the Chamber of Deputies (Senate Document No 87 / 1). The Constitutional Legal Committee discussed the bill at its meeting on 15 May 2013 and adopted Resolution 62 recommending the Senate to return the bill to the Chamber of Deputies with amendments (Senate Document 87 / 2). One of the amendments adopted by the Committee was the amendment of the provisions of Section 26 of the draft law in order to allow judicial review of those administrative decisions when the refusal of the application for citizenship of the Czech Republic took place under the contested provision on grounds of a threat to the security of the state.
11. The Senate discussed the draft Act on Citizenship at its 10th meeting in its 9th term of office on 16 May 2013. During the general debate, the constitutionality of the contested provision was not explicitly called into question, but the discussion focused on the related provisions of Section 26 of the draft law and on the amendment tabled by the constitutional legal committee. Its content was the introduction of a judicial review of administrative decisions, where a request for citizenship is rejected because of a threat to the security of the state on the basis of an opinion of the Czech Police or intelligence service containing classified information. The adoption of the amendment was supported by several senators in their speeches on the grounds that the proposed introduction of a judicial review of the administrative decisions in question is necessary in view of the constitutionally guaranteed right to a fair trial, is a defence against the possible misuse of decision-making powers in civil matters and is also in line with the case law of the Constitutional Court, according to which the exclusions of judicial review justified by security considerations are the subject of criticism.
12. At the end of the general debate, the proposal submitted by the Guarantee Committee was voted on to approve the draft law as referred to by the Chamber of Deputies. This proposal was not adopted and therefore a detailed debate was opened in which amendments were tabled to the draft law. At the end of the detailed debate, the amendments tabled were put to the vote and, finally, the bill was returned to the Chamber of Deputies with the amendments adopted by the Senate in its resolution No 207 of 16 May 2013, when in vote No 13 of the 65 Senators present voted 52 and five senators voted against. Among the amendments adopted was the amendment concerning the provisions of Section 26 of the draft law and allowing for the judicial review of administrative decisions when a refusal to grant citizenship took place under the contested provision on grounds of a threat to the security of the State (Amendment 5 of the Annex to Senate Resolution 207 of 16 May 2013).
13. The Chamber of Deputies again voted on the bill at its 54th meeting on 11 June 2013, rejecting the Senate version and remaining on its originally approved version of the bill. Subsequently, the law was referred to the President of the Republic, who signed it on 20 June 2013. The Act was published in the Collection of Laws under No. 186 / 2013 Coll. In conclusion, the Senate stated that, even when negotiating the Act on Citizenship, it followed within the limits of the Constitution of the Czech Republic the defined competence and the constitutionally prescribed way.
14. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies"), as a party to the proceedings in its observations on the proposal, merely summarised the legislative process which it stated that the draft Act on Citizenship had passed the constitutional procedure prior to its declaration. In particular, the Chamber of Deputies stated that the draft Act on Citizenship had been circulated to Members as Press No. 827 on 10 October 2012. The first reading of the draft law was made on 4 December 2012, when the deadline for discussing the draft committees was set for 60 days. Within that period, the Constitutional Legal Committee and the Security Committee discussed it and advised the Chamber of Deputies to approve the draft law as amended by their proposed amendments, none of which were affected by the contested provision. The bill passed both general and detailed discussions at the second reading on 20 March 2013. In a detailed debate, four Members spoke with their amendments - none of the proposals made touched on the Government's proposed text of the contested provision. The motion to reject the bill has not been filed.
15. The third reading of the draft Act on Citizenship was carried out on 27 March 2013 when the draft Act was approved as amended. The Chamber of Deputies passed the Senate Bill on 24 April 2013. The Committee on Foreign Affairs, Defence and Security has discussed the draft law and recommended that it be approved by the Chamber of Deputies. The Constitutional Legal Committee discussed the draft law and recommended that it be approved in the text of its amendments, which did not, however, concern the Government's proposed provision § 22 (3). The Senate discussed the bill at its 10th meeting on 16 May 2013 and returned it to the Chamber of Deputies as amended by it. The bill approved by the Senate was delivered to the Chamber of Deputies on 27 May 2013. The Chamber of Deputies voted on the bill as approved by the Senate on 11 June 2013 and maintained the original bill. The President of the Republic signed the Act on 20 June 2013. Subsequently, the law was delivered to the Prime Minister for signature on 26 June 2013.
Government and Public Protection of Rights on the Proposal
16. In accordance with Article 69 (2) and (3) of the Law on the Constitutional Court, the Constitutional Court drew the attention of the Government of the Czech Republic and the Ombudsman to the pending proceedings, reminding them of the time limit within which they could intervene as interveners and, if necessary, comment on the application.
17. On 31 March 2016, the Constitutional Court received a communication from the Minister for Human Rights, Equal Opportunities and Legislation by Jiří Dienstbier that the Government, at its meeting on 30 March 2016, had discussed a proposal for its entry into the proceedings before the Constitutional Court under sp. zl.
18. By letter dated 31 March 2016, the Government notified the Constitutional Court that it would intervene. At the outset of its observations on the case, it stated that the contested provision of the Citizenship Act is in accordance with Article 11 of the European Convention on Citizenship, published under No 76 / 2004 Coll., under which each Contracting State will ensure that the decision on the acquisition, maintenance, disposal, re-acquisition or verification of its citizenship contains a written justification. In this context, the Government refers to the Council of Europe's explanatory report on the European Convention on Citizenship, which states on the provisions of Article 11 that only the minimum information is given for national security decisions. The judicial review of a decision on citizenship is not required by Article 12 of the European Convention on Citizenship, as it considers that each Contracting State shall ensure that decisions on the acquisition, maintenance, disposal, re-acquisition or verification of nationality can be properly or judiciously reviewed under its national law. This requirement is already fulfilled by the possibility of decomposition against the decision of the Ministry of Interior, which rejected the application for citizenship of the Czech Republic for reasons of state security.
19. The Government also referred in its observations to the case law of the Constitutional Court on decisions concerning the granting of citizenship, according to which "in cases where a civil relationship does not arise ex-IG (by law), but on the basis of a decision by a competent authority of the State, the State has the right to decide whether to grant citizenship to a person and, failing this, does not infringe any right guaranteed by the Constitution of the Czech Republic, by constitutional laws or by an international treaty within the meaning of Article 10 of the Constitution of the Czech Republic. Such a procedure is not contradictory to the European Convention on Citizenship" (Resolution of the Constitutional Court, sp. zn. IV. both available at http: / / nalus.ujud.cz). Nor does the Convention on the Protection of Human Rights and Fundamental Freedoms establish, according to the Government, the right to citizenship (cf., for example, the judgment of the European Court of Human Rights of 12.1.1999 in the Karassev case against Finland). The Government also points out the legislation in Poland, according to which the decision based on the legal basis for security reasons is not justified (Article 107 of the Administrative Procedure Code of 14.7.1960, as amended, in conjunction with Articles 31 and 36 of the Act on Citizenship of 2.4.2009). A number of regulations include an explicit ban on the granting of citizenship to foreigners who threaten public order, security or state integrity. These include, for example, Bulgarian, Finnish, Italian, Hungarian, Dutch, Polish, Greek, Slovenian or Swiss law. This prohibition is regulated in detail by German, Austrian or, for example, Latvian legislation.
20. The Government also points out that the Czech legislation does not allow the withdrawal of citizenship by a foreign citizen to whom the citizenship of the Czech Republic was granted, even if it was subsequently found to be a security risk to the Czech Republic or would subsequently become one. It is therefore logical that the security aspect is also carefully examined before any application for citizenship is handled in a positive manner. The Government also states that from 1 January 2014, when the Act on Citizenship became effective, the Ministry of the Interior received a total of 9 634 applications for citizenship of the Czech Republic, for which only 17 cases were decided to reject the application due to a threat to the security of the state under Section 22 (3) of the Act on Citizenship. In the context of the decomposition procedure, in 4 cases, the primary instance decision was annulled when it was found that the security risk in relation to a specific applicant was lost (in two further cases, the Minister of the Interior had not yet decided on the decomposition on the date of submission of the Government's observations).
21. In view of the protection of the essential security interests of the State, the contested provision, according to the Government, constitutes a legitimate and proportionate restriction of the procedural rights of the party to the proceedings and the content of the grounds for the decision, as compared to the general rules on administrative proceedings. Should the facts relating to the threat to the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health or property values be permitted to be specified in the statement of reasons for the decision, this would result in the disclosure of classified information under the classified information protection law. In addition, it should be stressed that the provision of an opinion by some intelligence service or department of the police of the Czech Republic, even in anonymous form, would result in a breach or threat to the operational search activities of the security services. In this context, it should be stressed that these services, in addition to their own knowledge, have operational knowledge which they acquire through cooperation with foreign services. The publication of any documents or other evidence resulting from the activities of these foreign services would lead to a major threat to the functioning of cooperation between the services of the Czech Republic and other services and could result in the Czech services not having information in future which could be essential in order to ensure the security of the Czech Republic.
22. The Government stresses that the contested provision allows the applicant to establish that the decision not to comply with his request is based on a negative opinion of a security service. Each applicant shall have the opportunity to appeal against a first-instance decision and, in the context of the second-instance procedure, it shall be examined, inter alia, whether the security risk persists with the applicant and is of such a nature as to prevent the grant of citizenship. The examination of the State Security Opinion by the Minister of the Interior in the context of the procedure on the subject is not only a formal matter, according to the Government. The right to review the decision guaranteed by Article 12 of the European Convention on Citizenship is therefore ensured, including in relation to the review of the opinions of the Security Services and the Police of the Czech Republic and, in the view of the Government, within the limits of the principles of a fair process (legality, prohibition of abuse of competence, legitimate expectations), taking into account the necessary protection of third parties and the security interests of the State. On the contrary, the right of the applicant to defend its rights and interests remains, to the extent necessary, in view of the specificities associated with the interest in maintaining State security.
23. In this context, the Government points out that the contested provision is designed as a compromise [virtually the terminology of the Constitutional Court's finding sp. zn. Pl. ÚS 31 / 03 of 11.2.2004 (N 16 / 32 CollU 143; 105 / 2004 Coll.) - a politically acceptable and accepted result of "optimisation"], whereby, on the one hand, the applicant's procedural right to justify a decision is respected, but it is also acknowledged that the provision in question will contribute to the protection of the security of the Czech Republic, its sovereignty and territorial integrity, democratic foundations, lives, health and property values, all the above mentioned objects of protection are clearly essential enough to justify a special regime for the management of opinions on the basis of which these values are protected. This, including the possible impact on the protection of the life of those who examine the facts in question and the right of the party to be aware of all the evidence, should be considered as a value in the constitutional conformity proceedings of the contested provision.
24. The Government also points out in its observations that when assessing whether the contested provision is in accordance with the constitutional order, it is also necessary to take into account Constitutional Act No. 110 / 1998 Coll., on the Security of the Czech Republic, as amended by Constitutional Act No. 300 / 2000 Coll. Under Article 1 of the Constitutional Law on the Security of the Czech Republic, the fundamental duty of the State is to ensure the sovereignty and territorial integrity of the Czech Republic, to protect its democratic foundations and to protect lives, health and property values. This commitment by the State is, among other things, an unforgivable correction by the legislator when adopting, in particular, those laws whose application has significant security aspects. The legislature must have the aim of legislation enabling public authorities to carry out their tasks to the maximum extent in a democratic legal state permissible, both in individual cases (by providing the relevant information to the determining administrative authority) and in a complex of their activities (by not involving any other - another - security threat). However, this may in some cases be linked to the need to restrict a foreign procedural right. The fact that the protection of the fundamental security interests of the Czech Republic must be preferred clearly follows from the fact that, on the one hand, the fundamental obligation of the State expressly laid down in Article 1 of the Constitutional Law on the security of the Czech Republic and, on the other hand, the established case law of the Constitutional Court, which implies that there is no fundamental right which the sovereign state could violate by not granting citizenship to foreigners. However, if, in the context of this autonomous decision-making of the State, the procedural rights of a stranger (applicant) should be preferred against the protection of the State's security interests, this would mean the resignation of the Czech Republic to its fundamental obligation under Article 1 of the Constitutional Act cited.
25. In order to establish whether the applicant is not a threat to the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health or property value, the Ministry of the Interior will never have sufficient information coming from its own activities, so it was necessary to provide that it would request (en bloc, if not children under the age of 15) the opinions of the police and intelligence services. If these opinions contain classified information, following § 17 of the Administrative Code (which foresees that a special law may provide that part of the documents or records are kept separately from the file), it shall be expressly provided that the opinions of the Czech Police and Intelligence Services are not included in the file. Similar arrangements are contained, for example, in Act No. 325 / 1999 Coll., on Asylum, as amended, in Act No. 61 / 1988 Coll., on Mining Activities, Explosives and the State Mining Administration, as amended, in Act No. 38 / 1994 Coll., on Foreign Trade in Military Material and on the Addition of Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended, and Act No. 140 / 1961 Coll., Criminal Act, as amended, as amended, etc. Therefore, in the view of the Government, this adjustment cannot be considered unconstitutional. It merely sets up a communication system between the authorities of the State and regulates the handling of documents by the administration.
26. In the contested provision, the legislator assumes that if classified information indicates a threat to the above interests, its disclosure will also have very serious consequences in relation to the security of the Czech Republic. Where the decision is justified in accordance with that provision, it cannot be concluded that it is wholly unjustified; On the contrary, it is clear from such a statement to the party that the decision is given and that the source of the information is one of the security bodies of the Czech Republic mentioned in the law. Similar arrangements may also be found in the Act on the Protection of classified information, according to which the provisions of Paragraph 122 (3), where some of the reasons for the decision are classified information, shall contain only a reference to the documents for the decision and its classification level. In this context, the Government cites in its observations the finding of the Constitutional Court, sp. zn. Pl. ÚS 31 / 03 of 11.2.2004, according to which "The Constitution's protected value is also the protection of the interests of the Czech Republic as a sovereign state (Article 1 (1) of the Constitution)... The role of the legislator and, therefore, the government is to optimise the possible dissent of the protection mechanisms of both values, in other words, to narrow down to the minimum the scope for possible leeway in acts of public authority while ensuring effective protection of the interests of the State '. The Government also cited the order of the Constitutional Court, sp. zn. III. ÚS 3044 / 10 of 18.11.2010 (available at http: / / nalus.ujud.cz), which states that" The Constitutional Court respects the fact that, in view of the specifics and importance of decisions on 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'.
27. According to the Government, secrecy protects information, inter alia, from the point of view of its content, from the fact that it is known to the State, and from the assessment that the State considers the information to be serious enough to classify it as classified as classified. Those circumstances shall be respected in accordance with the procedure laid down in the contested provision. In replacing this procedure with another (for example, "aggregation" or "anonymisation" of data, as mentioned in the constitutional complaint), it seems impossible to avoid that either its outcome is very similar to what follows from the current wording of the contested provision or that the protection of classified information from those aspects is guaranteed to a lesser extent.
28. In conclusion, the Government notes that the intelligence services have specific information options. These specific options are natural for intelligence services, but similar authorisations do not apply to other authorities, which may normally mean that these other authorities will not be able to verify the information transmitted by the intelligence service. If the legislator has decided that the intelligence services acquire information that is relevant in different situations and procedures (on international protection, on the handling of security material, etc.), the government considers it right that the statutory procedure is followed and that the information of the intelligence services (even the police) is attributed to the relevance laid down by law. If this conclusion is not correct, it rather evokes the question of the need for intelligence services.
29. In view of the above, the Government does not find any contradiction between the contested provision and the constitutional order. The Government persists in its view that the restriction of the right of a party to familiarise itself with the grounds for a decision is due to the State's interest in the protection of security and therefore recommends rejecting the proposal to repeal the provisions of Paragraph 22 (3) of the Citizenship Act.
30. The Ombudsman, by letter dated 9 March 2016, notified the Constitutional Court that she would exercise her right to intervene. In her observations of 8 April 2016, she stated that she had decided to intervene in the application for annulment of the contested provision on the basis of the findings from specific cases dealt with and dealt with by the Ombudsman. In this context, the Ombudsman points out a case under point 7 / 2005 / SZD, which, as the representative of the Ombudsman, stated that "a practice which resigns to any justification for examining a request for national citizenship of the Czech Republic from the point of view of national security, as well as an attempt to establish it legally (see the proposal for a substantive intention of the Law on the acquisition and abatement of citizenship, which the Ministry of the Interior has drawn up), with reference to one of the fundamental principles of the material rule of law, which respects the principle of predictability of law and the exclusion of discretion by executive powers... it is necessary to reflect a legitimate public interest in the protection of classified facts, or information. However, this does not mean that the safety aspect under assessment can be completely disregarded in the reasoning of the decision, and it is up to the determining administrative authority to find an appropriate way to reconcile this public interest (State interest) with that of a private interest, i.e. that of an applicant who, in many cases, has no idea why his request was not granted. '
31. Another case referred to by the Ombudsman in her observations is the case of the complainant, a citizen of the state of Ukraine, who turned to the Ombudsman in 2012. In the course of an inquiry (conducted under sp. above. 6171 / 20012 / VOP / MV), the Ombudsman found that the Ministry of the Interior had not presented to the court all the evidence on the basis of which it had refused to grant citizenship and, pending the reasons for the decision, gave reasons. Thus, by its procedure, it effectively denied the party the right to judicial protection. The Ombudsman also states that she is currently dealing with an initiative (registered under sp. zn. 5761 / 2015 / VOP / MV) of State Citizen Benin, whose application for citizenship was rejected by the Ministry of Interior because of a threat to state security in the procedure under the Act on Citizenship. However, investigating the progress of the Ministry of the Interior in these matters is currently hindered by the negative attitude of the Ministry of the Interior, which the Ombudsman refuses access to classified information on the basis of which the application for citizenship should have been rejected. In the opinion of the Ministry of the Interior, access to classified information by which it rejects applications for citizenship under the contested provision is not necessary for the performance of the Ombudsman's duties.
32. In the light of the suggested practice, the Ombudsman summarises in her observations that the Ombudsman dealt with the problem almost continuously and repeatedly pointed out the lack of justification for the decision of the Ministry of Interior in the context of the examination of the application for citizenship of the Czech Republic in terms of state security. However, even the Ombudsman's inquiry (in view of the problematic cooperation of the executive bodies in the context of the inquiry and the absence of any mandate of the Ombudsman) in these matters cannot replace the judicial review of decisions given within the administrative judiciary. The Ombudsman considers the Ombudsman's external control in these cases only as an emergency, non-systemic solution resulting from the current legislation governing the acquisition of citizenship.
33. The right of the participant to be familiar with the documents of the decision and the right to comment on them (i.e. the right to be heard) considers the Ombudsman to be the substance of the right to a fair trial. The rules which do not allow the party concerned to be aware of the documents of the decision or the reasons for the decision taken make it impossible to defend himself effectively against such a decision. The consequence of such legislation, which also excludes the possibility of judicial review, is essentially the denial of the right of a participant to a fair trial within the meaning of Articles 36 (1) and 38 (2) of the Charter of Fundamental Rights and Freedoms. The Ombudsman agrees with the appellant's view that the opinion of the Police of the Czech Republic and of the intelligence services of the Czech Republic is binding on the administrative authority under the contested provision, the administrative procedure in question and the denial of the principle of free assessment of evidence and the principle of material truth. The legislation contained in the contested provision unacceptably opens up the scope for the insolence of the executive bodies in the exercise of State power, which, in the Ombudsman's view, is contrary to the fundamental principles of the democratic rule of law. In this context, the Ombudsman cites the above part of the preamble to the Supreme Administrative Court judgment of 25.11.2011 sp. zn. 7 As 31 / 2011.
34. In its observations, the Ombudsman further draws attention to the ambiguity of the factual reasons which led the legislator to establish a significantly different (lower) procedural standard for the parties to the contested provision, compared to the rules on the procedure for so-called security clearance, contained in the classified information protection law. The Ombudsman considers that the procedural arrangements for security clearance in the Act on the Protection of classified information have sufficiently dealt with both the confidentiality requirements of certain information and the requirement to ensure a fair process. In this context, the Ombudsman adds that the legislation in question also stood before the European Court of Human Rights (Regner v Czech Republic, 26.11.2015, No 35289 / 11).
35. Finally, the Ombudsman states that it considers that the contested provision itself is not an unconstitutional provision. It adds that § 26 of the Act on Citizenship does not appear to be an unconstitutional provision in itself. The infringement of Articles 36 (1) and 38 (2) of the Charter of Fundamental Rights shall take place only by combining those two provisions. Where an application for citizenship is rejected because of a threat to the security of the State, the applicant may not, in administrative proceedings, comment on the evidence made because the evidence is not part of the file. It cannot, however, comment on it even in the context of legal proceedings, as the judicial review is legally excluded in this case. Thus, the right of a party to a fair trial is infringed. The Ombudsman therefore proposes that the Constitutional Court annul the contested provision.
Replication of the applicant
36. The above observations were sent to the applicant by the Constitutional Court and to a possible reply. However, the appellant did not use the reply to the Constitutional Court.
Abandonment of oral proceedings
37. Following the recap of the proceedings, the Constitutional Court concluded that there was no need to conduct oral proceedings in the case, as it would not have brought any further, or better and clearer clarification of the case than in the written proceedings of the appellant, the parties and the interveners. In view of the wording of Article 44 of the Constitutional Court Act, the Constitutional Court decided without holding oral proceedings.
Derogation of the contested provision
38. The contested provision of Paragraph 22 (3) of the Citizenship Act reads as follows:
"The Ministry shall seek the opinions of the Czech Police and intelligence services of the Czech Republic for the application for citizenship of the Czech Republic, submitted by the applicant over 15 years of age; such opinions shall not be included in the file if they contain classified information. In the event that the proceedings reveal, on the basis of the opinion of the Police of the Czech Republic or of the intelligence services containing classified information, that the applicant endangers the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health, or property values, the decision shall state only that the request was rejected because of a threat to the security of the State. '
Assessment of the applicant's active legitimacy to submit a proposal
39. As already mentioned above, the appellant submitted an application for annulment of the contested provision together with a constitutional complaint pursuant to § 72 et seq. of the Constitutional Court Act. It is therefore based on Articles 64 (1) (e) and 74 of the Constitutional Court Act. In accordance with those provisions, the Constitutional Court had therefore first to examine whether the conditions for bringing such an application in the case of the complainant (s) were met.
40. The basic precondition for the submission of an application pursuant to the provisions of Section 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., is the "application" of the contested law. This means that it is only on the basis of the application of the provision (s) in question (s) that a decision, measure or other intervention by a public authority which is the subject of a constitutional complaint has been made which has been manifested negatively in the individual legal sphere of the complainant, i.e. a breach of his constitutionally guaranteed fundamental rights and freedoms. There must be a close link between the constitutional complaint challenged by a decision or other intervention by a public authority and the provisions of the legislation proposed for annulment in the sense that, if it were not for the contested provision of a law, the contested decision would not have been given or any other intervention by a public authority.
41. In the present case, in view of the subject matter of the dispute - in which the appellant seeks annulment of the decision of the Ministry of the Interior and the Minister of the Interior, on the basis of which his application for citizenship of the Czech Republic was not granted because of a threat to the security of the State pursuant to Paragraph 22 (3) of the Act on Citizenship - the contested provision was applied, and thus the application of the contested provision gave rise to a fact which is the subject of a constitutional complaint. Thus, the appellant is actively legitimised in this part of the proposed objections.
42. Although formally, in the petit of its proposal, the appellant proposes the annulment of only Paragraph 22 (3) of the Citizenship Act, he also objects in his proposal to the exclusion of judicial review of decisions issued under Section 22 (3) of the Citizenship Act, which is contained in Section 26 of the Citizenship Act. The Ombudsman also proposes, in her foregoing observations, the annulment of the contested provision with reference to Article 26 of the Citizenship Act. However, in its settled case-law, the Constitutional Court underlines that the petition is binding, not on its grounds, i.e. the arguments put forward by the appellant. It therefore considers the proposal from other aspects of the protection of constitutionality than those set out in the statement of reasons for the proposal, but it cannot decide to repeal provisions other than those mentioned in the petition. The Court of First Instance has consistently held that, as a result of the annulment of a statutory provision, the provision of another provision on a prior dependent basis would lose reasonable meaning, that is to say, it would lose the validity of its normative existence, giving reason for the annulment of that provision, without being an ultra petitum procedure. The validity of such a provision expires on the basis of the principle of cessante ratione legis cessat lex ipsa, the derogation carried out by the Constitutional Court is therefore only of a registered, technical nature [cf. However, the proposal under consideration is not such a case. Paragraph 26 of the Act on Citizenship is not a provision which would only be followed by legislation- technical provisions of Paragraph 22 (3) of the Act on Citizenship, which is proposed to be repealed.
43. To the above conclusion, the Constitutional Court adds that even if the appellant were to petition the annulment of Paragraph 26 of the Act on Citizenship, its proposal could not be admissible in this part. The constitutional complaints challenged by the decisions of the Ministry of the Interior and the Minister of the Interior are not due to the application of Section 26 of the Act on Citizenship, or the provision of Section 26 of the Act on Citizenship, were not applied in the previous proceedings and thus did not determine the content and effects of the contested decisions in the legal sphere of the appellant. The present case must therefore be distinguished from the finding of the Constitutional Court of 23 November 1999 sp. zn. Pl. ÚS 28 / 98 (N 161 / 16 SbNU 185; 2 / 2000 Coll.), which was found to be admissible by an application for annulment of the provision providing for an exclusion from judicial review, which was lodged together with a constitutional complaint against a decision of the General Court which brought an appeal to the appellant against a previous decision of a public authority. In the present case, the appellant argued that that decision of the General Court infringed its rights of judicial protection in the context of the application of the contested provision on the exclusion from judicial review on the basis of which the judicial proceedings in question were terminated. However, in the present case, the action against constitutional complaints was not brought by the contested decision.
44. In the light of the above, the Constitutional Court points out at this point that the fact that an action for annulment of a part of the Act in relation to a constitutional complaint within the meaning of Article 74 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., does not permit the Constitutional Court to deal with those objections which are raised against the exclusion of judicial review provided for in Article 26 of the Act on Citizenship, to which the complainant is not actively justified in this type of standard control procedure.
Constitutional conformity of the legislative process
45. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court - in addition to assessing the compliance of the content of the contested law with the constitutional laws - ascertains whether the law was adopted and issued within the limits of the Constitution of the Czech Republic by the designated competence and by the constitutionally prescribed method.
46. Given that the appellant did not object to a defect in the legislative process or to a breach of the Constitution of the Czech Republic as established by the legislature, it is not necessary to examine this issue further and it is sufficient to take into account, in addition to the observations submitted by the Chamber of Deputies and the Senate, the formal verification of the conduct of the legislative process from a publicly available information source to http: / / www.psp.cz.
47. Draft Act No. 186 / 2013 Coll., on Citizenship of the Czech Republic and on the amendment of certain laws (Act on Citizenship of the Czech Republic), containing the contested provision § 22 (3), the Chamber of Deputies duly approved at its meeting held on 27 March 2013 (Resolution No. 1616). The Senate returned the proposal with amendments to the Chamber of Deputies, which adopted it at its meeting on 11 June 2013 (Resolution No 1699). The President of the Republic signed the Act adopted on 20 June 2013. After the signature of the Prime Minister, the law was declared in the Collection of Laws in the amount of 77 under the number 186 / 2013 Coll.
48. The contested provision of Paragraph 22 (3) of the Act on Citizenship was therefore adopted and issued within the limits of the Constitution of the Czech Republic by the designated competence and the constitutionally prescribed manner.
Legal evaluation of the Constitutional Court
49. The contested provision of Paragraph 22 (3) of the Act on Citizenship provides that where the procedure is based on the opinion of the Czech Police or the intelligence service containing classified information, it is apparent that the applicant is a threat to the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health, or property value, the decision shall state only that the request was rejected because of a threat to the security of the State, which is not part of the file.
50. According to the explanatory memorandum to the Act on Citizenship, the contested provision allows the Ministry of the Interior to request documents to assess whether the applicant poses a threat to important state interests and does not pose a security risk to the Czech Republic. It is further submitted from the explanatory memorandum that that procedure serves exclusively to protect the essential security interests of the State and as such constitutes a legitimate and proportionate restriction. "an applicant whose activities threaten the essential security interests of the State cannot be allowed to be made aware of the content of the opinion of the Czech Police or intelligence services, when such a procedure could seriously jeopardise the operationally searching operations of the Czech Police and Intelligence and as a result of human lives. From the point of view of protecting those interests, the opinions of the Czech Police or the intelligence service, or the information contained in those opinions, in the procedure for the granting of citizenship (and, where appropriate, in subsequent decomposition) cannot be mentioned in detail or referred to in reasoned decisions, where the request will be rejected because of the threat to the security of the State, the protection of its sovereignty and territorial integrity, democratic foundations and the protection of lives, health and property values, since the disclosure of such facts in the preamble to the decision would result in the disclosure of classified information contained in those opinions, which would be extremely undesirable from the point of view of the State. In such cases, the Ministry will only state that the request was rejected for precisely these reasons, which will ensure that the grounds for the decision include at least basic information on what was the reason for the rejection of the application '(explanatory report to the Act on Citizenship).
51. The appellant states in its proposal that, on the basis of its claim on the unconstitutionality of Article 22 (3) of the Act on Citizenship, it does not knowingly interfere with the security of the State, but does not have the opportunity to defend itself effectively against the procedure under the contested provision, as its right to communicate the reasons for the decision is neglected.
52. It follows from the case-law of the Constitutional Court, to which the Government points out in its observations, that, in cases where a national civil relationship does not arise ex ante, but on the basis of a decision of the competent authority of the State (and this is the case for the appellant), the State has the right to decide whether to grant citizenship to a person and, if it does not, does not infringe any fundamental rights. In other words, there is no fundamental right that a sovereign state could infringe by not granting citizenship to foreigners by its decision (Resolution of 8.3.2000 sp. zn. IV. ÚS 586 / 99 or Resolution of 17.5.2007 sp. zn. II. ÚS 624 / 06). However, it cannot be inferred from the above that it is not necessary to state the reasons for the decision on the acquisition of citizenship - which is always to be part of such a decision under Article 11 of the European Convention on Citizenship - of the criteria resulting from the present case-law of the Constitutional Court.
53. According to the case-law of the Constitutional Court, the right to justify a decision and to prohibit the insolence of public authorities relates to the right to a fair trial, guaranteed by Article 36 (1) of the Charter of Fundamental Rights and Freedoms, and is generally deductible from the rule of law within the meaning of Article 1 of the Constitution of the Czech Republic [e.g. the finding of sp. zn. III. ÚS 84 / 94 of 20. 6. 1995 (N 34 / 3. SbNU 257), the finding of sp. zn. I. ÚS 50 / 03 of 13. 6. 2006 (N 120 / 41. SbNU 499) or the finding of the individual without this intervention being justified, or without the disclosure to the person of the relevant legal basis (cf. Charter of Fundamental Rights and Freedoms: Comment. Wolters Kluwer, 2012, to Article 36, and Svoboda, P. Constitutional foundations of administrative proceedings in the Czech Republic: right to a fair trial and Czech administrative proceedings. Praha: Linde, 2007, p. 326). As the Constitutional Court has repeatedly pointed out in its case-law, one of the principles forming part of the right to due process (Article 36 (1) of the Charter of Fundamental Rights and Freedoms) and the exclusion of choice in decision-making is the need for continuity between factual findings and considerations in the assessment of evidence, on the one hand, and the legal conclusions, on the other hand, expressed in the statement of the decision of the public authority [cf., for example, the finding of 30 November 1995 sp. zn. III. ÚS 166 / 95 (N 79 / 4 SbNU 255)].
54. In order to justify the decision of the administrative authority, the expert literature further states that "it represents a reflection of the right to be heard which gives the administrative authority an obligation to provide the parties with the necessary procedural rights in the proceedings. The statement of reasons is then intended, inter alia, to show how the rights of the parties have been guaranteed in the proceedings and to become one of the fundamental rights of the party to the proceedings... The basic criterion in relation to the justification remains the overall persuasion of the decision as it serves the requirement of the credibility of the public administration. Without transparency or knowledge of the motives of the decision, it is difficult to consider good governance in relation to 'managed' addressees and generally justice decisions' (Skulová, S., Heič, D. and Bražina, R. Justification of administrative decisions: revitalisation of the Institute with a long tradition. Lawyer No 10 / 2016, p. 899, 906).
55. Contrary to that individual's interest in being informed of the reasons for the decision of a public authority, the above mentioned security interest of the State, expressed explicitly in Article 1 of the Constitutional Law on the Security of the Czech Republic, according to which the safeguarding of the sovereignty and territorial integrity of the Czech Republic, the protection of its democratic foundations and the protection of the lives, health and property values is a fundamental duty of the State. The security interest of the State is also a protected value by the Constitution of the Czech Republic (protection of the interests of the Czech Republic as a sovereign State under Article 1 (1) of the Constitution of the Czech Republic; cf. Findings of 11.2.2004 sp. zn. This state interest represents an existential interest which legitimises certain limitations in the legal sphere of the individual; After all, as a result, it is a state that protects the status of an individual. If the Constitutional Court has ruled that the Constitution of the modern democratic rule of law constitutes a social agreement based on a minimum value and institutional consensus [cf. Sp. zn. Pl. ÚS 33 / 97 of 17.12.1997 (N 163 / 9 SbNU 399, 407; 30 / 1998 Coll.)], the interest of the State and its protected persons in its own safe existence can be understood, inter alia, under that term; in order to protect this interest, the State must have the relevant instruments. One of them is the area of protecting classified information.
56. In the light of the above, it is therefore not possible, on the one hand, to allow an absolute and non-exceptional legal ban on the indication of any grounds for a decision by a public authority, on the other hand, to reflect a legitimate public interest in the protection of classified information and, therefore, from this point of view, a restriction in the form of a legal ban on the disclosure of such grounds is permissible. Therefore, the Constitutional Court must assess whether, taking into account these considerations, the applicant's interest in the granting of citizenship and the State's security interest in the contested legislation is, in a constitutional manner, reflected in the same terms or whether they are mutually balanced (cf. the finding of the Constitutional Court of 12.7.2001 sp. zn. ÚS 11 / 2000).
57. The Constitutional Court, in connection with the assessment of the constitutionality of the contested provision, recalls that it had already dealt with a similar case in the past when it annulled the provisions of Act No. 148 / 1998 Coll., on classified information and on amending certain laws, as amended, which required the National Security Office to never disclose to the person concerned the reasons for not issuing a certificate of contact with classified information, inter alia for its contradiction with Article 1 of the Constitution of the Czech Republic. The Constitutional Court acknowledged in this case that the proper and detailed justification for the notification of the non-certification could in some cases seriously jeopardise the State's interests, but in the view of the Constitutional Court it was not always appropriate not to disclose to the person concerned the reasons why he was not found to be eligible for access to classified information, as the reasons were not disclosed under the repealed provision, even where the important interests of the State and of third parties were not manifestly prejudiced. On the contrary, it was rather exceptional that the communication of these reasons could have led to a real threat to the interests of the State (the Constitutional Court's finding of 12.7.2001 sp. zn.
58. In the present case, however, the situation is clearly different from that presented to the Constitutional Court in the abovementioned case, although some of the conclusions of the found are applicable to the present case. The difference is that the contested provision in the present case does not require the Ministry of the Interior not to disclose any grounds for failure to comply with the application for citizenship, but to disclose only those grounds for failure to comply with the application for citizenship resulting from the opinions of the Czech Police and the intelligence services of the Czech Republic, the content of which is classified information according to which the applicant threatens the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health or property value. In doing so, it should be pointed out that, in order to be able to accept this limitation, the risks to the individual values listed here, which pose a security risk to the State, must reach a similarly high degree. In this case alone, the reason for failure to comply with the request shall not be disclosed in detail, but the reasons for the decision merely state that the rejection of the request was due to a threat to State security. In all other cases of non-compliance with an application for citizenship for non-compliance with the conditions laid down in the Citizenship Act, the reasons for non-compliance in the grounds for such a decision should be duly stated.
59. Therefore, only information according to the contested provision is to be excluded from the scope of the contested provision, according to which the applicant threatens the security of the State, its sovereignty and territorial integrity, democratic foundations, lives, health or property values. Such a definition of the safety risks under the contested provision is quite general, but this can be attributed to the fact that the importance of individual specific safety risks may change over time, while some safety risks may appear completely new and some of them may give rise to the background (cf. the finding of 12.7.2001 sp. zn.
60. However, when assessing the safety risks so generally defined, or when assessing the opinions of the Czech Police and intelligence services of the Czech Republic, whether they show that the safety risk condition is met, and the application is therefore to be rejected, the governing administrative body must respect the principle of proportionality in individual cases and distinguish between different levels of security risks. In accordance with the contested provision, the exclusion from the statement of reasons can only be invoked where it is a relevant and not a completely marginal security risk. In that case alone, the expression of the security reason for which the administrative authority rejects the application may, in a particular case, constitute a threat to the safety of the State or of third parties (cf. Molek, P. and Šiměl, V. The granting of citizenship - On the way from the grace of the State to judicial review of administrative discretion. Lawyer No 2 / 2005, p. 154), and only in that case can the legal exception from the obligation to specify the reason for the negative decision, in the light of the above, be legitimate.
61. In the previous paragraph, that procedure is intended to ensure that specific reasons for non-compliance with the application are not communicated to citizens only where there is a real concern that their disclosure could jeopardise the security of the State or third parties. In the light of the foregoing, the contested legislation pursues a legitimate objective which is the State's security interests. In order to achieve this objective, it has at the same time chosen rational and not arbitrary means, since it excludes only the information for which the request is rejected because of a threat to the security of the State from the statement of reasons, at least in general, it shall be stated that the rejection of the request was due to a threat to the security of the State. This compromise between the individual's interest in communicating the reasons for the rejection of the decision, on the one hand, and the State's security interests, on the other hand, considers the Constitutional Court, in the light of the above, to be constitutional.
62. The Constitutional Court therefore concludes that the contested legislation is an indication of the optimisation of the possible counter-action of the safeguard mechanisms of the two Constitution of the Czech Republic of protected values, where, on the contrary, it would be disproportionate if the Act on Citizenship had provided for a complete justification for the refusal of the application in order to threaten the security of the State to the detriment of the protection of those interests of the State, which would thus have had to give an unequivocal waiver of the right to a fair trial (cf. the finding of 11.2.2004 sp. The Constitutional Court therefore does not consider the contested provision to be contradictory to Article 36 (1) of the Charter of Fundamental Rights and Freedoms or to the principle of the material rule of law within the meaning of Article 1 (1) of the Constitution of the Czech Republic.
63. Therefore, the Constitutional Court did not find that the contested provision of the law constituted a breach of the constitutional rules which entitle it to exercise the powers of deregation conferred on it. The Constitutional Court reiterates at this point that it was not authorised to deal with the heading of objections against the exclusion of judicial review provided for in Section 26 of the Citizenship Act (see also recital VII). Therefore, this finding does not prevent Section 26 of the Act on Citizenship from being the subject of a substantive review in the constitutional control procedure.
Conclusion
64. On the basis of the reasons set out above, the Constitutional Court rejected the application for annulment of § 22 paragraph 3 of Act No. 186 / 2013 Coll., on citizenship of the Czech Republic and on the amendment of certain laws (Act on citizenship of the Czech Republic), rejected (§ 70 paragraph 2 of Act No. 182 / 1993 Coll., on the Constitutional Court).
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Kateřina Šimáková and Vojtěch Šimělek for a decision and by Judge Louis David for his reasons.
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Regulation Information
| Citation | The Constitutional Court found No. 393 / 2016 Coll., on the application for annulment of § 22 paragraph 3 of Act No. 186 / 2013 Coll., on citizenship of the Czech Republic and on the amendment of certain laws (Act on citizenship of the Czech Republic) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.12.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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