The Constitutional Court found No 73 / 2017 Coll.
The Constitutional Court's finding of 20 December 2016, sp. zn.
Valid
73
FIND
The Constitutional Court
On behalf of the Republic
On 20 December 2016, the Constitutional Court decided under sp. zn. Pl. ÚS 3 / 14 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Lichník, Jan Musil, Vladimir Sládeček, Radovan Sukánek, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková, David Uhír and Jiří Zemánek (Judge) on the proposal of the Supreme Court to pronounce of the Czech Parliament of the Czech Republic as a party to the proceedings and Government of the Czech Republic as a party to the proceedings,
as follows:
1. The proposal to declare the unconstitutionality of Section 37 (6) of Act No. 499 / 2004 Coll., on archiving and file service and on the amendment of certain laws, as amended by 30 June 2009, is rejected in the words "archival activities of the security services under the Act on the Institute for the Study of Totalitarian Procedures and the Archive of Security Services".
2. The rest is rejected.
Reasons
Recital of the opening proposal
1. The Constitutional Court received, on 4 March 2014, the Resolution of the Supreme Court of 15 January 2014 No 30 Cdo 2951 / 2012-254 which, pursuant to Article 109 (1) (c) of Act No. 99 / 1963 Coll., as amended, in conjunction with its Article 243c, suspends the procedure as it considers that Article 37 (6) of the Act on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention") and the case is brought before the Constitutional Tribunal.
2. In view of the fact that the provisions of Section 37 (6) of Act No. 499 / 2004 Coll., on archiving and file services and the amendment of certain laws relating to the data provided on the person concerned have been amended in the course of the proceedings, the Constitutional Court has called on the appellant to express the petition. By submission dated 23 June 2015 he supplemented The Supreme Court makes its proposal by proposing that the Constitutional Court should declare the inconstitutionality of Section 37 (6) of Act No. 499 / 2004 Coll., on archiving and writing services and on the amendment of certain laws, as they are effective until 30 June 2009 (hereinafter referred to as "the contested provision ').
3. In that case, the appellant decides under sp. zn. 30 Cdo 2951 / 2012 on the authorisation of Vladimir Hartman (hereinafter referred to as "the plaintiff '), whose action to make the defendant available to a third party, Zdeněce Kvasnicová, a worker of the Ostrava branch of the Czech Television, a sensitive personal data relating to his person from ZV 442-MV, led by the former State Security Court in Prague on 10 January 2012, was rejected by the judgment of the Municipal Court in Prague on 66 C 109 / 2011-187. The judgment of the Court of First Instance was confirmed by the judgment of the Supreme Court in Prague on 5 June 2012 No 1 Co 28 / 2012- 202. The applicant lodged an appeal before the Supreme Court against the decision of the Court of Appeal, together with an application for annulment of the contested provision.
4. In its proposal, the Supreme Court, having noted the content of the provisions of Act No. 499 / 2004 Coll., on archiving and file service and amending certain laws, as amended by 30 June 2009, Article 10 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') and Article 8 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, submits that the general illegal handling of personal data usually involves interference with personal rights; such illegal handling of personal data is also the publication of sensitive data. The legal exception contained in the text of the contested provision was, according to the Supreme Court, to remove sensitive data from the protection, since the protection (in particular the prior consent of the person concerned) does not apply, inter alia, to archival sites arising before 1 January 1990 from the activities of the security forces under Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Systems and on the Archive of Security Services and on the amendment of certain laws, as amended (hereinafter referred to as" Act No. 181 / 2007 Coll.'). It follows from the explanatory memorandum and the preamble to Act No. 181 / 2007 Coll. that such an exception is justified by dealing with its own past and making historical valuable information available to the public as widely as possible. In this context, the appellant points out the judgment of the European Court of Human Rights ("the ECHR ') in the Niemietz case against Germany of 16.12.1992, complaint No 13710 / 88, which states that the right to privacy is not merely an anchor of the individual's egocentrism, but also has a social dimension. According to Article 8 of the Convention, the right to privacy is not an absolute right; interference and restrictions in that right are permissible, but only in situations where the conditions of paragraph 2 of this provision are met.
5. The appellant submits that the right of intervention by the State in private life, protected by Article 10 (2) of the Charter, was also addressed in the judgment of 28 February 2013 in Case 30 Cdo 2778 / 2011, which concluded that it was always necessary to take into account whether the intervention was lawful (the legality test), whether it pursued at least one of the legitimate objectives (the legitimacy test) and whether it was necessary in a democratic society (the necessity test).
6. The appellant concluded that, in the case of the plaintiff, it was clear that the defendant followed the relevant national rules, i.e. Act No. 499 / 2004 Coll., on archiving and file service and on the amendment of certain laws, as in force on 19 March 2008, which was the legal basis for its official procedure. This law was sufficiently publicly available and predictable and did not show any other qualitative defects which would have the effect of potentially calling into question the legality of the legislation and the contested provision. The Supreme Court then acceded to the legitimacy test to determine whether the action taken in accordance with the law (i.e. the publication of sensitive personal data in the framework of the disclosure of the State Security Union) pursued one of the legitimate objectives foreseen in Article 8 (2) of the Convention. Here the appellant is based on the preamble to Act No. 181 / 2007 Coll. and considers that the intervention in the plaintiff's privacy was led by a legitimate objective expressed in the Convention as "the protection of morality 'and" the protection of the rights and freedoms of others'. The appellant then took the necessary test, referring to the interpretation made by the ECHR, which sees the concept of "necessary 'as a requirement of proportionality when he stated that" the concept of necessity requires that intervention [in the law at issue] be proportionate to the urgent social need and, in particular, to the legitimate objective pursued' (Olsson v Sweden, judgment of 24 March 1998, No 10465 / 83, § 67). Here, the appellant wonders whether the legally defined disclosure of sensitive personal data can indeed be considered reasonable and whether a more sensitive procedure cannot be chosen without undermining the legislator's legitimate objective. Similarly, according to the appellant, it is necessary to assess whether, due to the passage of time, the social need to inform the public at the price of providing all sensitive personal data.
7. The applicant, aware that, when establishing one of the personal data protection instruments, whether it be anonymisation or requiring the necessary consent of a living natural person, there could be some restriction on access to information, but considers that such a restriction on de Lehferenda does not appear to be appropriate and archived files, while not losing its testimonial value on the practice of the Communist regime in suppressing human and political rights. At the same time, Article 10 of Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws, which provides that when processing personal data, the controller and the processor ensure that the data subject does not suffer harm to his or her rights, in particular to the right to preserve human dignity, as well as to protect against unauthorised interference in the personal and personal life of the data subject. The appellant is of the opinion that there may be a discrepancy between Act No. 140 / 1996 Coll., on the disclosure of volumes arising from the activities of former State security, as amended, (hereinafter referred to as "Act No. 140 / 1996 Coll. ') and the provisions of § 37 (6) of the Act on archiving, which may appear to be a non-compliant condition of proportionality, precisely in view of the fact that sensitive personal data in the files on the agents and co-workers of State Security are protected more than personal data in the archives of persons persecuted by the former State Security pursuant to the Act.
Observations of the parties, opinions of the Office for the Protection of Personal Data, Archives and Institutions
8. The Constitutional Court requested, within the meaning of Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as "the Law on the Constitutional Court ', the observations of the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic, the opinion of the Government of the Czech Republic (hereinafter referred to as" the Government'), the Ombudsman and the Office for the Protection of Personal Data.
9. The President of the Chamber of Deputies stated in his observations that the bill was submitted by the Government to the Chamber of Deputies on 11 August 2003 and was assigned the number of the House of Deputies 428. The bill was discussed by the Chamber of Deputies in three readings. The third reading of the bill took place at the 31st meeting of the Chamber of Deputies on 11 May 2004. The bill was approved as a comprehensive amendment to the Committee on Public Administration, Regional Development and the Environment, as amended by other amendments. In Final Vote 123 on the Bill, 173 Members voted in favour of Bill 116, 49 Members voted against it. The bill was returned to the Chamber of Deputies by the Senate with amendments. The Chamber of Deputies then discussed the bill returned at its 33rd meeting on 30 June 2004. In vote 272, the 182 Members present voted in favour of draft law 109, and 15 voted against it. The Chamber of Deputies approved the bill as approved by the Senate. The Act was delivered to the President of the Republic for signature on 21 July 2004. The President of the Republic signed the Act on 27 July 2004. The Act was declared Act No. 499 / 2004 Coll. Finally, the President of the Chamber of Deputies stated that the draft law was approved by the two chambers of Parliament by a constitutional procedure, the law was signed by the relevant constitutional authorities and duly declared. It is up to the Constitutional Court to decide on the Supreme Court's motion.
10. The President of the Senate stated that the bill was passed on to the Senate on 20 May 2004. The Senate Organising Committee ordered this proposal as Senate Press No. 367 (in the 4th term) to discuss the Committee on Territorial Development, Public Administration and the Environment (Guarantee Committee) as well as the Committee on Education, Science, Culture, Human Rights and Petitions. The Committee on Territorial Development, Public Administration and the Environment, by Resolution No 90 (Senate Press No. 367 / 1) of 2 June 2004, recommended the Senate to return the bill to the Chamber of Deputies with amendments. The Committee on Education, Science, Culture, Human Rights and Petitions (Senate Press No. 367 / 2) of 3 June 2004 also recommended the Senate to return the bill to the Chamber of Deputies with amendments. The Senate Plenum discussed the bill at its 16th meeting of the 4th term of office on 10 June 2004 and adopted Resolution 467 returning the bill to the Chamber of Deputies as amended. 49 of the 51 senators voted in favour of the resolution and 1 Senator opposed it. One of the amendments adopted concerned the contested provision of Paragraph 37 (6), but it was merely a wording to replace the word 'published' by 'publicly available'. None of the discussion contributions which were made during the Senate's deliberations on the content of the draft law raised a question of the constitutionality of the contested provision. Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Procedures and on the Archive of Security Services and on the amendment of certain laws, in its Part Three in § 24, Paragraph 37 (6) was amended with effect from 1 August 2008 in such a way that the words "former State Security 'were replaced by the words" security services under the Act on the Institute for the Study of Totalitarian Procedures and the Archive of Security Services'. The bill was passed on to the Senate on 15 May 2007. The Senate Organizing Committee ordered this proposal as Senate Press Number 62 (in the sixth term) to be discussed by the Committee on Education, Science, Culture, Human Rights and Petitions (Guarantee Committee), as well as the Constitutional Legal Committee and the Committee on Foreign Affairs, Defence and Security. All the committees to which the bill was ordered to be debated recommended that the Senate approve the bill as referred to by the Chamber of Deputies. The Committee on Education, Science, Culture, Human Rights and Petitions did so by its Resolution No 50 (Senate Press No 62 / 1) of 30 May 2007, by its Constitutional Law Committee by its Resolution No 20 (Senate Press No 62 / 2) of 30 May 2007 and by its Resolution No 68 (Senate Press No 62 / 3) of 6 June 2007. The Senate Plenum debated the bill at its 6th meeting of 8 June 2007 and adopted Resolution 152 approving the bill in the version referred to by the Chamber of Deputies. 46 of the 50 senators voted in favour of this resolution and three senators opposed it. None of the discussion contributions which were made during the Senate's deliberations on the content of the draft law raised a question of the constitutionality of the contested provision. The President of the Senate also notes in his observations the legislative amendments to the provision in question, which subsequently occurred by Act No. 190 / 2009 Coll., amending Act No. 499 / 2004 Coll., on archiving and file services and amending Act No. 499 / 2004 Coll., on other related laws, Act No. 227 / 2009 Coll., amending certain laws in connection with the adoption of the Law on basic registers, Act No. 167 / 2012 Coll., amending Act No. 499 / 2004 Coll., on archiving and writing services and amending certain laws, as amended, Act No. 227 / 2000 Coll., on electronic signature and amending certain other laws (Act on electronic signature), as amended by subsequent laws. The President of the Senate also expressed his conviction that it was entirely up to the Constitutional Court to examine and rule on the motion to declare the unconstitutionality of the contested legal provision.
11. At its meeting on 20 August 2015, the Government of the Czech Republic discussed the material "The statement of the Government of the Czech Republic on the proposal of the Supreme Court of the Czech Republic to declare the inconstitutionality of Paragraph 37 (6) of the Act on archiving, which was carried out under the file mark Pl. ÚS 3 / 14," and adopted Resolution No 682 approving its entry into the proceedings, accepting observations on the proposal in question and authorising the Minister of Interior to represent the Government in the present proceedings before the Constitutional Court.
12. The Government stated in the submitted statement that the purpose of the provision in question was to allow the study of the majority of the archive funds arising from the activities of the former security forces, courts and prosecutors of the Communist regime and to learn as much as possible from the practice of the communist regime in the repression of human and political rights and freedoms exercised by the repressive authorities of the totalitarian state between 1948 and 1990, as well as from the archives arising from the activities of the German occupation authorities between 1938 and 1945. The regulation contained in the contested provision therefore reflects the legislator's efforts to deal with the consequences of totalitarian and authoritarian regimes of the 20th century. The contested provision thus plays an important role in uncovering totalitarian past by studying archival funds arising from the activities of former security forces and other bodies of totalitarian regimes operating in the territory of the Czech Republic, allowing the scientific community, as well as the general public, to learn as much as possible from the practice of these regimes in suppressing human and political rights and freedoms. The Government considers that, by declaring the unconstitutional nature of the contested provision, the disclosure of preserved materials evidencing the activities of specific persons representing or cooperating with totalitarian regimes would be substantially limited or even halted by the disclosure of preserved materials, which would, as a result, deny the meaning followed by the legislator by the adoption of Act No. 181 / 2007 Coll., with which the contested provision is closely related. This would result in a situation in which a statement of objections to the archives containing the personal data of a living person can only be consulted if that person did not submit written objections within 30 days of the date of receipt of the notification of the request for access to the archives, in the case of sensitive personal data, prior written consent to the consultation of that person will be required. In addition, archival activities arising from the activities of the authorities referred to in the contested provision would also be subject to a limitation of accessibility under Paragraph 37 (1) of the archiving law, i.e. those documents could be published up to 30 years after they were taken over as archives (if they were not published by then). In view of the prevailing duration of their selection, which has occurred in many cases only in the context of the establishment of the Institute for the Study of Totalitarian Regime in 2007, this would mean that there would be no such social need to inform and warn society since the fall of the latest relevant totalitarian regime, the Communist regime. The Government believes that the legislature's choice of form and method of making available the archives evidencing the activities of totalitarian regimes, or the limitation of the right to information self-determination resulting from the classification of the contested provision, pursues the constitutionally and discussed purpose of enabling historical sources and other testimonies to the activities of criminal organisations based on communist and Nazi ideology. Unlimited, virtually "uncensored" access to historical sources and other testimonies about the activities of these criminal organisations, the government considers it necessary not only to describe their crimes objectively, to name the organisers and executors, but also to further educate citizens on these topics and to consolidate democratic traditions, to develop civil society and, last but not least, to fulfil the ideal of justice.
13. By application of 29 July 2015, the Ombudsman informed the Constitutional Court of her decision not to use her right to intervene.
14. The President of the Office for the Protection of Personal Data, to which the Constitutional Court has addressed a request for an opinion, points out in its observations the need to distinguish between the two legal methods of processing personal data by making them available (provision of documents on the basis of an individual request) and the publication of personal data. If the archiving law uses the term "viewing ', this means" making available or making available upon request', and there is no indication that it could be placed under the "publication 'concept without further indication. In this regard, according to the Office for the Protection of Personal Data, the appellant's argument is abbreviated and internally contradictory if it is mentioned" the need to inform... the public at the price of providing all sensitive data "or" the action taken in accordance with the law (i.e. the publication of sensitive personal data in the context of making available...)'. The Act on archiving provides, in § 34 et seq., for viewing and making copies, extracts and copies thereof, essentially on request and subject to legal conditions, thereby setting limits on the means and methods of making personal data available, inter alia, in the purposes of the provisions of § 5 paragraph 1 (b) of Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws. The Office for Personal Data Protection points out that the need to distinguish between the above methods of processing of personal data also results from the legal obligation to define the motive and purpose of processing and to set in accordance with it all the necessary processing parameters as set out in § 5 (1) et seq. of Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws, as amended ("Act No. 101 / 2000 Coll. '). The provision of (individualised disclosure) personal data according to specific laws does not usually include and foresee various subsequent forms of processing of personal data - this is also the case with the Charter Act. However, there is no provision for documents obtained in the context of consultation by researchers in different, creative ways - the responsibility for further handling of information is not regulated by the archiving law or any other directly related regulation, and there is primarily the responsibility of the researcher, who must respect the privacy of the data subject and ensure that processing does not interfere with the personal life of the data subject. The Office for Personal Data Protection points out that, in the present case, not publication but already the legal disclosure of data for a specific group of archival sites prior to 1990 is considered a private intervention; However, it follows from the description of the case that the data of the person concerned had not been disclosed in the case as it had been abandoned from further processing, which would have been manifestly invasive to privacy. The Office for Personal Data Protection states that, from the point of view of personal data protection, the process of making documents related to the past available is the processing of personal data with a specific purpose which is required in view of the significant social interest in dealing with the past. In this process, concrete information on different individuals, life actors and decision-making in a totalitarian regime plays a crucial role. For political reasons, many personal data have been collected and processed by repressive elements of a totalitarian state by methods incompatible with the rule of law, which are so distinctive and crucial and necessary in every detail to know the past. The sensitivity and usability of archival materials decreases over time and thus reduces the risk of interference in the privacy of the persons concerned. The fact that a number of information cannot be reliably verified or refuted not only for a time frame, but also because of periods of work methods, balances a democratic legal regime in which documents and data from totalitarian arrangements are treated fundamentally differently from the current personal data of citizens processed today by the public administration. This also applies to the sentencing data, which must now be viewed by the optics of rehabilitation laws in the case of political and political crimes; such information is then not worth a similar statement from the Register of Penalties. The Office for Personal Data Protection shall monitor how archives ensure the protection of the right to privacy of the persons concerned when providing access to archival sites for individuals. In making available data from the totalitarian regime to individual applicants, interference in the privacy of the persons concerned cannot be automatically seen.
15. In the other two opinions, the Office for the Protection of Personal Data expressed, on the one hand, its assessment of the new Union arrangements for the processing of personal data [Regulation (EU) 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and on the abolition of Directive 95 / 46 / EC (General Data Protection Regulation) - hereinafter referred to as the "Regulation '), leaving room for Member States of the European Union to mitigate the protection of individuals in the field of archiving compared to the standards of its regulation in other areas, on the other, on the other hand, it has demonstrated the level of its supervisory activity by several decisions imposing penalties in cases of infringement of Law 101 / 2000 Coll.
16. On the proposal, the National Archive, which is not a party to the proceedings, spontaneously sent a large-scale statement through its Director and therefore took note of its observations by the Constitutional Court. The National Archive stated in it that if the Constitutional Court abolishes the contested provision, it would in principle affect the activities of all public archives and, at the same time, make it virtually impossible to investigate in modern historical sources. The archives will have no choice but to ask for the consent of everyone in the archives of the said person or to carry out the anonymisation of all personal data. However, such an activity is financially, staffing and organizational enough that archives will not be able to manage it in real time. The funds concerned will in fact become inaccessible to the public and their research (both professional and lay) will not be possible. The National Archive further stated that, on the basis of the legal case which led to the opening of the procedure for the declaration of the unconstitutionality of the contested provision, the archives had taken up a preliminary comparative analysis of the activities related to the making available of archive materials from the archives funds. For this purpose, the National Archive and the State Regional Archive in Prague described the internal process of preparing archive material for researchers from the said funds and the variant of this procedure in the event of the annulment of the contested provision. In this variant, the National Archive worked with the possibility of possible anonymization of personal data, which does not directly result from the Archiving Act, but can be accepted as a possible solution, taking into account the requirement of possible softening of the law's hardness, which would otherwise assume that the archive material would not be presented and made available entirely. In consultation with historians and experts in contemporary history, who often look at these funds, it was found that maintaining access to archive materials would require a significant extension of the time of preparation of archive material to the research room even in the enormous deployment of an unknown new workforce. The National Archive also points to an increase in the cost of anonymising data, in particular the cost of copying archives. Last but not least, in the case of larger anonymisation work by the archive, the question of the deposit of anonymous copies should be addressed. The National Archive, after pointing out the pitfalls of Law No. 499 / 2004 Coll. from an ethical and operational point of view already today, emphasises that the actual closure of a substantial part of the funds of the Czech National Archive Heritage as an inevitable constellation would be opposed to the concept of an open society which is ready to deal responsibly with its past and to critically evaluate its presence with the help of this reflection. In conclusion, the National Archive points out that over the years of free research in modern archival funds, there has been no case in the Czech Republic where an individual exercises his right to the protection of personality in this context, with a claim for non-property damage. This is also an expression of certain "decency" of researchers, their internal tact and ethics of the processing of the information obtained. They agreed with this text and attached their signatures to the directors of the State Regional Archive in Prague, the State Regional Archive in Pilsen, the State Regional Archive in Litomerice, the State Regional Archive in Zámrsko, the State Regional Archive in Trebon, the Moravian Regional Archive in Brno, the Regional Archive in Opava, the City Archive of Prague, the City Archive of Pilsen and the City Archive of Ústí nad Labem.
17. The Constitutional Court was spontaneously sent their joint observations by the Archive of Security Services, the Institute for the Study of Totalitarian Procedures, the Institute for Contemporary History and the Historical Institute of the Academy of Sciences of the Czech Republic (hereinafter referred to as "the Constitution"). In their observations, they point out that the submission of archives to researchers would be very complicated should the contested provision be repealed. First, all archives would have to be read in advance and only personal data would have to be selected and those with sensitive personal data. Subsequently, registries would have to be sent to see if - and if so, where - the person lives. Living persons with personal data would then probably be contacted via an official record (if possible) and would be expected to express their opposition within the legal period, living persons with sensitive personal data would have to wait for explicit written consent. Since the vast majority of archives contain data for dozens (and, for example, large-scale object volumes of up to hundreds), it cannot be assumed that all of them would agree to make their data available. For this reason, anonymisation, i.e. digitisation or the acquisition of analogue copies of the archive and the blinding of data with which disclosure has been opposed or no written consent has been given. Professional archivarians who have studied for many years in order to pursue their profession would be demoted to technical workers who spend their working hours instead of processing funds by copying and blackening archives. In addition, a number of problematic points, namely the incompleteness of registers, the burden of the Department of Administrative Activities of the Ministry of Interior, the identification and searching of persons with foreign nationality, are faced with the considerable administrative burden that such a procedure would entail, on which it does not have not only the Archive of Security Services but also other archives of absolutely personnel capacity. It is also contradicted in the proposal to conclude that archival by anonymising personal and sensitive personal data will not lose the indicative value of the practice of the Communist regime. Such a "dehumanization of history" would lead, according to the institutions, to a gross distortion and misunderstanding of context, as knowledge of personal ties allows the knowledge of stories of anti-communist resistance and resistance. During the duration of the current legislation, according to which all documents of former State Security and other agents are accessible to all interested parties with almost no limitation, thousands of researchers throughout the Republic have been made available to the public hundreds of thousands of archives which could take pictures of digital cameras free of charge or take their digitised copies. In this situation, it is impossible for archives to determine which archives (and thus which personal and sensitive personal data) have already been made available and thus their protection is no longer meaningful. At the same time, it is noted that - except in exceptional cases - there has been no serious misuse of such data or of the institutes of such abuse. In this context, it is argued that the contested provision does not allow the researcher to disseminate and publish anything he has read in the archives submitted for inspection. The research sheet, which is completed and signed by each researcher, explicitly states that it is fully aware, in accordance with the relevant legislation, of its personal responsibility for the handling of information obtained by viewing the archives. In conclusion, the Constitution states that the abolition of the contested provision would be a step backwards, which would hit hard both our archiving and the whole modern Czech historiography, which would ultimately also be damaged in international competition, where Czech historians on some of the current topics in the world would not be able to respond simply because the sources of research would be closed, and certain basic monographs and synthesizes relating to, for example, extraordinary people's courts could not be completed, nor could the grant projects from the field of modern history be completed.
18. Another statement, which was taken into account by the Constitutional Court, was spontaneously provided by Post Bellum, o. p. s., based in the House 174 / 7, Prague 1, in its words by a non-governmental and non-profit organization, which documents the memories of memoirs of important historical phenomena of the 20th century. Post Bellum, o.s., contends that the Supreme Court was not actively legitimised by the judgment of the Municipal Court in Prague No 66 C 109 / 2011-187 and the subsequent judgment of the Supreme Court in Prague No 1 Co. 28 / 2012- 202, since the damage alleged in the proceedings and evidenced by documentary evidence was not an injury in connection with the disclosure of the Charter of the Security Services, but the fact that the person who received sensitive data from the Archives of the Authorising Officer had further done so without having had the consent of the latter. The outcome of the proceedings before the Constitutional Court would thus have no bearing on the proceedings before the ordinary courts. In the case at hand, Post Bellum, o. p. s. underlines that the contested provision interferes in the right to privacy in a manner consistent with the requirements of the Convention and the Charter, i.e. in the legitimate public interest, on the basis of the law and in accordance with the requirement of proportionality, taking into account, inter alia, the fact that protection of the right to privacy is adequately ensured in Czech legislation by other effective legal instruments (protection of personality, etc.). In its submission, Post Bellum, o. p. s. extensively submitted a collision of those rights to the proportionality test and concluded that the contested provision meets all the criteria of the proportionality test, namely the criterion of suitability, necessity and proportionality in the narrower sense. Post Bellum, o. p. s. also states that the abolition of the contested provision would in practice reduce and partially make research activities impossible, and thus cripple not only the scientific work of professional historians, but also the documentaristic work of other publicists and the wider professional public focusing on modern Czech and Czechoslovak history, not only for periods of non-freedom from 1948-1989, but also from 1939-1945, from the period of persecution of the population of Czech countries by the Nazi regime, including Holocaust events. In conclusion, Post Bellum, o. p. s. points out that the repeal of that legal provision would be highly likely to paralyze the proper functioning of archival institutions, since it would impose obligations on them that would not be able to fulfil the obligations in an organisational, staffing or economic manner. Finally, Post Bellum, o. p. s., presents statistical and factual information and concludes that the repeal of the contested provision would mean the closure of the possibility in archival sites created over the last hundred years for current generations of effective research.
Conditions for the applicant's active legitimacy
19. The Constitutional Court first examined whether the formal grounds for the substantive assessment of the application were met and therefore addressed the question whether the appellant was actively legitimate in the present case in order to submit the application.
20. According to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it will bring the matter before the Constitutional Court. It is the so-called specific control of the constitutionality of the law where the referring court must certify that the contested provision of the law is linked to its decision-making activity within the meaning of Article 64 (3) of the Constitutional Court Law, i.e. that it is obliged to apply that provision of the law to the case for which it is called; otherwise it will not be actively legitimised to such a procedural proposal and its proposal will be rejected as being filed by a manifestly unauthorised person. This conclusion is also based on the constant case-law of the Constitutional Court, for example, on the finding of sp. zn. Therefore, it is not only hypothetical use or just a broader context, because such a concept would lead the court to question the provisions of the law beyond the purpose pursued by this constitutional institute, since there is usually a certain chain of applied rules and de facto the law as a whole is always applied [see resolution sp. zn. In order to protect constitutionality by ensuring the internal integrity of the rule of law, the Constitutional Court has also stated that the purpose of the constitutional procedural institute of a specific review of the standards is to prevent a situation in which, by "rejecting the proposal, the Constitutional Court would mislead its role in the constitutional dialogue and would force the general court to conduct proceedings of which it would be convinced '.
21. The Constitutional Court notes that, in the case at hand, the contested provision applies to a particular case, but only partially. The Supreme Court, with its proposal, after having supplemented it by other submissions of 20 June 2014 and 23 June 2015, seeks the annulment of the contested provision which, in the case of the applicant Vladimir Hartman, the Municipal Court in Prague, applied by judgment of 10 January 2012 No 66 C 109 / 2011-187, rejecting the action to be paid by the defendant Czech Republic - Archive of the Security Services to the claimant in respect of money of CZK 300,000 due to undue interference in his personal rights, which was due to be made available to a third party, Zdenka Kvasnicová, a member of the Ostrava branch of the Czech Television, a sensitive personal data relating to the ZV V 442-MV, led by the former State Security of the defendant, and provided to other persons. The Court of First Instance found that, although it had been established in the proceedings that the defendant had made available to a third party, without the consent of the applicant, the file in question (volume - investigation file from the activities of the former State Security), which contained sensitive personal data on the conviction of the applicant, including data on criminal proceedings, but the defendant's conduct was justified, since the special protection of sensitive personal data pursuant to Paragraph 37 (3) does not apply to archives from the activities of security forces, subject to the exception of paragraph 6 (now paragraph 11) of the same provision of the Charter Act. The Supreme Court of Prague, which confirmed the judgment of the Court of First Instance by judgment of 5 June 2012 No 1 Co 28 / 2012-202, agreed with these conclusions. In order to assess the applicant's active legitimacy, it is irrelevant that the injury claimed and demonstrated by the applicant could only have been caused by the applicant's continued handling of sensitive personal data by a third party, since it would not have been possible to dispose of such data without prior disclosure by the defendant under the contested provision of the law.
22. Since the interference with the personal rights of the applicant was to occur by the unauthorised disclosure of sensitive personal data relating only to archival activities arising before 1 January 1990 from the activities of the former State security as a security component under Act 181 / 2007 Coll., on the Institute for the Study of Totalitarian Procedures and on the Archive of Security Services and on the amendment of certain laws and not from the activities of other, in the contested provision of those parts of the state and political organisation of the company, to the extent that the applicant is required to declare the ilconstitutional of the inspection into the archives arising from the activities of those other parts of the totalitarian State under the contested provision, the proposal must be rejected as a manifestly unjustified person. Only to the extent that the archives arising from the activities of the security forces are viewed is the finding that the contested provision is in accordance with the constitutional order, in the immediate context of the assessment of the applicant's claim to be satisfied by the court of appeal in the main proceedings, which can only on the basis of this finding assess whether the decision of the appeal court regarding the procedure of the Archives of Security Services as a defendant was lawful. Only to that extent will the outcome of the review of the contested provision by the Constitutional Court have a direct impact on the outcome of the proceedings on the substance of the case, which is also a condition for the applicant to give its active legitimacy.
Derogation of the contested provision
23. The text of the provision of § 37 of Act No. 499 / 2004 Coll., on archiving and file services and on the amendment of certain laws, as effective at the relevant time, i.e. at the time of the disclosure of the volume in question reads:
(1) Only archives over 30 years of age are accessible for inspection in archives, unless otherwise specified.
(2) The archives relating to a living natural person whose contents are sensitive personal data, 13) can only be consulted with the prior consent of that person. The archive shall inform the person concerned of the request for consultation and request its approval.
(3) In order to inform the person concerned, the archives may request the competent administrative authority on the archiving and file service section to establish the necessary data from the population registration information system.
(4) At the request of the archives referred to in paragraph 3, administrative offices in the archival and file services section may obtain and use data on the person concerned from the information system (14),
(a) the name and, where applicable, the names and surnames,
(b) the date of birth, the place of residence or the type and address of the place of residence, if any,
(c) the date, place and district of death and, where applicable, the date of death and the State on whose territory the death occurred, if any, the death of a citizen outside the Czech Republic;
(d) the date indicated in the court's decision on the death declaration as the date of death.
The data thus established shall be provided by the administrative authorities on the archival sector and the performance of the file service to the archive which requested them.
(...)
(6) The provisions of paragraphs 1 to 4 shall not apply to archivals arising before 1 January 1990 from the activities of security forces under the Act on the Institute for the Study of Totalitarian Procedures and the Archive of Security Services, as well as to social organisations and political parties associated in the National Front, to archives which were already publicly available before the request for consultation, as well as to archives which were publicly available as documents prior to the declaration for archival. 15)
(...)
13) § 4 (b) of Act No. 101 / 2000 Coll., as amended.
14) Act No. 133 / 2000 Coll., on the registration of residents and birth numbers, as amended.
15) For example, Act No. 140 / 1996 Coll., on making available the volumes arising from the activities of former State security, as amended, § 95 (2) and § 101 (3) of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), as amended, § 43 and § 58 (3) of the Act No. 129 / 2000 Coll., on counties (regional establishment), as amended, § 65, § 70 (3), § 87 (2) and § 94 (1) of the Act No. 131 / 2000 Coll., on the City of Prague, as amended.
Constitutional conformity of the legislative process
24. According to the provisions of § 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 contested provision with the constitutional order - ascertains whether the law has been adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner.
25. Given that the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence, it is not necessary to examine this issue further in the light of the principles of procedural economics, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, to formally verify the conduct of the legislative process from a publicly available source of information at http: / / www.psp.cz.
26. The Charter Act was approved by the Chamber of Deputies at its 33rd meeting on 30 June 2004 by a majority of 109 Members, signed by the relevant constitutional officials and published on 23 September 2004 in the Collection of Laws in the amount of 173. The Constitutional Court therefore finds that the law has been adopted and issued within the limits of the constitutional powers laid down and in a constitutional manner.
27. Following this finding, the Constitutional Court took the view that the content of the contested provision was consistent with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution].
Abandonment of oral proceedings
28. The Constitutional Court, in accordance with Paragraph 44 of the Law on the Constitutional Court, considered that oral proceedings were not necessary in the case. This would in no way contribute to a further or deeper clarification of the case than the way it was made known to it from the file material and from the written acts of the parties. The fact that the Constitutional Court did not consider it necessary to carry out the taking of evidence in the light of the origin of the factors relevant to its public decision also justify the failure of oral proceedings.
Access to archival information on the activities of security forces of former anti-democratic regimes in selected countries
29. The Constitutional Court has also obtained comparative evidence regarding the protection of personal data in the disclosure of archival information arising from the activities of the security forces of former totalitarian regimes in Europe. Models of approach reflect, on the one hand, the specificities of the methods of the then suppression of human rights and freedoms used in individual countries, and, on the other, differences in the intensity of the current social demand for dealing with the past. It is therefore difficult to generalise the conditions under which access to such archival information in a given social context can function in a non-conflict manner, i.e. while maintaining a sustainable balance between the degree of admissibility of the data protection intervention of the persons concerned and the level of fulfilment of the fundamental right of each member of the company to information or the freedom of scientific research, which, in summary, represent a public interest in the knowledge of its own past as a prerequisite for dealing with it. As a rule, a very open access regime applies in relation to persons who have been co-workers of security forces under previous schemes or who have held public functions, as well as in obtaining information about their persons. Inspection of third-party archival material shall in general be subject to the expiry of the withdrawal period, which may be excluded by the granting of consent to the person concerned or by the (anonymising) personal data, or by the listing of data which cannot subsequently be disclosed without further publication, while the regime for handling sensitive personal data is more stringent. The administrative authority (head of the archive) shall, when assessing the request for inspection, weigh the conflicting rights and interests. The applicant shall, as a general rule, state the reason for the consultation and sign a declaration that it will respect the restrictions imposed, inter alia, to treat the information obtained in accordance with the protection of personal data. The differences between the legal arrangements for access to archival information on the activities of the security forces of the former non-democratic regimes must also be linked to the different personnel and material technical equipment of archives in each selected country, which are able to provide different levels of information to those interested in providing such information with services that make the purpose of access to archives realistic.
30. According to the German Freedom of Information Act, the provision of personal data is only possible if the applicant's interest in information outweighs the protected interest of a third party, for sensitive data (e.g. racial and ethnic origin, philosophical and religious beliefs), its explicit consent is required. The archiving law allows for a shortening of the withdrawal period (30 years after the death of a person), inter alia, for scientific research or for private use without the right to publication, confirmed by the signature of a formal obligation to ensure the protection of personal data. According to the Law on Materials of the State Security Service of the former GDR, which is a lex specialis to the above mentioned, the Office of Federal Agent for Stasi Materials classifies, sets up and transfers the archive information in a thematic manner within the framework of the single regime, but differentiated in terms of the different categories of users and the required use of them, thus eliminating the risks that would arise from the general approach. The disclosure of personal data for the purposes of political or historical handling of the past is subject to the consent of the persons concerned ("victims" of persecution), or to third parties, or not to the "perpetrators" ("stasi"), or to the anonymisation of such data, but this does not exclude the responsibility of the processor (scientific workplace, author of publications, etc.) under general rules of civil, administrative or criminal law. However, these restrictions do not apply when it comes to clarifying the historical role of known personalities, political representatives or public officials. In such a centralised system, significant attention is given to individual assessment of specific cases and effective means of protecting persons against unauthorised handling of archival information. The principle of the inadmissibility of the use of personal data at the expense of the person or third party concerned, as well as by the Federal Constitutional Court, is the principle of the inadmissibility of the use of personal data on the part of the person concerned, as well as the prohibition on the provision of information obtained by the former Stasi by violating privacy or espionage by the media (Helmut Kohl case). This court also acknowledged the particular importance of the publication of this list for the public debate on the nature of the previous regime, which was still under way, and although it assessed the obligation imposed by the General Court on the complainant ("Neues Forum ') to delete the name of the applicant (in the main proceedings) as a reassessment of the seriousness of the interference in the applicant's right of protection and as insufficient consideration of the complainant's right to freedom of expression, since the list did not contain any intimate or similar information, but only one which could be obtained by other legal means did not cancel that obligation. The transfer of this special arrangement to the universal archival law regime is foreseen in 2020, when also the 30-year withdrawal period of the archive normally applied and there will be no objective reason for further special treatment (see Becker, S.; Oldenhage, K. Bundesarchivgesetz. Handkommentar. 1. Aufl. Baden-Baden: Nomos, 2006, p. 73).
31. The Polish Act on the Constitution for the Memory of the Nation allows everyone, upon request, to consult the documents of the authorities of the former State security concerning him, including the provision of data on the persons who supplied him with information to those authorities. However, wide access to the data of persons performing public functions, as well as other persons, if they were not employees of national security authorities, does not concern sensitive information (about ethnic and racial origin, religious beliefs, etc.). The case-law of the Constitutional Court on "Access to the Archive of the National Memory Institute '(sp. zn. K 2 / 07, P 37 / 07) concerning the application of the Luggage Act is based on the principle of balancing (practical concordance), according to which the specification of the assumptions governing access to the archive must protect in a clear and efficient manner both values - freedom of information and expression and privacy - to an extent that ensures an optimal balance between them without undue harm to any of them; the granting of an authorisation for access based on a flat, unclear or unverifiable expression of its purpose is inadmissible. Constitutional non-conformity of the procedural provisions of this law, which unduly restrict access to information on its own person and thus, inter alia, defecate the right of the person concerned under Article 51 (4) The Constitution requires the correction of false or incomplete data or information obtained in breach of the law (e.g. by extortion using compromising materials), the Court clearly distinguished from the legality of the provisions limiting to the extent necessary in a democratic rule of law access to the needs of research and journalism based on strict effectiveness.
32. Austria is a model case of a country where archival information containing personal data is practically of interest only for research purposes, which is indirectly shown by the absence of current judicial case-law. Given that more years have passed since the Nazi regime than the statutory 50-year withdrawal period, special arrangements for access to information arising from the activities of the former repressive elements of the occupation regime are no longer necessary. The Federal Archiving Act provides for exceptions to the general obligation of archives to provide personal data on request in the event of the predominance of the legitimate interest of a third party or of the public interest. Stricter rules apply to their further dissemination, such as commercial, research or statistical purposes, but also to private and family processing, subject to a special regime to sensitive data (statutory confidentiality obligation, verification of the reliability of information processors). The archives shall have significant discretion in assessing the relevance and priority of the interests concerned.
33. However, knowledge of the arrangements for making files available to former security forces of countries that have also experienced totalitarian regimes in the past may also benefit from the assessment of the constitutionality of the contested provision. An overview of the same or different features of these arrangements outlines the context in which the real dimension of the issues to be addressed is easier to see. The following can be regarded as the main features of other countries' archival law in relation to the security forces of the former non-democratic regime:
34. In the Slovak Republic, according to the opinion of the Office for the Protection of Personal Data, the provisions of the National Memory Act have priority over the general regulation of the Personal Data Protection Act, inter alia, on sensitive data of a third party, while it is appropriate for the Institute of National Memory to instruct the users of the accessible data of the person concerned that they can only process such data for their own use solely in the context of personal or domestic activities; According to the 2004 National Memory Institute, sensitive data from a third party must be polluted before making them available in order to prevent their abuse and create new injustices, but the Institute may also keep some of the data from this category in unanonymous form if it considers this to be reasonable in order to fulfil the purpose of the law; the constitutionality of the law has not yet been questioned nor has its application in terms of the protection of personal data; the case law of the general courts concerns only the veracity of the records, not the immediate protection of the fundamental rights of the individual. Slovenia shall ensure the availability of such documents without any restriction, except for sensitive data from third parties; there is no direct difference between the right of access and the right to publish documents obtained, limited to research and official purposes. The Hungarian Constitutional Court (sp. zn. 60 / 1994) has abolished the absolute secrecy of data on persons who held public functions or worked for secret services at the time of the undemocratic regime, as these data can be considered to be of public interest; However, the relevant amendment to the Act establishing the Historical Archive of Hungarian State Security was declared unconstitutional on a proposal from the President of the Republic (sp. zn. 37 / 2005). Spain, like Austria, also ranks - given the time since the fall of Frank's regime - among countries with "standard 'rules on archiving; If, in the light of the circumstances of the case in question, the possibility of creating damage to privacy or security risks for the person concerned is reasonably excluded, those who demonstrate a direct legitimate interest, but always in accordance with the rules on the protection of personal data, may be allowed access to third-party data for their identification. Ukrainian law (2015) on access to archives of repressive elements of the totalitarian communist regime from 1917-1991 is excluded from the scope of the Privacy Act. It broadly defines the fundamental principles of the state's policy on the disclosure of such archival information, including the acquisition of copies, points to the processor's independent responsibility for the breach of the protection of third-party personal data when dealing with them, defines the actors of documented stories. Access to information on the coworkers of the repressive forces, including those who were originally" victims "of persecution, cannot be restricted with regard to personal data protection." Victims' of persecution may, within 1 year of the entry into force of this law, define a range of information on themselves to which free access (for a maximum period of 25 years) is to be restricted; for family members of "victims', the possibility of such a restriction applies only to sensitive data.
35. The scoreboard shows that the disclosure of the files of the security forces of the former non-democratic regimes containing personal data is generally subject to strict conditions where the legislation does not separate the different stages of archival processing from the purpose of the treatment, i.e. merely making available for the needs of individual applicants for consultation from the disclosure or other forms of dissemination of information obtained to the public. The high level of protection of personal data contained in former Stasi's volumes in Germany reflects the fact that these volumes, primarily intended for lucrative purposes, have not been assessed under archival law. Therefore, their use for other purposes (research, etc.) requires different forms of centralised processing, which places considerable demands on the staffing and materialtechnical equipment of this agenda before making available to authorised applicants. In countries where state archives service to such an extent do not provide and retain some responsibility for the further processing of personal data by users, access to archives of a given type is generally conditional on prior consent of personal data subjects in such archives contained. The archives, as an administrative body, shall have a different scope for weighing legitimate interests between researchers and the personal data carriers concerned.
36. In the light of this knowledge, the model of access to archival activities by the Czech legislator is the most open. However, such a comparison is somewhat misleading as it tries to compare incomparable and does not clearly express the degree of adequacy of any model in relation to the nature and length of the application of the instruments of persecution of opponents of totalitarian regimes. This experience is simply completely non-transferable and this must also be matched by methods and means of its recognition.
Definition of the legal framework for access to former State security documents
37. Although the appellant requests a constitutional review of only the contested provision and it is therefore not the task of the Constitutional Court to assess the constitutionality of its procedure, which led him to apply the Act on archiving as such, the Constitutional Court has nevertheless considered the view expressed by the appellant that there may be a discrepancy between the higher protection of data of third parties in documents which are made available under the Act No. 140 / 1996 Coll., under which § 10a of the Security Office must prevent such data from being contaminated before making available in a copy, compared to personal data which, when viewed into archives under the regime of the contested provision of the Act on archiving. It is appropriate to clarify the relationship between the two laws in terms of applicability before the Constitutional Court proceeds to its own examination of the contested provision, since that view may lead to doubt as to whether there was even room for the application of the contested provision in the relevant period. If this doubt had then been confirmed, the Constitutional Court would have had to reject the proposal of the Supreme Court as filed by someone manifestly illegitimate pursuant to Article 43 (1) (c) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 77 / 1998 Coll.
38. The volumes created by the State Security Activities, which were understood as part of the Single Archive Fund (National Archive Heritage) of the Czech Republic, were to be made available, according to the original considerations of the Government as the promoter of the proposal, on the basis of the larger amendment of the then Act No. 97 / 1974 Coll., on archiving. Although it was only intended to be an adjustment for a transitional period, serving the needs of dealing with the past within the meaning of the laws on judicial and extrajudicial rehabilitation, lustrations and restitution of private and ordinary property (approximately 60 000 persons, with another 120- 150 000 persons being able to be disclosed only to the contents of the record, since the personal documentation provided to them had not been preserved), the exclusion of a large set of documents from the general archive regime and its submission to the special regime would constitute a serious and non-organic interference with the concept of archival law. New and more precisely, the rights and obligations of both the archival administrator and the disclosure applicants would have to be defined (e.g. with regard to the protection of the State's security interests and the right to privacy of the living persons concerned, including the requirement for the partial anonymisation of personal data on leaving only their names and surnames and aliases of persons registered as State Security coworkers, removal of the 30-year period of protection, etc.).
39. It was therefore decided not to make the volumes available by means of an amendment to the then applicable archiving law and to propose a separate law valid only for a limited period of time for the functioning of the bundles information system, i.e. until 31 December 2000. This information system was then to be abolished and subsequently settled within the meaning of the archival regulations (see the explanatory report on draft Act No. 140 / 1996 Coll., on the disclosure of volumes arising from activities of former State Security). The time-limited nature of the new arrangement was also indicated by the proposal that a request for disclosure of the bundle could be made only within six months of its entry into force.
40. The purpose of the original version of Act No. 140 / 1996 Coll. was therefore to make documents of persecution available, i.e. to inform the applicants whether they are registered in the information system with personal data or to provide a copy of such a union (§ 1) and thus have evidence for the purposes of proceedings under the above laws. The information obtained from the volumes has become part of the judicial files during the taking of evidence in these proceedings and has thus been published. In doing so, it was necessary to protect data on third persons acting as "other persons' in the applicant's object volumes or as" persons outside the service and public activity 'of a security officer in his personnel file, by polluting them, in the very bud - before making the applicant's union available (§ 6). The extent of this pollution, imposed by the Ministry of the Interior as the documentation administrator, was based on the Act No. 256 / 1992 Coll., in force at that time, on the protection of personal data in information systems, and was mainly driven by concerns about the increase in legal disputes, if the courts did not consider such documents to be authentic in examining administrative decisions relating to rehabilitation and other proceedings, if they could not be verified for objective reasons. However, for the purposes laid down, even in such a manner as this, it could fulfil the essential function.
41. In order to move forward with the process of coping with the totalitarian past, the existing limited access to the former State Security Union Agenda has been found by the legislator - without, however, having previously had a broad discussion across society - to be insufficient to fulfil its original intention. This deficiency has been removed by the adoption of Act No. 107 / 2002 Coll., amending Act No. 140 / 1996 Coll., on the making available of volumes arising from activities of former State Security, and by certain other laws, the purpose of which was (§ 1) "the widest possible detection of the practice of the Communist regime in the repression of political rights and freedoms', and which, in addition to the pressure to break the stereotype of extensive access to classified information, extended the right of access to the volumes until now limited to the part of the union which the applicant is directly concerned to anyone (natural persons over 18 years of age, regardless of nationality, § 5), including data on the enforcement of the personnel files of persons and of persons registered as members of State security.
42. The condition for the anonymisation of third party personal data has been maintained to the same extent; according to the document pollution methodology, the Archives of Security Services are subject to pollution (even in the case of deceased persons) in the protection of private and family life only serious deviations from normal social standards of conduct. It also applies to documents proving the status of resistance or resistance participant pursuant to Act No. 262 / 2011 Coll., on the participants of resistance and resistance to communism, which are also subject to publication in the relevant proceedings. This change was led by the legislature's belief that "the social interest in the detection and disclosure of preserved materials evidencing the activities of specific persons in the creation and maintenance of a criminal, illegitimate and repugnant communist regime is higher than the protection of data (quasi-personal data) on the professional activities of State Security officers and... secret collaborators' (see the explanatory note to Act No. 107 / 2002 Coll.), while the natural persons to whom a personal union is registered were given the opportunity to attach to the content of the contract or to the fact of registration in the information system of their own expression, which became an integral part of the document made available to other interested parties, if any records.
43. Part of this amendment was the partial amendment of Act No. 97 / 1974 Coll., on archiving, allowing access to the archives of the Communist Party of Czechoslovakia (not even other organizations based on its ideology) under 30 years of age without the consent of the head of the archive and other conditions.
44. Only by the adoption of the new Act on archiving and the establishment of the Archive of Security Services by Act No. 181 / 2007 Coll., eleven years after the effectiveness of Act No. 140 / 1996 Coll., the original notion of the legislator on the integration of the information system of bundles into the regime of general archival law was fulfilled. The archives of the security forces have thus worked and are still in the process of making available information from the volumes of the former security forces, which were declared to be archives, i.e. selected and taken into evidence, in a two-way, parallel to the existing regime [§ 13 (1) (a) of Act No. 181 / 2007 Coll.]: both under Act No. 140 / 1996 Coll., and under the Act on archiving. A different approach to the protection of each of these personal data regimes, with which (usually in the first case) or immediately (in the second case) the disclosure of the information obtained is not linked, then leads to differences in the protection of third parties' personal data by their (not) pollution by this Archive.
45. However, it is not a competing practice, since under the transitional provision of Section 82 (4) of the Archiving Act, the determining importance of which for the application of the two rules to be delineated between them cannot be, in view of the background of the development of the legislation of doubt and which affects all archives in the Czech Republic, subject to: "Archives less than 30 years old which were made available before the date of entry into force of this Act under special legislation, are subject to a system of disclosure under the legislation in force before the date of entry into force of this law. 'In the footnote annexed to this provision, for example, Act No. 140 / 1996 Coll.
46. The Constitutional Court took into account the judgment of the Municipal Court in Prague of 27.11.2013 sp. zn. 3A 86 / 2011-89 in the case of the Czech Republic - Archive of the Security Services against the Office for the Protection of Personal Data, in which the legal opinion is given that Act No. 140 / 1996 Coll., imposing anonymization of the personal data of the persons concerned, takes precedence as lex specialis application over the Act on archiving, which does not impose anonymization as lex generalis. The Court of First Instance based that conclusion on the fact that "only such interpretation is capable of guaranteeing the protection of third party personal data 'within the meaning of Article 10 of the Charter. The Court found that the transitional provision of Paragraph 82 (4) of the Charter Act" for futuro does not preclude the application of Law No. 140 / 1996 Coll. to archives under 30 years of age from being made available'. It considers it absurd that the applicant itself should determine in which mode the archival is to be made available.
47. However, the Constitutional Court does not agree with this legal opinion. If the correlation between the two rules were to be defined by the lex specialis principle (Act No. 140 / 1996 Coll.) derogat legi generali (Act on archiving), Paragraph 82 (4) of the Act would lack the relevant normative meaning and would pass with the post of a rational legislator. The "disclosure 'of personal data means the" introduction of an authorised applicant with copies of documents' (Section 10 (2) of Act No. 140 / 1996 Coll.) or their "assignment for use '(cf. Maštalka, J. Personal data, law and we Prague: C. H. Beck, 2008, p. 27). The archival regime until that time (1.1.2005) not made available on the basis of an individual request is subject to an exemption under the contested provision from the condition of prior consent of the person concerned, as well as archival records containing information on the perpetrators of persecution, which were published (made publicly available) pursuant to Article 7 of Law No 140 / 1996 Coll. prior to the application for consultation in them or prior to the declaration for archival (contested provision in fine). The purpose of the Act on archiving is different from the purpose of Act No. 140 / 1996 Coll.; both operate alongside each other and there is no relationship between them between the general and special regulations.
48. The solution chosen by the legislator was based on the assumption that the time-frame defined by that date was sufficient for the purposes of rehabilitation and other procedures, whereby data of other persons acquired from archives were potentially exposed to an immediate approach of an indefinite number of officials or other persons comparable to their impact on publication. Therefore, copies of such archives had to be anonymized in accordance with § 10a of Act No. 140 / 1996 Coll., and, if these proceedings had not ended even after that date, it was appropriate to leave them in the context of ongoing proceedings until they had ceased to be protected for 30 years. Therefore, the transitional provision of Paragraph 82 (4) of the Archiving Act respects the level of protection provided by personal data made available for the purposes of those procedures, while viewing archives for other purposes, such as researchers with no direct link to the risk of publication, has been and is possible since the entry into force of the archival law, i.e. from 1.1.2005 only under the regime of the contested provision, i.e. without the anonymisation or consent of the person concerned, and not already under Act No. 140 / 1996 Coll.
49. The normative purpose of the transitional provision of Section 82 (4) of the archiving law pursues the objective of excluding the protection of personal data already provided with regard to the risk of disclosure. Whether, at the relevant time, when the Archives of the Security Services had a look at the archive in question to the worker of the Ostrava branch of the Czech Television, i.e. on 19 March 2008, the personal data of the applicant not more than 30 years of age were subject to anonymization, it therefore mattered whether or not the archive had already been made available before 1 January 2005.
50. The differences in the submission of requests for access to archives containing information from the volumes of former security forces and the procedures for handling them pursuant to Sections 8 and 9 of Act No. 140 / 1996 Coll., or Sections 34 et seq. of the Act on archiving indicate differences between the two schemes. Information on the activities of the former security forces is often included in the archives of the so-called "non-binding" archives (e.g. reports to the district secretaries of the KSČ, investigation files of the prosecution, court files) in addition to the archives forming bundles. The scope of the disclosure of personal data under the regime of which, at the relevant time, the two regulations were and continue to be determined by a distinction of their application according to the temporal scope in accordance with Section 82 (4) of the Archiving Act, which will be confirmed by the Archives of Security Services on the basis of a request for consultation, namely a court in the event of a review of the Archives decision. Therefore, it is not possible for the applicant to choose its scheme at its own discretion.
51. The scope of the disclosure of personal data is therefore not determined by the ratio of the speciality of Act No. 140 / 1996 Coll. to the Act on archiving as an subsidiary applicable law, but is based on the fundamental equivalence of both schemes. The obligation to anonymise third party's personal data pursuant to Article 10a of Act No. 140 / 1996 Coll. would deny the meaning of the transitional provision of Section 82 (4) of the archiving law and would conflict with the principle of a rational legislator.
52. On the basis of the annual reports of the Archive of the Security Services, it can be concluded that in the years 2014- 2015 a total of 10 728 archives were prepared for study, of which 190 (1,771%) with information for researchers, that they can only be made available under the scheme of § 10a of Act No. 140 / 1996 Coll., and only 28 (0,261%) made available under this scheme. The archives of the security forces shall not conduct official statistics on the number of archives made available in an anonymous form on account of their first disclosure before the archival law becomes effective.
Reference framework for the constitutional review of the contested provision
53. The Constitutional Court has stated in a number of its findings [e.g. sp. zn. IV. ÚS 154 / 97 of 9.2.1998 (N 17 / 10 SbNU 113)] that the conflict of the right to information and its dissemination with the right to the protection of personality and private life is a conflict of fundamental rights standing at the same level, the solution of which is primarily a matter of general courts, which must consider, in the light of the circumstances of each case, whether the adoption of a legal measure which is necessary in a democratic society for the protection of the rights and freedoms of others, or for the protection of constitutional order and of public interest, one law was unjustifiably preferred to another. The assessment of the compatibility of the contested provision of the Act on archiving with the constitutional order and the international contractual obligations of the Czech Republic in the field of human rights, as requested by the Supreme Court of the Constitutional Court, must be based on aspects which are in view of achieving a fair balance between the two fundamental rights, applying only such a limitation of one or each of them, without which the conflict between those rights would not be possible. The restriction applied must examine the substance and the meaning of the fundamental right concerned and must not be misused for any purpose other than that for which it was established (Article 4 (4) of the Charter). Thus, the imperative of seeking a fair balance does not preclude a reasonable deviation in favour of one of the protected rights, provided that the safeguards against the abuse of restrictions imposed against the other are effective enough.
54. Although the criteria used for a particular review of the contested provision relate to the relevant period defined by the appellant, the outcome of that review will be relevant in the future, as the contested provision (Paragraph 37 (6) of the archiving law, as amended by 30.6.2009) - only otherwise systematically integrated - remains part of the legal order (paragraph 11).
Protection of personal data as part of the right to privacy
55. As recalled by the Constitutional Court in the sp. zn. The Constitution contains the normative principle of a democratic rule of law. The fundamental attribute of the constitutional concept of the rule of law and its functioning is respect for the rights and freedoms of the individual, which is explicitly stated in that provision. The Constitution declares itself on a material concept of legal status, which characterises the respect of public authority for the free (autonomous) sphere of an individual defined by fundamental rights and freedoms, in which the public authority does not substantially intervene, or only intervenes in cases which are justified by the need to deal with a conflict with other fundamental rights or constitutionally and clearly defined by law, provided that the action foreseen by law is proportionate to the objective to be achieved by such action, as well as to the degree of limitation of the fundamental law or freedom.
56. The central human rights claim on the autonomy of the individual is the requirement of respect for the arbitrary organisation of life, one of which is a primary function - in addition to the protection of the traditional spatial dimension of privacy and the uninterrupted creation of social relations - and a guarantee in the form of a right to the protection of personal data. In the Charter, the right to respect for private life is not guaranteed in a single all-inclusive article (as is the case with Article 8 of the Convention). On the contrary, as the Constitutional Court further stated in the cited finding, the protection of the private sphere of the individual is divided into several provisions in the Charter and supplemented by other aspects of the right to privacy declared at different places in the Charter. The core of this regulation is the right of the individual to decide at his or her discretion whether, or to what extent, the facts and information from his or her personal privacy are to be made available to other bodies. The sub-attributes of this right, expressly guaranteed by Article 10 (3) of the Charter, constitute the right to protection against unauthorised collection, publication or other processing of data on its person [cf. the findings of the Constitutional Court sp. zn. IV. ÚS 23 / 05 of 17.7.2007 (N 111 / 46 SbNU 41) or sp. zn. I. ÚS 705 / 06 of 1.12.2008 (N 207 / 51 SbNU 577)], in conjunction with Article 13 of the Charter, which protects the secrets and secrets of other documents and records, whether kept in private or sent by means of communication, here and in the manner provided for by law. In the Charter, the list of what is to be included in the privacy framework cannot be considered exhaustive and definitive.
57. Also in its findings, e.g. sp. zn. I. ÚS 321 / 06 of 18.12.2006 (N 229 / 43 SbNU 595) and sp. zn. II. ÚS 517 / 99 of 1.3.2000 (N 32 / 17 SbNU 229), the Constitutional Court stated that the right to the protection of private life is an inalienable human right, and the restriction of that right may be made in a democratic legal State for the protection of the fundamental rights of other persons or the protection of the public interest, which is in the form of the principle or value contained in the constitutional order [cf. the Constitutional Court's finding sp. IV ÚS 412 / 04 of 7.12.2005 (N 223 / 39 SbNU 353)]. The standard aspect by which the Constitutional Court assesses the conflict of fundamental rights and freedoms, or their conflict with other constitutionally protected values, is the aspect of proportionality. In doing so, care must be taken to achieve the highest possible degree of consistency between them, i.e. the optimal application of both protected values.
58. However, a sub-group of so-called personality rights, i.e. the right to preserve human dignity, personal honor, reputation and names that form the "hard core" of the protection of privacy in the wider sense (Article 10 (1) of the Charter), is somewhat out of line and are assigned to the supremacy of the substance and the highest purpose of fundamental rights [cf. sp. zn. II. ÚS 2268 / 07 of 29.2.2008 (N 45 / 48 SbNU 527)]. While the normative content of the right to personal honor and reputation is changing depending on the cultural, spatial and temporal context, human dignity - particularly in the constitutional doctrine of Germany as a state that has passed through periods of totalitarian regimes - cannot be reduced or balanced by law or case law by other rights and interests, works with it in its case-law and the ECHR, even though the Convention does not explicitly mention it.
59. In the sp. zn. IV. ÚS 23 / 05 of 17.7.2007 (N 111 / 46 SbNU 41) The Constitutional Court did not consider legitimate disclosure of diffamation information affecting the dignity of another person acting in public life, unless there were proven reasonable reasons to rely on the truthfulness of such information, or if its originator even had reason to question the truthfulness of the information, but did not verify it, let alone be motivated by the desire to harm the person concerned. The Constitutional Court also dealt with the fundamental right to personal honour and reputation, which is applied in several dimensions, in the quoted finding. It is a private sphere and a sphere of social, civic and professional ties, which can be described as social. In the first sphere, it is, in fact, a matter of protecting privacy in the narrower sense, in which it is essentially an autonomous decision of everyone, what and to what extent, with regard to their personal honor and reputation, they release from this sphere as information to the outside world. In other words, in this segment, there is generally complete information self-determination.
60. The sphere of social, civil and professional links reflects the social aspect of fundamental rights, or reflects the reality in which an individual lives in a community and enters into various forms of interaction and communication with other members, while through his or her behaviour, and even through his or her being, he or she affects other members of the community. In this second area, total privacy protection is no longer in force, in other words, it is possible to enter this sphere under certain conditions even without the consent of the body of rights, since there may be facts of public interest. The social sphere can thus be distorted by proportionate public intervention to protect the interests of the community. The outer edge of the individual's private sphere is thus the so-called public sphere. This is the segment of human life that can perceive or acknowledge anyone (Löffler / Rickler. Handbuch des Presserechts. In this sphere, there are virtually no restrictions on the spread of true facts.
61. Since the right to preserve human dignity, personal honour and reputation guaranteed by Article 10 (1) of the Charter is not limited by the sub-constitutional laws, the purpose of which would be the Charter in the form of public goods (as is the case in Article 17 (4) for the freedom of expression and the right to seek and disseminate information in favour of the legal measures necessary in a democratic society for the protection of the rights and freedoms of others, the security of the State, public security, public health and morality), and the possibility of seeking this right is neither explicitly nor conditional on implementing provisions (as for certain economic, social and cultural rights in the head of the Fourth Charter), the right to take action - if it is - to seek in the category of constitutionally immanful restrictions, i.e. to impose directly under constitutional law. The legitimacy of such public intervention in the fundamental personality rights of the person concerned may be justified by the requirement of respect for the comparatively intensive need to protect the personal rights of another person whose human dignity, personal honor or reputation would suffer if, for example, he was denied access to certain information affecting him.
62. If there are two claims of the same nature and intensity against each other, the urgency and the level of competing values and interests must always be weighed against each other, taking into account the actual basis established so that both values are maintained as far as possible. If this requirement cannot be met, a wider intervention in one of these values must be more convincing in applying the principle of proportionality. These constitutional principles, which apply when assessing public power measures limiting the fundamental right of an individual, should be applied accordingly to cases of conflict between private parties' rights in a horizontal plane.
63. When interpreting the right to privacy in its various dimensions, as reflected in the Charter, it is necessary to take into account the purpose of this dynamically evolving right as such, or to consider the right to privacy in its period integrity. Therefore, the right to the protection of personal data guaranteed by Article 10 (3) The Charter is to be interpreted, on the one hand, not only in connection with the provisions of Article 7 (inviolability of a person and his privacy), Article 8 (personal freedom), Article 12 (inviolability of homes) and Article 10 (1) (preservation of human dignity, personal honor, reputation and names) and paragraph 2 (protection against unauthorised interference in private and family life), which, by their nature and meaning, encompass the private sphere of the individual and its individual integrity as a fully necessary condition for the dignity of man and citizen and the development of human life at all.
64. On the other hand, the interpretation of the right to the protection of personal data, when it is subject to the requirement to balance competing interests, is influenced by the current social and political context: "[P] the interpretation of what belongs to the private and public sphere is also very dynamically changing... the boundaries between private and public interests are steadily shifting, in favour of the expansion of the public sphere... each individual is understood as being a person with social ties existing within the civil community and as a person aware of responsibility for the whole... each must accept for all persons valid and generally fairly required (legal) conditions and restrictions on his or his or her freedom realised in privacy, but always on the assumption that he or she will remain, generally, a space for the individual's own existence." (Wagner, E.; Shimek, V.; Comment. Praha: Wolters Kluwer, 2012, str. 278-279).
Right of access to information
65. By proposing the contested provision of the archiving law, the conflict between the fundamental right to the protection of personal data as part of the privacy of a person affected by the information in the archives on the activities of the security forces of the former totalitarian regime and the freedom of expression and the right to information which includes the expression of their views, the free search, the acceptance and dissemination of ideas and the information referred to in Article 17 (1) and (2) of the Charter, respectively, and closely related to the freedom of scientific research referred to in Article 15 (2) of the Charter. The diffamination potential of freedom of expression and the right to information may be limited by the legal measures necessary in a democratic society to protect the rights and freedoms of others, the security of the state, public security, the protection of public health and morality pursuant to Article 17 (4) of the Charter and Article 10 (2) of the Convention. The individual attributes of freedom of expression and the right to information are independent of each other: searching for and receiving information creates real conditions for the effective fulfilment of freedom of expression, but it is not bound by the dissemination of the information obtained by publication or other sharing. The search for and receipt of information is therefore a separate fundamental right, the exercise of which cannot be conditional on subsequent publication. It is also relevant in itself as a presumption of freedom of thought and conscience under Article 15 (1) of the Charter and Article 9 (1) of the Convention. Therefore, claims may be made different from those for the limitation of the right to disseminate information, if, for example, intervention in the privacy of the person concerned is less intense and more justifiable than that caused by their dissemination.
66. Access to relevant information in a democratic society is a general precondition for the exercise of the right of everyone to participate actively in public life on the basis of equal participation within the meaning of Article 1 of the Charter, as also pointed out by the Constitutional Court in Case C-2 / 10 ÚS 2 / 10 of 30 March 2010 (cf. also Wagner, E.; Šimělek, V.; Langášek, T.; Pošil, I. et al. Comment. Praha: Wolters Kluwer, 2012, p. 431). The Pillar of a democratic society is an open discussion about the exercise of public power and its effects on individuals in the past, now and in the future. The ideal of real democracy is a society where everyone sees themselves as part of a whole. The basic element of such a society is a citizen actively seeking to understand himself in the context of knowing the fate of others ("how would I behave?"). An elementary part of the belief of the inadmissibility of any recurrence of a totalitarian regime is the internalisation of the stories of those persecuted in the past.
67. In the light of the reference of the Charter's preamble to bitter experiences in times when human rights and fundamental freedoms have been suppressed in our country, the conditions for making available the stories of the former totalitarian powers' security forces' practices can be laid down only those legal restrictions which are proportionate, i.e. do not go beyond what is appropriate for the knowledge of their practice, necessary and, at the same time, in accordance with Article 4 (2) of the Charter, the most sensitive to the substance and meaning of the right to information [cf., for example, the finding sp. Where the exercise of the right to information by a natural person is made available to other persons for their personal use only, Act No 101 / 2000 Coll. (§ 3 (3)) shall not apply to this form of processing of personal data, where their disclosure is not considered by the nature of the case. On the other hand, the exercise of the right to information and the freedom of scientific research by a professional researcher whose final destination is to publish information obtained by viewing the archives in a processed form places different requirements on the conditions for the protection of personal data compared to mere consultation, as the dissemination of such information with personal data is already a qualitatively completely different, more intense interference with privacy.
68. Tightening the conditions of access to archival services for a group of professional researchers alone would lead to a breach of the principle of equal status before the law, whereas tightening up for both groups would entail a disproportionate restriction on the right to information for the first of them. Therefore, it appears to be the most considerate and in doing so constitutionally compatible solution to set the conditions for viewing the archives in the Act on archival for all researchers at the same level, with the fact that the data controller (archives) obliges professional researchers to obtain the consent of the persons concerned under Act No. 101 / 2000 Coll. (§ 7 in conjunction with § 5 (2), § 9) for further processing. The same applies to researchers - natural persons, if the data obtained from archives would want to move beyond their personal needs, that is to say, just getting to know them, to another for further processing (e.g. media for publication). The separation of the legal regime of inspection and disclosure is therefore fully justified.
69. In general, the right of access to archival sites with information on the activities of security forces of former totalitarian power is a prerequisite for unmediated knowledge of the past. Similarly, the words Karl Jaspers in the book Question of Guilt (Prague: Academia, 2006), written shortly after the end of World War II, referred to by Elishka Wagner in his different opinion on the finding of the Constitutional Court sp. zn. Pl. ÚS 25 / 07 of 13. 3. 2008 (N 56 / 48 SbNU 791; 160 / 2008 Coll.) on the proposal for the annulment of Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Procedures and on the Archive of Security Services:... "we want to ask ourselves, unnecessarily, to clarify for ourselves: where I felt false, thought falsely, we want to seek guilt as far as possible, on ourselves, and not just in matters or others..." And all E. Wagner adds is, "To the question of why, everyone has to answer themselves, because the only instance in solving moral guilt is, according to Jasper, his own conscience..."
70. This individualised knowledge of the past also reflects the social dimension of the right of access to information, on the basis of which an individual is able to live in a society that surrounds him, relatively non-conflicting, to enter into various forms of interaction and communication with other members, and even through his behaviour, and even through his very being, to act on other members of society. His behavior or being is co-determined by the level of authentic dealing with the stories of an undemocratic regime. When the legislator enters this specific information space, its intervention restricting the right to privacy of one (persecuted or others) is justified only to the extent that it is capable of enabling others (other members of the company) to obtain otherwise unavailable knowledge of the nature of the totalitarian regime, which will give them an opportunity to better self-knowledge on the basis of comparison with the fate of the victims of persecution.
71. The reference aspect of the constitutional review of the contested provision is therefore also an imperative of constitutional order, which also requires, in a specific context, respect for the right of other interested persons from the persecuted circle (family members, other relatives, friends, survivors) to access archives containing his personal data, without which he would be forced to remain in undignified ignorance of his own destiny. To understand its position in every democratic society is the subject of a constitutionally challenged public interest.
72. The recognition of such imperatives in the case-law of the Constitutional Court is still open: "In Czech circumstances, the right to information self-determination is about Pandora's box. In particular, databases containing often sensitive information from the private lives of individual persons, mainly taken by state security authorities in the period prior to November 1989, which the State still holds, may trigger the need for a solution... and it can only be said that such an individual case has not yet been addressed by the Constitutional Court." (Wagner, E.; Shimel, V.; Langášek, T.; Pospíšil, I. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer, 2012, str. 285).
73. The more obvious the interference in the personal integrity of the individual concerned is that the exercise of another person's right of access to information is exercised, the more effective the guarantees of constitutional protection against misuse of the information obtained must be provided by the person concerned. The proportionality of the intervention must be assessed both by the intensity of its impact on the personal sphere of the persons concerned and by the number of persons concerned [e.g. the general and preventive nature of the collection and storage of operational and localisation data on electronic communications was the main reason why the contested provision of the relevant law did not stand in the proportionality test, see sp. zn. The guarantee of proportionality consists not only of an equal and transparent setting of rules on access to archival information, but also of the real enforceability of these rules and the availability of independent and impartial judicial control. Moreover, both researchers and the public must be aware of the fact that these files may contain half-truths or lies and therefore cannot rely on their credibility.
International and European dimension of constitutional review
74. The ECHR concluded from Article 8 of the Convention guaranteeing the right to respect for private and family life, as well as the right to information self-determination, by repeatedly pointing out that the collection and retention of data relating to the private life of an individual falls within the scope of this Article, since the term "private life" must not be interpreted strictly [in particular the Malone decision against the United Kingdom (No 8691 / 79) of 2 August 1984]. In its case-law concerning Article 8 of the ECHR Convention, it also referred to as interference in the privacy of individuals, inter alia, by interference in the form of data checks, mail content and telephone calls [cf. Decision in Klass and Others against Germany (No 5029 / 71) of 6.9.1978, by Leander v Sweden (No 9248 / 81) of 26.3.1987, by decision in the Kruslin case against France (No 11801 / 85) of 24.4.1990 or by decision in the Kopp case in the case of Switzerland (No 23224 / 94) of 25.3.1998] or by the retention of data on the DNA of individuals in the indicts [cf. Decision in the case in the case of the United Kingdom (No 30562 / 04 and 30566 / 85) of the United Kingdom (No 44787 / 98) of the United Kingdom (No 44787 / 98) of 25.9.2001]. In the Rotar decision against Romania (No 28341 / 95) of 4.5.2000, ESLP transferred from the right to private life, which was manifested in the form of the right to information self-determination and the positive obligation of the State to dispose of the data collected and processed by the State on the person in its private sphere.
75. As the ECHR has previously stated, the extensive interpretation of the concept of "private life 'is in conformity with the Convention on the Protection of Persons with regard to the Automatic Processing of Personal Data (in force in the Czech Republic since 1 November 2001, published under No 115 / 2001 Coll. s.), which aims to" guarantee in the territory of each Party to any natural person... respect for his rights and fundamental freedoms, and in particular his right to private life, in connection with the automated processing of personal data relating to him (Article 1), which is defined as any information relating to an identified or identifiable natural person (Article 2)' [cf. Amman's decision against Switzerland (No 27798 / 95) of 16 February 2000 and cited caselaw]. The exceptions to the prohibition of State interference in the right to private life, necessary in a democratic society and in accordance with the law, by virtue of calculated values of public interest or the protection of the rights and freedoms of others, are interpreted strictly by the ESLP. Public authority acts which constitute interference with the right to private life must not be outside any immediate (preventive or subsequent) judicial control [cf., for example, the Camenzind decision against Switzerland (No 21353 / 93) of 16.12.1997].
76. When considering the right to privacy and freedom of expression in the form of publication in the media, the ESLP requires a fair balance between two conflicting private law claims which are essentially of equal value. The publication of information on the private life of public-made persons, although it is mostly for the sake of entertainment rather than education, benefits from the protection of freedom of expression, but may give way to the right to respect for private life when the information in question is personal and intimate and there is no public interest in its dissemination. However, the obligation of the publisher to give prior notice of the intention to disclose sensitive information so that the person concerned may, where appropriate, ask the court for interim measures to prevent publication, the court found that there are too many restrictions on freedom of expression, since sanctions already exist for interference in the right of privacy and, in view of the diverse practice in the European States, the national court should be allowed sufficient discretion [Mosley's decision against the United Kingdom (No 48009 / 08) of 10.5.2011]. Transferred into the context of Czech law, the general court will examine whether the publisher, or the professional researcher, has fulfilled his obligations under Act No. 101 / 2000 Coll. - to obtain the consent of the person concerned before the publication of the personal data, or whether the State has properly exercised its supervisory or sanctioning function through the Office of Personal Data Protection.
77. In its case-law, the ECHR defined the concept of "the most intimate individual sphere" (and the most intimate aspect of private life, un aspect des plus intimes de la vie privée), for example in its decisions [Dudgeon v United Kingdom (No 7525 / 76), Stübing v Germany (43547 / 08), Mosley v United Kingdom (No 48009 / 08), YF v Turkey (No 24209 / 94)]. This most protected sphere includes information about its sexuality or stigmatizing information about its state of health or the physical and mental damage suffered. In addition, stigmatizing information on minors or similarly vulnerable persons (people with mental or mental disabilities) must be protected with extreme care. It is in relation to the most intimate sphere of the individual or in the protection of privacy and dignity of particularly vulnerable persons that the need to protect privacy and dignity is increasing. It follows that the general courts and other public authorities (for example, the Office for the Protection of Personal Data or the law enforcement authorities) are obliged to pay greater attention to this information, which belongs to the most intimate personal sphere of the individual, compared with other personal data and to provide them with much stronger protection.
78. The Charter of Fundamental Rights of the European Union ("the EU Charter"), as a modern human rights catalogue, expressly states in Article 8: "(1) Everyone has the right to the protection of personal data concerning him or her. (2) Such data must be processed correctly, for precise purposes and on the basis of the consent of the person concerned or on the basis of any other legitimate reason provided for by law. Everyone has the right to access and rectify the data collected on him. (3) Compliance with these rules shall be supervised by an independent authority."
79. However, the EU Charter does not apply directly as part of the reference framework for the constitutional review of the contested provision of the archiving law, since the application of the EU Charter is solely linked to the application of Union law in a Member State pursuant to Article 51 (1) and cannot extend the scope of Union law beyond the powers conferred on the Union (paragraph 2); the adaptation of archiving does not fall within the scope of Union competence. The fundamental right to the protection of personal data provided for in Article 8 of the EU Charter, which is also guaranteed in Article 16 of the Treaty on the Functioning of the European Union (TFEU) and is exercised under the rules of Union law adopted for the implementation of this Treaty under the conditions and within the limits laid down therein (Article 52 (2) of the EU Charter), is a source of criteria for the (Euroconformal) interpretation of the laws of the Member States in the field of the protection of personal data which substantially affect the application of national standards beyond the direct scope of Union law, as is the case of the contested provision of the Charter.
80. These criteria are the rules issued on the basis of the authorisation of Article 16 TFEU and contained in the Harmonisation Directive 95 / 46 / EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as the Directive), specifying and extending the principles of the right to privacy arising for Member States under the Council of Europe Convention (No 108) on the protection of persons with regard to automated processing of personal data. This Directive has the status of an implementing regulation to Article 8 of the EU Charter, but in fact it was one of its normative sources and can therefore be recognised under Union law as "constitutional 'meaning and has also become a draft for the adoption of Act No. 101 / 2000 Coll. [cf. § 1, footnote 1]. According to it, Member States have considerable discretion in establishing the conditions under which processing of personal data is lawful (Article 5). In so doing, inter alia," further processing for historical, statistical or scientific purposes shall not be considered incompatible if Member States provide appropriate protective measures' [Article 6 (1) (b)] and where such processing is necessary for the performance of the task in the public interest or in the exercise of the public authority entrusted with the controller '(Article 7), without fulfilling the conditions of unquestionable consent. Contrary to the prohibition of processing sensitive personal data without the explicit consent of the data subject, inter alia: "Where appropriate safeguards are provided, Member States may provide for other exceptions for reasons of significant public interest... either through national legislation or by decision of the supervisory authority' (Article 8 (4)). An important exception to the application of this Directive is the processing of personal data" carried out by a natural person for the exercise of exclusively personal or domestic activities'. Such processing is generally seen as part of the freedom of the individual to obtain information (see the European Data Protection Law Manual). European Union Agency for Fundamental Rights and the Council of Europe, 2014, p. 19).
81. Regulation (EU) 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95 / 46 / EC (General Data Protection Regulation), which has been in force since 4 May 2016 and will replace Directive 95 / 46 / EC, as part of the legal order of the Czech Republic, by virtue of its entry into force on 25 May 2018, as part of the interpretative framework for the regulation on the protection of personal data applicable to archival law.
82. For the purposes of archiving in the public interest and of scientific or historical research, the Regulation in Article 89 allows the law of a Member State to provide, in the name of implementing those purposes, the necessary derogations from the rights to the standard protection of personal data referred to in this Regulation, such as the right to restrict the processing of data by the data controller, where the data subject disputes their accuracy or until the objection of the data subject is verified whether the legitimate grounds of the controller for processing of data prevail over the legitimate interests of the data subject (Article 18), which may be regarded as a mitigation of national regulation in favour of personal data controllers in an area equivalent to that which is subject to the Constitutional Court's review of the contested provision.
83. In order to do this, the Regulation states in Alinea 73 preamble: "Union or Member State law may impose restrictions on certain principles... if necessary and proportionate in a democratic society... for reasons of general public interest, further processing of archived personal data in order to provide specific information relating to political conduct under the former totalitarian regime... Those restrictions should comply with the requirements laid down in the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms. '; It is then stated in Alinea 158:" Member States should also be able to provide that personal data may be further processed for archiving purposes, such as to provide specific information related to political behaviour under former totalitarian regimes...'.
84. The Regulation generally requires the lawfulness of processing of personal data by granting consent by their body [Article 6 (1) (a)], unless such processing is "necessary for the performance of a task carried out in the public interest or in the exercise of the public authority entrusted with the controller '[point (e)]. The processing of sensitive personal data shall be prohibited unless" necessary for reasons of significant public interest... which is proportionate to the objective pursued, respects the substance of the right to data protection and provides appropriate and specific guarantees for the protection of the fundamental rights and interests of the data subject' (Article 9). The Regulation, like the Directive, does not apply to the processing of personal data by a natural person in the course of exclusively personal or domestic activities [Article 2 (2) (c)].
Self-examination of the constitutionality of the contested provision
85. The model of specialised and concentrated constitutional justice under Article 83 of the Constitution requires the Constitutional Court to consistently respect the rules of division of power. The subsidium nature of his powers of review in relation to the general judiciary and the administration of the State has led him to consider that the abolition of their decisions, which fundamentally impair the constitutionally guaranteed fundamental rights of persons, is only if effective redress by other means is not possible. In relation to legislative acts, this restraint of the Constitutional Court is manifested by its self-restraint to intervene in matters that should primarily be addressed by the democratically elected legislator. This leads him to reduce the constitutional review of the standards to assess the lawfulness of the legislator's procedure (compliance with the rules of the legislative process and respect for the discretion of the legislator given by the constitutional order) and the adequacy of the possible interference of the solution chosen by him in the fundamental rights of persons. Wherever this is sufficient to restore compliance with constitutional order, the constitutional interpretation of the contested provision must be preferred to its abolition, which would normally have a more destructive impact on legal parties and undermine the predictability of the effects of correcting the constitutional deficit in the future.
86. After examining the appellant's arguments and confronting them with the contested provision, the Constitutional Court notes that the proposal in the part to which the appellant is actively legitimised is not justified.
87. The Constitutional Court considers the interpretation of the terminology used to be a basis for assessing the compatibility of the contested provision with the constitutional order. In the context of archival law, it is necessary to distinguish consistently between two in § 4 (e) of Act No. 101 / 2000 Coll. in parallel and independently calculated ways of processing personal data: simply by "making available 'the archive administrator by means of an individual request from the researcher - natural person or professional researcher and any" dissemination' thereof or "publication 'by a professional researcher through a publication or other form of sharing which the archive manager no longer participates.
88. The explanatory memorandum to the Act on archiving states that the legislation constituting the constitutional order of the Czech Republic is covered by the Constitution in Articles 2 (3), 79 (1) and 79 (3) and the Charter in Articles 2 (2), 7 (1), 15 (2) and 34 (2). The requirements laid down in Articles 2 (3) and 79 (1) and (3) of the Constitution and Article 2 (2) of the Charter are satisfied by the proposed legislation by establishing the competence of the competent authorities in the archiving sector (§ 42- 62, Title IV of the Act on archiving), the requirement to restrict the integrity of privacy only by law (Article 7 (1) of the Charter), are taken into account by the provisions of § 37 (2) of the Archiving Act, in the version effective at the relevant time, which relates to inspection of archives relating to a living natural person and containing sensitive personal data of a living person in the prior consent of that person. At the same time, Article 7 (1) of the Charter is the constitutional basis for the proportional limitation of the freedom of scientific research guaranteed by Article 15 (2) of the Charter and the right of access to cultural assets pursuant to Article 34 (2) of the Charter, which is implemented by the same provision of the proposed legislation. The archives and file services are not governed by the law of the European Communities. As is further noted, the legislation in these areas is left to the national authorities of each country. It is emphasised in the cited explanatory memorandum that the legal regulation of archiving expresses the fact that archival care is carried out in the public interest as an expression of care for the sources of knowledge of the history of the state and nation as well as documents serving as evidence or information for citizens, public bodies and other legal persons. Archive documents are also important not only historically-cultural, but also legally-proof, as demonstrated in recent years by the whole process of rehabilitation, property restitution, compensation, transformation of ownership relations, etc. The explanatory memorandum does not explicitly express the exception to the restriction of access to archival services containing personal data of living persons under the contested provision of Paragraph 37 (6) of the archiving law.
89. The Act on archiving uses the concept of "viewing" in § 34 et seq., meaning only to familiarize itself with the content of the archive or its address by the administrator of the archive to a specific researcher - a natural person for his personal use or a professional researcher for the need for further processing. According to the Constitutional Court, there is no indication that "viewing 'of the archive should include its" publication' without further action. Even repeated (parallel) individual views do not change the nature of the researcher and do not become a publication as they do not serve the information needs of an unlimited number of addressees of such a communication, as is the case with book or electronic publication. Directive 95 / 46 / EC is not as terminologically reserved as Law No 101 / 2000 Coll. ["Proliferation or any other disclosure ', Article 2 (b)], because it obliges the Member States of the European Union only in respect of the result to be achieved in the context of the processing of personal data and leaves them to choose the means appropriate to achieve that result (Article 288 of the Treaty on the Functioning of the European Union), including adaptation to the normative meaning of the legal terminology used. The broader concept of the term" making available', including the introduction of third parties with personal data from others, is also charged to part of the commentary literature (Kucherová, A. and collective). The Data Protection Act. Comment. Issue 1. Praha: C. H. Beck, 2012, str. 70).
90. The Constitutional Court considers it quite clear that interference with the fundamental right to protect the privacy of the person concerned, whose data are contained in the archive, is incomparable to the disclosure of personal data obtained by the professional researcher for an unknown and unlimited range of recipients in the event of mere consultation by the researcher.
91. The Constitutional Court does not share the interpretation advocated by the appellant, which wipes out the difference between the two concepts ["the need to inform... the public at the price of providing all sensitive data" or "the action taken in accordance with the law (i.e. the publication of sensitive personal data in the framework of disclosure...)"]. In the case under consideration, which raised doubts as to the constitutionality of the contested provision of the archival law, the appellant asks whether the constitutionally disputed interference in privacy is not only a possible disclosure of sensitive data without the consent of the applicant, but already the disclosure of archives to the Czech TV worker itself; However, it follows from the description of the case that the data were not actually published in the case, since further processing (preparation of the programme and broadcasting) was abandoned due to the disagreement of the person concerned.
92. The appellant, with his proposal, seeks to declare the unconstitutional nature of the contested provision on the grounds that, after having passed the examination, this has passed a successful test of legality and legitimacy, he has doubts as to the necessity of a legally defined disclosure of sensitive personal data. In this context, the question of the proportionality of the contested provision is whether a more sensitive procedure cannot be chosen without undermining the legislator's legitimate objective. Here, while aware of a certain restriction on access to information after the introduction of one of the personal data protection instruments, whether it be the anonymisation of data or the requirement of the necessary prior consent of a living natural person, the appellant considers that such a restriction would appear appropriate since the archival in question will not lose its testimonial value on the practice of the communist regime in suppressing human and political rights.
93. The Constitutional Court has subjected the contested provision to the legality test and has concluded that the derogation in that provision does not fall outside the scope of the reservation of law as regards the cases, limits and procedures for the application of State power pursuant to Article 2 (3) of the Constitution, as well as the restrictions on the right to privacy under Article 7 (1) of the Charter and the protection of personal data under Article 8 of the EU Charter, and has been adopted by a constitutionally consistent legislative process. [To this can be supplemented by an even more recent requirement of the ESLP, dealt with by standard conditions of proportionality (cf. Kmek, J.; Košák, D.; Kratochchchul, J.; Bobek, M. European Convention on Human Rights. Comment. Issue 1. Prague: C. H. Beck, 2012, p. 882), to the adequacy of guarantees before arbitrary application of restrictions on the fundamental right (Gillan and Quinton v United Kingdom, judgment No 4158 / 05 of 12.1.2010).
94. The Act on archiving in § 34 et seq. allows consultation of archives on request and subject to the conditions laid down by this Act and the Order of the Archive, giving limits to the means and manner of processing of personal data, the setting of which is required by the data controller § 5 paragraph 1 (b) of Act No. 101 / 2000 Coll. The provision of access to archivaly does not include or implies any inclusion of any subsequent forms of further processing of personal data in archivaly contained. The substitution of the concept of "disclosure 'with" disclosure' in the sense of the word "disclosure 'is therefore confusing. The only constitutionally consistent meaning of the concept of" consultation' used in paragraphs 34 et seq. of the archiving law is therefore "individual disclosure 'on the basis of a request and only for the personal use of a researcher - a natural person or a professional researcher, which does not automatically mean authorisation for further processing or disclosure of personal data.
95. An explorer whose requests for access to archives or the making of extracts, copies or copies of archives have not been complied with may make a submission to the National Archive as the competent administrative authority on the section of the archives and the performance of the file service [§ 38 (2) in conjunction with § 46 (1) (g) of the Archives Act] whose decision is reachable in the administrative judiciary. The archives may not refuse access to the researcher, even if the person concerned objected to viewing the archive containing his personal data, where the case is subject to a derogation under the contested provision [Paragraph 38 (1) (c)]. The same shall apply in the case of sensitive personal data contained in the archive from the security components of the totalitarian regime, unless the person concerned has given his consent to be consulted under point (d) of the same paragraph; a systematic interpretation of the fact that the absence of a prior consent requirement under the contested provision (generally imposed in § 37 (3)) ceases to be relevant as a reason for refusing access to the archive. Such an interpretation is consistent with the evolutionary principle of open access to archival from the activities of repressive elements of the totalitarian regime, which is in doubt when interpreting. It also corresponds to the integration of the Archive of the Security Services into the National Archive on 1 January 2030 (§ 17 of Act No. 181 / 2007 Coll.). In this procedure, too, the competent authorities must take into account the need to protect the most intimate personal sphere of the individual (cf. point 77).
96. The Archive is obliged, within the meaning of Article 10 of Act No. 101 / 2000 Coll., to ensure that another person does not suffer any harm to his or her rights by making the archive available to him or her, and to preserve his or her human dignity and not be unduly affected by his or her personal life. In particular, the archives must take the necessary measures to prevent unauthorised processing of data (Section 11). This obligation of the archives will be met by requiring the applicant to sign a research report referring to the order of inquiry (see the models in Decree No. 645 / 2004 Coll., implementing certain provisions of the Archiving and File Service Act and amending certain laws, as amended) to declare that he / she, as a researcher, will be fully aware of the responsibilities associated with the possible further handling of the personal data obtained, in particular with their publication, to which the person concerned must obtain prior consent (§ 7 in relation to § 5 (2) of the first Law).
97. The Constitutional Court did not find the contested provision incompatible with the protection of the fundamental right to privacy with regard to personal data processing guarantees pursuant to Article 5 (2) of Act No. 101 / 2000 Coll., since it excludes their administrator from the obligation to obtain the consent of the person concerned before making the archive available 'when processing is held solely for archiving purposes under a special law'. This provision is inspired by a Directive which considers the further processing of personal data for historical, statistical and scientific purposes to be admissible if Member States provide appropriate safeguards. This exemption is subject to the processing of personal data which form the content of the archives itself (Kucherová, A. Act on the Protection of Personal Data. Comment. Issue 1. Prague: C. H. Beck, 2012, p. 154). Although the regime for the protection of sensitive personal data [§ 4 (b)] is stricter than the regime for the protection of "normal 'personal data [the consent of the data subject must be" explicit', § 9 (a)], the exemption for the contested provision in relation to sensitive data is justified on the same basis [point (ch)].
98. On the basis of the legitimacy test carried out, the Constitutional Court has found that the contested provision affecting the right of privacy pursues the objective permissible in a democratic society under Article 8 (2) of the Convention, as pointed out by the appellant. The incomplete disclosure of archival information, which, in the event of the abrogation of the derogation, would result in the non-disclosure of prior consent by the person concerned, would allow only a deformed and not a full knowledge of totalitarian past. Such a depersonalised social self-reflection would have to do without an authentic experience of stories telling not only about the fate of the persecuted and with them - often only randomly connected - other actors, but - and above all - their persecutors. The weakened sharpness of these statements would not allow the sufficiently intense social catharsis of the past, which is permanently needed.
99. The Constitutional Court refers to its finding of sp. zn. Pl. ÚS 25 / 07 of 13. 3. 2008 (N 56 / 48 CollU 791; 160 / 2008 Coll.) on the proposal for the repeal of Act No. 181 / 2007 Coll., on the Institute for the Study of Totalitarian Systems and on the Archive of Security Services, in which it quoted its preamble: "Knowledge of historical sources and other testimonies about those regimes and events leading them allows a better understanding of the consequences of the systematic destruction of the traditional values of European civilization, conscious violations of human rights and freedoms, moral and economic decline accompanied by judicial crimes and terror against holders of divergent views, replacing the functioning market economy by directive management, the destruction of traditional principles of property, abuse of education, education, science, science and culture, science and ideological purposes, and without consideration of nature."
100. The contested provision pursues a legitimate objective under Article 8 (2) of the Convention and does not, in fact, pursue an objective other than formally declared legitimate. In order to achieve this, concrete information on life actors and decision-making during a period of totalitarian regime is of irreplaceable importance. For political reasons, many personal data were collected and processed by the repressive forces at the time by methods incompatible with the rule of law and can therefore hardly be verifiable and thus of questionable storyline value. But it is also the knowledge of the ways in which security forces have provided these data that is, in itself, important for this objective. The Constitutional Court considers that the maintenance of the existing open regime of access to archives and other testimonies about the activities of the then repressive forces is essential not only for the objective historical knowledge of the practices of the former regime and the naming of their organisers and executors, but also for the education of citizens, it is a separate judgment on the need to recognise in due time the signs of authoritarian tendencies in society, the consolidation of the foundations of a democratic rule of law, the development of civil society and the fulfilment of the ideal of justice.
101. The Constitutional Court then carried out a proportionality test in the narrower sense to verify that their substance and meaning are being investigated in the application of the legal restrictions on fundamental rights and freedoms in accordance with Article 4 (4) of the Charter. Maintaining the material content of the right to privacy requires that, in each individual case, there is only such a limitation of the fundamental right as is necessary and justifiably required in a democratic rule of law for the purpose of the restriction to be fulfilled. In other words, after identifying the purpose for which the fundamental right is to be restricted, it is necessary to examine whether the restriction is appropriate and necessary in order to achieve the objective addressed. A restrictive intervention is appropriate if it shows such a substantive link with the purpose that it supports at least the achievement of the purpose. The need for intervention assumes that there is no other way available to the rights of the person concerned, i.e. the lesser damage causing and the equally appropriate means. The restriction of the fundamental right to the protection of personal data must not be excluded from the proportionate proportion to the purpose pursued by it, must be in balance with the constitutional right of access to information, thus going beyond what is necessary to achieve that objective. When these assumptions are fulfilled, the restriction of the fundamental right of a natural person as a community-bound individual is justified.
102. The applicant considers that, by anonymising (pollution) personal data or applying the requirement of prior necessary consent of the living natural person concerned, archival information will not lose its indicative value on the practice of the communist regime and therefore there is no need to maintain the existing access to it. According to the Constitutional Court, however, the appellant does not take into account that mere viewing of archives on an individual basis for the sole need of the researcher - as was the case with the Ostrava branch of Czech Television, which abandoned the publication of the archival information received - does not in itself entail a risk of damage to the dignity, honor and reputation of the person concerned (the applicant in the main proceedings for compensation). This potential risk could have been averted by the applicant (and also averted) by not agreeing to publish the information obtained, to which it should have been called (and also called) by the Ostrava branch of Czech Television in accordance with Act No. 101 / 2000 Coll. in preparation for broadcasting the intended programme. The contested provision of the archiving law did not in any way exclude or restrict the scope for applicants to request verification of this information, to set them up on the basis of their own observations (could attach a judgment on their rehabilitation), their reduction, etc., or to completely prevent their publication. Thus, the unlawful interference in the applicant's personality rights could not have occurred by simply looking into the archive according to the contested provision, but only through the possible procedure of the Ostrava branch of Czech Television beyond Act No. 101 / 2000 Coll. - further processing for the purposes of television broadcasting without the consent of the applicant.
103. Opinion No 5 / 2009 of the Office for the Protection of Personal Data "Disclosure of Personal Data in Media" states that... "it is appropriate to distinguish between two situations for the application of the Data Protection Act to journalism, namely the preparation of reports or articles and their subsequent publication." While in the first case it can be concluded that the activity of individual journalists in collecting documents for the preparation of a report or article will not be contrary to Act No. 101 / 2000 Coll., since personal data are sought and used in accordance with Article 17 (4) of the Charter and the risk of unauthorised interference in the privacy of the persons concerned is at this stage minimal, in the event of publication of a report or article - often irreversible - interference in privacy and its conflict with the right to disseminate information (under: Novak, D. Protection of personal data and related regulations. Comments. Wolters Kluwer, 2014, p. 111-112). It will be up to the appellant to assess whether the applicant's sensitive personal data have been shared within the Ostrava branch of Czech Television, which should be covered by the defendant's prior consent.
104. "The dehumanization of history" as a result of the de facto avoidance of access to the identification of their actors would lead to a distortion and misunderstanding of historical context and would thwart the adoption of the past in the context of the knowledge of the fates and ties of the stories of resistance and resistance of specific people, which may have a liberating effect in relation to the history of their own. The dividing line does not lead across society between the righteous and the unjust, it leads within each of us, and each of us must deal with the past and the past of this country. Insisting in privacy only by familiarising the person concerned with totalitarianism data, accompanied by the possibility of preventing them from spreading, is not an unequivocal, constitutionally unacceptable requirement. The contested provision also stood on this test.
105. Although it was a totalitarian state whose security forces, by persecuting opponents of the regime, have caused far-reaching devastation of the circumstances in society, today's state, based on democratic principles of the rule of law and respect for the fundamental rights of the individual, cannot exonerate the liability for unauthorised interference in the right to protect the data of victims of this persecution or other persons, which could be in breach of the duties of archives associated with the establishment and application of conditions of viewing the archives, which are laid down by the Act on archiving and the Research Order, or by the use of open access to sensitive data by researchers by their publication or other processing without the consent of the persons concerned.
106. The contested provision of the archiving law does not exempt the State from the obligation to protect information from the most intimate personal sphere of the individual (sexuality, stigmatizing information on health or suffering from harm) and particularly vulnerable persons (children, people with disabilities). An effective monitoring of compliance with the obligations associated with them by an independent authority, accompanied by significant penalties in the event of infringement, shall be subject to the admissibility of the restriction of the right to the protection of personal data pursuant to Articles 10 of the Charter, 8 of the EU Charter and 8 of the Convention.
107. This control role is primarily performed by the Office for the Protection of Personal Data by the performance of supervisory activities and by the application of fines for infringements (up to CZK 5 million for natural persons) or for administrative offences (up to CZK 10 million for legal persons and business natural persons) pursuant to Title VII of Act No. 101 / 2000 Coll. (cf., for example, the decision of the Office for the Protection of Personal Data (SPR- 6601 / 10-21 of 31 January 2011 in the Czech Republic - Archive of the Security Services and the decision of the President of this Office (SPRON-6601 / 10-27 of 12 April 2011 in the same case). In relation to "ordinary 'archives, the Ministry of Interior, National Archives and the State Regional Archives shall also carry out an inspection of compliance with the obligations of the archiving sector under Title IV of the Charter Act. Infringement of obligation by the researcher pursuant to § 84-90 of Act No. 89 / 2012 Coll., Civil Code, can be prosecuted by an action for the protection of personality under Part Four, Title III of that Act. In cases of serious damage to the rights or legitimate interests of the person concerned, the individual's criminal liability is not excluded, and from 1 December 2016 (Act No. 183 / 2016 Coll., amending Act No. 418 / 2011 Coll., on the Criminal Liability and Proceedings against Legal Persons, as amended), also legal persons for the criminal offence of the unauthorised handling of personal data under Section 180 of the Criminal Code.
108. If the Constitutional Court were to declare the unconstitutional nature of the contested provision, the archives containing information from the volumes of security components of the totalitarian regime would, in the event of disagreement between the persons concerned with their earlier disclosure, be consulted only after the expiry of the protection period of 30 years from the time they were declared as archives (unless they had already been published). As some volumes were taken into archival funds only in connection with the establishment of the Archive of Security Services in 2007, the relevant archives would remain inaccessible until the second half of the 1930s, when almost 50 years have elapsed since the fall of the previous regime and when a decline in social demand for knowledge of totalitarian past can actually be expected. The state of dealing with this task is different in every company that has experienced this experience, therefore the practical applicability of knowledge on the regulation of access to these archives in other countries is limited. Although the sensitivity and thus the usability of archival materials may be diminishing with time, the experience from post-war Germany shows that there has been a phase shift in interest in "contemporary history" to a generation that has not personally experienced this past. It was a generation following, which, since the mid-1960's, showed a critical interest in dealing with the Nazi past of its country from this very perspective. This may mean a revival of interest in the recent past for today's young population in the Czech Republic, precisely in a period in which, should the contested provision be repealed, the relevant archives would be unavailable. It is up to the legislator to consider how much he will take these facts into account when setting the approach.
109. The actual closure of a significant part of the funds of the Czech national archive heritage, which would result from the abolition of the contested provision following a 12-year unlimited approach, where the extent of the prior disclosure, unconditional consent of the persons concerned, is virtually impossible to trace back, would oppose the concept of an open society which has the will to recognise its recent past and, with the help of this reflection, critically assess its presence. For the period of open access, thousands of users were allowed to view hundreds of thousands of archives, to make extracts, copies and digitised copies. The actual closure of archival funds containing information from former State security volumes has therefore no longer been justified. The Constitutional Court does not agree with the view expressed by the appellant that archivaly will not lose the telling value of the practice of suppressing rights under the previous regime by polluting personal and sensitive personal data. This cannot be overlooked by the normative force of fact, consisting of the fact that, for 12 years, archives containing individuals' personal data have been examined, copied and otherwise used, and therefore the "closure" of archives, which would be the result of a derogatory statement or interpretation imposing an obligation to anonymise all personal data, would mean at present only an arbitral intervention with a different impact for both individuals and researchers.
Conclusion
110. The Constitutional Court concluded that, from the point of view of the fundamental right to the protection of personal data, mere consultation of archives containing information on the activities of the security components of the totalitarian regime under the contested provision is a legal, legitimate and proportionate interference with that right, balanced against the fundamental right of access to information and justified by the significant social interest in authentic knowledge of the past. This restrictive intervention does not achieve the intensity of damage to human dignity, honor and reputation as it is not linked to the authority of the researcher to disclose the data obtained or otherwise process it without the prior consent of the person concerned.
111. The contested provision of Paragraph 37 (6) of Act No. 499 / 2004 Coll., on archiving and writing services and on the amendment of certain laws, as amended by 30 June 2009, the adoption of which was justified by a strong public interest in the knowledge of the practices of the former totalitarian regime by means of an open view of the archives on an individual request, did not favour - and does not favour in the present systematic integration as paragraph 11 - any of the fundamental rights in question at the expense of the other way constitutionally unacceptable. The authorities of the State, in particular the Office for the Protection of Personal Data and General Courts, cannot waive their responsibility for the effective control of the procedure of archives and researchers when taking measures pursuant to § 13 (1) of Act No. 101 / 2000 Coll., to prevent unauthorised or accidental access to and processing of personal data, as well as any other abuse. This applies in particular to the protection of the most intimate personal sphere of the individual, where stigmatizing information on sexuality, health, mental and mental disability, minors or similarly vulnerable persons, the need for protection of which privacy and dignity require exceptional attention. Thus, the contested provision of the law does not exempt the State from the obligation to protect information from the most intimate personal sphere of the individual and particularly vulnerable. The authorities of the State must, in particular with regard to the protection of sensitive data, also effectively penalise the offences and administrative offences of researchers in the event of non-compliance with the conditions for access to archives laid down by the Act on archiving and the Code of Research, including the consistent application of fines under Title VII of Law No 101 / 2000 Coll. and the sanction instruments of civil and criminal law.
112. Since the appellant was actively authorised to make a motion to declare unconstitutionality only in respect of part of the contested provision in the words "archival activities of security forces arising before 1 January 1990 under the Act on the Institute for the Study of Totalitarian Procedures and the Archive of Security Services', which the Constitutional Court did not find contrary to the constitutional order, in that part under Section 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, rejected. In the remainder, he rejected the application as a person manifestly unlawful pursuant to § 43 (1) (c) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Ludvik David, Josef Fiala, Jan Filip, Jan Musil, Pavel Rychetský, Radovan Sukhanek and Milada Tomková took a different position.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 73 / 2017 Coll., on the application to declare the inconstitutionality § 37 paragraph 6 of Act No. 499 / 2004 Coll., on archiving and file services and on the amendment of certain laws, as amended by 30 June 2009 |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.03.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0