The Constitutional Court found no 98 / 2004 Coll.
The Constitutional Court found of 28 January 2004 on the application for annulment of Article 42 (1) of Act No. 148 / 1998 Coll., on the protection of classified information and amending certain laws, as amended
Valid
98
FIND
The Constitutional Court
On behalf of the Czech Republic
On 28 January 2004, the Constitutional Court decided in plenary on the application by the District Court in Přerov to repeal Article 42 (1) of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended,
as follows:
I. Motion denied.
II. The investigation of criminal prosecutors in order to acquaint themselves with classified information by the National Security Office is contrary to Articles 37 (3), 38 (2), 40 (3) of the Charter of Fundamental Rights and Freedoms and Article 6 (3) (c) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
Reasons
Definition and recap of the proposal
The Regional Court in Přerov, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, submitted to the Constitutional Court an application for annulment of Article 42 (1) of the Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, (hereinafter referred to as the "Act on classified information '). The application for annulment of that part of the Act is based on the following reasons:
Act No. 310 / 2002 Coll. amended Act No. 148 / 1998 Coll. This amended Article I (4) of Article 42 (1) of Law No 148 / 1998 Coll. by deleting the word "lawyers' from that provision, which, in the appellant's view, excluded lawyers from the list of persons for whom security clearance is not carried out. However, the Code of Criminal Procedure was no longer amended by the Act No 310 / 2002 Coll. (hereinafter referred to as" tr. order ') and therefore Paragraph 35 (4) of the Rules of Procedure applies in the unchanged form enshrined in Act No. 265 / 2001 Coll.
Under Paragraph 35 (1) of the Rules of Procedure, only a lawyer may be a lawyer in criminal proceedings. In the appellant's view, however, the amended version of Paragraph 42 (1) of Law No 148 / 1998 Coll. ultimately means that in criminal proceedings in which classified facts protected by a special law are discussed, the lawyer is no longer satisfied only with the instruction provided for in Section 35 (4) of the Rules of Procedure, but lawyers must be adequately examined under Act No 148 / 1998 Coll. This conclusion is also supported by the fact that the instruction of lawyers under Article 35 (4) of the Rules of Procedure was necessary under previous legislation, when lawyers were still excluded from security clearance. It follows from this that if lawyers who are to be informed of classified information now have to undergo a security clearance pursuant to Act No. 148 / 1998 Coll., then in criminal proceedings in which classified information is covered by a special law, the instruction provided for in Article 35 (4) of the Regulation is no longer sufficient. With this legal opinion, the appellant is fully in line with the opinion of the National Security Office (hereinafter referred to as "the NSA '), which is based on the sp. zn. 1 T 312 / 2001 of the Regional Court in Přerov.
The appellant submits that the current provision of § 42 (1) of Act No. 148 / 1998 Coll., as amended by Act No. 310 / 2002 Coll., is contrary to Articles 37 (2) and 40 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which guarantee the right of the defendant to the free choice of lawyer. It should also be borne in mind Article 6 (3) (c) of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'), according to which anyone who is accused of a crime has at least the right to defend himself personally or with the assistance of a lawyer of his choice. The appellant also pointed out the course of the legislative process when discussing the amendment to Act No. 148 / 1998 Coll., when the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Senate '), with regard to the removal of lawyers from the circle of persons not subject to security clearance, returned the amendment to the Chamber of Deputies of the Czech Republic (hereinafter referred to as" the Chamber of Deputies') with amendments which the Chamber of Deputies did not subsequently accept.
In order to put forward the proposal in question, the appellant further stated that, in the criminal case under review, the defendants (V. H. and MUDr. Ch.) have exercised their right and have chosen their own lawyers, insist on their choice and do not intend to choose another lawyer. At the same time, none of the elected defenders passed the appropriate security clearance. In the view of the Court, it follows from these circumstances, taking into account the legislation in force, that none of the lawyers elected can continue to act as a lawyer in this criminal proceedings. However, the District Court referred to Paragraph 2 (4) of the Rules of Procedure, according to which criminal matters must be dealt with as quickly as possible and with a full investigation into the rights and freedoms guaranteed by the Charter and international treaties on human rights and fundamental freedoms. When deciding, a judge under Article 95 (1) of the Constitution shall be bound by law and by an international agreement forming part of the rule of law. Article 95 (2) If the Constitution concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. Article 95 (2) The Constitution is further set out for criminal proceedings in Article 224 (5) of the Rules of Procedure, according to which the court shall suspend the prosecution if it considers that the law which the use of which is relevant for the decision on guilt and punishment in the criminal case is contrary to a constitutional law or an international treaty which takes precedence over the law; in this case, the case shall be referred to the Constitutional Court. The appellant further added that in such cases it does not matter whether the doubts of the court relate to the legal standard of substantive or procedural law or whether it is a criminal law standard or a law of another legal sector. In the view of the appellant, it is clear in the present case that Act No. 148 / 1998 Coll., as amended by Act No. 310 / 2002 Coll., must be applied by the Court for its procedural procedure, since this legislation directly interferes with the rights of the defendants of the defence, which is guaranteed by Articles 37 (2) and 40 (3) of the Charter, Article 6 (3) (c) of the Convention and also by Article 2 (13) of the Criminal Code. The defendants are entitled to the participation of their elected defenders in criminal proceedings, in particular in the taking of evidence in the main trial. However, the law cited makes it virtually impossible for the defendants to exercise this constitutional right. For the sake of completeness, the appellant added that one of the defendants (V. H.) was given the grounds for the need for defence under Article 36 (3) of the Rules of Procedure, in which case the main trial cannot be held at all without a lawyer present (§ 202 (4) of the Rules of Procedure).
The appellant further pointed out some of the broader context and aspects of the legal issue in question. First of all, he mentioned the fact that no one has apparently passed the security clearance from the current state of the lawyers, because he has not yet had to do so. Moreover, it cannot be overlooked that, under any law, lawyers cannot be forced to undergo security clearance; This may lead to a situation where lawyers refuse to submit voluntarily to security clearance, there will be no verified lawyer available who could provide legal assistance in matters relating to classified information. The Czech Bar Association does not, nor does it have to, maintain a special list of lawyers who may be familiar with classified information, since such an obligation is not imposed on it by any law. It is said that, among other things, it is clear that at present, not only can the defendant not choose a lawyer in such matters, but also that the court cannot establish a lawyer in so-called necessary defence cases, even though he has such a legal obligation. The appellant also pointed out that the lawyer also provides legal assistance outside the area of criminal or civil proceedings, not only in the Czech Republic but also abroad. In all such cases, the client may be informed of the facts which are subject to confidentiality.
The applicant added that in the Czech Republic all lawyers are entitled to legal aid without restriction. In this respect, all available European legislation is comparable. The applicant is not aware of any foreign regulation which would provide for the obligation of lawyers to submit to security clearance for representation in classified information matters. The introduction of special lists of lawyers in a way gives rise to a return to the period of deprivation when, during the period of World War II, there was a special list of lawyers authorised to represent the Reich courts, or before 1990, when there was also a special list of lawyers authorised to acquaint themselves with classified information, which is certainly undesirable and incompatible with the principles of democratic rule of law. The granting of an exemption to lawyers who did not have to submit to security clearance in addition to Members and Senators was a factual expression of the fundamental principles of the conduct of the advocacy. In principle, the disclosure of classified information is no longer in danger, given the absolute obligation of secrecy imposed on lawyers by law and the irrevocable order of no third party except the client himself. In this context, one of the fundamental principles of the conduct of the advocacy, i.e. the independence of the lawyer from the State, should also be respected so that the lawyer can exercise the lawyer freely, thus acting as a lawyer and against the State without fear of sanctions against the State. If a classified fact were to be discussed in such cases, the lawyer could be excluded from the provision of legal services by State interference precisely by not being granted the appropriate clearance. This would give the State the opportunity, de facto, to decide who acts against it. Thus, the exemption now lifted from the security clearance was not an unfounded privilege or an unjustified privilege of an attorney, but it served the benefit of the consumer of the legal service.
Finally, the appellant stated that he was fully aware that Law No 148 / 1998 Coll. would expire on 31 December 2003 and that, therefore, new comprehensive legislation in this area would be adopted by Parliament of the Czech Republic. He added that he was aware that the Constitutional Court, as a negative legislator, could only decide, within the scope of its competence, to repeal laws or their individual provisions if they were contrary to the constitutional order and that, therefore, he could not decide to re-integrate lawyers into a group of persons for whom security clearance was not carried out. Therefore, should the Constitutional Court conclude after the procedure that there are no grounds for annulment of Article 42 (1) of Law No 148 / 1998 Coll. and reject the proposal, it is appropriate, at least in the statement of reasons for the decision, to give its legal opinion on the outlined legal question concerning the security clearance of lawyers. In conclusion, he proposed that the Constitutional Court should decide that Article 42 (1) of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended, should be deleted from the date of the publication of this finding in the Collection of Laws.
Recital of the essential parts of the party's observations
On the invitation of the Constitutional Court pursuant to 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 Chamber of Deputies submitted observations. In its observations it stated:
The provision in Article 42 (1) of Act No 148 / 1998 Coll. has been amended in 2002, when the defenders were removed from the circle of persons not subject to security clearance by Act No 310 / 2002 Coll.. The debate as to whether the defenders (and not only those) are one of them, pervades the history of law-making from the very beginning and has been characterised by the clashes of the two groups of opinion, particularly on the ground of the Chamber of Deputies' Defence and Security Committee. As early as May 1998, a special list of lawyers audited by the NSA was seriously considered to be being held at the Czech Bar Association. Finally, thanks to the argument of the then Minister of the Interior and a group of Members from the Committee of Constitutional Law, according to which the obligation of confidentiality, which the lawyer is bound by the Law of the Attorney, and the responsibility for the infringement of the law is sufficient to guarantee its reliability. The legislature supported this view in the vote and left the lawyer on a non-subject basis.
Another situation occurred in March 2002, when, in the context of the negotiations of Amendment No 148 / 1998 Coll. in the already mentioned committee, the request for the removal of defendants from the above mentioned circle of persons was reintroduced. However, the discussion concerned in particular the finding of the Constitutional Court No 322 / 2001 Coll. [finding sp. zn. Thus, the debate on the position of defenders did not take place in individual reading in the Chamber of Deputies, but in a peripheral way in the proceedings of the committee which recommended this amendment to the Chamber of Deputies for approval. The Chamber of Deputies at the III reading on 27 March 2002 voted on this amendment in such a way that out of 171 were 89 in favour and 58 against, so the proposal was adopted.
The law was approved by the necessary majority of members The Chamber of Deputies did not vote until 13 June 2002 after the Senate version was overvoted, which had previously returned the bill to the Chamber of Deputies.
Finally, the Chamber of Deputies expressed the view that the legislature of the Czech Republic acted in the belief that the law adopted was in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic. It is up to the Constitutional Court to examine the constitutionality of this law in the context of the submitted proposal and to give its decision.
The Senate also made observations on the invitation of the Constitutional Court pursuant to Section 69 of the Constitutional Court Act. In this statement he stated:
The draft contested amendment to the provision in question was discussed by the Senate in the framework of the adoption of Act No. 310 / 2002 Coll., amending Act No. 148 / 1998 Coll. This proposal was forwarded to the Senate by the Chamber of Deputies on 9 April 2002 and was discussed by the Senate at the 17th meeting of the third term of office on 3 May 2002. In particular, the following views were expressed in plenary: the report of the Constitutional Law Committee stated that the approval of the amendment to Paragraph 42 (1) in the proposed form would result in the paralysis of criminal proceedings involving classified information. In the proposals for solutions, the Committee did not agree to postpone the effectiveness of the amendment, as this would not automatically ensure that a sufficient number of lawyers would have decided in the time so created to pass security clearance. There was, however, no desire to prevent an increase in the level of protection of classified information in the areas of legal aid which are not linked to the provision of the right of defence; Therefore, the Constitutional Committee decided to recommend a transitional solution, according to which lawyers in their capacity as a lawyer will consistently be subject to a regime of so-called designation to acquaint themselves with specific classified information (discussed in criminal proceedings) on a case-by-case basis and such cases will be registered with the NSA.
In the debate of the Senate, the view called for "the complete elimination of the amendment to the provisions of § 42 (1) of Act No. 148 / 1998 Coll." was further strongly presented. This view was based on the principle of categorical protection not only of the right of defence but also of all other types of lawyers granted legal aid in terms of the free choice of the legal aid provider, the right of the citizen to such assistance and the independence of the lawyer to the state administration. This view, in argument, coincided with the content of the justification of the proposal for the annulment of the cited part of the law. In addition to that view, the Senate added that the incorporation of lawyers (together with Members and Senators) among persons who do not need to be examined under Act No. 148 / 1998 Coll., is a factual expression of the fundamental principles of advocacy. On the first hand, there is the independence of a lawyer from the State in such a way that a lawyer can practice the advocacy, that is to say, as a lawyer against the State, without fear of sanctions against himself. On the other hand, a number of lawyers are engaged in defence or legal representation of clients in matters that are inconvenient for the State. If a classified fact were to be discussed in such a case, it could very easily be removed from the provision of legal services because of its discomfort by the lawyer by not being granted the examination (or the authorisation being withdrawn). The State would therefore be able to de facto decide who will act against it as a representative. All the rights that lawyers have are in fact not their prerogatives, but their clients' prerogatives. The client has the right to an attorney who can perform a legal service without limitation and to provide assistance in all areas of the law, to procure evidence and to acquaint himself with it. In a democratic rule of law, it is therefore impossible that the profession of lawyer should be regulated by the State differently from the requirements of education and moral integrity. The above-mentioned view that Paragraph 42 (1) of Law No 148 / 1998 Coll. was consistent with the practical nature; if the legislature has limited the validity of the entire classified information protection law to the end of 2003, there is an opportunity to resolve the problem in a reasonable manner, both factually and legally, without being rash and using a comprehensive approach.
Finally, in the Senate proceedings, the opinion (reporting to the Committee on Foreign Affairs, Defence and Security) was presented in favour of the approval of the amendment of Paragraph 42 (1) of the Act. This view was based primarily on the interest in increasing the level of protection of classified information. His argument highlighted that 6.5 000 lawyers in the Czech Republic are too high a number of "liberated" persons, and the fact that a number of current lawyers were examined by the former State security of totalitarian state secrecy regime before 1989.
In the Senate, it prevailed that the proposal to amend the provision in question was not well considered in all material and legal contexts, and there is therefore a reason to make amendments to it. The Menshins' opinion remained to be approved of the parliamentary draft. In vote 93, the Senate approved by a strong majority (out of the 65 senators present, 60 senators voted in favour, no) Resolution 372 of 3 May 2002, which complied with the recommendation of its constitutional committee to return the bill to the Chamber of Deputies with amendments. In view of this, it is up to the Constitutional Court to examine the constitutionality of the draft contested provision and to rule.
Recap the essential parts of the observations pursuant to § 49 of Act No. 182 / 1993 Coll.
The Czech Bar Association (hereinafter referred to as "ČAK ') submitted observations on the invitation of the Constitutional Court pursuant to § 49 of Act No. 182 / 1993 Coll. It stated that it fully agrees with the proposal of the District Court in Přerov and added the following:
It must be considered a fundamental question to deny the possibility of free choice of lawyer (resulting from the contested provision of the law). The free choice of lawyer is one of the fundamental principles of the rule of law, which has a reflection in the constitutional order of the Czech Republic. Denying this possibility by either not having any lawyer to choose (accused, damaged), having confidence in it, or, perhaps in a better case, choosing several individual lawyers who will be able to represent them in matters relating to the protection of classified information, according to ČAK, is in flagrant conflict with the rule of law.
ČAK pointed out that, although the proposal of the District Court in Přerov mainly relates logically to criminal proceedings, it is not possible to overlook any other legal areas in which "there is also a very marked lack of regulation in particular in those areas which relate to the so-called compulsory representation in general courts' (appeals, appeal proceedings in the administrative judiciary). In such cases, not only does the participant have a difficult choice of lawyer as a representative if it is not entirely impossible; in the same situation, the court, if the party to the lawyer is to be appointed as a representative, shall also be present.
At the same time, ČAK contacted Article 38 (2) of the Charter under which everyone has the right to have his case dealt with without undue delay. It referred to a similar provision of Article 6 (1) of the Convention. In this context, it notes that - as is apparent from the specific case of the Regional Court in Přerov and how logically it is possible to deduce from other cases pending in criminal proceedings, civil proceedings and administrative proceedings - "unnecessary delays" or a decision "within a reasonable period of time" must be ironically attributed to the legislators in these cases.
At the invitation of the Constitutional Court, ČAK supplemented its observations with an expert drawn up by Christian Wisskioschen, Director of the International Relations of The Law Society in London, on the issue of application § 42 paragraph 1 of Act No. 148 / 1998 Coll., as amended by Amendment No. 310 / 2002 Coll., on the defence, compared with the solution of this issue in England and Wales, and a brief description of a similar situation in France and Austria.
On the invitation of the Constitutional Court, the National Security Office, which stated:
It must be agreed with the view of the District Court in Přerov that after the amendment of Law No 148 / 1998 Coll. carried out by Law No 310 / 2002 Coll., even with lawyers acting as defence lawyers in criminal proceedings, the mere instruction provided for in Article 35 (4) of the Code is not sufficient. This provision refers to lessons learned under a special law which regulates the method of protecting classified information, i.e. under Act No. 148 / 1998 Coll. It should be pointed out here that Law No 148 / 1998 Coll. understands the lesson in particular as an institute of registration. In particular, its purpose is to educate persons who have contact with classified information and who are not persons designated, on all obligations, in particular the obligation to maintain confidentiality. The lesson cannot therefore replace the fulfilment of the conditions for disclosure of classified information pursuant to § 17 (1) of Act No. 148 / 1998 Coll. In order to fulfil the meaning of Act No. 148 / 1998 Coll. it is desirable that the activities in which it is necessary to familiarize themselves with classified information be carried out by persons who fulfil the conditions laid down in Paragraph 17 (1) of the Act cited, in particular by holding a valid certificate and on the basis of which they are intended to have contact with classified information. The State's interest in protecting classified information must also be respected in the conduct of the advocacy. In the conflict of the principle of the protection of human rights and freedoms with the principle of the protection of the interests of the State and of international interests in the security area, the State has, in particular, the law in question and, in particular, by international treaties, the obligation to provide certain information, namely classified information, special protection, thus being required to deal with them in a special way and to prevent their disclosure or disclosure. This protection is carried out in a number of ways, but above all so-called personnel security, namely by electing the State itself persons who are entitled to become familiar with such classified information.
In addition, the NSA stated that it is in line with the principle of free choice of profession for each individual to decide whether he / she is willing to seek entry among suitable candidates and whether he / she is willing to allow the State to decide on his / her suitability or, on the contrary, imsuitability for access to classified information. It is therefore also a free choice for any lawyer to take up a certain professional "increase" of his qualifications and thus be able to accept a representation in which he has access to classified information discussed in the case. Persons who require the State to be aware of classified information - because they have voluntarily decided to pursue a profession or to hold a function with which the State is associated with the possibility of access to classified information - must necessarily be subject to the restrictions imposed by the State for access to classified information; It is not only the law of the state but above all its obligations under international treaties.
If lawyers acting as defenders in criminal proceedings were to have a specific position in access to classified information, the NSA considers that this would also constitute a degree of disproportion in view of the requirements imposed on law enforcement authorities, including prosecutors for whom compliance with the conditions for disclosure of classified information under Law 148 / 1998 is required. In the case of lawyers providing legal assistance in civil and administrative proceedings, it must also be pointed out that the fundamental principle of the protection of classified information, namely that access to persons who do not hold a valid certificate can only be exceptional and justified. However, lawyers generally do not meet this condition of "exceptional and justified '.
On the objection that the current version of Law No 148 / 1998 Coll. makes it impossible to continue criminal proceedings, the NSA stated that if none of the lawyers in the position of defendants of the defendant (H.) does not fulfil the conditions under which he may be informed of the classified fact, the District Court of Přerov should, by its own authority, provide ad hoc for those acts in which the classified fact is to be dealt with, such a lawyer who fulfils the necessary qualifications. However, both elected lawyers may continue to act as defence lawyers, only not participating in the part of the procedure in which classified information is to be discussed. In this way, the defendant's rights cannot be violated or the constitutional order of the Czech Republic violated.
The NSA added that the fact that the Czech Bar Association itself does not keep a separate list of lawyers who hold a valid certificate does not exclude that such persons exist and can therefore be appointed for representation. In particular, the Přerov District Court should have asked the NSA whether the provision of a lawyer could be implemented and not merely to assume that "probably none of the lawyers have yet passed security clearance."
In addition, according to the NSA, it can be considered that even if the Constitutional Court had complied with the proposal of the District Court in Přerov and annulled Article 42 (1) of Act No. 148 / 1998 Coll., it would not have achieved the intended objective - namely to achieve the legislative status before the amendment made by Act No. 310 / 2002 Coll. The possible repeal of this provision will have no effect on the position of lawyers in general and, therefore, on lawyers acting as lawyers in criminal proceedings.
The SAO is aware that the current legislation on the disclosure of classified information in individual types of judicial and administrative proceedings is insufficient in terms of the protection of classified information and that it does not sufficiently respect the specificities of this field. The future legislation should therefore stipulate that in the procedures in which classified information is to be dealt with, all persons who are to be familiar with classified information in such proceedings, with the exception of a party to proceedings, must hold a certificate for the relevant classification level. The procedural arrangements should also lay down stricter rules in such cases than in the procedures where classified information is not discussed. It is not desirable that, in order to protect fundamental human rights and freedoms, legislation allows for virtually unlimited access to classified information to be discussed in proceedings, such as the results of intelligence investigations.
In conclusion, the NSA noted that the draft new legislation on the protection of classified information does not provide for lawyers to be included in persons who are not required to comply with the statutory conditions for disclosure of classified information. On the contrary, it is proposed to narrow down the range of persons who will have access to classified information without further ado, only with regard to the function they hold, which is also fully in line with NATO's requirements. In this context, the NSA also referred to the finding of the Constitutional Court published under No 322 / 2001 Coll., according to which the field of protection of classified information is so specific that there is a legitimate restriction on the standard procedural rights of persons for whom the State examines whether they meet the conditions for disclosure of classified information.
The National Security Office added its observations to the invitation of the Constitutional Court, in which it identified and presented provisions governing the protection of classified information within the European Communities. They're:
- Decision 2001 / 264 / EC of the EU Council of 19 March 2001 adopting Council Security Directives. Pursuant to that Regulation, the requirement for access to information classified by the EU to be trusted is the verification of the person requesting access to the information. The general rules are not weakened by any exceptions for persons who would be allowed access to classified information only with regard to the function they hold. In Part I, Article 9 The Security Directive provides that "all persons requiring access to information classified in the EU must be adequately verified before authorisation of access'. Furthermore, Section V. 1 of Part II provides that" access to EU classified information may only be authorised to persons who have to acquaint themselves with them in the performance of their tasks. Access to EU classified information INCLUDING SECRET, EU SECRET and EU CONFIDENTIAL may be granted only to persons with an adequate security certificate ';
- Commission Decision 2001 / 844 / EC of 29 November 2001 adopting the Commission's security regulations. Also under this Regulation, persons who require access to EU classified information of a confidential nature and above must be adequately verified before authorisation of access. Nor are the rules on access to this information weakened by any exceptions. Article 19 (1) of Part II provides that "Access to EU classified information may be granted only to persons who have to acquaint themselves with them in the performance of their duties or in the context of their work assignment. Access to information at EU level is only permitted to persons with a relevant security certificate. '
The NBÚ added that the obligation to comply with international obligations also results from the membership of the Czech Republic in the North Atlantic Treaty Organisation. Standards for the protection of classified information are contained in document C-M (2002) 49 - Security under the North Atlantic Treaty Organisation. In accordance with the rules laid down in this document, all persons who require access to information at "confidential 'level or above, or persons with whom access to such information may be created by virtue of their duties or functions, shall be subject to prior prior verification and instruction.
Derogation of the contested legal provision
The Constitutional Court notes that the wording of the provisions of § 42 (1) of Act No 148 / 1998 Coll., which was valid and effective until 11 July 2002, was as follows:
(1) In the case of Members and Senators, with the exception of members of audit bodies under special laws (12) and lawyers, security clearance is not carried out.
12) § 18 of Act No. 154 / 1994 Coll. '
The provision in question was affected by Act No. 310 / 2002 Coll., amending Act No. 148 / 1998 Coll., on the Protection of classified information and on the Protection of Certain Laws, as amended, Act No. 101 / 2000 Coll., on the Protection of Personal Data and on the Amendment of Certain Laws, as amended, Act No. 18 / 1997 Coll., on the Peaceful Use of Nuclear Energy and Ionising Radiation (Atomic Act) and on the Amendment of Certain Laws, as amended, Act No. 38 / 1994 Coll., Act No. 40 / 1961 Coll., as amended, Act No. 283 / 1993 Coll. Law No 310 / 2002 Coll., with effect from 12 July 2002, was enshrined in the first article. I point 4 of the new version of Paragraph 42 (1) as follows:
"(4) Paragraph 42 (1), including footnote 12, reads:
"(1) No security clearance shall be carried out for Members and Senators, except for members of audit bodies under special legislation12.
12) Article 18 of Act No. 154 / 1994 Coll. 23a of Act No. 67 / 1992 Coll. '.
As a result of that amendment by Act No. 310 / 2002 Coll. the text of the proposal of the contested § 42 (1) of Act No. 148 / 1998 Coll., as amended, is as follows:
(1) No security clearance shall be carried out for Members and Senators, except for members of audit bodies under special legislation12).
12) § 18 of Act No. 154 / 1994 Coll. § 23a of Act No. 67 / 1992 Coll. '
Pursuant to Article IX of Act No. 310 / 2002 Coll. Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, expires on 31 December 2003.
In Act No. 436 / 2003 Coll., amending Act No. 555 / 1992 Coll., on the Prison Service and the Judicial Guard of the Czech Republic, as amended, and some other laws, Article VI states: "In Article 89 of Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, the current text is renumbered as paragraph 1 and the following paragraph 2 is added:
(2) This Act expires on 30 June 2004. '
The amendment to the Act on classified information by Article VI of Act No. 436 / 2003 Coll. was therefore extended until 30 June 2004.
Conditions for the applicant's active legitimacy
The Constitutional Court first referred to the question whether the appellant - general court - is entitled to bring an application for annulment of the contested provision. He came to a positive opinion. It is clear, as the appellant rightly pointed out, that the general court must apply the contested provision to its action in the criminal proceedings and that the current legislation directly affects the rights of the defendants. That proposal, although essentially referring to procedural law, relates to the decision-making activities of the General Court, which is therefore a legitimate appellant (§ 64 (3) of Act No 182 / 1993 Coll., as amended).
Constitutional conformity of the legislative process
The Constitutional Court, in accordance with § 68 (2) of the Law on the Constitutional Court, further assessed whether the contested provision of Act No. 148 / 1998 Coll., as amended by Act No. 310 / 2002 Coll., was adopted and issued within the limits of the Constitution established competence and by the constitutional procedure. He came to a positive conclusion.
The Constitutional Court found from the relevant shortwriting reports by the Chamber of Deputies and the Senate that the draft law amending Act No. 148 / 1998 Coll. was adopted at the 47th meeting of the Chamber of Deputies on 27 March 2002 in the 3rd term by Resolution No. 2201. 170 Members were present in the vote on the motion, 152 Members voted in favour, 18 Members opposed, no one abstained. The motion was duly accepted.
The proposal was further discussed in the Senate at its 17th meeting of 3 May 2002. By order No 372 After a substantive discussion, the Senate decided to return the proposal to the Chamber of Deputies as amended. 60 senators voted against this motion. The proposal to return the bill to the Chamber of Deputies with amendments was duly adopted.
The Chamber of Deputies again discussed the draft law amending Act No. 148 / 1998 Coll., at its 51st meeting of 13 June 2002 in the 3rd term. In the vote on the adoption of the bill with amendments to the Senate, 182 Members were present, 76 Members voted for it, 98 Members voted against it. The draft law, as amended by the Senate, was not adopted and thus confirmed by the Chamber of Deputies in the original version adopted at the 47th meeting of 27 March 2002 (Resolution 2319).
The bill was signed by the President of the Czech Republic on 28 June 2002 and was delivered to the Prime Minister for signature on 2 July 2002. The Act was published on 12 July 2002 in the Collection of Laws in the amount of 114 under the number 310 / 2002 Coll.
The above mentioned Act No. 436 / 2003 Coll. was discussed in the Chamber of Deputies on 4 November 2003 and approved by Resolution No. 750. 168 Members were present; 149 Members voted against 5 Members. The Act was discussed in the Senate on 3 December 2003 in the presence of 58 Senators; 49 senators voted against one senator. The President of the Republic signed the Act on 9 December 2003. The Act was published in the Collection of Laws on 16 December 2003.
Definition of the subject-matter of the procedure according to the petition
The determination of the contested § 42 (1) of Act No. 148 / 1998 Coll., as amended, is as follows: "For Members and Senators, with the exception of members of the supervisory bodies under special laws, the security clearance is not carried out." The above wording of the legal provision in question was incorporated into the Act on classified information by its amendment made by Act No. 310 / 2002 Coll. with effect from 12 July 2002, when the previous wording of that provision, enshrined in the amendment to the Act on classified information, made by Article IX of Act No. 30 / 2000 Coll., was as follows: "For Members and Senators, with the exception of members of the supervisory bodies under special laws, and for lawyers, security clearance is not carried out." The original Article 42 (1) of Act No. 148 / 1998 Coll. was then adopted by the Parliament of the Czech Republic in the following wording: "For Members and Senators with the exception of members of audit bodies according to special laws and for lawyers, security clearance is not carried out."
The Constitutional Court's assessment of the law on classified information was adopted in the wording of the amendment of Mr Jan Klas to the proposal of Members of the Parliament of František Ondruse, Petr Nečas and Ivan Langer to issue the Act amending Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended by Act No. 164 / 1999 Coll., Act No. 18 / 2000 Coll., Act No. 29 / 2000 Coll., Act No. 30 / 2000 Coll., Act No. 363 / 2000 Coll. The amendment was tabled at second reading at the 47th meeting of the Chamber of Deputies of the Czech Parliament on 22 March 2003, the purpose of which was not explicitly clarified by the petitioner. This was to add to the amendment of the defence and security guarantee committee of 15 March 2002, adopted by Resolution 206, which submitted to the House the following dictation of Paragraph 42 (1) of the Act: "There is no security clearance for Members and Senators." In the subsequent debate, none of the Members expressed their views on the matter, as was the third reading, which was held in the course of the 47th session of the Chamber of Deputies on 27 March 2002.
By order of 3 May 2002, the Senate returned the proposal in question to the Chamber of Deputies in the text of the amendments, including the new dictation of Paragraph 38 (7) of the classified information law: "The method of determining a person to the extent necessary to familiarise himself with the classified information in civil proceedings, criminal proceedings and administrative justice shall be laid down in specific provisions." In footnote 11 (a) to that provision, the Senate also referred to the following provisions: "11a) § 40a of the Civil Code, as amended by Act No. 30 / 2000 Coll., § 35 (4), § 50 (3), § 198a and § 201 (3) of the Criminal Code, as amended by Act No. / 2002 Coll. '. As is apparent from the debate of the 17th Senate meeting on 3 May 2002, the Senate considered the conditional access of the defence lawyer in criminal proceedings to be a restriction of the rights of the defendant in the sense of his right to free choice of lawyer.
At its 51st meeting of 13 June 2002, the Chamber of Deputies did not adopt the draft law as amended by the Senate and maintained its approval as adopted at its 47th meeting of 27 March 2002.
Ratio decidendi
Assessment of a matter from a level of simple law
The argument contained in the proposal by the District Court in Přerov to abolish Article 42 (1) of the Law on classified information implicit contains a measure of public interest in ensuring the protection of information (classified information) on the one hand and of the public interest in ensuring the right of defence in criminal proceedings, which includes the right of the defendant to free choice of lawyer on the other hand. It is based on the priority of protection of the rights of the defence and the emphasis on the principle of the independence of the lawyer from the State, contrary to the State's and the promotion of the eligibility of access to classified information as well as unacceptable inequality, i.e. the inacceptability of categorisation of lawyers to a group entitled to be familiar with classified information and to a group that does not have this right. For those circumstances, the contested legal provision sees a gap in which the filling of a democratic legislator (i.e. until the wording of the law before the amendment implemented by Act No 310 / 2002 Coll.) is seen to comply with those constitutional principles.
The assessment of that argument by the Constitutional Court envisages the reconstruction of the purposes and the interpretation of those provisions of simple law which affect the issue of access by lawyers to classified information in the capacity of defence lawyers in criminal proceedings.
According to Article 1 of the Act on classified information, the definition of the facts to be classified in the interests of the Czech Republic, the way in which they are protected, the competence and authority of the State authorities in the exercise of the State administration in the field of the protection of classified information, the obligations of the State bodies, the rights and obligations of natural and legal persons, the responsibility for the breach of the obligations laid down by this Act and the status of the National Security Office. In other words, the provisions of the law in question are the subject of a legislative definition of the concept of classified information, procedural arrangements for the classification procedure, conditions for familiarisation with classified information, protection of classified information, as well as the competence of state authorities in the exercise of public administration in the field.
Under Article 1 (1) of the Rules of Procedure, the purpose of criminal proceedings is to regulate the procedure of law enforcement authorities in such a way that the offences are properly identified and their perpetrators are punished fairly under the law. The principles of criminal proceedings include the principle of the right of the defendant to the defence, including the right to choose a lawyer (Section 2 (13) of the Rules of Procedure). In a number of its provisions, the Code of Criminal Procedure responds to a possible conflict of public interest in the protection of classified information with constitutional order as well as the law-guaranteed right of defence, including the right to comment on all criminal proceedings carried out by evidence and the right to choose a lawyer freely. These provisions include Articles 35 (4), 50 (3) and 198a of the Code, governing the obligation to inform and inform the law enforcement authorities relating to classified information protection matters, as well as the special conditions for access to classified information by the agent of the person concerned and the injured party, and Article 200 (3) of the Code on the exclusion of the public from the main trial if the public hearing would jeopardise classified information protected by a special law, paragraphs 8 and 99 of the Rules on the questioning of witnesses concerning classified information. The provisions of Sections 5 and 21 of Act No 85 / 1996 Coll., on advocacy, as amended, and of Section 6 of the Act No 36 / 1967 Coll., on experts and interpreters, governing the obligation of confidentiality of lawyers, experts and interpreters, Sections 105, 106 and in particular 107 of the Criminal Act, laying down the criminal law for the protection of classified facts, and, finally, the provisions of Sections 21, 24, 39, 44, 51, 86, 132, 139, 162, 166, 183, 188, and 192 of the Ministry of Justice No 1 / 2002 of 3 December 2001, No 505 / 2001-Org, which establish an internal and an office order for the district, county and central courts, which lay down measures to ensure the protection of classified facts in the administration of the judicial.
Only indirectly, for the purposes of the systematic interpretation of the case, does Paragraph 38 (7) of the classified information law affect the issue under consideration. According to him, the method of identifying a person to the extent necessary to acquaint himself with classified information in civil proceedings and administrative proceedings provides for a specific rule. This regulation is in civil proceedings § 40a (1) of the Civil Code (hereinafter referred to as "o.s. '), according to which in the proceedings in which classified matters are dealt with protected by a special law, the President of the Chamber is obliged, by the parties, persons authorised to act for them (§ 21 to 21b s.), representatives of participants, i.e. lawyers, interpreters, persons referred to in § 116 (3) and other persons who are legally obliged to take part in the proceedings, to give prior notice under this special law on the criminal consequences of violations of the secrecy of classified information, the lessons being made in the report; the signature of the Protocol shall be made by the persons who have been instructed to become identified within the scope of the need for disclosure of classified information. In administrative proceedings, the provisions of Paragraph 45 of the Administrative Rules governing the authorization of a party and his representative to inspect parts of the file containing classified information by which the evidence was or will be carried out by a court. Furthermore, Section 64 of the Administrative Rules of Procedure, which also provides for the adequate application of Section 40a (1) (a) (1) (a) (b) of the Administrative Code, is hereby established.
In a level of simple law, it is necessary to answer the question whether the law on classified information or criminal order, i.e. which of these laws is in a reciprocal comparison of lex generalis and which lex specialis, affects the issue of access to classified information in criminal proceedings.
The suggested complex of simple law standards allows double interpretation:
According to the first of the issues of the access of lawyers to classified information in criminal proceedings, the provisions of Sections 38 (7) and 42 (1) of Act No 148 / 1998 Coll., as amended, according to which since the law did not provide a similar reference for criminal proceedings, as it did for civil and judicial proceedings, and also contrario, since lawyers are not included in the list of persons not subject to security clearance, the law is a condition for lawyers to have access to classified information in the role of defenders in criminal proceedings. This interpretation results from the interpretation of the language, i.e. the literal classification of the provisions.
If it also follows from the assumed subjective teleological interpretation, i.e. the reconstruction of the legislator's original intention, it cannot be said with certainty.
The original purpose of the Chamber of Deputies cannot be inferred from the refusal of the explicit argument of the Senate against the condition of the lawyers' access to classified information in criminal proceedings through the completion of a security clearance and proposing, in this respect, to supplement the reference standard contained in Article 38 (7) of Act No 148 / 1998 Coll., as amended, when the Chamber of Deputies votes on the whole of the Act as amended by the Senate (Article 47 (2) and (3) of the Constitution).
Finally, this original intention cannot be inferred from the procedure and contrario from the deletion of the category of persons - lawyers - from the scope of the provision of § 42 paragraph 1 of Act No. 148 / 1998 Coll., implemented by Act No. 310 / 2002 Coll. This is because the replacement of the term "advocates' by the term" lawyers' in § 42 (1) of the Act on classified information implemented by the legislature by Article IX of Act No. 30 / 2000 Coll., was linked to the simultaneous introduction of a new provision of § 40a o. s. s.) (Article I (53) of Act No. 30 / 2000 Coll.), regulating the familiarisation of participants in civil proceedings and their representatives, as well as other persons with classified facts, and thus the introduction of a special regulation on the disclosure of classified information by lawyers not only in the role of lawyers in criminal proceedings but also in civil proceedings. If there was an exception to the obligation to submit a security clearance to lawyers under both the Secret Information Act and the Criminal Code before the amendment of the Act on classified information implemented by Act No. 30 / 2000 Coll., it cannot be considered as superfluum, based on the interpretative maximum of superfluum night nights (see, mutatis mutandis, Opinion No. 6 / 02, Reports of Decisions, Volume 28, Found No. 146, published under No. 4 / 2003 Coll.).
If the House of Deputies was hypothetically the original intention of the Chamber of Deputies to amend the Act on classified information implemented by Law No 310 / 2002 Coll. the introduction of security checks of defendants in criminal proceedings, from the perspective of the second possible interpretation of the complex of the relevant simple law, the intention of the legislator was not adequately expressed, i.e. there was a conflict between the intention of the legislator and the dictation of the legislative provision in question.
According to the interpretation of the second protection of classified information in criminal proceedings from the entire scope of the issue of classified information, its regime is regulated by the Code of Criminal Procedure and not by the Law on classified information, ergo criminal order is a lex specialis in a given context and its modification is preferred over the Act on classified information as general - legi generali - before the Act on classified information. The conclusion is given not only by comparing the subject matter of the regulation of the two laws, but also by the arguments of others:
The application of the classified fact law to the issue in question by reductionis ad absurdum leads to hardly sustainable consequences.
The position of a criminal lawyer, in particular his procedural rights, depends on the defendant's status (s). The fundamental question remains open to lawyers by imposing an exception, namely the access of the defendant to classified information which is the content of evidence in criminal proceedings. The restriction of such an approach from the perspective of Articles 37 (3) and 38 (2) of the Charter and Article 6 (3) (c) of the Convention is hardly imaginable. Similarly, the "screening" of the defendant by the National Security Office to permit his access to classified information is hardly imaginable (a hyperbolic example importing these consequences ad absurdum would be the idea of security checks of the accused in criminal offences under § 105 and 106 of the Criminal Act). This interpretation would also lead to a further absurd consequence: it would lead to a possible situation where, for a lawyer in criminal proceedings, a means of evidence containing classified information would have to be required to have been given a security clearance, in civil proceedings or in legal proceedings with an administrative lawyer in the capacity of a representative of a party to the proceedings, but it would not have been required to have received such a clearance to know the identity of evidence containing identical classified information.
At this point, reference must be made to the fact that the Constitutional Court in a number of its decisions [sp. zn. II. ÚS 315 / 01 (unpublished), sp. zn. II. ÚS 326 / 98 (Reports of decisions, Volume 22, Found No 88), Pl. ÚS 2 / 99 (Reports of decisions, Volume 17, Found No 42; Declared under No 95 / 2000 Coll.), Ph. Ze. II. ÚS 221 / 98 (Reports of decisions, Volume 16, Found No 158))], the interpretation per reductione ad absurdum, which constitutes a form of interpretation of teleological (Teleological reduction): In the case of plurality of interpretative alternatives is excluded from the view and purpose of the standard.
Another argument is the conclusion resulting from objective teleological interpretation, i.e. the fundamental difference between the roles performed by the lawyer under the Law on the Law of the Advocate and the Rules of Procedure: if, on the one hand, its content can be the right of the lawyer to manage foreign property, including the performance of the duties of the trustee of bankruptcy, on the other hand, the legal representation of the parties may be, as a rule, in civil proceedings, criminal proceedings or administrative proceedings. In this context, reference should be made to the Act amending Act No. 85 / 1996 Coll., on the Advocate General, as amended, and Act No. 6 / 2002 Coll., on the Courts, Judges, Addresses and Government Administration of the Courts and on the amendment of certain other laws (Law on Courts and Judges), adopted on 9 May 2002 and published under No. 228 / 2002 Coll. Paragraph 56 of the Law amending the Law on Advocacy established the right of an attorney to manage foreign assets, including the performance of the function of a trustee of bankruptcy assets, when, in respect of the facts which he had learned in connection with the performance of the function of trustee of bankruptcy assets, he provided for an exemption from the obligation of confidentiality under Section 21 of the Law on Advocacy, while maintaining the obligation of confidentiality of the trustee of bankruptcy assets under the provisions of special legislation. The right to manage foreign assets, including the right to exercise the function of trustee of bankruptcy, is linked to the nature of the assets managed and, where appropriate, to the need to familiarise themselves with classified information.
Based on the teleological modulation thus indicated, it can be concluded that, in the light of Article 56 of the Law on Advocacy, as amended by Act No. 228 / 2002 Coll., the lawyer pursuant to § 42 (1) of Act No. 148 / 1998 Coll., as amended, for the disclosure of classified information is subject to security clearance, unless otherwise provided for in the special law. This law pursuant to the reference standard contained in Section 38 (7) of the classified information law is the Civil Code and the Administrative Code. In addition, since the Law on classified information differs from the conditions for familiarisation with the classified information of an attorney who performs the role of lawyer in criminal proceedings, they are enshrined in the Code of Criminal Procedure (in particular Sections 35 (4) and 198a (3)): "If there is a conflict between a general rule and a special rule, it can be assumed that the legislator wanted to derogate from the general rule by means of a special law '(Ch. Perelman, Logique Juridique. Paris 1976; cit. according to German translation: Juristische Logik als Argumentationslehre. Commission Implementing Regulation (EU) No 680 / 2014 of 11 July 2014 amending Implementing Regulation (EU) No 540 / 2011 laying down detailed rules for the application of Regulation (EU) No 540 / 2011 of the European Parliament and of the Council as regards the list of approved active substances (OJ L 179, 19.6.2014, p. 1). The reference standard itself does not give priority to the speciality of generality, it merely fulfils the function of information (in this context it is also appropriate to draw attention to the fact that, despite the legislator's choice of wording, in the case of Paragraph 38 (7) of Act No. 148 / 1998 Coll., as amended, it is a reference - the delegation is linked to the hierarchy of the legal force of the empowerment and delegated standard). In the absence of a standard referred to in § 38 (7) of Act No. 148 / 1998 Coll., as amended, to a specific regulation governing criminal proceedings, therefore and contrario, the priority of the general regulation in the Act on classified information over the specific regulation of the lawyer's access to classified information contained in the Code of Criminal Procedure cannot be relied upon.
The conclusion resulting from objective teleological interpretation, as well as the interpretation of per reductionon ad absurdum, is supported by an argument based on the maximum internal contradiction and consistency of the rule of law (in other words, based on the axioma of the rational legislator - when applying the current teleological interpretation from the theoretical concept of the "rational legislator ', for example, the Constitutional Court of the Republic of Poland - see A. Kozak, Rodzaj wykladni prawa w uchwalach Trybunal Konstytucyjnego. In: Z zagadnień wykladni prawa. Red S. Kaźmierczyk, Wroclaw 1997, p. 57 - 60). If the legislature were to make the law on classified information subject to a security clearance, the legislature would have to consider the consequences of such a regulation in a particular factual nature, establishing the ground for the exclusion of an elected lawyer under Paragraph 37a (3) of the Code and the exemption of an appointed defence lawyer under Section 40a (3) of the Order. If he did not do so, there is no point in deducting the failure to comply with the anticipated premise.
Even at the level of the methodology of the interpretation of simple law, and this is based in particular on the argument reductionis ad absurdum and maxima of internal contradiction and consistency of the rule of law, it can be concluded that the second of the indicated interpretative alternatives § 38 (7) and § 42 (1) of Act No. 148 / 1998 Coll., as amended. That conclusion is also based on the opinion of the doctrine, which states that a decisive aspect, tertium comparationis, in cases of conflict between interpretations of different methods, is considered to be a teleological reduction (i.e. the interpretation per reductione ad absurdum): "Argumentum reductione ad absurdum is used either separately or when it makes an interpretation according to several other arguments to contradictory (incompatible) conclusions." (V. Knapp, Law theory. Praha 1995, p. 173. The argument ad absurdum, or teleological reduction, then calls Neil MacCormick the "golden rule" interpretation: N. MacCormick, Argumentation and Interpretation in Law. Ratio Juris, No. 1, 1993, p. 26).
As a result of the reconstruction of the relevant applicable simple law, it is concluded that the disclosure of a lawyer with classified information as a criminal lawyer is governed by the Code of Criminal Procedure and not by the Law on classified information and therefore, under the current law, the Czech legal order for the purpose, i.e. the recognition of an attorney in criminal proceedings with classified information, does not require security clearance by the National Security Office.
Assessment of constitutional law
The constitutional assessment of the conflict of interpretation alternatives to the relevant simple law is based, on the application of the principle of proportionality and, on the principle of the priority of constitutionally consistent interpretation before deregation.
It is based on the fact that the position of the defendant in criminal proceedings is derived from the position of the defendant, the substance of the case at issue in a constitutional basis is the conflict of public goods (see, to the concept of public goods, the finding of sp. zl. ÚS 15 / 96, the Reports of the Decisions, Volume 6, Found No 99, Declared under Article 40 (3) (b) (b), which makes the security of the State as an element of its sovereignty (Article 1 of the Constitution), the provision of which also includes the protection of classified facts, the fundamental law of the defence under Article 40 (3) of the Charter and Article 6 (3) (c) of the Convention, its fundamental right to express evidence carried out under Article 38 (2) of the Charter, and its fundamental law resulting from the principle of equality of arms.
Similarly, as is the case with all democratic constitutional courts, the Constitutional Court of the Czech Republic for dealing with the conflict of fundamental rights, or with the constitutional order of protected public goods, both in the procedure for the control of standards and in the proceedings for constitutional complaints, applies the principle of proportionality (for the first time it has been fully interpreted in the case of the assessment of the constitutionality of the Institute of the confidentiality of personal data of witnesses in the criminal proceedings - the finding sp. zl.
The principle of proportionality is based on a methodology based on three steps:
The first is an assessment of the simple right of suitability, which includes an assessment of the chosen normative device in view of the possible fulfilment of the intended purpose. If the legislative instrument is not capable of achieving the intended purpose, the legislature is a manifestation of insolence, which is considered contradictory to the rule of law.
The second step in the application of the principle of proportionality is to assess the simple right of necessity, which follows the analysis of the plurality of possible legislative means in relation to the intended purpose and their subsidiarity in terms of restrictions on constitutional protection of value - fundamental law or public good. If the legislature of the intended purpose is to achieve alternative normative means, the constitutionally conformist is the one who limits the constitutional value to the minimum.
If the simple right under consideration, on the one hand, pursues the protection of one of the constitutionally protected values, on the other hand, it limits another, the third aspect of the principle of proportionality, which is the measurement, is the methodology of considering these in a conflict of standing constitutional values.
In order to draw a conclusion in the event of a conflict of fundamental rights, or of public good as a principle, contrary to the case of a conflict of the standards of simple law, the Constitutional Court follows the order for optimisation, i.e. by postulating the minimisation of restrictions on fundamental law and freedom, or public good. Its content is a maximum, according to which, in the event of a conclusion on the merits of the priority one before the other of the two in a collision of standing fundamental rights or public goods, it is a necessary condition for a final decision, also to use all possibilities of minimising intervention in one of them. The order for optimisation can normally be derived from Article 4 (4) of the Charter, according to which fundamental rights and freedoms must be investigated in the application of the provisions on the limits of fundamental rights and freedoms, thus also analogous to their limitations as a result of their mutual collision.
On the basis of the constitutional assessment of the issue, it should be noted that, from the point of view of the appropriate postulate, i.e. the relationship between the legal means used and the objectives of the legislature, passing the security clearance of lawyers is an effective means of achieving the objective pursued - a public good. However, from the point of view of subsidiarity of possible alternative tools to ensure the purpose, i.e. from the point of view of the criterion of necessity, it can be concluded that security clearance is not an appropriate means, since the purpose can be achieved in criminal proceedings by the sum of the partial instruments (a lesson by the court on the obligations arising from the law on classified information and on criminal penalties, as well as the obligation of confidentiality under the law on advocacy, etc.), which do not, in any way, affect and restrict, in the context, the conflict with public goods (state security), the fundamental right of defence, equality of arms and the right of expression of evidence. The provisions contained in the Code of Criminal Procedure not only guarantee the protection of fundamental rights pursuant to Articles 37 (3), 38 (2), 40 (3) of the Charter and Article 6 (3) (c) of the Convention, but also a number of its standards as well as a number of other related standards of simple law, meet the requirement of minimising the restriction of protection in a conflict of public good (ensuring State security by protecting classified information) and thus respects the constitutional order for optimisation.
In this context, the regulation contained in the Code of Criminal Procedure may also be considered to be consistent with the consequences arising from the interpretation of Article 6 (3) (c) of the Convention by the European Court of Human Rights. In the legal opinion of the Court of First Instance in Meftah and Others v France, 2002: "The Court recalls that the right of the defendant to the assistance of a lawyer of his choice (see in particular Pakelli v Germany, 1983) cannot be absolute in nature and that it can therefore be ignored by national courts if there are relevant and sufficient grounds to believe that the interests of justice require it (see Croissant v Germany, 1992) '. On the interpretation of the concept of" relevant and sufficient grounds for the interests of justice required to limit the absolute nature of the lawyer's right to choose', in the context of the case decided by the Constitutional Court, the European Court of Human Rights was closest to that of the Chazal case against the United Kingdom, 1996, and Tunels and others against the United Kingdom, 1998. If English law, in certain types of proceedings, allows for the provision of a special lawyer who has access to classified information relating to national security, but is bound by the obligation of confidentiality with respect to the mandant, the European Court of Human Rights has, in that regard, found the matter in Article 6 (1) of the Convention. According to the technical interpretation of these decisions, "it does not appear, however, that only a lawyer on a special list or a lawyer specifically examined from a state-security point of view '(B. Repík, Advocate in the light of the case law of the European Court of Human Rights. Part I, Bulletin of Advocate General, No 10, 2002, p. 19).
If the order to optimise the achievement of both in the conflict of constitutional order of guaranteed values leads to a conclusion on the constitutional inacceptability of the security clearance of lawyers with a view to the admissibility of the disclosure of classified information in the role of defenders in criminal proceedings, while at the same time on the acceptability of those conditions of familiarisation of defenders with classified information which are enshrined in the Code of Criminal Procedure and which do not restrict the fundamental rights of defence, equality of arms and the right of expression of all evidence, in order to assess the constitutionality of Article 42 (1) of Law No 148 / 1998 Coll. The Constitutional Court has applied for this principle in a number of its decisions. For the first time, he did so in the sp. zn. when applying it, it is for the courts to interpret the provision in a constitutional manner. The principle of the priority of the constitutional conformance interpretation prior to the annulment was then used by the Constitutional Court in a number of other decisions in the procedure for checking standards (e.g. sp. zn. Pl. ÚS 5 / 96; sp. zn. Pl. ÚS 19 / 98; sp. zn. Pl. Pl. ÚS 15 / 98; sp. zl. Pl. ÚS 4 / 99; sp. zl. Pl. ÚS 10 / 99; sp. zn. Pl. Pl. Pl. Pl. Pl. Pol. No. 90 / 1999 Sb.
The suggested conclusions on optimisation of the conflict of the constitutional order of the guaranteed values, based on the content and purposes of the simple law under consideration, together with the method of priority of the constitutionally conformistic interpretation prior to the repeal of the law constitute constitutional arguments for the assessment of the constitutionality of § 42 (1) of Act No. 148 / 1998 Coll., as amended, which fully correspond to the conclusions resulting from the methodology of the interpretation of the simple right based on teleological reduction, an objective teleological interpretation and a systematic interpretation of which is also included in the lex specialis rule of legi generali. For the above conclusions, the Constitutional Court rejected the proposal by the District Court in Přerov to repeal § 42 (1) of Act No. 148 / 1998 Coll., on the protection of classified information and on the amendment of certain laws, as amended.
In a number of its decisions, the Constitutional Court expressed its views on the interpretation of Article 89 (2) of the Constitution, in the most recent case-law, in particular on the finding in the case sp. zn. Pl. ÚS 2 / 03 (ECR 29, p. 41; published under No 84 / 2003 Coll.), according to which "the judgment of the Court of First Instance is not only binding, but also on the grounds and the parts thereof which it contains, carry 'reasons' (as well as the finding in the case sp. The Constitutional Court continues to insist on these conclusions.
In this context, the specific situation arises in the context of the findings in the procedure for checking the standards by which the Constitutional Court rejects the application for annulment of a law, other legislation or its individual provisions, based in its decision on the principle of the priority of a constitutional interpretation before the repeal of a law, other legislation or provision thereof, according to which, in a situation where a provision of law allows two different interpretations, one being in accordance with the constitutional order and the other being contrary to it, there is no reason to repeal that provision; when applying the law in question, other legislation, or provisions thereof, it is the task of public authorities, in particular courts, to interpret the provision in a constitutional manner [sp. zn. Different interpretation of Article 89 (2) The Constitution would make the decisions of the Constitutional Court legal and, if necessary, confusing, and would force the Constitutional Court to take a procedure that appears to be absurd and unsustainable in its consequences: not to rely on the possibility of constitutionally conformal interpretation, abandon the principle of judicial self restraint, and, in the event of the slightest possibility of a constitutionally contradictory interpretation of the contested regulation, abolish it. The Constitutional Court, for a set of reasons underlying the basic constitutional principle, has included the basic constitutional principle in the scope of the operative part of the finding for those mentioned in the standard control procedure in the case of the adoption of a negative statement with an interpretative argument.
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, the Judge JUDr. Vojen Güttler took a different position.
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Regulation Information
| Citation | The Constitutional Court found No. 98 / 2004 Coll., on the application for annulment of § 42 paragraph 1 of Act No. 148 / 1998 Coll., on the Protection of classified information and on the amendment of certain laws, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 04.03.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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