Plenum Judgment Pl. ÚS 5/16 – Justification of a decision not to grant citizenship on the grounds of a threat to national security

24 October 2016

The legal framework that allows the Ministry of the Interior to not disclose to an applicant for citizenship the reasons why his application for citizenship was not granted, reasons that arise from reports of the Police of the Czech Republic and the intelligence services of the Czech Republic that contain classified information according to which the applicant is a threat to national security, to the sovereignty and territorial integrity of the state, to democratic foundations, lives, health or property values, is constitutional.

In a related proceeding on a constitutional complaint under § 87 par. 1 let. d) of the Constitution, file No. III. ÚS 2660/15, the Constitutional Court reviewed the constitutional complaint from complainant O. M., alleging violation of his fundamental rights by the Ministry of the Interior, which denied his application for citizenship of the Czech Republic on the grounds of national security. The complainant pointed specifically to the fact that the reports based on which the ministry decided his application were classified, and as such were not part of the file; therefore he did not have an opportunity to defend himself effectively. In his opinion, this situation is reinforced by the fact that a decision to deny an application for citizenship is, under § 26 of the Act on the Citizenship of the Czech Republic, excluded from judicial review. Panel III of the Constitutional Court passed the complainant’s petition for annulment of this provision to the plenum of the Constitutional Court for a decision under art. 87 par. 1 let. a) of the Constitution.

The Constitutional Court pointed out that although the complainant’s petition objects to the exclusion from judicial review of decisions issued under § 22 par. 3 of the Act on the Citizenship of the Czech Republic (the “Act”), contained in § 26 of the Act, in the proposed judgment he proposes annulment of only § 22 par. 3 of the Act. Because the Constitutional Court, per its settled case law, feels bound by the proposed wording of the petition, not its reasoning, it focused only on review of § 22 par. 3 of the Act, under which the reports of the Police of the CR and of the intelligence services concerning an application for citizenship do not become part of the file if they contain classified information.

The Constitutional Court also cited its case law, which indicates that if a state citizenship relationship arises based on a decision by a state body (and not ex lege), the state has an inalienable right to decide whether to grant citizenship, and, if it does not do so, it does not violate any rights thereby. However, that does not mean that it is not necessary to apply criteria from the Constitutional Court’s case law to the reasoning of a decision in a case of granting citizenship. Therefore, it is not acceptable to have an absolute and unconditional ban, on stating any reasons at all for a decision by a public authority. On the other hand, however, it is necessary to reflect the legitimate public interest in the protection of classified information, justifying a permissible restriction in the form a statutory prohibition on stating reasons the disclosure of which would endanger that interest. The interest in national security, expressly stated in art. 1 of constitutional Act no. 110/1998 Coll., on the Security of the Czech Republic, legitimizes restricting an individual’s legal sphere.
In evaluating security risks, or in evaluating the reports for a decision to grant citizenship, an administrative body must respect the proportionality principle in individual cases and distinguish different levels of security risks. An exclusion from the reasoning can be applied only in case of a relevant, and not a completely marginal security risk. Only then is it true that stating the security reason for which the administrative body denies the application, could, in a particular case, realistically represent a threat to national security or third parties.

The Constitutional Court concluded that the legal framework chose rational, not arbitrary, means for achieving this legitimate aim, because it excludes from the reasoning of a decision only the information due to which an application is rejected on the grounds of a threat to national security. The Constitutional Court considers this compromise between an individual’s interest in disclosure of the reasons for a negative decision, on the one hand, and the security interests of the state, on the other hand, to be constitutional.

The judge rapporteur in the case was Jaroslav Fenyk. Dissenting opinions were filed by judges Vojtěch Šimíček, Kateřina Šimáčková, and Ludvík David.

Judge David filed a concurring vote only as regards the reasoning, as he did not consider the chosen statutory framework to be a compromise or the result of balancing opposing interests. If an application is denied by merely stating that the applicant is a threat to national security interests, the applicant basically learns nothing from the text of the denial, and has nothing to protest against. The reviewed legal framework also cannot be an “optimization of the conflicting effects of the protective mechanisms of both constitutionally protected values.” The solution chosen by a democratically elected legislature, which judge David respected, should rather be described as a desirable result in terms of the criterion of necessary restriction of individual rights in a proceeding to grant citizenship. The conclusions of the present judgment can be significant for the potential review of § 26 of the Act, which excludes a decision to deny the application for citizenship from judicial review, although the Constitutional Court was not, in the opinion of the plenum, authorized to consider objections against that provision.

Judges Šimíček and Šimáčková believed that the petition should have been granted. Panel III should also have submitted a petition seeking the annulment of § 26 of the Act, because both provisions represent theoretical connected vessels. An applicant for citizenship does not find out from the decision why his application was unsuccessful, and at the same time he cannot defend himself procedurally against that decision in any way, whereby his position becomes similar to that of Joseph K. in Kafka’s The Trial. Whether a given case is subject to judicial review is decided exclusively by the administrative body itself, or the police or intelligence service. According to the dissenting judges, that represents a completely disproportionate and non-reviewable concentration of power in the executive body. Judicial review is guaranteed for one group of applicants, whereas for another it is fully ruled out, and the criterion for this differentiation is the completely non-reviewable actions of the bodies of state power. Here too the applicant should have the right to a fair, correct, and reviewable process. According to the dissenting judges, the present matter does not at all concern optimization, in the desirable sense of balancing constitutional values, but merely, and only, optimization in terms of simplifying the activities of the bodies of state power. The dissenting judges referred to judgment file no. Pl. ÚS 11/2000, in which the Constitutional Court accepted a special procedural regime of judicial review, with guarantees of all the usual attributes of the right to a fair trial, for cases of review of the activity of state security forces. At the same time, however, it emphasized that this judicial review is necessary. This requested special procedural framework was unfortunately not adopted (with one exception), although there is no reason why it should not also apply to cases of granting citizenship. If the plenum did not conclude that the reviewed provision was unconstitutional, it should have rejected the petition, as no obstacle of res judicata was created in relation to potential review of § 26 of the Act.