1992/11/26 - Pl. ÚS 1/92 (Czechoslovak Const. Court): Lustration

26 November 1992

Petition of a group of 99 members of the Federal Assembly of the Czech and Slovak Federal Republic against the Federal Assembly, seeking a decision that Act No. 451/1991 Coll., which sets down some additional preconditions for holding certain offices in governmental bodies and organizations of the Czech and Slovak Federal Republic, the Czech Republic and the Slovak Republic, is not in conformity with the Charter of Fundamental Rights and Basic Freedoms, with the International Convention on Civil and Political Rights, with the International Convention on Economic, Social, and Political Rights, with the Discrimination (Employment and Occupation) Convention 1958 (No. 111), with the Vienna Convention on Treaties, with the Constitution of the Czech and Slovak Federal Republic, and with the Constitutional Act on the Czechoslovak Federation, on 26 November 1992.

Overview of the most important legal regulations

 

 

 

1.

§ 2 par. 1 letter c) of Federal Assembly Act no. 451/1991 Coll., which

provides some other requirements for holding certain positions in state

bodies and organizations of the CSFR, CR a SR, provides that a

requirement for holding a position specified in § 1 (i.e. a position

named by election, appointment or determination in some bodies,

particularly state administration bodies) is that, in the period from 25

February 1948 to 17 November 1989, a citizen was not c) a conscious

collaborator with the State Security Police (Státní bezpečnost); § 2

par. 1 letter a) and b) require, for holding of the same offices, that a

citizen was not an officer in the National Police (Sbor národní

bezpečnosti), or listed in National Police materials as a resident,

agent, holder of a loaned apartment, holder of a conspiratorial

apartment, informer or ideological collaborator of the State Security

Police.

 

 

 

2.

§ 2 par. 2 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that conscious

collaboration with the State Security Police means that a citizen was

listed in State Security Police materials as a confidante (důvěrník),

candidate for secret cooperation (kandidát tajné spolupráce) or a secret

coworker with confidential contact (tajný spolupracovník důvěrného

styku) and knew that he was meeting with an officer of the National

Police and giving him reports through secret contact or fulfilled tasks

assigned by him.

 

 

 

3.

§ 4 par. 2 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that a citizen shall

document facts provided in § 2 par. 1 letter c) by a certification

issued by the federal ministry of the interior, or a finding by the

commission under § 11.

 

 

 

4.

§ 4 par. 4 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR provides that, before beginning

a position provided in § 1, a citizen is required to submit a

declaration that he was not and is not a collaborator of any foreign

news or intelligence service.

 

 

 

5.

Art. 2 par. 3 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that everyone may do that which is not

prohibited by law and nobody may be compelled to do that which is not

imposed on him by law.

 

 

 

6.

Art. 4 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides in paragraph 1, that duties may be imposed only on

the basis of and within the bounds of law, and only while respecting the

fundamental rights and freedoms; par. 3 provides that statutory

limitations upon the fundamental rights and freedoms must apply in the

same way to all cases which meet the specified conditions.

 

 

 

7.

§ 2 par. 3 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that in justified

cases the minister of defense of the Czech and Slovak Federal Republic

may waive the condition under paragraph 1 letter a), if applying it

would violate an important security interest of the state and if it does

not endanger the purpose of the Act.

 

 

 

8.

§ 3 par. 2 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that in justified

cases the minister of the interior of the Czech and Slovak Federal

Republic, the director of the Federal Security Information service, and

the director of the Federal Police may waive the condition under

paragraph 1 letter a), if applying it would violate an important

security interest of the state and if it does not endanger the purpose

of the Act.

 

 

 

9.

§ 13 par. 3 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that if a citizen who

otherwise does not meet the conditions provided in § 2, proves that

after he ceased to be in the position of a person specified in § 2 par. 1

letter d) to h), was punished for acts specified in § 2 of Act no.

119/1990 Coll., on Judicial Rehabilitation, and that he was

rehabilitated under that Act, the commission shall decide that he meets

the requisites for holding office specified in § 1.

 

 

 

10.

Art. 1 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that people are free, have equal dignity, and enjoy

equality of rights. Their fundamental rights and freedoms are inherent,

inalienable, non-prescriptible and not subject to repeal. 

 

 

 

11.

§ 11 of Federal Assembly Act no. 451/1991 Coll., which provides some

other requirements for holding certain positions in state bodies and

organizations of the CSFR, CR and SR, provides that an independent

commission shall be established in the federal ministry of the interior

and it further governs membership in that commission.

 

 

 

12.

§ 12 of Federal Assembly Act no. 451/1991 Coll., which provides some

other requirements for holding certain positions in state bodies and

organizations of the CSFR, CR and SR, governs the conduct of the

above-mentioned independent commission.

 

 

 

13.

§ 13 of Federal Assembly Act no. 451/1991 Coll., which provides some

other requirements for holding certain positions in state bodies and

organizations of the CSFR, CR and SR, provides that the commission shall

open proceedings at the proposal of a citizen or organization and that

the commission shall make decisions within 60 days based on a finding

which must be justified.

 

 

 

14.

§ 18 par. 1 of Federal Assembly Act no. 451/1991 Coll., which provides

some other requirements for holding certain positions in state bodies

and organizations of the CSFR, CR and SR, provides that if a citizen

claims that information stated in a finding (under § 13) is untrue, he

may ask a court to review the content of the finding no later than two

months from the day the finding is delivered. The court of jurisdiction

is the regional court of the citizen’s place of permanent residence, as

the court of the first level.

 

 

 

15.

§ 20 of Federal Assembly Act no. 451/1991 Coll., which provides some

other requirements for holding certain positions in state bodies and

organizations of the CSFR, CR and SR, provides that anyone who states

before the commission (established under § 11) an untruth about a

circumstance which has substantial importance for the finding, or

conceals such a circumstance, shall receive a prison sentence of up to

three years or a fine.

 

 

 

16.

Art. 37 par. 1 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that everyone has the right to refuse to

give testimony if he would thereby incriminate himself or a person close

to him.

 

 

 

17.

Art. 38 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides in paragraph 1 that no one may be removed from the

jurisdiction of his lawful judge and in paragraph 2 that everyone has

the right to have his case considered in public, without unnecessary

delay, and in his presence, as well as to express his views on all of

the admitted evidence and that the public may be excluded only in cases

specified by law.

 

 

 

18.

Art. 98 par. 1 of the Constitution of the CSFR no. 100/1960 Coll., as

amended by Constitutional Act no. 326/1991 Coll., provides that the

judicial power is exercised by independent courts of the Czech and

Slovak Federal Republic.

 

 

 

19.

§ 6 par. 1 of Constitutional Act no. 23/1991 Coll., which enacts the

Charter of Fundamental Rights and Freedoms, provides that statutes and

other legal regulations must be brought into accordance with the Charter

of Fundamental Rights and Freedoms no later than 31 December 1991; on

that day provisions which are not in accordance with the Charter of

Fundamental Rights and Freedoms cease to have effect.

 

 

 

 

 

 

CONSTITUTIONAL COURT OF THE CZECH AND SLOVAK FEDERAL REPUBLIC

 

 

JUDGMENT:

 

 

 

The

Plenum of the Constitutional Court of the Czech and Slovak Federal

Republic, in the matter of the petitioner, a group of 99 members of the

Federal Assembly of the Czech and Slovak Federal Republic, against the

Federal Assembly of the Czech and Slovak Federal Republic, seeking a

decision that Act No. 451/1991 Coll., which sets down some additional

preconditions for holding certain offices in governmental bodies and

organizations of the Czech and Slovak Federal Republic, the Czech

Republic and the Slovak Republic, is not in conformity with the Charter

of Fundamental Rights and Basic Freedoms, with the International

Convention on Civil and Political Rights, with the International

Convention on Economic, Social, and Political Rights, with the

Discrimination (Employment and Occupation) Convention 1958 (No. 111),

with the Vienna Convention on Treaties, with the Constitution of the

Czech and Slovak Federal Republic, and with the Constitutional Act on

the Czechoslovak Federation, on 26 November 1992, decided thusly:

 

 

 

§

2 para. 1, letter c) 1), § 2 para. 2 2), and § 4 paras. 2 3) and 4 4)

of Act No. 451/1991 Coll. are not in conformity with Article 2 para. 3

5) and Article 4 paras. 1 and 3 6) of the Charter of Fundamental Rights

and Basic Freedoms, and Article 4 of the International Convention on

Economic, Social and Cultural Rights, promulgated under No. 120/1976

Coll.

 

§

2 para. 3 7), § 3 para. 2 8) and § 13 para. 3 9) of Act No. 451/1991

Coll., are not in conformity with Article 1 of the Charter.10)

 

§§

11 11), 12 12), § 13 paras. 1, 2, 4 and 5 13´), § 18 para. 1 14) and §

20 15) of Act No. 451/1991 Coll., are not in conformity with Article 37

para. 1 16) and Article 38 17) of the Charter and with Article 98 para. 1

of the Constitution of the CSFR, No. 100/1960 Sb, as amended by

constitutional act No. 326/1991 Coll.18)

 

The remainder of the petition is rejected on the merits.

 

 

 

 

 

REASONING:

 

 

 

I.

 

 

 

 On

10 March 1992, a group of 99 Deputies of the Federal Assembly of the

Czech and Slovak Federal Republic (hereinafter "Federal Assembly")

submitted to the Constitutional Court of the Czech and Slovak Federal

Republic (hereinafter "Court") a petition requesting that the Court

declare that, pursuant to § 6 para. 1 of Constitutional Act No. 23/1991

Coll.19), which Introduced the Charter of Fundamental Rights and Basic

Freedoms as a Constitutional Act of the Federal Assembly, the Court

declare that Act No. 451/1991 Coll., which Sets Down Some Additional

Preconditions to Holding Certain Offices in Governmental Bodies and

Organizations of the Czech and Slovak Federal Republic, the Czech

Republic, and the Slovak Republic, lost force and effect as of 31

December 1991 due to its non-conformity with the Charter of Fundamental

Rights and Basic Freedoms.

 

 

 

II.

 

 

 

 While

considering the petition, the Court had to concern itself, first of

all, with the issue of whether the group of Deputies which submitted the

petition still has full standing to bring this proceeding, even after

the June, 1992 elections to the Federal Assembly. Under Article 8 para. 2

of Constitutional Act No. 91/1991 Coll., a petition may be submitted by

a group of at least one-fifth of the Deputies to the Federal Assembly,

that is 60 Deputies (Article 8 para. 2 of Constitutional Act No. 91/1991

Coll.). Since it was determined that of the original 99 Deputies of the

Federal Assembly who signed the petition, only 43 Deputies were

re-elected in the June, 1992 elections, it was necessary to decide the

following issue: at what point in time must the requirements set down in

Article 8 para. 2 of Constitutional Act No. 91/1991 Coll., be met.

 

 

 

 The

Court had dealt with an analogous issue in the matters Pl ÚS 95/92 and

Pl ÚS 22/92, in which it came to the conclusion that the decisive point

in time for the submission of the petition, as meant by the

earlier-cited provisions of Constitutional Act No. 91/1991 Coll., is the

moment to which the statute's time conditions point, that is the moment

when the petition is submitted. This conclusion follows both from the

interpretation of Constitutional Act No. 91/1991 Coll., and from the

fact that a reduction in the number of Deputies who submitted the

petition is not included in the Act as one of the grounds for halting an

already-commenced proceeding, as well as from the fact that the

requirement of the protection of constitutionality means that the Court

should deal with already-commenced matters on grounds of the general

public interest.

 

 

 

 Thus,

no formal impediments that would prevent the Court from continuing in

the proceeding were discerned in this matter either.

 

 

 

 On the merits of the matter itself, the Court introduced the following documentary evidence:

 

 

 

The

Report on the 17th Joint Session of the Chamber of Peoples and the

Chamber of Nations of the Federal Assembly, at which the contested

statute was adopted (print No. 841), and documents and writings:

 

 

 

from the archive of the Federal Interior Ministry, which were submitted to the Court at its request, namely:

 

 

 

 - the Minister of Security's Order No. 49 of 10 December 1951 concerning Work with Agents,

 

 

 

 -

the Interior Minister's Order concerning Work with Agents (the

Directive on the Operational Work of Agents), No. 72/54, from 20 April

1954,

 

 

 

 -

the Directive from 1962 for the Operational Work of Agents of the State

Security Services (top secret, of extraordinary importance),

 

 

 

 -

the Interior Minister's Interpretation of Certain Fundamental Issues

concerning the State Security Service's Work and of the new Directive

for the Operational Work of Agents issued under Interior Minister Order

13/1962 from 16 May 1962,

 

 

 

 -

the Directive for Work with those Clandestinely Cooperating with

Czechoslovak Counterintelligence A-oper-I-3 issued under CSSR Interior

Minister Order No. 8 of 16 February 1972,

 

 

 

 - the Directive for Work with those Cooperating with Counterintelligence A-oper-I-3 of 25 January 1978,

 

 

 

 - the Principles for Counterintelligence Activities, file no. CB-002040/03-89 from 28 November 1981,

 

 

 

from

the Federal Assembly archives, the record of the testimony given before

the Federal Assembly Commission for the Investigation of Events of 17

November 1989 by the former heads of the First Division, Second

Department of the State Security Services [hereinafter "State Security"

or "StB"], Jan Roller, Josef Jeřábek and Zdeněk Kožuch, concerning the

manner in which clandestine StB collaborators were recruited and in

which records were kept on them, and

 

 

 

from

the archives of the former Central Committee of the Czechoslovak

Communist Party, Directives on the Organization and Activities of the

People's Militia and Directives on the Cadre Orders of the Czechoslovak

Communist Party.

 

 

 

At

the Court's request, the Office of the Presidium of the CSFR Government

submitted the Report of the Director-General of the Governing Body of

the International Labour Office GB-252/16/19 concerning the examination

of the Complaint Submitted by the Trade Union Association of Bohemia,

Moravia, and Slovakia and by the Czech and Slovak Confederation of Trade

Unions alleging non-observance of the Discrimination (Employment and

Occupation) Convention 1958 (No. 111), which the Governing Body adopted

at its session held in Geneva on June 2-6, 1992, including the

correspondence of the government bodies in this matter and the Secret

Government Resolution No. 256 of 14 March 1958 on Reorganization and

Wage Restructuring.

 

 

 

The

following documents were requested from the criminal file of the Higher

Court Martial in Tabor in the matter brought against defendant Alojz

Lorenc and others (T 8/91):

 

 

 

 -

Instruction of the 1st Deputy Interior Minister of the CSFR NZ-006

71/8, Instruction CB-00134/01-89, and Instruction CB 00153/01-09

including a Telex about Discarding Items.

 

 

 

 -

Expert Opinion of the Federal Interior Ministry and the Supplementary

Opinion on the Consequences of Discarding Items with Numerical Data on

the Consequences of Discarding Items

 

 

 

 -

that portion of the record containing the testimony of witnesses Dr.

Zdeněk Formánek, Capt. Jan Frolík, Dr. M. Churáň and Dr. Z. Vajda.

 

 

 

 The

Court further supplemented this documentary evidence with the testimony

of witnesses, namely Dr. J. Šetina, Mag. J. Frolík, Jar. Bašta and Dr.

St. Novotný.

 

 

 

 

 

 

 

 On the basis of the introduced evidence, the Court came to the following factual and legal conclusions:

 

 

 

 In

the period from 1948 until 1989, which Act No. 480/1991 Coll., defines

as "the era of non-freedom", the totalitarian regime violated not only

human rights, but also its own laws, which it had adopted for the

purpose of establishing and maintaining its hold on power (§ 1 of the

Act). In addition to the formally legitimate institutions of legislative

and executive power, the composition and activities of which were

adapted in a purpose-oriented fashion to their designs on power, other

state bodies and organizations also took part in the suppression of

rights and freedoms without having any foundation at all in law for

their activities (People's Militia), or they obtained such a foundation

only through subsequent legal approval (Action Committees, Screening

Commissions).

 

 

 

 In

keeping with the theory of a permanent class struggle and of the

leading role of the Communist Party of Czechoslovakia, the totalitarian

regime deprived hundreds of thousands of persons not only of their

freedom or their lives (Act No. 119/1991 Coll., on Judicial

Rehabilitation, alone affected 245,000 persons), but also even of their

employment. Thus, this arbitrariness became subsequently legalized (by

Act No. 213/1948 Coll., for example), and the action committees' manner

of proceeding was characterized as measures taken "in accordance with

law, even in cases which would not have otherwise been in conformity

with the appropriate enactments" (§ 4 para. 3 of the Act).

 

 

 

 The

Czechoslovak Republic Government Secret Resolution No. 256 of 14 March

1958, also had a similar character of a mass, unlawful purge in that the

reorganization and wage restructuring effected thereby were connected

"with the screening of the class and political reliability of the state

and economic team ("aparat"), the goal of which was to cleanse this team

of all politically unreliable elements and to prevent them from

obtaining some other position of importance." This directive enumerates

the categories of persons who were not permitted to be employed in the

governmental and economic sectors. Their ranks included, for example,

wholesalers, owners of financial and law offices, former high state

officials, military officers, directors of large factories and those

working closely with them, as well as those whose close relatives were

in a capitalist country or had been punished for anti-state

activities. Those measures applied not only to the group of persons

listed, but also to their close relatives. In order to sever employment

relations with such employees, it was not necessary to obtain the

consent of the division of work force of the ONV [District National

Committee], which would have otherwise been required.

 

 

 

 The

process of normalization, which took place after the occupation of

Czechoslovakia by the Warsaw Pact, belongs among those measures of mass

repression relating to employment law. The Screening and Normalization

Commissions were the bodies that carried out this normalization process,

and their procedures and decision-making were regulated by Presidium of

the Federal Assembly Measure No. 9 of 22 August 1969, which provided

(in § 4): "Anyone who, by his actions, disrupts the socialist societal

order and, as a consequence, loses the trust needed to hold the office

or work position he is currently holding, may be removed from that

office, or his employment relations may be immediately severed; as for

employees to whom the provisions of the Labor Code on the severance of

employment relations do not apply, the employment or service relations

with them, as well as other possible expert relations, may be

immediately terminated by dismissal. In the circumstances mentioned

above, students can be expelled from their schools. In the case of

teachers at the university and other levels, the responsible minister

may remove them from their position or immediately cancel their

employment relations also due to the fact that, in conflict with their

duties, they are educating the youths placed in their care contrary to

the principles of a socialist society and of the building thereof. The

trade union bodies' refusal to consent shall not have suspensive

effect."

 

 

 

 Among

the measures taken for the purpose of repression, neither can we

overlook the transfer of 77,500 persons employed in the administrative

sector to the production sector, carried out in the fall of 1951 under

the pretext of limiting the growing bureaucracy. The arbitrariness and

maliciousness of these measures is manifestly confirmed by the fact that

during the same period, that is from September to December, 200,000 to

300,000 persons were newly taken on into positions in state

administration, security, justice, and the army, generally persons

without the desirable or otherwise necessary qualifications, almost

always exclusively members of the Communist Party of Czechoslovakia.

 

 

 

 This

scarcely systematic way of filling leading positions at all levels and

the blanket purges were gradually replaced by a methodical and purpose

oriented personnel policy worked out by the Central Committee of the

Czechoslovak Communist Party. For each level of administration, binding

directives were issued (the "cadre orders") and, as a general

qualification for candidates for all leading positions, it required

"political maturity, a creative marxist-leninist approach to the

solution of problems, and the determination to consistently bring the

party's policies to life." As concerns professional qualifications, such

should be linked to "skill at resolving issues of party policy and

ideology in the sector entrusted to them and linked to moral qualities,

that is, a high sense of responsibility to the party and to society in

particular." (Cadre Orders of the Central Committee of the Czechoslovak

Communist Party, file no. ÚV 057/84 - principles for the Submission of

Cadre Proposals to Bodies of the Central Committee of the Czechoslovak

Communist Party, point 1.)

 

 

 

 Until

the end of 1989, every crucial position at all levels of administration

(as well as those in bodies and organizations of state and economic

teams) was filled in accordance with these cadre orders, so that the

influence of the Communist Party of Czechoslovakia on events in all

areas of public and economic life was decisively guaranteed by means of

the persons engaged in this way.

 

 

 

 Both

in terms of significance and numbers, however, neither the abolition of

the leading role of the Czechoslovak Communist Party which had been

embodied in the Constitution, nor the statutory measures of the

Presidium of the CSFR Federal Assembly No. 362/1990 Coll., which

increased the amount of leading offices to be filled by appointment,

thus making it possible to recall compromised persons from leading

offices, were substantial.

 

 

 

 To

maintain its position of power, the totalitarian regime relied above

all on the tools of repression, the decisive component of which

consisted of State Security and the network of clandestine

collaborators. As early as 10 December 1951, the Secret Order of the

Minister of National Security No. 49 characterized the network of agents

as "the keenest and most effective weapon against class enemies, which

enables us to expose and dispose of class enemies before they effect

their criminal purposes . . . . For this reason, it is the fundamental

duty of the commanders at all levels to work with the agents" (Part V of

the Order). The agency itself was designated as "the front-line weapon

of national security which must be made the center of an

all-encompassing vigilance and must be directed against the enemies of

socialism" (Part VI of the Order).

 

 

 

In

conformity with these principles, those holding totalitarian power in

the preceding regime tried to preserve, to the greatest possible extent,

a mutually connected and conspiratorial team which would enable it,

even under a changed internal political situation, to influence even the

ensuing democratic developments, or to reverse these developments at a

propitious time.

 

 

 

 That

this conclusion is justified is borne out by, among other things, the

directives for counterintelligence activities (file no. CB-002040/03-8)

issued on 28 November 1989, that is 11 days after the 17th of November,

1989; parts 3a) and b) of that directive laid down the following way of

proceeding for the anticipated situation:

 

 

 

 "The managerial, organizational and cooperative sphere

 

 

 

 -despite

the current position of the agents and official relations to earmarked

sites, to maintain conditions for the possible infiltration of StB

agents into their structures.

 

 

 

 Our own operational task

 

 

 

 - to markedly increase the operational activities of a conspiratorial nature in the overall workings of the StB;

 

 

 

 -

to reevaluate the network of agents and to ensure its stabilization and

gradual spread to positions of true significance; to place emphasis on

the influential and well-positioned agents; to activate to the greatest

extent possible the agents' work, in particular by the use of

influential agents;

 

 

 

 -

active measures aimed at disinforming our opponents, compromising in as

confrontational a manner as possible the favorably disposed

representatives of these structures before the public, and deepening the

clash of ideologies, personalities, and actions;

 

 

 

 -

to obtain, with the greatest possible speed, high quality and

influential agents in the mass media and from among the university-level

students who are capable of influencing the operational situation in

those institutions for the benefit of the Czechoslovak Communist Party."

 

 

 

 In

order to shield the network of clandestine collaborators or to make it

impossible to identify them and to assess, on an individual basis, the

extent and nature of their activities, on 4 December 1989 the former

Deputy CSFR Interior Minister, Lt. Gen. Ing. Alojz Lorenc, issued an

Instruction to all Chiefs of Administration of the StB (under file no.

NZ-00671/89), ordering them to discard material which "had lost value

for the purposes of state security".

 

 

 

 In this Instruction he stated, among other things:

 

 

 

"It

is necessary to proceed in such a manner that no material which could

be of a compromising character, in view of the present political

constellation, remains in this section of the organization."

 

 

 

 Subsequently

(on 8 December 1989), the 1st Deputy CSFR Interior Minister issued a

further Instruction (file no. 00133/01-89), the attachment to which has

an order which in content is entirely identical to that from 4 December

1989, except that the paragraph about discarding compromising materials

was omitted. At the same time, it ordered the first instruction from 4

December 1989 to be discarded.

 

 

 

 The

expert opinion of the Chief of the Federal Interior Ministry Office for

the Protection of the Constitution and of Democracy, which was part of

his testimony before the Higher Court Martial in Tabor, stated that, as a

result of the first instruction, operational bound volumes or files for

entire departments of the internal reporting system, including bound

volumes on clandestine collaborators, were destroyed. He further stated

that bound volumes (files) on clandestine collaborators, candidates for

clandestine collaboration, trusted agents and others were disposed of

"in a panic". He was not able to reliably demonstrate, however, whether

these documents were actually destroyed, were merely relocated, or were

hidden at the homes of some StB agent.

 

 

 

 After

joining the Federal Ministry of the Interior (on 2 February 1990), the

witness ascertained that 90 to 95 % of the safes in the 2nd

Administrative Unit (concerned with the struggle against internal

enemies) were empty, or in other cases contained only the volume covers

or some worthless scrap paper.

 

 

 

 According

to the findings of the Statistical-Record Division (SEO) of the

Interior Ministry, during the period from 1 October 1989 until 31

January 1990, the number of volumes in the records of the 2nd

Administrative Unit (concerned with the struggle against internal

enemies) decreased from the original 20,337 volumes to 2189. Therefore, a

full 89.9 % of the volumes were destroyed or relocated to an unknown

place.

 

 

 

 Considering

all of these facts both individually and in their entirety, the Court

has come to the conclusion that this calculated and malicious conduct

created a real and potentially very perilous source of destabilization

and danger, which could easily threaten the developing constitutional

order. Therefore, in light above all of these considerations, the Court

assessed the aims which the legislators were advancing when they issued

Act No. 451/1991 Coll., the justification for the statute, and the

consequences tied to the application of it. In this case the decisive

criterion was consideration of the issues whether the act or any of its

provisions are in conflict with the CSFR Constitution, with

constitutional acts of the Federation (Republics), or with international

treaties on human rights and fundamental freedoms that the CSFR has

ratified and promulgated.

 

 

 

 Thus, the Court has come to the following conclusions:

 

 

 

 A

democratic state has not only the right but also the duty to assert and

protect the principles upon which it is founded, thus, it may not be

inactive in respect to a situation in which the top positions at all

levels of state administration, economic management, and so on, were

filled in accordance with the now unacceptable criteria of a

totalitarian system. Of course, a democratic state is, at the same time,

entitled to make all efforts to eliminate an unjustified preference

enjoyed in the past by a favored group of citizens in relation to the

vast majority of all other citizens where such preference was accorded

exclusively on the basis of membership in a totalitarian political party

and where, as was already inferred earlier, it represented a form of

oppression and discrimination in regard to these other citizens.

 

 

 

 In

a democratic society, it is necessary for employees of state and public

bodies (but also of workplaces which have some relation to the security

of the state) to meet certain criteria of a civic nature, which we can

characterize as loyalty to the democratic principles upon which the

state is built. Such restrictions may also concern specific groups of

persons without those persons being individually judged, a situation

which can be found, without a great deal of difficulty, in other legal

systems as well (for example, in the Federal Republic of Germany,

persons from the former German Democratic Republic or the east bloc may

not be engaged by firms producing highly developed technology for the

weapons industry.)

 

 

 

 In

comparison with the situation that existed during the communist regime,

where all the top positions at all levels were filled not only in

contradiction to democratic principles and international norms, but also

at variance with the regime's own (hence, domestic) laws, the statute

under consideration affects only a very limited group of employees,

exclusively in the power, administrative, and economic apparatus, and it

affects licensed trades which are or could be the source of certain

risks, be it merely from the perspective of protecting the establishment

of democracy and its principles, the security of the state, or the

protection of state secrets or of those positions from which it is

possible, either overtly or covertly, to influence the development of

society and the desirable performances of jobs in individual bodies or

organizations.

 

 

 

 In

addition, the conditions prescribed by the statute for holding certain

positions shall apply only during a relatively short time period by the

end of which it is foreseen that the process of democratization will

have been accomplished (by 31 December 1996).

 

 

 

 As

a result of the considerations mentioned above, the Court is convinced

that it cannot deny the state's right, if in conformity with the

international commitments it has undertaken, to lay down in its domestic

law conditions or prerequisites crucial for the performance of

leadership or other decisive positions if, in which conditions or

prerequisites, as was already referred to above, its own safety, the

safety of its citizens and, most of all, further democratic developments

are taken into consideration when setting the conditions or

prerequisites.

 

 

 

 If

compared with the preceding legal order, these conditions might appear

to be, from a formal perspective, a restriction on civil rights;

however, in the current legal order the basic criteria, which will serve

as the guide for our actions in the future, are those found the Charter

and its introductory act. (23/1991 Coll.).

 

 

 

 In

contrast to the totalitarian system, which was founded on the basis of

the goals of the moment and was never bound by legal principles, much

less principles of constitutional law, a democratic state proceeds from

quite different values and criteria. Even the statute now under

consideration, Act No. 451/1991 Coll., was based on them. It cannot be

understood as revenge against particular persons or groups of persons,

nor as discrimination against persons who, acting contrary to generally

recognized principles either alone or in cooperation with or through a

repressive body, had violated fundamental human rights and basic

freedoms as they are understood and professed in a democratic society.

 

 

 

 The

statute under consideration does not even discriminate against such

persons (neither in employment nor in their profession), it merely

provides (and strictly for the future) certain additional preconditions

for those positions designated as crucial by law, or for engaging in a

licensed trade, particularly those linked with the possession of a

firearm, of ammunition, of especially dangerous poisons, or with access

thereto.

 

 

 

 Such

generally prescribed conditions do not, therefore, offend against

either constitutional acts or international conventions. Each state or

rather those which were compelled over a period of forty years to endure

the violation of fundamental rights and basic freedoms by a

totalitarian regime has the right to enthrone democratic leadership and

to apply such legal measures as are apt to avert the risk of subversion

or of a possible relapse into totalitarianism, or at least to limit

those risks.

 

 

 

 The

law-based state which, after the collapse of totalitarianism, is tied

to the democratic values enthroned after the collapse of

totalitarianism, cannot in the final analysis be understood as amorphous

with regard to values. With the adoption of the Charter of Fundamental

Rights and Basic Freedoms as part of our legal system fundamentally

changed the nature and the value system of our entire constitutional and

legal order changed fundamentally.

 

 

 

 Constitutional

acts, statutes and other legal enactments, as well as the

interpretation and application of them, must conform to the Charter of

Fundamental Rights and Basic Freedoms (§ 1 para. 1 of the Introductory

Act 23/1991 Coll.). Thus, an entirely new element of the renaissance of

natural human rights was introduced into our legal order, and a new

foundation for the law-based state was established in this way.

 

 

 

 Thus,

the concept of the law-based state does not have to do merely with the

observance of any sort of values and any sort of rights, even if they

are adopted in the procedurally proper manner, rather it is concerned

first and foremost with respect for those norms that are not

incompatible with the fundamental values of human society as they are

expressed in the already referred to Charter of Fundamental Rights and

Basic Freedoms.

 

 

 

 Finally,

from this perspective not even the principle of legal certainty can be

conceived in isolation, formally and abstractly, but must be gauged by

those values of the constitutional and law-based state, which have a

systemically constitutive nature for the future.

 

 

 

 As

one of the basic concepts and requirements of a law-based state, legal

certainty must, therefore, consist in certainty with regard to its

substantive values. Thus, the contemporary construction of a law-based

state, which has for its starting point a discontinuity with the

totalitarian regime as concerns values, may not adopt a criteria of

formal-legal and material-legal continuity which is based on a differing

value system, not even under the circumstances that the formal

normative continuity of the legal order makes it possible. Respect for

continuity with the old value system would not be a guarantee of legal

certainty but, on the contrary, by calling into question the values of

the new system, legal certainty would be threatened in society and

eventually the citizens' faith in the credibility of the democratic

system would be shaken.

 

 

 

 Therefore,

after taking these thoughts into consideration, the Court has come to

the following conclusions concerning individual parts of the group of

Deputies' petition:

 

 

 

 With

reference to § 6 para. 1 of Constitutional Act No. 23/1991 Coll., which

introduced the Charter of Fundamental Rights and Basic Freedoms 19),

the petition seeks a declaration that Act No. 451/1991 Coll., lost

force/effect on 31 December 1991 due to its lack of conformity with the

Charter.

 

 

 

 The

legislators inserted § 6 into Introductory Act No. 23/1991 Coll.19), so

that statutes and other legal enactments (understood to mean those that

were in force prior to 8 February 1991, when the Charter went into

effect by declaration) would be brought into conformity with the Charter

by the 31 December 1991 deadline.

 

 

 

 Here

the petitioners took into consideration the specific nature of the

problems of Act No. 451/1991 Coll., and confused its employment law

character with criminal law concepts and requirements, as if such would

arise from collective responsibility for being a member of a specific,

formally defined group of persons. However, the contested statute does

not have a criminal law character, neither in its sense or content, nor

does it give rise to any sort of responsibility in this regard. As was

indicated earlier, the basic purpose of this statute is to prescribe,

exclusively for the future, the preconditions for holding certain

narrowly defined offices or for engaging in certain activities precisely

specified in the statute, and not permanently, but only for a

transitional period.

 

 

 

 For

conditions prescribed in this way by statute, only the manner and the

degree of the asserted restriction is decisive; of course, it must be in

conformity both with domestic law and with the international

obligations to which the CSFR is bound.

 

 

 

 On

the domestic legal plane, Article 4 para. 2 of the Charter of

Fundamental Rights and Basic Freedoms provides that limits may be placed

on the fundamental rights and basic freedoms only under the

circumstances set out in the Charter and only if laid down in a

statute. Article 26 para. 2 then specifies that the preconditions for

and limitations upon engaging in certain professions or activities may

be prescribed by statute. Article 4 para. 3 of the Charter then

specifies that if such a restriction is placed by statute, then the

statutorily prescribed conditions must apply equally to all cases which

meet those conditions.

 

 

 

 Finally,

Constitutional Act No. 143/1968 Coll. concerning the Czechoslovak

Federation, promulgated in its entirety as amended under No. 103/1991

Coll., lays down in Article 2 para. 1 the requirement that the state and

both republics be built upon the principles of democracy. As this

provision is applicable against the state, it is also doubtless

reasonable to apply it as against persons who represent the state or who

are in its service.

 

 

 

 In

adopting the statute at issue, the legislators proceeded on the basis

of the justified opinion that, at least to the degree of reasonableness

necessary, it cannot be assumed that the values embodied in the

above-mentioned constitutional principles would, unconditionally and

without more, be given expression in the life even of members of the

then power structure or those who having been bound in employment to the

StB or in collaboration with them, those who climbed to important

state, societal or economic positions on the basis of antagonistic value

criteria solely to be able to serve, as a representative of the earlier

reigning ideology, to maintain the power monopoly of the ruling

bureaucratic machinery. Among other things, the instruction shows that

the effort to maintain such positions even under the new conditions and

the effort to encroach upon the democratic development of the present

society is one of the key elements of the totalitarian regime (see the

Principles of Counterintelligence Activities of 28.11.1989).

 

 

 

 In

comparing the statute with international legal obligations, it was

necessary to review its conformity with the International Convention on

Civil and Political Rights and with the International Convention on

Economic, Social, and Cultural Rights, which were promulgated on 10 May

1976 by Declaration No. 120/1976 Coll.

 

 

 

 In

the first of these conventions, Article 2 lays down the state's

obligation to ensure equal rights of all individuals without distinction

of any kind and Article 26 lays down the prohibition on any sort of

discrimination. So far as concerns the possibility to restrict the

holding of an office or the performance of some employment in the public

service, Article 25 of the Convention sets in substance three

requirements:

 

 

 

 1) no restriction may be applied if it concerns one of the distinctions explicitly set down in Article 2, first sentence;

 

 

 

 2) the limiting conditions must be justifiable and justified (Article 25, first sentence), and

 

 

 

 3)

each citizen has the right to enter into his nation's public service

under the same conditions (Article 25, letter c), which means that the

prerequisites set down for acceptance or tenure in the public service

must apply to all persons.

 

 

 

 Article

4 of the International Convention on Economic, Social, and Cultural

Rights provides, as a framework requirement, that the state may make

these rights subject to such conditions as are set by statute and only

in so far as they are compatible with the nature of these rights and

exclusively for the purpose of advancing the common good in a democratic

society.

 

 

 

 Article

6 of the Convention provides for the right of everyone to earn their

livelihood through the type of work which they have freely chosen or

accepted, as well as the equality of both partners to an employment

contract as far as concerns their decision to enter into the contract,

but does not provide job seekers with a claim to be hired for the

position, or in such employment to hold a position for which the law

sets special conditions not met by the applicant.

 

 

 

 Article

7 of the Convention concerns the equality of opportunity in employment

already performed and, in particular, equal opportunity for all to gain

promotion solely on the basis of the length of service and of their

ability (Article 7, letter c). This provision concerns persons who, on

the basis of the set prerequisites and conditions, are already

performing some work; they are not, however, conditions and

prerequisites for holding the job itself. Finally, the statute at issue

cannot be understood to be in conflict with the Discrimination

(Employment and Occupation), Convention 1958 No. 111 from 25 June 1958

(promulgated by Federal Ministry of Foreign Affairs Notice No. 465/1990

Coll.). Article 1, letter b) of the Convention designates as

discrimination any sort of distinction, exclusion, or granting of

preference for the purpose of making it impossible or jeopardizing their

chances to get an equal opportunity or equal treatment in matters of

employment or professions. Nonetheless, para. 2 of the same Article

states that distinctions, exclusions or the giving of preferences shall

not be considered discrimination if it is grounded in the qualifications

required for certain professions.

 

 

 

 In

connection therewith, it must be emphasized that in stabilized

democratic systems where it is a matter of persons competing for

employment in service of the state, in public service and at workplaces

which are considered to be a risk with regard to the security and

stability of the state, are considered to be at risk, one part of the

necessary requirements consists in the fulfillment of certain criteria

of a civic nature from which it can be judged whether their views are in

conflict with the interests of the state, as well as their loyalty to

it and to the democratic principles upon which the state is built. The

insufficiency of such prerequisites and the appropriate restrictions

arising therefrom may also relate to formally defined categories

(groups) of persons without, however, these persons being distinguished

on the basis of an individual evaluation.

 

 

 

 Thus,

even in light of the state's above-indicated convention and treaty

commitments, the state cannot be denied the right to set down precisely

defined requirements for persons employed in selected categories at

worksites, in positions, or in activities that are significant for the

protection of the democratic constitutional system, the security of the

state, its economic and political interests, or the protection of state

secrets, or for those persons who lack the level of loyalty toward the

state which is required, or who might, in the positions they are

performing, have a considerable impact on public affairs.

 

 

 

 In

addition, the statutorily prescribed measures are in conformity with

Article 4 of Convention No. 111, according to which it is not considered

discriminatory to take measures against persons who are justifiably

suspected of activities which are damaging to state security if, in

opposition to specific measures, those persons are given the opportunity

to make use of legal protections before a body established in

conformity with domestic practice.

 

 

 

 The

Court has determined that the statute at issue respects the general

requirement that the citizen have the right to seek protection before an

independent court, as provided for by Article 36 of the Charter,

Article 6 of the Convention on the Protection of Human Rights and

Fundamental Freedoms, and Article 14 para. 1, the first two sentences,

of the International Covenant on Civil and Political Rights. Citizens

can assert a claim before the appropriate independent court that the

termination of their employment or service relations was invalid. In

order to put emphasis on high-quality decision-making in such

proceedings, the contested statute provides (§ 18 para. 2) that the

regional court in the place where the citizen has his residence shall be

the court of first instance in such matters. In contrast to the general

jurisdiction of courts in employment matters, the citizen is thus

accorded increased judicial protection.

 

 

 

 Finally,

the judicial protection of citizens' rights in these matters is also

sufficiently guaranteed by civil law enactments (§§ 11 to 16 on the

protection of personhood).

 

 

 

 Thus,

in principle it is permissible on the basis of constitutional law norms

to prescribe certain further prerequisites for holding those offices or

engaging in those activities covered by Act No. 451/1991 Coll., and it

is in conformity with international legal commitments. Other European

states also took measures of a similar type after the collapse of the

totalitarian regime's monopoly power, and they considered them to be a

legitimate means, the purpose of which is not to threaten the democratic

nature of the constitutional system, the value system of a

constitutional and law-based state, nor the basic rights and freedoms of

citizens, rather the protection and strengthening of just those things.

 

 

 

 However,

the system of such measures in post-totalitarian European states

varies. These measures relate to the full gamut of sectors of state

activity without regard to the office held (the army, the police, or the

justice system) and are formulated unconditionally, or relate to the

severance of employment or service relations with the exception or

specific assessment (the absence of personal characteristics necessary

for holding the office, the lack of a need to employ the person in

question due to reasons of the organization, etc.).

 

 

 

 The

general objection that the contested statute violates the principle of

equality of fundamental rights and basic freedoms in the sense meant by

Article 3 para. 1 of the Charter must be judged in relation to the

purpose and the content of the statute. From the constitutional law

perspective, conditions prescribed by the state for holding certain

offices and for engaging in certain activities is permissible in

principle and, considering the current system of values and the nature

of the present constitutional system, is also necessary.

 

 

 

 To

the extent that § 2 para. 3 of the statute 7) (the exception for the

CSFR Ministry of Defense), § 3 para. 2 8) (the exception for the

Interior Ministry), and § 13 para. 3 9) (the exception for persons

rehabilitated under Act No. 119/1991 Coll.) violate this general

principle of equality, the statute has already breached the

constitutional confines; therefore, the Court has granted the petition

of the group of Deputies and in its judgment has declared those

provisions' to be inconsistent with Article 1 of the Charter.10)

 

 

 

 The

Court further inquired into the petitioners' objection concerning the

asserted impermissible retroactivity of the contested statute. The

objection in essence consists in the assertion that a statute may be

applied with retroactive effect to situations and to legal relations

arising before its issuance only in the case that an earlier acquired

right is not infringed as a consequence.

 

 

 

 However,

the principle of retroactivity is not applicable to the contested

statute at all. The statute does not declare the holding of certain

offices in the past to be either an unlawful or legally actionable fact

or the material elements of a criminal act, and it does not attach any

legal consequences whatsoever to it retroactively. As was already

earlier construed, it merely sets certain additional preconditions for

holding in the future certain prominent positions.

 

 

 

 Similarly,

it is necessary to reject the objection contained in the petition that

the statute under consideration is really a general prosecution simply

for being formally affiliated with a particular group, above all where,

in harmony with the policy of the totalitarian regime, it concerned

affiliation with the power apparatus and its instruments of repression.

 

 

 

 The

Court also dealt with the issue of citizens' equality in relation to

the defined categories of occupations. In the end, it came to the

conclusion that it is not possible to guarantee the absolute equality of

the category of persons affected, nor is it even necessary. The

contested statute is an unmistakable effort to define categories that

pose a risk, the danger of which for the democratic development of

society can in essence be evaluated in the same way which for similar

reasons is true also for the period during which these persons were

inscribed in the registry files or continues in other activities.

 

 

 

 For

each objection of this type, contemplations on the asserted

unreasonable breadth of the group of persons to whom the statute applies

was taken into consideration. Even though considerations of quantity

are not decisive for such legal judgments, the Court considered it

appropriate to take such quantifications into account.

 

 

 

 The

Report of the Director-General of the Governing Body of the

International Labour Office GB 252/16/19, which in Geneva on June 2-6,

1992 considered the complaint lodged by the Trade Union Association of

Bohemia, Moravia, and Slovakia and by the Czech and Slovak Confederation

of Trade Unions alleging non-observance of the Discrimination

(Employment and Occupation) Convention, 1958 (No. 111), relied in its

introduction upon the declaration made by the former Chairman of the

Federal Assembly, Alexander Dubček, namely, that it is a discriminatory

statute which deprives approximately one million Czechoslovak citizens

of their basic human and trade-union rights (Point II-12 of the Report).

 

 

 

 As

a result of its inquiry directed to the bodies which keep records of

employees and employment (the Federal Ministry of Labor and Social

Affairs, the Federal Statistical Office) and of bodies which keep

records of the issuance of certificates and their results (the Federal

Interior Ministry), the Court has found out that the 1st Division of the

Federal Interior Ministry, which is responsible for issuing

certificates, had issued 168,928 certificates as of 7 September 1992,

both at the request of individuals and of organizations (political

parties, for example) not all of which were connected with Act No.

451/1991 Coll. Of the total number of certificates issued, there were

153,504 negative certificates and 15,424 positive certificates. The

positive certificates include 4061 persons filed under § 2 para. 1,

letter c) of the Act 1) so that, not including them, the total number of

positive certificates concern a total of 11,363 persons.

 

 

 

 According

to the records of the Federal Statistical Office, as of the date of the

inquiry there was in the CSFR a total of 7,123,000 employed persons

recorded in the files. Thus, only 0.15% of the total number of employed

persons received positive certificates (not taking into account those

filed under § 2 para. 1, letter c) 1)).

 

 

 

 Thus,

it is evident that the group of persons affected by the statute under

consideration is substantially smaller than has been asserted, and in

reality only an insubstantial number of the total number of employed

persons are affected. Finally, objections were also raised to the fact

that the information contained in entries kept by bodies of the former

Ministry of the Interior or its predecessor was treated as conclusive

evidence. This objection does not pass muster either, primarily for the

following reasons:

 

 

 

 The

cooperation with the State Security Services by clandestine

collaborators listed in § 2 para. 1, letter b) of the Act 1) was in all

respects regulated in detail. Clandestine collaborators were fully

acquainted with their assignments and their position, and the

cooperation with them was formally corroborated by the so-called binding

act; clandestine collaborators signed either a prepared commitment to

collaborate or they drafted it themselves in free form. If the

clandestine collaborators' signature on the act would put "good

relations" with counterintelligence at risk, an oral consent was

sufficient. Recruited clandestine collaborators chose their code name

themselves, and if they did not do so, a name was designated for them by

a counterintelligence employee.

 

 

 

 Clandestine

collaborators did not have to submit written reports, and even if they

did so, they were not required to sign them. Oral reports which were not

tape-recorded were written up afterwards by employees of

counterintelligence.

 

 

 

 Some

clandestine collaborators whose names have been made public have

asserted that they only formally committed themselves to collaborate,

but then nothing ever came of it. This is contradicted by what we know

about the system of record-keeping and supervision, which for the

management of the network of agents was unambiguously set down, and

these facts are corroborated by witness testimony.

 

 

 

 Counterintelligence

agents entrusted with the direction of clandestine collaborators were,

in addition, obligated to regularly and systematically supervise their

activities and the results of their work, the manner in which they

conducted themselves while on duty and in their private lives (Art. 78

of directive A-oper-I-3 from 25 January 1978). The purpose of such

supervision was to obtain the best possible guarantee that the

clandestine collaborators would perform their assignment scrupulously,

that they would turn over correct information, that they would not

double-cross counterintelligence people, that they would not betray

them, and that they would perform their assignment in the manner in

which it was set for them. Then, once a year he put together a written

evaluation of the supervisory measures and the results thereof. The

superior head of the counterintelligence agents would also take part in

this supervision. The results of this supervision, of meetings with the

clandestine collaborators in particular, were formulated into an entry

with the appropriate conclusion, and the entry itself was placed in the

collaborator's file (Art. 87 of the above-cited directive).

 

 

 

 At

least once a year a comprehensive evaluation of the clandestine

collaborators was carried out and additional specific goals of their

activities were laid down. The responsible chief would approve this

comprehensive evaluation (arts. 82 to 85 of the above-cited directive).

 

 

 

 All

of the ascertained facts lead to the unequivocal conclusion that the

methods described and the means of proceeding during the use and

management of the network of agents in no way differed from the period

when the Czechoslovak Communist Party took over power in 1948; with the

passage of time these methods were merely made more precise and

supplemented by new knowledge gained through relations with the network

of agents.

 

 

 

 The

witnesses were questioned with regard to the circumstances connected

with the commitment to collaborate (verbovka) and the clandestine

collaborators relationship with the managing bodies of the State

Security Services. Their testimony was in agreement and confirms that

the directive for instituting binding acts with clandestine

collaborators was carefully observed and that contact was made with them

regularly, at least once every three months. A form was also created

for this purpose and, while the chief supervised, the time and place of

the meeting was recorded therein. If the meeting did not go as expected,

the chief always made a proposal to discontinue the collaboration or to

place the file into the archive (Jan Roller, page 2 of his testimony).

 

 

 

 The

possibility of separately proving collaboration by individual

clandestine collaborators and the extent of their collaboration was in

essence deliberately thwarted by the orders and procedures of the

directors of the State Security Services' bodies, that is, by the

intentional discarding of almost 90% of the files. The network of agents

formed an inseparable part of the State Security Services' activities

and was a "principle device in fulfilling operational tasks. For this

reason, the most important part of the activities of the operational

agents of State Security is their work with secret collaborators" (a

strictly classified directive of special importance of the Interior

Ministry for the operational work of agents of the State Security for

1962).

 

 

 

 For

this reason, the totalitarian regime's security services tried to keep

the evidence concerning activities of the clandestine collaborators

secret even for the future.

 

 

 

 There

was a further objection in the petition (complaint) to the effect that,

in adopting the contested statute, the Federal Assembly exceeded its

powers (Article 37 para. 2 of Constitutional Act No. 143/1968 Coll., on

the Czechoslovak Federation, issued in its complete version as amended

under No. 103/1991 Coll.) and that, in this way, it effected an indirect

amendment to the Act on University-Level Schools or ÈSAV or SAV, which,

however, it is not permitted to do under the Constitutional Act on the

Czechoslovak Federation (Article 37 of the cited Act).

 

 

 

 The

Court cannot concur with this objection either because the statutory

regulation of employment relations and measures to ensure international

treaty commitments in this field comes under federal jurisdiction

(Article 22, letter a) of the cited Act).

 

 

 

 Finally,

the petitioners attack the portion of the contested statute relating to

carrying on a licensed trade (§ 1 para. 5) due to the fact that the

requirement of reliability demanded for it (§ 1 para. 1 of the cited

Act) is traditionally linked to the concept of "political

unreliability", as that is found in the decrees of the President of the

Republic (137/1945 Coll. and 138/1945 Coll.), and that the statute under

consideration sets stricter conditions for licensed trades than is

appropriate owing to the nature of the trade.

 

 

 

 Not even in this respect does the Court find this objection to be well-founded.

 

 

 

 As

our legal order currently stands, the concept of reliability is

contained not only in the presidential decrees to which the petitioners'

make reference, but also in Act No. 34/1946 (§ 2 paras. 1 and 2) where

this concept is also more or less defined.

 

 

 

 The

ratio legis (legal rational) for these legal provisions consists in the

effort, during a period of far-reaching societal changes, to prevent

those who in the preceding (war-time) period compromised themselves in

the manner defined in the act by collaborating with those who adversely

affected the democratic-republican state form, the security and defense

of the state, or who instigated or induced others to commit such acts (§

2 para. 2 of the cited Act).

 

 

 

 The

petitioners' reference, to the extent that it is aimed at the

earlier-cited Presidential decrees, is not well founded if only because

those decrees are of a criminal law nature. Keeping that in mind, these

issues cannot be resolved otherwise than by the consideration that both

cases involve measures that are necessary: in part for the stabilization

of society, and in part - as is the case in the matter under

consideration - because normal measures for the introduction of a legal

order in a restored democracy, thus measures which are necessary in a

democratic society, among other reasons, for the security of the state

or for the protection of safety or of the public order (compare, for

example, Articles 12 para. 3, 14 para. 3, 16 para. 4, 19 para. 2, 20

para. 3, and 27 para. 3 of the Charter).

 

 

 

 In

contrast to this, the Court has determined that the petition

(complaint) is well founded to the extent it raises objections to the

inclusion of the group of persons stated in § 2 para. 1, letter c) of

the Act1); it is the Court's conviction that it can concur with the

petitioners' objections in so far as files may have been kept on persons

designated in the statute as collaborators (§ 2 para. 1, letter c) 1)

without some written commitment and without their knowledge.

 

 

 

 The

results of evidence-taking in the proceeding before the Court yielded a

sufficient basis for the conclusion that the files of persons who fall

into this category (confidential affiliate, candidates for clandestine

collaboration, or clandestine collaborators in confidential contact) was

based on the personal relations with the selected candidates; this

relationship was supposed to serve "personal acquaintance, in order to

verify and deepen knowledge gained by administrative screening and by

counterintelligence methods, further, for the purposes of ascertaining

the relations of the candidate to the State Security Services and his

willingness to provide information", while such personal relations

should be put into effect so that "the conspiracy of the future covert

collaborator would not be impaired in advance and so that the forms and

methods of his counterintelligence work would not be uncovered nor the

actual grounds of the relationship." (Directive No. A-oper-I-3 Article

26 and following)

 

 

 

 Finally,

the above-cited directive testifies to the fact that in the case of

these persons, it is not possible to judge reliably and without any sort

of doubt concerning their conscious collaboration with agents of the

State Security Services; thus, precisely for this reason, all that

remains is to grant the petitioners' petition and to hold that this

provision of the statute is not in conformity with Article 4 para. 3 of

the Charter.6)

 

 

 

 That

the above-mentioned objection is well founded is also evidenced by the

fact that, while certificates issued to persons upon whom files were

kept under § 2 para. 1, letters a) and b) 1) have an unambiguous

character showing either knowing solidarity with the tools of repression

of the totalitarian regime (and records connected therewith), or that

no such records exist, the certificate about files (§ 2 para. 1, letter

c) 1)) is of a merely contingent character. That is to say, they do not

evidence conscious collaboration, rather they are only an expression of

the intention of the StB bodies to gain the person caught in this way

for conscious collaboration in the future. It follows unambiguously from

the witnesses testimony that entries for this category of the contested

statute were made not only without the knowledge of the persons written

in, but sometimes even with the intention on the part of the StB agent

to feign his work zeal and activity (carkovaci kod).

 

 

 

 In

connection therewith, it was necessary to consider the status of the

citizens who come within the category under consideration (§ 2 para. 1,

letter c) 1)) and the nature of the independent commission within the

Federal Interior Ministry which should verify the finding whether that

citizen was a conscious collaborator of the StB or not, whether he knew

that he was in contact with StB agents and regularly gave them reports

by means of clandestine relations or performed tasks assigned by

them. Only when the decision is issued by the independent commission of

the Federal Interior Ministry is there decisive evidence for citizens,

and the consequences following from the act at issue. The unequal

position of persons having such files as compared with other categories

of persons, especially those coming under § 2 para. 1, letters a) and b)

1) follows not only from such a distinction as is made in the

proceedings before this commission, but from other facts as well.

 

 

 

 The

outcome of the proceeding before the Higher Court Martial in Tabor

against the defendant A. Lorenc and others (T 8/91) even increased the

level of doubt with respect to whether it is possible for the commission

to come to unambiguous conclusions at all. It was ascertained in that

proceeding that the disposal of compromising material filed in the

Interior Ministry archives was carried out by order of the defendant, A.

Lorenc (case no. NZ-00671/89 from December, 1989). Between December of

1989 and January of 1990, of the 3913 files of candidates for

clandestine cooperation, a total of 2643 files were discarded, of the

13,346 files of confidential affiliates, 9176 (p. 253 of the criminal

file).

 

 

 

 So

the consequence of the above-indicated facts is that the necessary

evidence-taking regarding conscious collaboration, quite often in

conjunction with considerable time intervals between file entries, the

death of witnesses, etc., results not only in the independent

commission’s failure to meet the prescribed deadline for issuing its

findings (§ 13 para. 2), but also in the impossibility of deciding

objectively on some particular cases.

 

 

 

 In

this connection, it is necessary to take into consideration as well the

Court's findings that, according to the testimony of witness, so far

citizens have submitted a finding that they were incorrectly categorized

as StB collaborators. A mere 300 (11%) of these petitions have been

resolved so far, and of these the commission came to the conclusion that

it was conscious collaboration only in 13 cases.

 

 

 

 Such

a situation even raises doubts about the factual basis for these

matters and evokes uncertainty in legal relations (both employment and

civil).

 

 

 

 It

is not advisable to tolerate such a state of affairs, among other

reasons, also due to the unfavorable consequences that follow from it

for these citizens (they are not able to compete for the positions

listed in § 1 of the Act, they are unable to successfully take part in a

competition for such a position, etc.) for it is no longer possible to

actually eliminate such consequences of a commission finding verifying

that there was no conscious collaboration.

 

 

 

 Taking

into consideration all of these circumstances and findings, the Court

has, thus, come to the conclusion that § 2 para. 1, letter c)1) of the

statute under judgment and further provisions connected therewith

(provisions on the Federal Interior Ministry Independent Commission and

proceedings before it) are not in conformity with the Charter of

Fundamental Rights and Basic Freedoms with regard to the provisions and

to the extent which is made apparent from the judgment rendered herein.

 

 

 

 Finally,

even the nature of the independent commission (§ 11 of the Act11) under

consideration) does not correspond to legal guarantees. The membership

of the commission (apart from representatives of the legislative bodies,

there were members named by the Interior Ministry, the Defense Ministry

and the FBIS Director [FBIS means Federal Security Information Service]

testifies to the fact, that it is first of all a state administrative

authority, when its activities are secured by the Federal Interior

Ministry as a central state administrative authority for the area of

domestic order and security. The delegates appointed to the commission

by the Interior and Defense Ministries are bound by the oath which is

taken by police (§ 4 para. 6 of Act No. 334/1991 Coll.) and army (§ 2

para. 2 of Act No. 74/1990 Coll.) personnel. There is no doubt about the

fact that they are bound by such an oath even while they are delegates

to an independent commission. In addition to this, there is the further

fact that the Act being adjudicated does not require any special oath,

neither for these members nor for other delegates, even though such an

oath would appear to be necessary (§ 37 of Act No. 335/1991 Coll.).

 

 

 

 Thus,

this commission was not established in conformity with the Constitution

(Article 98 para. 1 of the CSFR Constitution No. 100/1960 Coll., as

amended by Constitutional Act No. 326/1991 Coll.18)).

 

 

 

 Finally,

it was necessary to concur with one of the petitioners' further

objections, namely, that for an independent commission and proceedings

before it, provisions of the Criminal Procedure Code may not be applied

nor may possible criminal sanctions be attached to it. The act at issue

(§ 20) 15) substantially formulates the material elements for the

offense of giving false testimony (perjury); nonetheless, this statute

does not designate these factual elements as a criminal offense, and it

does not contain any reference to the Criminal Code (for example, § 175

of the Criminal Code). Since the Charter requires (Article 39) that only

a statute may prescribe what sort of conduct shall be a criminal act

and what punishment can be imposed therefore, the Court has come to the

conclusion that in this respect as well the statute under consideration

is not in conformity with the Constitutional Act.

 

 

 

 In

view of the Court's last mentioned conclusions which affect § 2 para.

1, letter c)1) on the merits, the Federal Interior Ministry Independent

Commission has lost its raison d'etre.

 

 

 

 The

Court finds the petitioners' objections equally justified to the extent

that they are directed against the fact that the Defense Minister and

the Interior Minister of the CSFR may in justified cases waive the

condition set down by para. 1, letter a) (§ 2 para. 3 7), § 3 para. 2 8)

of the Act), to the extent that it would interfere with the state's

vital security interests and would not undermine the purpose of this

statute.

 

 

 

 Exceptions

from these statutory provisions creates blatant inequality between the

personnel of the two departments (defense and interior) and other

persons who are affected by the statute under consideration. Such

inequality is not in conformity with the Charter (Article 1 10)), and

therefore nothing remains but to hold that the claim of non-conformity

of this part (of the statute) is justified.

 

 

 

 For

analogous reasons, the Court also concedes a further objection,

directed against § 13 para. 3 13) by which persons who, while they were

in the position of the persons listed in § 2 para. 1, letters d) through

h), they were later convicted for acts set down in § 2 of Act No.

119/1990 Coll., on Judicial Rehabilitation and were rehabilitated out of

compassion, should be regarded as persons who meet the conditions

stated in § 1 of the Act. This provision, then disadvantages persons who

were rehabilitated out of compassion under Act No. 119/1990 Coll. in

relation to persons adversely affected in their employment relations and

administrative relations and were rehabilitated out of compassion under

Act No. 87/1991 Coll. on Extra-judicial Rehabilitation or under other

enactments.

 

 

 

 The

Court also considers justified the objection that § 4 para. 4 of the

Act at issue4) does not comport with the principle of equality (Article 4

para. 3 of the Charter) 6). For in this case, citizens are required

(under § 4 para. 4 of the cited Act 4)), prior to taking up those

offices listed in § 1, to submit a declaration that they were not and

are not working for a foreign counterintelligence agency or foreign

reconnaissance services. In contrast to the category of citizens listed

in § 2 para. 1, letter d) through h) of the Act,1) who are with regard

to possible membership in the named organization are obliged to submit a

true and correct declaration of these facts (§ 4 para. 3 of the cited

Act), a mere declaration is all that is required of those working for

foreign intelligence services. Since such a declaration does not have

the character of a legal act (§ 39 of the Administrative Procedure

Code), the person is subject to no sanction if the declaration is

untrue. Due to the lack of a statutory definition, no employment law or

other restrictions (§ 2 of the contested statute) are tied to the fact

that a person was or is working for a foreign counterintelligence or

reconnaissance service. Thus, this provision is of a declarative

character, and it places that category of persons into a position of

inequality in relation to other groups affected by the

restrictions. Therefore, it was necessary to grant this part of the

petition (complaint) as well.

 

 

 

 On

the day this decision is published in the Collection of Laws, the

following provisions shall lose force and effect: § 2 paras. 2, 2) § 3

para. 2 8), § 4 paras. 2 3) and 4 4), §§ 11 11), 12 12), 13 13), § 18

para. 1 14) and § 20 15) of Act No. 451/1991 Coll., which Sets Down

Several Additional Conditions for the Performance of Certain Offices in

Governmental Bodies and Organizations of the Czech and Slovak Federal

Republic, the Czech Republic and the Slovak Republic.

 

 

 

 If

the Federal Assembly fails to bring these provisions into conformity

with the Charter of Fundamental Rights and Basic Freedoms, with the

International Convention on Economic, Social and Cultural Rights and

with the CSFR Constitution, these provisions of Act No. 451/1991 Coll.

shall cease to be valid six months from the day this decision is

published.