2001/12/05 - Pl. ÚS 9/01: Lustration II

05 December 2001

HEADNOTES

The

“Constitutional Court of the CSFR” cannot be considered to be the

"Constitutional Court" under § 35 par. 1. Constitutional Act no.

542/1992 Coll. A systematic interpretation of § 35 para. 1 leads to the

conclusion that this provision has in mind only the Constitutional Court

of the CR, as it is a component of that part of the Constitution of the

CR, which establishes the Constitutional Court of the CR. Significant

changes in society occurred during the course of more than eight years

since the judgment of the Constitutional Court of the CSFR was issued,

and the Constitutional Court in no way casts doubt on these changes.

Therefore, the judgment by the Constitutional Court of the CSFR of 26

November 1992 does not establish the obstacle of res judicata under § 35

par. 1 Act no. 182/1993 Coll.

Thus, even though the judgments

of the Constitutional Court of the CSFR do not create for the

Constitutional Court of the CR the formal obstacle of an already decided

matter under § 35 par. 1 of Act no. 182/1993 Coll., they represent for

it a real authority, based on the fact that the Constitutional Court of

the CSFR was the “judicial body for protection of constitutionality”

with jurisdiction in the Czech Republic, which it now is itself. The

postulate of continuity of the protection provided, which is

characteristic for the decision making of a judicial body which steps

into the place of a body which has ceased to exist or been annulled, has

two aspects. On one hand it permits the new court to diverge from the

legal opinion of the preceding court if there has been a change in the

circumstances under which that previous court made its decision, and on

the other hand it requires it not to cast doubt on the decisions of the

previous court if no such change in circumstances has occurred.

Determination of the degree of development of democracy in a particular

state is a social and political question, not a constitutional law

question. Thus, the Constitutional Court is not able to review the claim

of “culmination” or, on the contrary “non-culmination” of the

democratic process by the means which it has at its disposal.

However, it can, in some agreement with the petitioners, confirm that

the public interest resting in the state’s needs during the period of

transition from totalitarianism to democracy have declined in intensity

and urgency since 1992.

A democratic state, and not only in a

transitional period after the fall of totalitarianism, can tie an

individual’s entry into state administration and public services, and

continuing in them, to meeting certain prerequisites, in particular

meeting the requirement of (political) loyalty. The Constitutional Court

begins with the premise that the concept of “loyalty” must be

interpreted – like other key concepts, e.g. impartiality and

independence of courts – by two complementary methods. The concept of

loyalty covers the level of loyalty of each individual active in public

services, and the level of loyalty of the public services as a whole.

Here it is not only relevant whether the public services are actually

loyal, but also whether they appear loyal to the public. For that it is

necessary that doubts about their loyalty not arise. Such doubts

undermine the public’s trust in the public services and also in the

democratic state which these services represent. Untrustworthy public

services and state administration as a result endanger democracy, and a

democratic state is entitled to defend itself against such danger by

ensuring that the public services cannot appear untrustworthy to the

public by eliminating reasons for doubts.

The Constitutional

Court is aware that an individual’s attitudes to the democratic

establishment are determined primarily by his actual actions. The longer

the period which has passed from the collapse of the totalitarian

regime, the more and the more thoroughly will an individual’s attitude

to the democratic state be verified by his daily interaction with it and

with the democratic society. In other words, with the passing of time

the relative significance of attitudes and the position of persons in

the totalitarian state certainly does not disappear, but certainly does

decrease. There is evidently consensus in Europe in this regard.

The large and small lustration laws still protect an existing public

interest, or – in other words – they pursue a legitimate aim, which is

the active protection of a democratic state from the dangers which could

be brought to it by insufficiently loyal and little trustworthy public

services.

The Constitutional Court of the CR, in agreement with

its Czechoslovak predecessor, considers the closer connection of persons

with the totalitarian regime and its repressive components to still be a

relevant circumstance which can cast doubt on political loyalty and

damage the trustworthiness of the public services of a democratic state

and also threaten such a state and its establishment. At the present

time other newly democratic European states view this aspect of the past

of their public representatives and bureaucrats analogously.

Thus, both lustration laws, in a limited extent and by setting specific

prerequisites for working in state services supplement the absence of a

key law required by the Constitution, and their existence is therefore,

in the given situation in the Czech democratic society, still necessary.

However, the Constitutional Court does not consider this present

situation to be optimal. The legislator should speedily regulate the

prerequisites for access to public office in the full extent and

establish in a generally applicable law the personal prerequisites

directly in relation to a democratic society, not only through an

intermediary and negatively – with reference to the past excessive

loyalty to a totalitarian state and its repressive components.

 



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court of the Czech Republic, after oral

proceedings on 5 December 2001, decided in the matter of a petition by a

group of 44 deputies to annul Act no. 451/1991 Coll., CNR Act no.

279/1992 Coll., Act no. 422/2000 Coll. and Act no. 424/2000 Coll., as

follows:

The provisions of § 3 par. 1 letter d), § 3

par. 3, § 3 par. 4 and § 5 par. 2 of CNR Act no. 279/1992 Coll., on

certain additional prerequisites for holding of certain offices filled

by designation or appointment of members of the Police of the Czech

Republic and members of the Corrections Corps (Sbor nápravné výchovy) of

the Czech Republic, as amended by later regulations, are annulled as of

the day this judgment is promulgated in the Collection of Laws.

The remainder of the petition is denied.

 


REASONING

I.
 

On

2 March 2001 the Constitutional Court received a petition from a group

of 44 deputies in which the petitioners seek the annulment of:
* Act

no. 451/1991 Coll., which sets down certain 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, as amended by later regulations (also the “large lustration

law”),
* Act no. 279/1992 Coll., on certain other prerequisites for

the exercise of certain offices filled by designation or appointment of

members of the Police of the Czech Republic and members of the

Corrections Corps of the Czech Republic, as amended by later regulations

(also the “small lustration law”),
* Act no. 422/2000 Coll., which amends the large lustration law,
 * Act no. 424/2000 Coll., which amends the small lustration law.

The petitioners intention is aimed, for reasons discussed further

below, at removing the cited laws in future from the legal order of the

Czech Republic due to their conflict, in particular with the provisions

of Art. 1 of the Constitution of the Czech Republic no. 1/1993 Coll., as

amended by later regulations (the “Constitution”),1) Art. 1,2) Art. 4

par. 2 and 43) and Art. 21 par. 44) of the Charter of Fundamental Rights

and Freedoms, no. 2/1993 Coll., as amended by later regulations (the

“Charter”), Art. 4 of the International Convention on Economic, Social

and Cultural Rights, no. 120/1976 Coll.,5) and with the World Trade

Organization Discrimination (Employment and Occupation) Convention, no.

111 from 1958 (no. 465/1990 Coll. – “Convention no. 111”).
 

The

Constitutional Court of the CSFR reviewed the constitutionality of the

large lustration law in 1992 upon a petition from 99 deputies of the

Federal Assembly. By judgment of 26 November 1992, file no. Pl. ÚS 1/92,

it found that § 2 par. 1 letter c), § 2 par. 2 and § 4 par. 2, 4 of the

contested Act are not in accordance with Art. 2 par. 3 and Art. 4 par. 1

and 3 of the Charter and Art. 4 of the Convention; § 2 par. 3, § 3 par.

2 and § 13 par. 3 of the contested Act are not in accordance with Art. 1

of the Charter, and § 11, § 12, § 13 par. 1, 2, 4 and 5, § 18 par. 1

and § 20 of the contested Act are not in accordance with Art. 37 par. 1

and Art. 38 of the Charter and with Art. 98 par. 1 of the Constitution

of the CSFR, no. 100/1960 Coll., as amended by Constitutional Act no.

326/1991 Coll.6) The cited provisions became ineffective on 15 December

1992.
 

In evaluating the

constitutionality of Act no. 451/1991 Coll., as the petition states, the

Constitutional Court of the CSFR began with the situation at the time

the Act was passed (4 October 1991), or at the time roughly one year

later. This Act primarily pursued the aim of arranging that in state and

public bodies and in workplaces which are connected to national

security, persons who held leading offices under the previous regime

could be replaced by persons from whom loyalty could be expected to

democratic principles on which the state is built. It was also to help

avert the risk of subversion or a possible return of totalitarianism or

at least to limit it. The Constitutional Court of the CSSFR also

emphasized its view by references to the limited time during which the

lustration laws was to be in effect. In its judgment it stated: “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). 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.”
 

In

January 1999 the Chamber of Deputies of the Parliament of the Czech

Republic rejected a bill proposed by deputies which was to annul the

large lustration law (PS 1998, 3rd election period, publication no. 74).

The background report to the bill stated, among other things, the

position of the Administrative Council of the International Labour

Office (file no. GB.252/16/19). It contained a call on the CSFR

government to implement necessary measures to annul or amend the (large)

lustration law and ensure compensation of damages to all persons who

had been unfairly affected by it. The background report also points out

that the lustration law is subject to constant criticism in the Council

of Europe, the European Parliament and European and world

non-governmental organizations, and therefore it is highly desirable to

annul this extraneous law. In evaluating the situation connected with

the performance of lustrations the investigation commission of the

International Labour Organization stated in 1994 that there had been

only a little progress in implementing the recommendation of the

Administrative Council of the ILO. It expressed “deep regret” that the

law had been extended to 2000 without regard to the position of the ILO

Administrative Council. The commission recommended that the ILO

Administrative Council, among other things, call on the Czech Republic

government to take measures which would lead to the annulment or

amendment of those provisions of Act no. 451/1991 Coll., which are

incompatible with Convention no. 111.
 

The

constitutionality of the small lustration law was not reviewed, so it

continues to be valid and in effect, even in those parts which

correspond to parts of the large lustration law which the Constitutional

Court of the CSFR declared to be unconstitutional. It too was to be

affected by the bill submitted in 1998 as chamber of deputies

publication no. 73, which was aimed at annulling it; the Chamber of

Deputies rejected this bill also.
 

The

group of deputies sees the substance of its petition in the time factor

of the social dynamic between November 1989 and 2000, in which one set

of democratic elections took place (to regional representative bodies),

and in the changes which took place during that time. In the

petitioners’ opinion, the legislative, executive and judicial powers

have been definitively constituted on democratic foundations, leading

positions in state and other public bodies and institutions have not,

for a long time, been held by persons who were put in place by the

previous political regime, whereby the reasons for both lustration laws,

insofar as they lay in the need to change the circle of persons holding

these positions, lost their justification during the course of that

time. Leading positions are mostly filled on the basis of a selection

process in which it is possible to consider the applicant’s loyalty to

the Czech Republic as a democratic state based on the rule of law, as

documented by the applicant’s actual behavior in the period after

November 1989; this applies even more so in matters of public law

service relationships in the armed forces and security forces, which are

decided in administrative proceedings. Only individuals who have been

issued a certificate can be acquainted with classified information of

all classified levels. One of the conditions for issuing the certificate

is the circumstance that the individual is reliable in terms of

security, i.e. that the individual was not found to have a security

risk, consisting, e.g. in activity aimed at suppressing human rights or

freedoms or in support of such activity (§ 17, § 18 and § 23 of Act no.

148/1998 Coll., on Protection of Classified Information and Amending

Certain Acts, as amended by later regulations (the “Protection of

Classified Information Act”).
 

The

petitioners believe that the risk of subversion or a possible return of

totalitarianism, the existence of which the Constitutional Court of the

CSSFR admitted in 1992 in connection with the holding of public office

by persons tied to the previous regime, is no longer a danger. The

intelligence services are required to secure information on possible

intentions and activities aimed against the democratic foundations of

the Czech Republic under Act no. 153/1994 Coll., on the Intelligence

Services of the Czech Republic, as amended by later regulations (the

“Intelligence Services Act”). Moreover, as the petitioners point out,

the Communist Party of Bohemia and Moravia functions legally in the

Czech Republic as a political party with not negligible voter support in

parliamentary and communal elections. The law permits the activities of

political parties which seek to remove the democratic foundations of

the state or which are aimed at seizing and holding power restricting

other parties and movements from seeking power by constitutional means

to be suspended by a court, or for such a party to be dissolved by court

decision. The Czech Republic, in which the “democratic process was

accomplished,” is at present struggling with serious risks of an entire

different kind, examples of which are economic crime, organized crime,

corruption and racial hatred.
 

Under

Art. 3 of the Constitution, the Charter is part of the constitutional

order of the Czech Republic. One can conclude from its status the

binding nature of the decisions of the Constitutional Court of the CSFR,

which were issued on the basis of the Charter. That court recognized

the substance of the regulation implemented by the large lustration law

as constitutional in view of the situation at the time in the state and

in society, i.e. the situation shortly after the fall of the previous

regime and the renewal of democracy, and also in view of the fact that

the restrictions implemented by the law were not to apply absolutely,

but only for a transitional period, i.e. until 31 December 1996. In this

context the Constitutional Court of the CSFR recognized in 1992 that

the interest of society and the state (the public estate) in having

persons in certain publicly important positions to be replaced and to

have measures implemented to avert the risk of subversion or a possible

return to totalitarianism takes precedence before the fundamental right

of citizens to have access under equal conditions to elected and other

public offices (Art. 21 par. 4 of the Charter) and before the right to

conduct one’s employment or profession without discrimination, under

Convention no. 111.

Because the

public interest (the public estate), the then existence of which the

federal Constitutional Court took as a starting point in 1992, has

passed, the reasons for restricting fundamental rights and freedoms

guaranteed by the Charter and international treaties under Art. 10 of

the Constitution have also passed.
 

The

large and small lustration laws, as well as amendments to them, no.

422/2000 Coll. and no. 424/2000 Coll., which extended the validity and

effectiveness to an indefinite period, restrict without due cause the

abovementioned fundamental rights, and are thus in conflict, in

particular with Art. 4 par. 2 and 43) of the Charter, as well as with

Art. 1 of the Constitution,1) under which the Czech Republic is a

democratic state governed by the rule of law. For all the foregoing

reasons, therefore, the group of deputies petitions the Constitutional

Court to make a judgment annulling all four of the cited laws.
 

 

II.
 

The

Constitutional Court, under § 69 par. 1 Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations (the “Act”),

requested from the Chamber of Deputies and the Senate of the Parliament

of the Czech Republic, as participants, their positions on the petition.
 

The Chairman of the Chamber of Deputies of the Parliament of the Czech

Republic stated concerning the petition, among other things: “…each

democratic state is entitled to pass, within the limits of its

constitutional order and international obligations, such regulations as

protect and promote the principles on which it is founded. Determination

of the period for which such regulations are passed is not merely a

legal issue, but in my oopinion primarily a political issue, connected

with the situation in our society. At the same time it is also necessary

to consider the fact that in a democratic state a right to any

positions of power does not exist and cannot exist, as it is up to the

state to decide the criteria by which it will fill them. It is undoubted

that such criteria must be set in advance and must apply equally to all

cases which meet the set conditions. On the other hand, the Chamber of

Deputies also took into account the fact that every citizen has the

right to turn to the courts with a petition to issue a decision whereby

his possible collaboration with the communist regime would be reviewed.

The purposes of the cited laws is at the present time to a certain

extent also fulfilled by other laws in effect; however, their full

replacement can be expected only in connection with passage of the Act

on State Service, which is to contain a provision that designated

positions in state administration can be held only by persons who have

not personally been at fault in violation of human rights and freedoms.

Based on the foregoing, I cannot but state my belief that the

legislative bodies passed the abovementioned laws in the belief that

they are in accordance with the constitutional order and relevant

international agreements.”
  The Chairman of the Senate of the

Parliament of the Czech Republic in his position on the second amendment

of both lustration laws(Acts no. 422/2000 Coll. and no. 424/2000 Coll.)

stated, among other things: “The Senate committees which were assigned

the draft amendments for review, recommended that the Senate approve

them … The Senate’s discussion was not limited to the content itself of

the minor amendments (extending the validity of the given laws), but to a

decisive degree took place as a dispute over the “lustration laws”

themselves … The arguments for rejecting the amendments were based in

particular on the fact that excluding citizens from the opportunity to

seek positions in state administration was being done by formal, group

characteristics, not by individual evaluation of persons according to

statutory criteria as to whether or not they are capable of observing

democratic principles … Critics of the amendments in question also

submitted that these laws clearly did not include all categories of

persons which they should include, but do include some which they

clearly should not include … the general doubt was also raised, whether

it is possible to find a solution which would not permit discrimination

and simultaneously ensure uncovering those who were responsible for

communist repression and could endanger the transition to democracy. The

arguments for approving the amendments … were based in particular on

the fact that each state has the right to set by statute personal

conditions for holding positions in state administration. One such

condition is … also loyalty to the method of government. The democratic

method then requires a guarantee of the certainty that its office

holders will, under all circumstances, heed the democratic rights of

citizens. This guarantee is provided … precisely by “lustrations”…

Anyone who consciously participated in suppressing the rights of

citizens is a potential danger to a democratic society, and thus does

not meet the prerequisites for important positions in state

administration … there is no legal right to hold a position in state

administration … the lustration laws … do not restrict anyone in

entering into a political office (deputies, senators, etc.) … the

lustration laws are not concerned with determining guilt and punishment.

In cases where the instrument of “lustration” is the records of those

who worked with the secret police, the person affected can turn to the

courts to deny the truthfulness of the entry in the records. Finally,

those who defended passing the amendments stated the opinion that, in

principle, it is a right and obligation of democracy to protect itself.

The criteria for the continuation of such defense is whether that which

should be natural in a society works by itself. If it is not so, the law

must continue to be used to delimit the necessary rules.”
 

The

Constitutional court also requested the position of the Ministry of the

Interior of the CR on the petition, and the same ministry’s position on

the court disputes for protection of personhood which were led against

the Czech Republic by persons who received a positive lustration

certificate, as well as on the result of proceedings in matters of

issuing incorrect negative lustration decisions.
 

The

Ministry of the Interior stated that, on the basis of the contested

laws, from 1991 until 5 September 2001 it issued a total of 366,980

lustration certificates, of which 3.45 % were positive. For that period,

the ministry’s records show a total of 692 petitions for protection of

personhood on the grounds of positive lustration certificates issued by

the ministry, in various stages of the proceedings. However, it does not

keep separate records of disputes where a final decision has been made

and the results of these disputes, for reasons which it described in

more detail in its position. On the basis of review of the correctness

of issued lustration decisions, the Ministry found 117 cases of

incorrectly issued decisions. All the persons concerned were issued new

certificates and they were simultaneously notified of their obligation

to present them to their employer if they held positions which were

subject to the lustration laws. The new decisions were not issued to

persons who are at present citizens of the Slovak Republic. Written

materials concerning these persons were delimited by the Ministry of the

Interior of the Slovak Republic on the basis of an international

agreement between the Czech Republic and the Slovak Republic.
 

 

III.
 

Under

§ 68 par. 2 of Act no. 182/1993 Coll., on the Constitutional Court, the

Constitutional Court, in its decision-making in proceedings to annul

statutes and other legal regulations, evaluates the content of these

regulations in terms of their compliance with constitutional acts and

international agreements under Art. 10 of the Constitution and

determines whether they were passed and issued within the limits of the

competence provided by the Constitution and in a constitutionally

prescribed manner. With legal regulations issued before the Constitution

of the Czech Republic no. 1/1993 Coll. went into effect the

Constitutional Court is entitled to review only their compliance with

the existing constitutional order, but not their constitutionality of

the procedure of their creation and observance of legislative

jurisdiction (see judgment file no. Pl. ÚS 9/99, published in the

Collection of Judgments and Resolutions, vol. 16, p. 13-14).
    

In the matter at hand the Constitutional Court therefore limited itself

to evaluation the constitutionality of the procedure of the creation of

amendments to both the lustration laws (Acts no. 422/2000 Coll. and

424/2000 Coll.) and did not evaluate the constitutionality of the

procedure of the creation of Acts no. 451/1991 Coll. and no. 279/1992

Coll.

The bill amending Act no. 451/1991 Coll., as amended by

later regulations, was validly passed and promulgated on 13 December

2000 in the Collection of Laws under no. 422/2000. The bill amending Act

no. 279/1992 Coll., as amended by later regulations, was validly passed

and promulgated on 13 December 2000 in the Collection of Laws under no.

424/2000.
 


IV.
 

The

Constitutional Court considers it necessary right at the beginning of

its evaluation to refer to its judgment of 15 August 2000 (Pl. ÚS

25/2000), in which it rejected a petition from a group of deputies of

the Chamber of Deputies of the Parliament of the CR to annul provisions

of the amending act. In it the Constitutional Court points out that an

amending act has no independent legal existence and becomes part of the

amended act. In the petition considered here, therefore, the

Constitutional Court can not state a separate opinion on amendments no.

422/2000 Coll. and no. 424/2000 Coll., but only on Acts no. 451/1991

Coll. and no. 279/1992 Coll., of which both amendments became part.

Therefore, it will further consider exclusively Acts no. 451/1991 Coll.

and no. 279/1992 Coll., both as amended by later regulations.
 


V.
 

The

Constitutional Court first had to address the fact that Act no.

451/1991 Coll. was evaluated in terms of its constitutionality by the

Constitutional Court of the CSFR.

A petition from 99 deputies of

the Federal Assembly of the CSFR requested, in the alternative, that

the Constitutional Court of the CSFR make a judgment that Act no.

451/1991 Coll. ceased to be in effect on 31 December 1991, or that this

Act – again as a whole – is not in accordance with various provisions of

the Charter of Fundamental Rights and Freedoms, other provisions of a

constitutional nature, and some provisions of several international

agreements on human rights and fundamental freedoms. The Constitutional

Court of the CSFR therefore, within the framework of its powers provided

in Art. 2 letter a) and b) of Constitutional Act no. 91/1991 Coll.

addressed Act no. 451/1991 Coll. as a whole (that is, all its

provisions). Not being bound by the grounds in the deputies’ petition,

it evaluated the Act in terms of all applicable constitutional law

provisions and international agreements on human rights and fundamental

freedoms, including those which the deputies’ petition did not

specifically set forth. It completed its proceedings with a judgment of

26 November 1992, in which it stated the conflict of some provisions of

Act no. 451/1991 Coll. with the Constitutions of the CSFR, the Charter,

and the International Covenant on Economic, Social and Cultural Rights.

These provisions ceased to be in effect on 15 December 1991 and the

Czech Republic took over the Act in this expurgated form.

The

current petition from the group of deputies request the issuance of a

judgment which would annul Act no. 451/1991 Coll. as a whole and also

annul Acts no. 279/1992 Coll., no. 422/2000 Coll. and no. 424/2000 Coll.

Of course, Act no. 451/1991 Coll. was already reviewed by the

Constitutional Court of the CSFR and the results of the review were

incorporated into its cited judgment.

As a result of this, the

Constitutional Court had to answer the question whether § 35 par. 1 of

Act no. 182/1993 Coll., on the Constitutional Court, which reads: “A

petition instituting a proceeding is inadmissible if it relates to a

matter upon which the Constitutional Court has already passed a

judgment, and in other instances cases provided for by this Act.” is

applicable in connection with that part of the deputies’ petition which

proposes annulment of Act no. 451/1991 Coll.

The Constitutional

Court had to interpret whether the “Constitutional Court of the CSFR”

can be considered to be the "Constitutional Court" under § 35 par. 1.

Constitutional Act no. 542/1992 Coll. (Art. 3 par. 1) terminated the

activity of all bodies of the CSFR ex constitutione. The jurisdiction of

the Constitutional Court of the CSFR was transferred under Art. 6 par. 2

of the same Constitutional Act to the Supreme Courts of the CR and SR,

unless the constitutional acts of both successor states provided

otherwise. The last cited provision became obsolete at the moment of

establishment of the Constitutional Court of the CR on the basis of Art.

83-89 of the Constitution of the CR. Neither the Constitution of the CR

nor any other constitutional act provides that the jurisdiction of the

Constitutional Court of the CSFR is transferred, in relation to the CR,

to the Constitutional Court of the CR. The constitutional law existence

of both constitutional courts is therefore mutually independent. There

is no formal constitutional law continuity between them.

Act no.

182/1993 Coll., on the Constitutional Court, is a regulation whose

passage is anticipated by Art. 88 par. 1 of the Constitution of the CR,

which reads: “An Act shall specify who shall be entitled to submit a

petition instituting a proceeding before the Constitutional court, and

under what conditions, and shall lay down other rules for proceeding

before the Constitutional Court.” A systematic interpretation leads to

the conclusion that this provision has in mind only the Constitutional

Court of the CR, as it is a component of that part of the Constitution

of the CR, which establishes the Constitutional Court of the CR. On the

contrary, the Constitutional Court of the CSFR was established by

Constitutional Act no. 91/1991 Coll. and the rules of procedure before

it were regulated by Act no. 491/1991 Coll.

Act no. 182/1993

Coll. thus functions in a system of judicial protection of

constitutionality established by the Constitution of the CR, i.e. in a

different system than was the analogous system established by

Constitutional Act no. 91/1991 Coll.

Although the Constitutional

Court of the Czech Republic is to consider, just as the Constitutional

Court of the CSFR did in 1992, Act no. 451/1991 Coll., in its opinion

this is not the identical matter. In this regard it points to its

opinion expressed in its judgment of 24 January 2001, by which it

annulled certain provisions of Act no. 247/1995 Coll., on Elections to

the Parliament of the Czech Republic (see no. 64/2001 Coll.). In it, it

reached the conclusion that, under certain circumstances, after the

passage of more than 4.5 years, the same thing can appear in a somewhat

different light, in particular if social changes have occurred during

that period of time. Such an occurrence does not in any way step out of

the bounds of constitutionality. The petition from a group of deputies

in the matter of the lustration laws which the Constitutional Court is

evaluating now, in 2001, points to significant changes in society, which

occurred during the course of more than eight years since the judgment

of the Constitutional Court of the CSFR was issued, and the

Constitutional Court in no way casts doubt on these changes. Therefore,

it considers its conclusion in the judgment in the matter of the

Election Act to be relevant in this case as well. In addition, the fact

that Constitutional Court is evaluating an amended, i.e. altered version

of Act no. 451/1991 Coll. plays its part here, as does the fact that

this Act is now also to be evaluated in the light of instruments which

were not valid at the time of the judgment by the Constitutional Court

of the CSFR. This is true primarily of the Constitution of the Czech

Republic, or for certain international agreements which became binding

on the CSFR, or the Czech Republic, only after the judgment was issued

in 1992.

In view of the foregoing, the Constitutional Court of

the CR reached the conclusion that the judgment by the Constitutional

Court of the CSFR of 26 November 1992 does not establish the obstacle of

res judicata under § 35 par. 1 Act no. 182/1993 Coll. The

Constitutional Court of the CR is thus formally entitled to evaluate the

submitted petition from the group of deputies in full.
 


VI.
 

The

Constitutional Court of the CR then summarized its relationship to the

case law of the Constitutional Court of the CSFR. In its judgment on the

question of the difference between restitution and expropriation of 24

May 1994, file no. Pl. ÚS 16/93 the Constitutional Court of the CR cites

from the decision of the Constitutional Court of the CSFR sentences

devoted to the principle of equality. It states about them: “Because

under Art. 3 of the Constitution of the Czech Republic the Charter of

Fundamental Rights and Freedoms is part of its constitutional order,

from the foregoing we can conclude the binding nature of decisions of

the Constitutional Court of the CSFR which were issued based on it.” The

petitioners also expressly rely on this conclusion of the

Constitutional Court of the CR.

The cited conclusion of the

Constitutional Court of the CR on the binding nature of decisions by the

Constitutional Court of the CSFR of course has only limited effect in

practice, in view of the fact that during abstract review of the

constitutionality of laws the Constitutional Court generally measures

the statutory text not only by the Charter or other constitutional acts

which form the constitutional order (Art. 112 par. 1 of the

Constitution), but also by international agreements on human rights and

fundamental freedoms, which, in contrast, are not part of the

constitutional order. In the past the Constitutional Court of the CSFR

also proceeded in this manner, including in the case of Act no. 451/1991

Coll. Application of the conclusion about the binding nature of

decisions of the Constitutional Court of the CSFR would thus lead to the

impractical and logically unsustainable conclusion that its judgment in

the matter of the lustration law of 1991 is partly binding and partly

not.

Moreover, the Constitutional Court of the CR, in its later

decisions, acceded to the decisions of its Czechoslovak predecessor less

formally. It considers itself as continuing its material concept of

constitutionality in the Czech Republic, though it is not formally its

legal successor. It formulated this in a number of its judgments, in

which it relies in agreement on the case law of the Constitutional Court

of the CSFR, without considering it necessary to repeat its deduction

on the binding nature of its decisions based on the Charter (see, e.g.,

judgments I. ÚS 68/93 of 21 April 1994, I. ÚS 108/93 of 30 November

1994, and Pl. ÚS 5/95 of 8 November 1995).

Judgment I. ÚS 56/95

is persuasive, which states: “For completeness the Constitutional Court

also took into consideration the complainant’s objection, which relies

on the judgment by the Constitutional Court of the CSFR of 21 December

1992. However, this reference is incorrect… Taking account of this, the

Constitutional Court of the CSFR also evaluated the instructional

obligations of the court under § 5 of the Civil Procedure Code.7) The

cited decision is thus unusable for resolving the adjudicated matter, as

its substance concerns a completely different problem.” It is evident

from this citation that the Constitutional Court of the CR treats the

judgments of the Constitutional Court of the CSFR de facto as its own

judgments, and does not seek formal grounds which would rule out the use

of such decisions or, on the contrary, permit them.

Thus, in

its practice the Constitutional Court of the CR promotes the idea of

continuity of protection of constitutionality in democratic

Czechoslovakia and in the democratic Czech Republic, which is its

successor state. It was not led to this only by a spontaneously arising

identity of opinion with individual cases of the Czechoslovak

Constitutional Court, but also by the imperative arising from Art. 1 of

the Constitution of the CR, under which the Czech Republic is a

“democratic state based on the rule of law.” The essential attributes of

the sovereignty of law in a democratic state include its

predictability, which is closely tied to the categories of continuity in

law and legal certainty. Constitutionality in democratic Czechoslovakia

and in the democratic Czech Republic was and is identically established

on values guaranteed by the Charter of Fundamental Rights and Freedoms

and international agreements on human rights and fundamental freedoms.

Therefore, there is no real reason for the concept of constitutionality

of the Constitutional Court of the CSFR and that of the Constitutional

Court of the CR to differ essentially and fundamentally.

Thus,

even though the judgments of the Constitutional Court of the CSFR do not

create for the Constitutional Court of the CR the formal obstacle of an

already decided matter under § 35 par. 1 of Act no. 182/1993 Coll.,

they represent for it a real authority, based on the fact that the

Constitutional Court of the CSFR was the “judicial body for protection

of constitutionality” with jurisdiction in the Czech Republic, which it

now is itself.

This occurrence, connecting a spontaneous

identity of concept with the imperatives of a state based on the rule of

law, or the sovereignty of law, can be seen in the case law of the

European Court for Human Rights (the “European Court”). The analogy with

the relationships between the Czechoslovak and Czech Constitutional

Courts is evident. The previous and present European Court are two

separate entities. The first was established by the Convention for the

Protection of Human Rights and Fundamental Freedoms of 1950 (the

“European Convention”), the second by the 11th protocol to it of 1994.

Proceedings before them differ. Both evaluate the compliance of the

behavior of states parties with the European Convention. The 11th

protocol does not contain any provisions on the binding nature of

decisions by the previous European Court for today’s European Court.
 

The

present European Court, which began its activity in 1998, did not

consider it necessary to consider the question of the binding nature of

decisions by the previous court. It simply resolved it, beginning with

its  first decision, by relying on the cases of its predecessor as if

they were its own decisions. In the judgment of 21 January 1999 in the

matter Geyseghem versus Belgium it confirms without any explanations

whatsoever, that in the adjudicated matter it will apply the principle

used in the cases Lala and Pelladoah versus The Netherlands of 1994, and

also relies on the case Poitrimol versus France of 1993.

The

postulate of continuity of the protection provided, which is

characteristic for the decision making of a judicial body which steps

into the place of a body which has ceased to exist or been annulled, has

two aspects. On one hand it permits the new court to diverge from the

legal opinion of the preceding court if there has been a change in the

circumstances under which that previous court made its decision, and on

the other hand it requires it not to cast doubt on the decisions of the

previous court if no such change in circumstances has occurred.
 


VII.
 

The

Constitutional Court then applied its deliberation on the degree of

reviewability of judgments of the Constitutional Court of the CSFR to

its judgment of 26 November 1992 and in light of it evaluated the

petition from the group of deputies. In it, the petitioners state:

“Therefore, the undersigned deputies can not but petition the

Constitutional Court to annul both Acts no. 422/2000 Coll. and no.

424/2000 Coll., and Act no. 451/1991 Coll. and no. 279/1992 Coll.

themselves, due to their conflict with the provisions of Art. 1 of the

Constitution,1) Art. 1,2) Art. 4 par. 2 and 43) and Art. 21 par. 44) of

the Charter of Fundamental Rights and Freedoms, Art. 4 of the

International Covenant on Economic, Social and Cultural Rights5) and

with the International Labour Organization’s Convention on

Discrimination (Employment and Profession) of 1958 (no. 111), which is

undoubtedly an international agreement under Art. 10 of the

Constitution.”

Act no. 451/1991 Coll. was amended twice after 26

November 1992: by Act no. 254/1995 Coll., which established its

validity until 31 December 2000, and by Act no. 422/2000 Coll., which

annulled the cited provision on the period of validity amended in 1995

and also removed from the jurisdiction of § 1 to § 3 of the lustration

law citizens born after 1 December 1971. The only provisions of Act no.

451/1991 Coll. whose constitutionality the Constitutional Court of the

CSFR did not evaluate in 1992 and which are now part of it, are thus the

provisions contained in the present § 20 and incorporated in it by Act

no. 422/2000 Coll.

The Constitutional Court of the CSFR reviewed

the constitutionality of Act  no. 451/1991 Coll. under all applicable

provisions of the Charter and international agreements on human rights

and fundamental freedoms, including the International Covenant on

Economic, Social and Cultural Rights and Convention no. 111, on which

the petitioners explicitly rely. Review of compliance with both cited

international agreements was also expressly requested by the petition

from the group of deputies of the Federal Assembly, and in its judgment

the Constitutional Court of the CSFR expressed itself clearly concerning

both.

The petitioners also refer to conflict of Act no.

451/1991 Coll. with Art. 1 of the Constitution of the CR, which,

naturally, in 1992 could not serve as a measuring instrument for the

Constitutional Court of the CSFR. Art. 1 of the Constitution states that

“the Czech Republic is a sovereign, unitary and democratic state

governed by the rule of law and founded on respect for the rights and

freedoms of man and of citizens.” At the time when the Constitutional

Court of the CSFR reviewed the constitutionality of the large lustration

law, Art. 1 of the Constitution of the CSFR read as follows: “The Czech

and Slovak Federal Republic is a democratic state governed by the rule

of law, composed of the Czech Republic and the Slovak Republic” (see

Constitutional Act no. 493/1992 Coll. of 8 October 1992). Thus, the

common central concept of both articles 1 is the concept of a

“democratic state based on the rule of law,” where respect for the

rights and freedoms of the human being and the citizen was then and now

guaranteed by the constitutional Charter of Fundamental Rights and

Freedoms. It is undoubted that the Constitutional Court of the CSFR also

reviewed the constitutionality of the large lustration law from the

point of view of Art. 1 of the then Constitution, i.e. from the point of

view of the attributes of a democratic state based on the rule of law,

and did not find conflict with it. In the reasoning of its judgment it

refers to the concept of a democratic state based on the rule of law

many times, in particular concerning its value framework. For example,

the cited judgment states that a “state based on the rule of law which

is tied to democratic values implemented after the fall of

totalitarianism can not … be seen as amorphous from the point of view of

values.”

CNR Act no. 279/1992 Coll., i.e. the small lustration

law, was not, in terms of its constitutionality, reviewed either by the

Czechoslovak or the Czech Constitutional Court. According to the

background report, it is based on the overall concept of Act no.

451/1991 Coll. The reason why it had to be passed – as a lex specialis

to the large lustration law – lay in Art. 27 of the constitutional act

on the Czechoslovak Federation. Under that, establishing their own armed

forces and regulation of their status fell under the exclusive

jurisdiction of each of the republics, i.e. the legislative jurisdiction

of the Czech National Council. The construction of the small lustration

law is identical with the structure of the large lustration law. The

small lustration law contains an enumeration of positions in the Police

of the CR and the Corrections Corps of the CR, to which a citizen who

does not meet some of the prerequisites provided in § 3 of Act no.

279/1992 Coll. (for positions in the Police of the CR), or in § 5 (for a

position in the Corrections Corps of the Czech Republic) can not be

nominated or appointed.

It is proposed that the Constitutional

Court of the CR annul the entire Act no. 279/1992 Coll. The petitioners

do not provide specific grounds, where they find its provisions to be in

conflict with the Charter or international agreements on human rights,

i.e. grounds which would have their origin only in this small lustration

law, but not in Act no. 451/1991 Coll. Under these circumstances, the

Constitutional Court of the CR does not find grounds to exceed, in its

review of the constitutionality of the small lustration law, the

framework of the review conducted in 1992 by the Constitutional Court of

the CSFR in connection with Act no. 451/1991 Coll. With reference to

the arguments provided in the reasoning of the judgment of the

Constitutional Court of the CSFR of 26 November 1992, the Constitutional

Court of the CR finds conflict of the provisions of § 3 par. 1 letter

d)8) and § 3 par. 39) Act no. 279/1992 Coll., on conscious collaboration

with the State Security, whose content is identical to § 2 par. 1

letter c) and § 2 par. 2 of Act no. 451/1991 Coll., specifically

conflict with Art. 2 par. 310) and Art. 4 par. 1 and 311) of the Charter

and Art. 4 of the International Covenant on Economic, Social and

Cultural Rights.5) Likewise with reference to the arguments in the

reasoning of the judgment of the Constitutional Court of the CSFR it

finds conflict of § 3 par. 412) and § 5 par. 213) of Act no. 279/1992

Coll., on granting exceptions, with Article 1 of the Charter.2) Both of

the latter provisions are, in terms of their content, basically

identical with the provisions of § 2 par. 3 and § 3 par. 2 of Act no.

451/1991 Coll., whose conflict with Art. 1 of the Charter was found by

the Constitutional Court of the CSFR. The cited provisions of the large

lustration law do presume violation of an “important security interest

of the state,” whereas the corresponding provisions of Act no. 279/1992

Coll. only violation of an “important security interest of the service”

(§ 3 par. 3),9) or “important interest of the service” (§ 5 par. 2),13)

but from the point of view of reviewing constitutionality these

differing expressions are irrelevant. In the case of Act no. 451/1991

Coll. the cited provisions established an unjustified inequality between

employees of two ministries (the interior and defense) and other person

affected by the Act. In the case of Act no. 279/1992 Coll., on the

contrary, there is an unjustified inequality between employees of the

ministries of the interior and justice, who, until the present time, can

be granted an exception on the basis of the Act, on the one hand, and

other persons affected by lustration legislation, i.e. Act no. 451/1991

Coll., in which provisions on providing exceptions lost their validity

in the past, as a result of the judgment of the Constitutional Court of

the CSFR, on the other hand.

The Constitutional Court’s

statement annulling the cited provisions of the small lustration law due

to their conflict with the Charter and international agreements on

human rights and fundamental freedoms also has an influence on some

other provisions of this law, which refer to the annulled provisions.

These are, in particular, the provisions of § 6 par. 1, § 8 par. 1 and §

9 par. 5. In view of the fact that the subject-matter applicability of

these provisions is not exhausted by reference to the provisions which

the Constitutional Court found to be unconstitutional, and it is merely

narrowed, the cited provisions continue to have their purpose and place

in Act no. 279/1992 Coll. In addition, the fact that certain provisions

refer to another provision, which was found unconstitutional, does not

establish the unconstitutionality of the referencing provision.

Therefore, the Constitutional Court did not find grounds to annul the

cited referencing provisions. Likewise, it did not find grounds to annul

those parts of the text of Act no. 279/1992 Coll. which rely on the

content of the provisions of Act no. 451/1991 Coll. which ceased to be

valid as a result of the judgment of the Constitutional Court of the

CSFR. These are especially the provisions relating to the decisions of

the independent commission established under § 11 - § 13 of Act no.

451/1991 Coll. A reference to the commission’s decisions is found in,

e.g. the provisions of § 6 par. 1 in fine and § 8 par. 1 of Act no.

279/1992 Coll. The Constitutional Court is a judicial body for the

protection of constitutionality, and it is not its job to make editorial

changes in Acts which were submitted to it for review. It would thereby

interfere in the competence of the legislator.
 

Together

with the amendment of the large lustration law, in 2000 Act no.

279/1992 Coll. was amended analogously, by Act no. 424/2000 Coll. The

amendment pursues the same aim as amendment no. 422/2000 Coll. of the

large lustration law, and therefore the further conclusions of the

Constitutional Court concern both lustration laws jointly.
 


VIII.
 

With

their petition, the petitioners seek to have the large and small

lustration Acts pro futuro “removed from the legal order of the Czech

Republic.” The substance of the arguments is summarized in part V of the

petition. They begin with the judgment of the Constitutional Court of

the CSFR of 1992. They state: “The Constitutional Court of the CSFR

found the substance of the regulation implemented by Act no. 451/1991

Coll. to be constitutionally conforming in view of the situation of the

state and the society shortly after the fall of the previous regime and

the renewal of democracy and in view of the fact that the restrictions

introduced by the Act are not to apply absolutely, but only for a

transitional period, i.e. until 31 December 1996. The Constitutional

Court of the CSFR would apparently have taken an analogous position

toward CNR Act no. 279/1992 Coll., had it considered it. Under the

stated circumstances and conditions, the Constitutional Court of the

CSFR recognized in 1992 that the public interest (the public estate)

consisting of the need of society and the state to have persons in

certain publicly significant positions replaced and to apply measures

aimed at averting the risk of subversion or a possible return of

totalitarianism takes precedence …” before the fundamental rights of

citizens which the petition further specifies. From the cited

substantive review of the judgment of the Constitutional Court of the

CSFR, the petitioners also draw the conclusion to which their petition

provides various arguments. This argument is formulated as follows:

“Because … the public interest (the public estate), the then existence

of which the Constitutional Court of the CSFR took as a starting point

in 1992, has ceased to exist, the reasons for restricting fundamental

rights and freedoms … which were based on the existence of that public

interest have also ceased to exist.” In other words, the petitioners

believe that the time factor plays a key role in reviewing the

constitutionality of the lustration laws. Because their validity and

period of effectiveness were expanded to an indefinite period of time,

they restrict fundamental rights and freedoms at the present time

“without appropriate reasons,” and are thus in conflict with some

provisions of the Constitution, the Charter and international agreements

on human rights and fundamental freedoms.
 


IX.
 

The

Constitutional Court agrees with the petitioners’ opinion that the

amendment of the lustration laws, which removed provisions about their

restricted validity in time, was considerable intervention in their

meaning. This intervention undoubtedly represents a marked change in

circumstances in terms of reviewing the constitutionality of both

lustration laws. The Constitutional Court therefore cannot simply assume

all the conclusions contained in the judgment of the Constitutional

Court of the CSFR, but must first answer the question whether, when they

were being drawn, the restriction of the time validity of Act no.

451/1991 Coll. to the end of 1996 was for the Constitutional Court of

the CSFR a sufficiently significant factor that it influenced its

decision, in which it did not find most of the provisions of this Act to

be in conflict with the Constitution, the Charter or international

agreements on human rights and fundamental freedoms.

In this

regard the Constitutional Court believes that the petition inexactly and

especially incompletely perceived the substance of the arguments used

by the Constitutional Court of the CSFR in the reasoning of its

judgment, and therefore cannot agree with the interpretation made by the

petitioners. It is true that the Constitutional Court of the CSFR

recognized the justification for the need of society and the state to

replace person in certain public positions and to implement measures

aimed at averting the risk of subversion or a possible return of

totalitarianism. It also emphasized the relevance of the time

restriction on the validity of the lustration law.

However, the

judgment of the Constitutional Court of the CSFR also states other

arguments, which the petition completely omits. The Constitutional Court

of the CSFR emphasizes that in “stabilized democratic systems part of

the requirements placed on persons seeking employment in state service,

in public service and in workplaces which are considered risky in terms

of the security and stability of the state is fulfillment of certain

civic prerequisites signaling a consensus of opinion and loyalty to the

interests of the state and the democratic principles on which the state

is built.” In light of this maxim it approves the actions of the

legislator which “justifiably took as its starting point the opinion”

that, at least to a necessary degree of justification it cannot be

assumed that the values of democratic constitutional principles “will be

without anything further and without reservation brought to life by the

members of former power structures.” Finally it also states the belief

that the state cannot be denied the ability to set, for the performance

of management or other decisive positions, conditions or prerequisites

in which “it takes into consideration its own security, the security of

citizens, and further democratic development.”

Thus, the

argumentation of the Constitutional Court of the CSFR is thus infinitely

richer and more diverse than as the group of deputies presents it. Some

of its arguments are tied to the needs of the state and the society in

the conditions during the transition from totalitarianism to democracy,

which the petition reflected in full. In this regard the Constitutional

Court of the CSFR also pointed to the time restricted validity of the

lustration law, without itself necessarily tying the end of its

justified validity to the year 1996. It merely states the time

restricted validity of the law and identifies 1996 for reference as the

year “in which the democratic process is expected to culminate.” It thus

takes over a sort of working hypothesis about the tempo of the dynamics

of the development of democracy in the CSFR. The petition from the

group of deputies brings many data which convincingly document that the

development of democratic changes after 1992 is stormy and that – as

they expressly state – the “democratic process culminated.” Nonetheless,

the Constitutional Court considers it necessary to add to these data

that determination of the degree of development of democracy in a

particular state is a social and political question, not a

constitutional law question. Thus, the Constitutional Court is not able

to review the claim of “culmination” or, on the contrary

“non-culmination” of the democratic process by the means which it has at

its disposal. However, it can, in some agreement with the petitioners,

confirm that the public interest resting in the state’s needs during the

period of transition from totalitarianism to democracy have declined in

intensity and urgency since 1992.

The second group of reasons,

neglected by the petition of the group of deputies, which the

Constitutional Court of the CSFR states, relates to the need of a

democratic society and a democratic state to protect its state

administration and public services from the entry of persons who do not

meet certain prerequisites. Among these prerequisites it expressly

mentions “loyalty with the interests of the state and the democratic

principles on which the state is built.” It considers the setting of

such prerequisites a measure which belongs not only to states in a

period of transition from totalitarianism to “democracy, but to all

“stabilized democratic systems.” Finally, it stated the belief that such

loyalty cannot “without anything further and without reservation” be

expected from “members of previous power structures” and from those who

“were put in important state, social and economic positions on the basis

of conflicting value criteria only so that, as representatives of the

previously ruling ideology, they served to maintain the power monopoly

of the ruling bureaucratic apparatus.”

With these arguments the

Constitutional Court of the CSFR expressed its support for another

public interest (public estate), which is the right and obligation of a

democratic state to actively defend its democratic establishment,

including by restricting access to state and public services, using the

condition of loyalty of its representatives and employees. The

Constitutional Court of the CSFR unambiguously assigns this public

interest to a democratic state generally, i.e. in a phase where its

democratic establishment is still being built and in a phase where its

democracy has culminated (in “stabilized democratic systems”).

Therefore, the task of the Constitutional Court of the Czech Republic

was to state its opinion as to whether the cited public estate is of a

“timeless nature” and is thus relevant even now, ten years after passage

of Act no. 451/1991 Coll.. The Constitutional Court states above all

that the justification of the idea of “a democracy capable of defending

itself” (wehrhafte Demokratie, démocratie apte à se défendre) was

repeated recognized by the European Court in its decisions. The European

Court considers achievement of it as a “legitimate aim,” fulfillment of

which permits, within appropriate bounds, states to restrict the rights

guaranteed in the European Convention. At the same time it has often

emphasized that the creators of the European Convention consciously

omitted to include in its text the right of an individual to equal

access to a state’s public services (see, e.g. the verdict in the matter

Glasenapp versus Germany from 1986). The European Court stated its

position on the question of loyalty of persons in state administration

and public services in its verdict in the matter Vogt versus Germany

from 1995, as follows: “The court takes as its starting point the

assumption that a democratic state is entitled to require of its

bureaucrats that they be loyal to the constitutional principles on which

it is based. In this regard it takes into account the experience in

Germany during the Weimar Republic and during the bitter period which

followed the collapse of this regime until the passage of the Founding

Act in 1949. Germany wished to bar the possibility that these

experiences would repeat themselves, and therefore established its new

state on the idea of a democracy able to defend itself … It is

understood that the cited circumstances added to the seriousness of this

substantive concept and the corresponding obligation of political

loyalty imposed on bureaucrats.”

Thus, in the given question several conclusions arise from the two cases of the European Court :
1)

Promoting the idea of “a democracy able to defend itself” is a

legitimate aim of the legislation of each democratic state, in any phase

of its development.
2) The requirement of political loyalty of

persons in state administration and public services is considered an

undoubted component of the concept of “a democracy able to defend

itself.”
3) The specific degree of loyalty required depends on the

historical, political and social experiences of each individual state

and on the degree of threat to democracy in the given state. In this

regard, the European Court, in the decision in the matter of Vogt,

states that no state in Europe in the 80s (in the period of the evens

being reviewed) required loyalty with such strictness as Germany, and it

paused over the “absolute nature” of this requirement in the German

conditions, as the German courts apply the requirement of loyalty

equally to all bureaucrats, regardless of their positions and place in

the hierarchical structure of the public services.

Of course,

the European Court also expressed its opinion concerning the requirement

of loyalty of state employees in other cases, in which the complaint

was directed against a consolidated democratic state. The Constitutional

Court points out at least the judgment in the matter of Pellegrin

versus France from 1999, in which the European Court state its belief

that the state has a “legitimate interest” in requiring from state

employees a “special tie of trust and loyalty” because these employees

are in a way the holders of part of its sovereignty.

Thus, on the

basis of its excursion into the case law of the European Court the

Constitutional Court can reach this conclusion: a democratic state, and

not only in a transitional period after the fall of totalitarianism, can

tie an individual’s entry into state administration and public

services, and continuing in them, to meeting certain prerequisites, in

particular meeting the requirement of (political) loyalty. Moreover,

this is proved by, e.g. the legislative or judicial practice in the

United States of America (see the decision of the Supreme Court of the

USA in the matter of Adler v. Board of Education).

The

Constitutional Court begins with the premise that the concept of

“loyalty” must be interpreted – like other key concepts, e.g.

impartiality and independence of courts – by two complementary methods.

The concept of loyalty covers the level of loyalty of each individual

active in public services, and the level of loyalty of the public

services as a whole. Here it is not only relevant whether the public

services are actually loyal, but also whether they appear loyal to the

public. For that it is necessary that doubts about their loyalty not

arise. Such doubts undermine the public’s trust in the public services

and also in the democratic state which these services represent.

Untrustworthy public services and state administration as a result

endanger democracy, and a democratic state is entitled to defend itself

against such danger by ensuring that the public services can not appear

untrustworthy to the public by eliminating reasons for doubts.

The Constitutional Court then turned to answering the question whether

an individual’s close connection with the power apparatus and repressive

components of a totalitarian state can be considered an expression of

disloyalty to a democratic state, or at least a relevant reason for

casting doubt on loyalty in the eyes of the public.

The

Constitutional Court points first of all to Act no. 198/1993 Coll. on

the Lawlessness of the Communist Regime and Resistance to It and to its

judgment concerning this Act published under no. 14/1994 Coll.. The

cited Act enumerates crimes and other comparable events which occurred

in the territory of the present-day Czech Republic during 1948-1989, and

in the operative part of the text assigns full co-responsibility for

them to those “who promoted the communist regime as functionaries,

organizers and instigators in the political and ideological area.” In

the preamble it states the special responsibility of the pre-November

Communist Party, including its leadership and members. Thus, it is

evident that an individual’s close connection to the pre-November regime

and its repressive components is a circumstance capable of having an

adverse effect on the trustworthiness of a public position which that

individual holds in a democratic state, as the communist regime was

identified by the Parliament of the Czech democratic state as “criminal,

illegitimate, and abominable.”

In this regard the

Constitutional Court considers irrelevant the petitioners’ objection

that the present Communist Party of Bohemia and Moravia is a “legally

functioning party with not negligible voter base.” The regulation of the

lustration legislation only takes a position on the pre-November

Communist Party and draws certain conclusions only from classified forms

of involvement with it.

In its judgment of 1992 the

Constitutional Court of the CSFR pointed out that other European states

where a totalitarian regime of monopoly power collapsed during the 80s

and 90s also apply lustration legislation. In view of the fact that no

international court has yet issued a decision in the question of the

compliance of lustration laws with international agreements, the

Constitutional Court considers it desirable to use other international

and foreign indicators for its answer to the abovementioned question.

A common feature of the “lustration laws” passed in Europe during the

90s is the fact that they concentrate on an individual’s position and/or

behavior under totalitarianism and draw negative consequences for him

from them in terms of his involvement in public life in the present

democratic state. Such Acts were passed in Germany (Act on Stasi

Documentation of 20 December 1991), in Bulgaria (Act on Additional

Conditions Concerning Scientific Institutions and the High Verification

Commission of 9 December 1992), in Hungary (Act on Reviewing the

Background of Persons Holding Certain Key Positions of 9 March 1994), in

Albania (two Acts of 22 September and 30 November 1995), in Poland (Act

on Recognizing the Employment or Service Relationship of Persons who

Hold Public Office in State Security Forces or Collaboration with Them

in 1994-1990 of 11 April 1997), in Romania (Act on Citizens’ Access to

their Personal Files Maintained by the Securitate and Aimed at Revealing

the Character of That Organization as Political Police of 20 October

1999) and to a limited extent also in other countries in central and

eastern Europe. Without going into the details of the individual Acts,

the Constitutional Court states that practically all the cited Acts

consider persons’ membership in a totalitarian state’s secret police or

collaboration with it to be relevant, some of them also include persons’

positions in the party or state apparatus (the Albanian and Bulgarian

Acts). The Parliamentary Assembly of the Council of Europe, in its

Resolution no. 1096(1996) (point 11) fundamentally admits the

compatibility of lustration laws with the attributes of a democratic

legal state, with the presumption that their purpose is not to punish

the affected persons, but to protect the forming democracy.

In

light of the foregoing facts, the Constitutional Court has grounds to

state that certain behaviour or a certain position of an individual in a

totalitarian state is generally considered, from the viewpoint of the

interest of a democratic state, to be a risk to impartiality and

trustworthiness of its public services, and therefore has a restrictive

influence on the possibility and manner of including “positively

lustrated” persons in them.

The Constitutional Court then

addressed the question whether certain behavior and/or a certain

position of an individual in a former totalitarian state represents,

from the point of view of the interests of a democratic state which was

constituted in its place, a “timeless” or only a temporary risk. The

Constitutional Court is aware that an individual’s attitudes to the

democratic establishment are determined primarily by his actual actions.

The longer the period which has passed from the collapse of the

totalitarian regime, the more and the more thoroughly will an

individual’s attitude to the democratic state be verified by his daily

interaction with it and with the democratic society. In other words,

with the passing of time the relative significance of attitudes and the

position of persons in the totalitarian state certainly does not

disappear, but certainly does decrease. There is evidently consensus in

Europe in this regard. The time of application of individual lustration

laws or individual provisions based on them is generally restricted in

Europe, either by the temporary validity of the Act (the Albanian Act –

to the end of 2002), or by setting a period in which individual

lustrations can be conducted, which is, according to available

information, in Hungary to the end of 2004, in Germany to the end of

2006, in Romania to the end of the six-year existence of the lustration

body established on the basis of the abovementioned Act in 2000, i.e.

until 2006 (with a possibility of extension by Parliament), or, finally,

by restricting the time of the effects of individual lustration

measures. This is the case in Poland, where the effects of the relevant

court decision last ten years. Although the Constitutional Court is

convinced of the temporary nature of lustration legislature, it also

states that in the great majority of other European states which

addressed the same problem in the last decade, lustration laws are still

valid and are in effect.
 


X.
 

After

the Constitutional Court answered all the questions which it raised for

itself as preliminary, it turned to reviewing the constitutionality of

Acts no. 451/1991 Coll. and no. 279/1992 Coll., exclusively in light of

their amendments no. 422/2000 Coll. and no. 424/2000 Coll., which

removed their temporary time of validity.

The Constitutional

Court does not share the legal opinion of the petitioners, according to

which the public interest (public estate) the then existence of which

the Constitutional Court of the CSFR took as a starting point in 1992,

has ceased to exist and the reasons for restricting fundamental rights

and freedoms which were based on this public interest have also ceased

to exist.
 

The large and

small lustration laws still protect an existing public interest, or – in

other words – they pursue a legitimate aim, which is the active

protection of a democratic state from the dangers which could be brought

to it by insufficiently loyal and little trustworthy public services.

Both Acts pursue this legitimate aim by setting certain prerequisites

for the performance of certain positions in state bodies and

organizations, in the Police of the CR and in the Corrections Corps of

the CR. A legislative measure of this kind is not exceptional in Europe

at the present time, and is expressly admitted by, e.g. recommendation

no. (2000)6 of the Committee of Ministers of the Council of Europe, in

which the Czech Republic is a member. This recommendation regulates the

position of representatives of public power (public officials, agents

publics). In the preamble the recommendation points out that the public

administration plays a substantial role in democratic societies and that

persons in it are subject to special obligations and commitments

because they serve the state. Point 4 explicitly recognizes that both

general and specific prerequisites may exist for access to public

positions, on the assumption that they are provided by law.

Both

lustration laws set special prerequisites for access to only some

(basically only management or significant) positions in state or public

services. This method of selection positions, the performance of which

is tied to special prerequisites, is also normal in a democratic state,

and in the Czech Republic it is applied, e.g. in connection with Act no.

148/1998 Coll., which the petitioners themselves refer to.

The

specific presumptions which the lustration laws introduced reflect the

position of an individual in the period of totalitarianism, 1948-1989.

While this position meets the elements provided in the lustration laws,

it makes impossible the access of a lustrated individual to public

positions named in them. The Constitutional Court of the CR, in

agreement with its Czechoslovak predecessor, considers the closer

connection of persons with the totalitarian regime and its repressive

components to still be a relevant circumstance which can cast doubt on

political loyalty and damage the trustworthiness of the public services

of a democratic state and also threaten such a state and its

establishment. At the present time other newly democratic European

states view this aspect of the past of their public representatives and

bureaucrats analogously.

The Constitutional Court considers it

undoubted that the relevance of the stated presumption decreases with

the passage of time from the fall of the totalitarian establishment, and

therefore considers lustration legislation to be temporary, as is the

case in Germany and in various countries in central and eastern Europe.

Therefore, the question is posed, whether the restrictions of certain

rights introduced in them are still “necessary in a democratic society,”

in other words, whether these restrictions are still commensurate to

the legitimate aim which they pursue.

In its review, the

Constitutional Court takes as a starting point the fact that lustration

prerequisites apply only to a restricted circle of fundamentally

important positions, and that, on the contrary, they do not restrict an

individual’s access to most positions in state administration and the

public services. It also takes into account the declining tendency to

apply the lustration laws in practice. As is indicated by the statement

from the Ministry of the Interior which the Constitutional Court

requested, in the first eight months of 2001 roughly 5,800 certificates

were issued based on the laws, of which about 2 % were positive. Thus,

in practice, in the period from January to August 2001 the lustration

laws restricted access to the named public positions to approximately

120 individuals.

However, the Constitutional Court states, above

all, that the imperative incorporated in Art. 79 par. 2 of the

Constitution, under which “The legal relations of state employees within

the ministries and other administrative offices shall be laid down in a

statute” has not yet been fulfilled. An Act on State Service has not

yet become part of the Czech legal order. Thus, both lustration laws, in

a limited extent and by setting specific prerequisites for working in

state services supplement the absence of a key law required by the

Constitution, and their existence is therefore, in the given situation

in the Czech democratic society, still necessary. With the exception of

certain Acts, e.g. no. 483/1991 Coll., on Czech Television, no. 6/1993

Coll. on the Czech National Bank, no. 335/1991 Coll., on Courts and

Judges, no. 148/1998 Coll., on Protection of Classified Information, and

no. 455/1991 Coll., on Licensed Trades (the Trades Licensing Act),

access to elected, appointed and nominated positions specified in the

lustration laws is regulated only by these lustration laws.

However, the Constitutional Court does not consider this present

situation to be optimal. The legislator should speedily regulate the

prerequisites for access to public office in the full extent and

establish in a generally applicable law the personal prerequisites

directly in relation to a democratic society, not only through an

intermediary and negatively – with reference to the past excessive

loyalty to a totalitarian state and its repressive components. This is

the case, e.g. in Germany (Art. 7 § 1 par. 2 of the

Bundesbeamtengesetz). In this regard the Constitutional Court also

points to the background report to Act no. 422/2000 Coll., under which

“the validity of the present Act no. 451/1991 Coll. was to be terminated

only upon passage of an Act on State Services.” The Constitutional

Court welcomes this promise in the background report, and considers

approval of general prerequisites for access to public positions, in

view of the temporary and subsidiary nature of the specific

prerequisites set by the lustration laws, to be urgent.
 

n

view of the argumentation in the petition, the Constitutional Court

considers it undoubted that the petitioners did not separately raise the

objection of conflict with the Charter or with international agreements

on human rights in the case of the amended § 20 of Act no. 451/1991

Coll. and the corresponding § 10a in Act no. 279/1992 Coll. (citizens

born after 1 December 1971 are excluded from the application of the

lustration laws). These provisions narrow the application of both laws,

and their purpose thus in its way pursues a direction which is pursued

in a much wider (absolute) degree by the petitioners themselves.

Therefore, it does not consider it necessary to state any further

opinion on § 20 of the large lustration law and on § 10a of the small

lustration law .
 


XI.

 

For

all the foregoing reasons, the Constitutional Court annulled § 3 par. 1

letter d)8) and § 3 par. 39) of Act no. 279/1992 Coll., on Certain

Additional Prerequisites for Holding of Certain Offices Filled by

Nomination or Appointment in the Police of the Czech Republic and

Members of the Corrections Corps of the Czech Republic, as amended by

later regulations, due to their conflict with Art. 2 par. 310)and Art. 4

par. 1 and 3 of the Charter11) and Art. 4 of the International Covenant

on Economic, Social and Cultural Rights,5) annulled § 3 par. 412) and §

5 par. 213) of the same Act no. 279/1992 Coll. due to their conflict

with Art. 1 of the Charter,2) and denied the remaining part of the

petition.

Instruction: Judgments of the Constitutional Court can not be appealed.

Brno 5 December 2001
 




Pl. US 9/01
Overview of the most important legal regulations

1.  

 Art. 1 of Act no. 1/1993 Coll., the Constitution of the CR, states:

The Czech republic is a sovereign, unitary, and democratic state

governed by the rule of law, founded on respect for the rights and

freedoms of man and of citizens.
2.    Art. 1 of Act no. 2/1993

Coll., the Charter of Fundamental Rights and Basic Freedoms, states: All

people are free, have equal dignity, and enjoy equality of rights.

Their fundamental rights and basic freedoms are inherent, inalienable,

illimitable, and not subject to repeal.
3.    Art. 4 par. 2 of the

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

Freedoms, stipulates that limitations may be placed upon the fundamental

rights only by law and under the conditions prescribed in the Charter.

Par. 4, sentence 1 states that in employing the provisions concerning

limitations upon the fundamental rights and basic freedoms, the essence

and significance of these rights and freedoms must be preserved.
4.  

 Art. 21 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Basic Freedoms, stipulates that citizens shall have access to

any elective and other public office under equal conditions.
5.  

 Art. 4 of the International Covenant on Economic, Social and Cultural

Rights, published under no. 120/1976 Coll. states: The States Parties to

the present Covenant recognize that, in the enjoyment of those rights

provided by the State in conformity with the present Covenant, the State

may subject such rights only to such limitations as are determined by

law only in so far as this may be compatible with the nature of these

rights and solely for the purpose of promoting the general welfare in a

democratic society.
6.    See the footnotes to decision 1/92 of this Collection.
7.  

 Section 5 of Act no. 99/1963 Coll., the Civil Procedure Code, provides

that the courts shall instruct the parties on their procedural rights

and obligations.
8.    Section 3 par. 1 let. d) of Act no. 279/1992

Coll., on certain additional prerequisites for holding of certain

offices filled by designation or appointment of members of the Police of

the Czech Republic and members of the Corrections Corps (Sbor nápravné

výchovy) of the Czech Republic, states that a prerequisite for holding

offices provided in § 2 is that a person was not a conscious

collaborator with the State Security [secret police] from 25 February

1948 to 17 November 1989.
9.    Section 3 par. 3 of Act no. 279/1992

Coll., on certain additional prerequisites for holding of certain

offices filled by designation or appointment of members of the Police of

the Czech Republic and members of the Corrections Corps (Sbor nápravné

výchovy) of the Czech Republic, provides that, for purposes of this Act,

conscious collaboration with the State Security means that a person was

registered in State Security files as a confidante, candidate for

secret cooperation or a secret coworker with confidential contact 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.
10.    Art. 1 of Act no. 2/1993 Coll., the Charter of

Fundamental Rights and Basic Freedoms, provides that everyone may do

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

which is not imposed on him by law.
11.    Art. 4 par. 1 of Act no.

2/1993 Coll., the Charter of Fundamental Rights and Basic Freedoms,

stipulates that duties may be imposed upon persons only on the basis of

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

rights and basic freedoms of the individual. Par. 3 stipulates that any

statutory limitation upon the fundamental rights and basic freedoms must

apply in the same way to all cases which meet the specified conditions.
12.  

 Section 3 par. 4 of Act no. 279/1992 Coll., on certain additional

prerequisites for holding of certain offices filled by designation or

appointment of members of the Police of the Czech Republic and members

of the Corrections Corps (Sbor nápravné výchovy) of the Czech Republic,

provides: In justified cases the minister of the interior of the Czech

Republic may waive the condition provided in par. 1 a) (the person was

not, in the decisive period, a member of the National Police classified

in a State Security counterintelligence unit), if applying it would

interfere with an important security interest of the corps and the

purpose of this Act is not endangered thereby.
13.    Section 5 par. 2

of Act no. 279/1992 Coll., on certain additional prerequisites for

holding of certain offices filled by designation or appointment of

members of the Police of the Czech Republic and members of the

Corrections Corps (Sbor nápravné výchovy) of the Czech Republic,

provides: In justified cases the minister of the interior of the Czech

Republic may waive the condition provided in par. 1 let. d) and e) (i.e.

the person did not hold the office of a leader of a department or

division or the leader of a group of internal defense of the Corrections

Corps of the CR or the person was not listed in the files of the

Corrections Corps of the CR as a resident, agent, or confidante of

internal defense of the Corrections Corps of the CR), if applying it

would interfere with an important security interest of the corps and the

purpose of this Act is not endangered thereby.