2004/01/28 - Pl. ÚS 41/02: Clearance of Defence Counsel

28 January 2004

HEADNOTES

1)

Clearance of defense counsel in criminal proceedings for purposes of

access to classified information through a security clearance by the

National Security Office is inconsistent with Art. 37 par. 3, Art. 38

par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and

Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection

of Human Rights and Fundamental Freedoms.

2)

Access to classified information by an attorney acting as defense

counsel in criminal proceedings is governed by the Criminal Code, and

not by the Act on Classified Information, and thus under the existing

valid legal framework, the Czech legal order does not require a

clearance by the National Security Office for that purpose, i.e. for

access to classified information by defense counsel in criminal

proceedings.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, consisting of JUDr. František

Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Dagmar

Lastovecká, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr. Jan Musil,

JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Pavel Varvařovský,

JUDr. Miloslav Výborný, and JUDr. Eliška Wagnerová, after oral

proceedings on 28 January 2004, ruled in the matter of a petition from

the District Court in Přerov seeking the annulment of § 42 par. 1 of Act

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

Amending Certain Acts, as amended by later regulations, as follows:


I.    The petition is denied.

II.  

 Clearance of defense counsel in criminal proceedings for purposes of

access to classified information through a security clearance by the

National Security Office is inconsistent with Art. 37 par. 3, Art. 38

par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and

Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection

of Human Rights and Fundamental Freedoms.
 

 

 

REASONING

I.
 

Description

of the Matter and Recapitulation of Petition The District Court in

Přerov, under Art. 95 par. 2 of the Constitution and § 64 par. 3 of Act

no. 182/1993 Coll., on the Constitutional Court, as amended by later

regulations, submitted to the Constitutional Court a petition to annul §

42 par. 1 of Act no. 148/1998 Coll., on Protection of Classified

Information and Amending Certain Acts, as amended by later regulations.

The petitioner bases the petition to annul these parts of that Act on

the following grounds:
 

Act

no. 310/2002 Coll. amended Act no.  no. 148/1998 Coll. as of 12 July

2002. Art. I point 4 amended § 42 par. 1 of Act no. 148/1998 Coll. so

that the word “attorneys” was deleted, as a result of which, in the

petitioner’s opinion, attorneys were removed from the list of persons

not subject to security clearance. However, Act no. 310/2002 Coll. did

not amend the Criminal Procedure Code, and thus § 35 par. 4 of the

Criminal Procedure Code remains in effect, unchanged, as established by

Act no. 265/2001 Coll.
 

Under

§ 35 par. 1 of the Criminal Procedure Code, only an attorney can act as

defense counsel in criminal proceedings. However, in the petitioner’s

opinion, the result of the amended wording of § 42 par. 1 of Act no.

148/1998 Coll. is that in criminal proceedings in which classified

information protected by a special act is discussed, a mere instruction

under § 35 par. 4 of the Criminal Procedure Code is no longer sufficient

for counsel (attorneys), but the attorneys must undergo the appropriate

clearance under Act no. 148/1998 Coll. This is also supported by the

fact that an instruction to attorneys under § 35 par. 4 of the Criminal

Procedure Code was already necessary under the previous legal framework,

when attorneys were still exempt from clearance. Thus, this indicates

that if attorneys who are to be given access to classified information

must now undergo clearance under Act no. 148/1998 Coll., then in

criminal proceedings in which classified information protected by a

special act is discussed, an instruction to them under § 35 par. 4 of

the Criminal Procedure Code is no longer sufficient. The opinion of the

National Security Office (the “NSO”, on p. 2275 of file no. 1 T 312/2001

of the District Court in Přerov) fully agrees with the petitioner’s

legal opinion in this.
 

The

petitioner concludes that the present § 42 par. 1 of Act no. 148/1998

Coll., as amended by Act no. 310/2002 Coll., is inconsistent with Art.

37 par. 2 and Art. 40 par. 3 of the Charter of Fundamental Rights and

Freedoms (the “Charter”), which guarantee the accused’s right to free

choice of defense counsel. One must also keep in mind Art. 6 par. 3 let.

c) of the Convention on Protection of Human Rights and Fundamental

Freedoms (the “Convention”), under which everyone charged with a crime

has the minimum right to defend himself in person or through legal

assistance of his own choosing. The petitioner also pointed to the

legislative process concerning the amendment of Act no. 148/1998 Coll.;

the Senate of the Parliament of the Czech Republic(the “Senate”),

particularly in view of the removal of attorneys from the group of

persons not subject to clearance, returned the amendment to the Chamber

of Deputies of the Parliament of the Czech Republic (the “Chamber of

Deputies”) with amending proposals, which, however, the Chamber of

Deputies subsequently did not accept.
 

As

regards the grounds for filing the present petition, the petitioner

also stated that in the criminal matter under file no. 1 T 312/2001 the

defendants, (V. Hučín and MUDr. Chmelař) exercised their right and chose

their own defense counsel, insist on their choice, and do not intend to

choose other counsel. However, none of the selected defense counsel

received the appropriate security clearance. In the court’s opinion,

these circumstances, in view of the legal framework in effect, indicate

that none of the chosen attorneys can continue to act as defense counsel

in these criminal proceedings. However, the District Court pointed to §

2 par. 4 of the Criminal Procedure Code, under which criminal matters

must be handled as quickly as possible, and must fully preserve the

rights and freedoms guaranteed by the Charter and by international

treaties on human rights and fundamental freedoms. Under Art. 95 par. 1

of the Constitution, the judge is bound in his decision making by

statutes and international treaties which are part of the legal order.

Under Art. 95 par. 2 of the Constitution, if the court concludes that a

statute which is to be applied in the matter is inconsistent with the

constitutional order, it shall present the matter to the Constitutional

Court. Article 95 par. 2 of the Constitution is further elaborated for

criminal proceedings in § 224 par. 5 of the Criminal Procedure Code,

under which a court shall interrupt criminal prosecution if it believes

that a statute, the application of which is decisive for deciding on

guilt and punishment in a given criminal matter, is inconsistent with a

constitutional act or an international treaty which takes precedence

before a statute; in that case it shall submit the matter to the

Constitutional Court. The petitioner also added that in such cases it

does not matter whether the court’s questions concern a substantive or

procedural statutory norm, or whether it is a norm or criminal law or a

statute from another branch of law. In the petitioner’s opinion, in the

present matter it is quite indisputable that the court must apply Act

no. 148/1998 Coll., as amended by Act no. 310/2002 Coll., to its

procedure, as this legal framework directly affects the defendants’

right to a defense, which is guaranteed to them by, in particular, Art.

37 par. 2 a Art. 40 par. 3 of the Charter, Art. 6 par. 3 let. c) of the

Convention, and by § 2 par. 13 of the Criminal Procedure Code. The

defendants have a right to have their chosen defense counsel participate

in actions taken within criminal proceedings, in particular during

presentation of evidence in the main trial. However, the Act de facto

makes it impossible to implement this constitutional right of the

defendants. For the sake of completeness, the petitioner added that with

one of the defendants (V. Hučín) there are also grounds for compulsory

defense under § 36 par. 3 of the Criminal Procedure Code, and in that

case it is quite impossible to conduct main trial proceedings without

the presence of defense counsel (§ 202 par. 4 of the Criminal Procedure

Code).
 

The petitioner also

pointed to certain wider connections and aspects of the legal issues at

hand. First, it cited the fact that out of all the attorneys now in

practice, apparently no one has received clearance, because thus far no

one has been required to do so. In addition, one can not overlook the

fact that there is no legal regulation under which attorneys can be

forced to undergo clearance; this can lead to the situation that if

attorneys refuse to undergo clearance voluntarily, there will be no

attorney with clearance available who could provide legal assistance in

matters concerning classified information. The Czech bar association

also does not maintain, nor is it required to maintain, a special list

of attorneys who can have access to classified information, as no legal

regulation imposes any such obligation. This allegedly means, among

other things, that at the present time not only can the defendant in

such matters not choose defense counsel, but neither can the court

appoint one in cases of so-called “compulsory defense”, even though it

is obligated to by law. The petitioner also pointed out that an attorney

also provides legal assistance beyond the are of criminal or civil law

proceedings, not only in the Czech Republic but also abroad. In all

these cases he may be given access to classified information by a

client.
 

The petitioner added

that in the Czech republic all attorneys are authorized to provide

legal assistance without limitation. In that regard, all available

European legal frameworks are comparable. The petitioner is not aware of

any foreign legal framework which would provide an obligation for

attorneys to undergo clearance in order to provide representation in

matters involving classified information. Introducing some sort of

special lists of attorneys in a way suggests a return to the time when

the country wasn’t free, when, during World War II, there was a list of

attorneys authorized to provide representation before the Reich courts,

or the period before 1990, when there was also a special list of

attorneys authorized to have access to classified information, which is

surely undesirable and incompatible with the principles of a democratic

state governed by the rule of law. Providing an exception to attorneys,

who, along with parliamentary deputies and senators, did not have to

undergo clearance, was a de facto expression of the fundamental

principles for the practice of law. Yet, disclosure of classified

information is basically no longer a danger, in view of the absolute

confidentiality obligation imposed on attorneys by law, which can not be

canceled at the instruction of any third party with the exception of

the client himself. In this regard, one of the fundamental principles

for the practice of law must also be respected, i.e. the attorney’s

independence from the state such that the attorney can practice law

freely, that is, provide legal representation, including cases against

the state, without fear of state sanctions against him. If classified

information were discussed in these cases, at attorney could be

prevented by the state from providing legal services precisely because

he would not be given the appropriate security clearance. The state

would thus de facto be able to decide who would appear against it in a

dispute. Thus, the now-annulled exception from security clearances was

not an unjustified prerogative or some sort of groundless privilege for

an attorney, but served to the benefit of the consumer of legal

services.
 

Finally, the

petitioner stated that it is fully aware of the fact that Act no.

148/1998 Coll. ceases to be in effect on 31 December 2003, and that

therefore the Parliament of the CR will pass a new, comprehensive legal

framework for this area. It added that it is aware that the

Constitutional Court, as a “negative legislature,” within its

jurisdiction can decide only to annul statutes or individual provisions

of statutes if they are inconsistent with the constitutional order, and

that it therefore can not decide to re-include attorneys in the group of

persons not subject to clearance. Thus, if the Constitutional Court,

after conducting proceedings, concluded that there are no grounds to

annul § 42 par. 1 of Act no. 148/1998 Coll. and denied the petition, it

is appropriate that it at least, in the reasoning of the decision, state

its legal opinion on the legal issue concerning clearance of attorneys.

In conclusion, it proposed that the Constitutional Court rule that § 42

par. 1 of Act no. 148/1998 Coll., on Protection of Classified

Information and Amending Certain Acts, as amended by later regulations,

be annulled as of the day this judgment is promulgated in the Collection

of Laws.
 


II.

Recapitulation of the Main Points of the Opinion of the Party to the Proceedings
 

At

the request of the Constitutional Court, under § 69 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations

(the “Act on the Constitutional Court”) the Chamber of Deputies and the

Senate filed opinions.
...
 


III.

Recapitulation of the Main Points of the Opinion under § 49 of Act no. 182/1993 Coll.
 

At

the request of the Constitutional Court, an opinion was also filed by

the Czech Bar Association (the “CBA”), under § 49 of Act no. 182/1993

Coll., on the Constitutional Court. It stated that it fully agrees with

the petition from the District Court in Přerov, and added the following:
 

The

denial of the free choice of an attorney (which follows from the

contested provision of the Act) must be considered a fundamental issue.

Free choice of an attorney is one of the fundamental principles of a

state governed by the rule of law, and is reflected in the

constitutional order of the Czech Republic. Denial of this opportunity

because there will be no attorney whom a party (the accused or an

injured party) can choose, having confidence in him, or because there

will be (perhaps under the best scenario) a choice of several individual

attorneys who will be able to provide representation in matters

involving protection of classified information, is, in the opinion of

the CBA, flagrantly inconsistent with the principles of a state governed

by the rule of law.
 

The CBA

pointed out that, although the petition from the District Court in

Přerov logically concerns primarily criminal proceedings, one also can

not overlook another legal area in which “the deficiency of the legal

framework is also quite marked, particularly in those areas which

concern so-called “compulsory representation” before the general courts

(an appeal on a point of law [“dovolání”], or proceedings on a cassation

complaint in the administrative courts). In these cases not only is the

party’s choice of attorney as representative more difficult, if not

completely impossible; the court also finds itself in the same

situation, if it is to appoint an attorney as the party’s

representative.
 

The CBA also

relied on Art. 38 par. 2 of the Charter, under which everyone has the

right to have his case considered without unnecessary delay. It pointed

to the similar provision of Art. 6 par. 1 of the Convention. In this

regard it states that – as is evident from the specific matter of the

District Court in Přerov, and as logically be concluded from other

matters handled in criminal and civil court proceedings, and in

administrative court proceedings – “unnecessary delay” or the failure to

make a decision “in an appropriate time” must, in these cases,

paradoxically be ascribed to the legislature.
 

At

the request of the Constitutional Court the CBA added to its statement

an expert report prepared by Christian Wisskioschen, director of

international relations at The Law Society in London, concerning the

issue of application of § 42 par. 1 of Act no. 148/1998 Coll., as

amended by Act no. 310/2002 Coll., to defense counsel, compared to the

handling of this issue in England and Wales, and a brief description of

the handling of similar situations in France and Austria.
 

At the request of the Constitutional Court the National Security Office (the “NSO”) also filed an opinion, in which it said:
 

We

must agree with the opinion of the District Court in Přerov, that after

the amendment of Act no. 148/1998 Coll., by Act no. 310/2002 Coll., a

mere instruction under § 35 par. 4 of the Criminal Procedure Code is no

longer sufficient, even for attorneys who act as defense counsel in

criminal proceedings. This provision refers to an instruction given

under a special act, which governs the protection of classified

information, Act no. 148/1998 Coll. It must be emphasized here that Act

no. 148/1998 Coll. understands an instruction to be an institution of

evidentiary character. Its purpose is primarily to instruct persons who

will have access to classified information, but are not designated

persons, on all their obligations, primarily the obligation to maintain

confidentiality. Therefore, an instruction can not replace the

fulfillment of conditions for providing access to classified information

under § 17 par. 1 of Act no. 148/1998 Coll. To fulfill the purpose of

Act no. 148/1998 Coll. it is desirable that activities where it is

necessary to have access to classified information be conducted by

persons who meet the conditions in § 17 par. 1 of that Act, that is,

primarily, they must hold a valid clearance which designates them to

have access to classified information. The interest of the state in

protecting classified information must also be respected in the practice

of law. In case of a conflict between the principle of protection of

human rights and freedoms and the principle of protection of state

interests and international interests in the area of security, the state

has, in particular, the statutory right, and also, the obligation,

imposed primarily by international treaties, to give certain

information, i.e. classified information, special protection, i.e. it is

obliged to handle that information in a special manner, and is required

to prevent it from being made public or otherwise disclosed. This

protection is implemented in a number of ways, primarily, however,

through personnel security, i.e. by the state itself selecting persons

who are authorized to have access to such classified information.
 

The

NSO also stated that it is in accordance with the principle of free

choice of profession for every individual to decide for himself whether

he is willing to seek to be considered a suitable candidate and whether

he is willing to allow the state to decide on his suitability or

unsuitability as regards access to classified information. Thus, every

attorney also has free choice of whether to accede to a certain

professional “elevation” of his qualifications and to thus be able to

accept representation in which he will have access to classified

information discussed in a given matter. Persons who ask the state to

allow them access to classified information – because they voluntarily

chose to practice a profession or assume an office to which the state

connects the possibility of access to classified information – must

necessarily submit to those restrictions which the state sets forth for

access to classified information; it is not only the right of the state,

but above all an obligation, arising from international treaties.
 

In

the opinion of the NSO, if attorneys who act as defense counsel in

criminal proceedings were to have a special position in access to

classified information, this would also be a certain disproportion in

view of the requirements imposed on bodies acting in criminal

proceedings, include state prosecutors, who are required to meet the

conditions for access to classified information under Act no. 148/1998

Coll.. Concerning attorneys providing legal assistance in civil law and

administrative proceedings, one must also point to the fundamental

principle of protecting classified information, i.e. that access by

person who do not hold a valid clearance may be only exceptional and

justified. However, attorneys do not automatically meet this condition

of “exceptional and justified.”
 

As

regards the objection that the current wording of Act no. 148/1998

Coll. makes it impossible to continue in criminal proceedings, the NSO

state that if neither of the attorneys who are in the position of

defense counsel to the accused (Hučín) meets the conditions under which

he may have access to classified information, the District Court in

Přerov should, by its official authority, provide an attorney ad hoc who

has the necessary qualifications for the performance of those actions

when classified information will be discussed. Of course, both of the

chosen attorneys can continue to act as defense counsel, they will

simply not participate in that part of the proceedings where classified

information will have to be discussed. Proceeding in this way can not

result in violation of the accused’s rights, nor to inconsistency with

the constitutional order of the Czech Republic.
 

The

NSO added that the fact that the Czech Bar Association does not

maintain a special list of attorneys who hold valid clearance does not

rule out the possibility that such persons exist, and can thus be

appropriately appointed to provide representation. It states that the

District Court in Přerov should have inquired at the NSO whether it is

possible to appoint defense counsel, and not merely stated the

assumption that “apparently no attorney has received security

clearance.”
 

In addition,

according to the NSO, one can assume that, even if the Constitutional

Court granted the petition of the District Court in Přerov and annulled §

42 par. 1 of Act no. 148/1998 Coll., this would not achieve the

obviously intended aim – i.e. to return to the legislative situation as

before the amendment made by Act no. 310/2002 Coll.. Annulling this

provision will have no effect on the position of attorneys generally,

and thus also not on attorneys who act as defense counsel in criminal

proceedings.
 

The NSO is

aware that the present legal framework for access to classified

information in individual types of court and administrative proceedings

is inadequate in terms of protecting classified information and that it

does not adequately observe the special characteristics of that area.

Therefore, the future legal framework should provide that in proceedings

where classified information will be discussed all person who will have

any sort of access to such classified information, with the exception

of the party to the proceedings, will need to hold clearances for the

appropriate level of secrecy. In these cases the procedural regulations

should also provided stricter rules than in proceedings where classified

information is not discussed. It is not desirable for the legal

framework, in the interest of protecting fundamental human rights, to

establish – on the basis of only an instruction – practically unlimited

access to classified information which will be discussed in the

proceedings, e.g. to the results of investigations by the intelligence

services.
 

In conclusion, the

NSO stated that even the draft of the new legal framework for

protecting classified information does not expect that attorneys would

be included among persons who are not required to meet statutory

conditions for access to classified information. On the contrary, the

draft proposes to narrow the group of persons who will have access to

classified information without further requirements, merely by reason of

the position they hold, which is also fully in accordance with NATO

requirements. In this regard, the NSO also referred to the

Constitutional Court judgment published as no. 322/2001 Coll., under

which the area of protection of classified information is sufficiently

unique that it is legitimate to have a certain limitation on the

standard procedural rights of persons with respect to whom the state is

investigating whether they meet the conditions for access to classified

information.
 

At the request

of the Constitutional Court the National Security Office added to its

statement, and identified and submitted regulations which govern the

issue of protection of classified information in the framework of the

European Communities. These are:
     - EU Council Decision no.

2001/264/EC of 19 March 2001, adopting the Council’s security

regulations. Under to this regulation, the condition for access to

information classified as CONFIDENTIEL UE is clearance of the person

requesting access to information. The general rules are not weakened by

any exceptions for person who were allowed access to classified

information only by reason of the office they hold. Part I Art. 9 of the

Security Directive provides that “All persons who require access to

information classified CONFIDENTIEL UE or above shall be appropriately

cleared before such access is authorised. Part II, section V., point 1

provides that “Access to EU classified information will be authorised

only for persons having a "need-to-know" for carrying out their duties

or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET UE and

CONFIDENTIEL UE information will be authorised only for persons in

possession of the appropriate security clearance”;
     - EU

Commission Decision no. 2001/844/EC of 29 November 2001, amending its

Internal Rules of Procedure. Under this regulation too, persons who

request access to information classified as CONFIDENTIEL UE and higher

must be appropriately cleared before access is permitted. Here too rules

for access to information are not weakened by any exceptions. Part II,

Art. 19 point 1 provides that “Access to EU classified information will

be authorised only for persons having a "need-to-know" for carrying out

their duties or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET

UE and CONFIDENTIEL UE information will be authorised only for persons

in possession of the appropriate security clearance.”
 

The

NSO added that the obligation to observe international undertakings

also arises from the CR’s membership in the North Atlantic Treaty

Organization. Standards for protection of classified information are

contained in the presented document, C-M (2002) 49 – Security within the

North Atlantic Treaty Organization. Under the rules provided in this

document, all persons who request access to information classified as

“Confidential” or higher, or persons who may have access to such

information by reason of their job or position, must be appropriately

cleared and instructed in advance.
 


IV.

Wording of the Contested Statutory Provision
 

The

Constitutional Court states that the wording of § 42 par. 1 of Act no.

148/1998 Coll., which was valid and in effect until 11 July 2002, was

the following:

Ҥ 42
(1) Deputies and senators, with the

exception of members of inspection bodies under special statutes,12) and

attorneys shall not be subject to security clearance.”
12)  § 18 of Act no. 154/1994 Coll.
This

provision was affected by Act no. 310/2002 Coll., which Amends Act no.

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

Certain Acts, as amended by later regulations, of Act no. 101/2000

Coll., on Protection of Personal Data and Amending Certain Acts , as

amended by later regulations, by Act no. 18/1997 Coll., on Peaceful Use

of Nuclear Energy and Ionizing Radiation (the Atomic Energy Act) and

Amending and Supplementing Certain Acts, as amended by later

regulations, by Act no. 38/1994 Coll., on Foreign Trade with Military

Materials and Supplementing Act no. 455/1991 Coll., on Trade Licensing

(the Trade Licensing Act), as amended by later regulations, and by Act

no. 140/1961 Coll., the Criminal Code, as amended by later regulations,

by Act no. 283/1993 Coll., on the State Prosecution Office, as amended

by later regulations, and by Act no. 42/1992 Coll., on Regulation of

Property Relationships and Settling Property Claims in Co-operatives, as

amended by later regulations (“Act no. 310/2002 Coll.”). Act no.

310/2002 Coll. in Part One, Art. I, point 4, set forth a new wording of §

42 par. 1, with effect as of 12 July 2002, as follows:

“4. § 42 par. 1 including footnote no. 12) reads:
(1)

Deputies and senators, with the exception of members of inspection

bodies under special statutes,12) shall not be subject to security

clearance.
12) § 18 of Act no. 154/1994 Coll.
 § 23a of Act no. 67/1992 Coll.’.”

Thus,

as a result of this amendment of Act no. 310/2002 Coll., the text of

the contested § 42 par. 1 of Act no. 148/1998 Coll., in the wording in

effect, is as follows:

Ҥ 42
(1) Deputies and senators, with

the exception of members of inspection bodies under special statutes,12)

shall not be subject to security clearance
12) § 18 of Act no. 154/1994 Coll.
   § 23a of Act no. 67/1992 Coll.“

Under

Art. IX of Act no. 310/2002 Coll., Act no. 148/1998 Coll., on

Classified Information and Amending Certain Acts ceases to be in effect

on 31 December 2003.
Act no. 436/2003 Coll., which Amends Act no.

555/1992 Coll., on the Prison Service and the Justice Guard of the Czech

Republic, as amended by later regulations, and Certain Other Acts,

states in Art. VI: “In § 89 of Act no. 148/1998 Coll., on Protection of

Classified Information and Amending Certain Acts, the existing text is

marked as paragraph 1, and paragraph 2 is added, which reads:

(2) This Act ceases to be in effect on 30 June 2004.”

Thus,

the amendment of the Act on Classified Information, implemented by Art.

VI of Act no. 426/2003 Coll., extended its validity until 30 June 2004.


 



V.

Conditions for the Petitioner’s Active Standing
 

The

Constitutional Court first considered the question of whether the

petitioner – a general court – is authorized to file a petition to annul

the contested provision. It concluded that it was. It is evident, as

the petitioner correctly stated, that a general court must apply the

contested provision to its actions in particular criminal proceedings,

and that the current legal framework directly affects the rights of

accused persons to a defense. The petition, although it basically

concerns procedural law, is related to the decision-making activity of

the general court, which is thus an authorized petitioner (§ 64 par. 3

of Act no. 182/1993 Coll., as amended by later regulations).    
 


VI.

Constitutional Conformity of the Legislative Process
 

The

Constitutional Court, in accordance with § 68 par. 2 of the Act on the

Constitutional Court, then considered whether the contested provision of

Act no. 148/1998 Coll., as amended by Act no. 310/2002 Coll., was

passed and issued within the bounds of Constitutionally provided

jurisdiction and in a constitutionally prescribed manner. The Court

concluded that it was.
 

The

Constitutional Court determined from the relevant stenographic records

of the Chamber of Deputies and the Senate that the bill amending Act no.

148/1998 Coll., was passed at the 47th session of the Chamber of

Deputies on 27 March 2002, in the 3rd term of office, by resolution no.

2201. When voting on the draft, 170 deputies were present, 152 deputies

voted in favor of passing the bill, 18 deputies voted against passing

the bill, and no one abstained. The bill was properly passed.
 

The

bill was then discussed in the Senate, at its 17the session in the 3rd

term of office on 3 May 2002. After substantive discussion, the Senate,

by resolution no. 372, decided to return the draft act to the Chamber of

Deputies, as amended by amending proposals. Sixty senators voted in

favor of this proposal, and none against. The proposal to return the

draft act to the Chamber of Deputies with amending proposals was duly

passed.
 

The Chamber of

Deputies again discussed the draft act, which amends Act no. 148/1998

Coll., at its 51st session on 13 June 2002 in the 3rd term of office.

When voting whether to pass the draft act with the Senate’s amending

proposals there were 182 deputies present; 76 deputies voted in favor,

and 98 deputies voted against. The draft act, as amended by the Senate’s

amending proposals was not passed, and the Chamber of Deputies thus

confirmed the draft act in the original wording, passed at the 47th

session on 27 March 2002 (resolution no. 2319).
 

The

bill was signed by the president of the Czech Republic on 28 June 2002,

and delivered to the prime minister for signature on 2 July 2002. The

Act was promulgated on 12 July 2002 in the Collection of Laws, in Part

114 as number 310/2002.
 

The

abovementioned Act no. 436/2003 Coll. was discussed in the Chamber of

Deputies on 4 November 2003 and passed by resolution no. 750. There were

168 deputies present; 149 voted in favor, and 5 deputies voted against.

The Act was discussed in the Senate on 3 December 2003, with 58

senators present; 49 senators voted in favor, and one senator voted

against. The president signed the Act on 9 December 2003. The Act was

promulgated in the Collection of Laws on 16 December 2003.
 


VII.

Definition of the Subject Matter of the Proceedings According to the Proposed Verdict in the Petition
 

The

wording of the contested § 42 par. 1 of Act no. 148/1998 Coll., on

Classified Information, as amended by later regulations, as already

stated, is the following: “Deputies and senators, with the exception of

members of inspection bodies under special statutes, shall not be

subject to security clearance.” This wording of the provision was

inserted into the Act on Classified Information by the amendment made by

Act no. 310/2002 Coll., with effect as of 12 July 2002, when the

previous wording of the provision, set forth by the amendment of the Act

on Classified information, made by Art. IX of Act no. 30/2000 Coll.,

was the following: “Deputies and senators, with the exception of members

of inspection bodies under special statutes, and attorneys shall not be

subject to security clearance.” The original wording of § 42 par. 1 of

Act no. 148/1998 Coll. was passed by the Parliament of the Czech

Republic in this wording: “Deputies and senators, with the exception of

members of inspection bodies under special statutes, and defense counsel

shall not be subject to security clearance.”
 

The

text of the Act on Classified Information reviewed by the

Constitutional Court was passed as amended by the amending proposal by

deputy Jan Klas at the motion of deputies František Ondruš, Petr Nečas

and Ivan Langer to issue an Act which amends Act no. 148/1998 Coll., on

Classified Information, and Amending Certain Acts, as amended by Act no.

164/1999 Coll., Act no. 18/2000 Coll., Act no. 29/2000 Coll., Act no.

30/2000 Coll., Act no. 363/2000 Coll. and Act no. 60/2001 Coll. This

amending proposal was presented in the second reading at the 47th

session of the Chamber of Deputies of the Parliament of the Czech

Republic on 22 March 2003, and its aim was not explicitly made clear by

the sponsor. The issue was adding to the amending proposal from the

guaranteeing Committee for Defense and Security of 15 March 2002, passed

by resolution no. 206, which presented to the Chamber of Deputies the

following wording of § 42 par. 1 of the Act: “Deputies and senators

shall not be subject to security clearance.” In the subsequent

discussion, none of the deputies spoke concerning the issue, and the

same occurred in the third reading, conducted in the continuation of the

47th session of the Chamber of Deputies on 27 March 2002.
 

After

substantive discussion, the Senate, by resolution no. 372 of 3 May

2002, returned the bill to the Chamber of Deputies as amended by its

amending proposals, in which it also included a new wording of § 38 par.

7 of the Act on Classified information: “The manner of designating a

person in the scope necessary for access to classified information in

civil law court proceedings, criminal proceedings, and in administrative

court proceedings shall be provided by special regulations.” The senate

also identified these regulations in note no. 11a) to that provision:

“11a) § 40a of the Civil Procedure Code, as amended by Act no.30/2000

Coll. § 35 par. 4, § 50 par. 3, §198a and § 201 par. 3 of the Criminal

Procedure Code, as amended by Act no. /2002 Coll.” As the discussion

from the 17th session of the Senate on 3 May 2002 shows, the Senate

considered conditioning the access of an attorney acting as defense

counsel in criminal proceedings on security clearance to be a limitation

on the right of the accused to a defense, in the sense of his right to

choose an attorney.
 

The

Chamber of Deputies, at its 51st session on 13 June 2002, by resolution

no. 2319 reject the draft act as amended by the Senate’s amending

proposals, and approved it in the wording passed at the 47th session on

27 March 2002.
 

 

VIII.

Ratio Decidendi

VIII/a  Review of the Matter on the Level of Simple Law
 

The

arguments contained in the petition from the District Court in Přerov

to annul § 42 par. 1 of the Act on Classified Information implicitly

contain a balancing of the public interest in ensuring protection of

information (classified information) on the one hand, and, on the other

hand, the public interest in ensuring the right to a defense in criminal

proceedings, which includes the right of the accused to freely choose

an attorney. The arguments are based on giving priority to protecting

the right to a defense and on emphasizing the principle of an attorney’s

independence from the state, which are undermined by state approval of

fitness for access to classified information, and also by unacceptable

inequality, i.e. the unacceptability of categorizing attorneys into a

group authorized to have access to classified information and a group

which does not have that right. On that basis, the contested statutory

provision is seen to have a gap, and the democratic legislature’s

filling in of that gap (i.e. the wording of the Act before the amendment

made by Act no. 310/2002 Coll.) is seen to fulfill the cited

constitutional principles.
 

Review

of these arguments by the Constitutional Court requires reconstruction

of the purpose and wording of those provisions of simple law which

affect the issue of access to classified information by attorneys acting

as defense counsel in criminal proceedings.
 

Under

§ 1 of the Act on Classified Information, the subject matter of the Act

is defining information which must be classified in the interests of

the Czech Republic, how the information is to be protected, the

jurisdiction and authority of state bodies in conducting state

administration in the area of classified information, the obligations of

state bodies, the rights and obligations of natural persons and legal

entities, liability for violation of obligations imposed by the Act, and

establishing the position of the National Security Office. In other

words, the subject matter of the Act is the normative definition of the

concept of classified information, procedural regulation for setting

classification levels, conditions for access to classified information,

protection of classified information, and the authority of state bodies

in conducting state administration in that area.
 

Under

§ 1 par. 1 of the Criminal Procedure Code, the purpose of criminal

proceedings is to govern the actions of bodies acting in criminal

proceedings so that crimes will be duly discovered and their

perpetrators justly punished under the law. The principles of criminal

proceedings include the principle of the accused’s right to a defense,

including the right to choose defense counsel (§ 2 par. 13 of the

Criminal Procedure Code). In a number of provisions, the Criminal

Procedure Code responds to possible conflict of the public interest in

protecting classified information with the constitutional order and the

legally guaranteed right of the accused to a defense, including the

right to respond to all evidence presented in criminal proceedings and

the right to freely choose defense counsel. These provisions include §

35 par. 4, § 50 par. 3 and § 198a of the Criminal Procedure Code,

governing the instruction and notification obligation of bodies acting

in criminal proceedings, relating to issues of protection of classified

information, as well as special conditions for access to classified

information on the part of a representatives of a party and an injured

person, as well as § 200 of the Criminal Procedure Code, on excluding

the public from the main trial proceedings if discussion of the matter

in public would endanger classified information protected by a special

act, and § 8 and § 99 of the Criminal Procedure Code on questioning

witnesses about circumstances concerning classified information. Also

connected to these provisions of the Criminal Procedure Code for

ensuring protection of classified information in criminal proceedings

are § 5 and § 21 of Act no. 85/1996 Coll., on Advocacy, as amended by

later regulations, and § 6 of Act no. 36/1967 Coll., on Experts and

Interpreters, governing the obligation of confidentiality of attorneys,

experts and interpreters, § 105, § 106, and, in particular, § 107 of the

Criminal Code, enshrining the criminal law treatment of protection of

classified information, and finally § 21, § 24, § 39, § 44, § 51, § 86, §

132, § 139, § 162, § 166, § 183, § 188, and § 192 of Ministry of

Justice instruction no. 1/2002 of 3 December 2001, file no.

505/2001-Org, which issues the internal and office rules of procedure

for district, regional, and high courts, which provide measures to

ensure the protection of classified information in managing court

agendas.
 

The present issue

is governed only indirectly, for purposes of systematic analysis, by §

38 par. 7 of the Act on Classified Information. Under it, the manner of

designating a person, in the scope necessary, to have access to

classified information in civil law court proceedings and in

administrative court proceedings shall be provided by a special

regulation. In civil law court proceedings that regulation is § 40a par.

1 of the Civil Procedure Code, under which, in proceedings in which

classified information protected by a special act is discussed, the

panel chairman is required to instruct in advance, under this special

act, lay judges, the parties, persons authorized to act on their behalf

(§ 21 to 21b of the Civil Procedure Code), the parties’ representatives,

i.e. including attorneys, interpreters, persons named in § 116 par. 3,

and other persons who must take part in the proceedings by law, on the

criminal consequences of violating the secrecy of classified

information; this instruction is recorded in a protocol, and by signing

the protocol the instructed persons become persons designated in the

scope necessary to have access to classified information. In

administrative court proceedings that regulation is § 45 of the

Administrative Procedure Code, which governs the authorization of a

party to the proceedings and his representative to view parts of the

record which contain classified information and which were or will be

presented as evidence by the court. Another such regulation is § 64 of

the Administrative Procedure Code, which establishes the appropriate use

of § 40a par. 1 of the Civil Procedure Code in the administrative

courts.
 

At the level of

simple law, we must answer the question of whether the issue of defense

counsel’s access to classified information in criminal proceedings is

governed by the Act on classified Information or the Criminal Procedure

Code, i.e. in comparing these statutes, which of them is lex generalis

and which is lex specialis.
 

This complex of simple law norms permits two interpretations:
In

the first interpretation, the issue of access to classified information

by attorneys acting as defense counsel in criminal proceedings is

governed by § 38 par. 7 and § 42 par. 1 of Act no. 148/1998 Coll., as

amended by later regulations, under which, although the Act did not

establish the same reference for criminal proceedings as it did for

civil law court proceedings and administrative court proceedings and so

on a contrario, as attorneys are not included in the list of persons not

subject to security clearance, it is a condition for attorneys acting

as defense counsel in criminal proceedings to have access to classified

information that they pass a security clearance. This interpretation

comes from linguistic analysis, i.e. from the literal wording of these

provisions.
 

Whether it also

flows from the presupposed subjective teleological analysis, i.e. from

reconstruction of the original legislative intent, can not be claimed

with certainty.
 

The original

intent of the Chamber of Deputies can not be concluded simply from its

rejection of the Senate’s explicit arguments, which opposed making

passing a security CLEARANCE a condition for access to CLASSIFIED

information by attorneys in criminal court proceedings and which

proposed, in that regard, supplementing the referring norm, contained in

§ 38 par. 7 of Act no. 148/1998 Coll., as amended by later regulations,

as the Chamber of Deputies voted on whether to pass the Act, as amended

by changes proposed by the Senate, as a whole (Art. 47 par. 2, 3 of the

Constitution).
 

Finally, the

original intention also can not be concluded a contrario based on the

deletion of a category of persons – attorneys – from the wording of § 42

par. 1 of Act no. 148/1998 Coll., implemented by Act no. 310/2002 Coll.

This is because replacing the term “defense counsel” with the term

“attorneys” in § 42 par. 1 of the Act on Classified Information, which

the legislature did in Art. IX of Act no. 30/2000 Coll., was tied to the

simultaneous establishment of a new provision, § 40a of the Civil

Procedure Code (Art. I point 53. of Act no. 30/2000 Coll.), governing

access to classified information by parties to civil law court

proceedings and their representatives, as well as other persons, and

thus also the establishment of a special framework for access to

classified information by attorneys not only in the role of defense

counsel in criminal court proceedings, but also as representatives in

civil court proceedings. If the exception to the obligation for defense

counsel to undergo a security clearance, before the amendment of the Act

on Classified Information implemented by Act no. 30/2000 Coll., both

from the Act on Classified Information, and from the Criminal Procedure

Code, we can only consider that fact superfluous, and directly apply the

interpretational maxim superfluum noc nocet (cf. judgment file no. Pl.

ÚS 6/02).
 

If the

hypothetical original intent of the Chamber of Deputies was to introduce

security clearances of defense counsel in criminal proceedings by

amendment of the Act on Classified Information, implemented by Act no.

310/2002 Coll., under the second possible interpretation of the complex

of relevant simple law the intent of the legislature was not expressed

adequately, i.e. there was inconsistency between the legislature’s

intent and the wording of the statutory provision.
 

Under

the second interpretation, protection of classified information in

criminal proceedings is a special area in protection of classified

information, and therefore the regime for it is governed by the Criminal

Procedure Code, and not by the Act on Classified Information, ergo in

that context the Criminal Procedure Code is a lex specialis, and its

framework takes precedence of the Act on Classified Information, which

is a general law – lex generalis. This conclusion results not only from

comparing the subject matter of both statutes, but also from other

arguments:
 

Applying the Act

on Classified Information to the present issue then by the argument

reductionis ad absurdum leads to consequences which can hardly be

supported.
 

The position of

defense counsel in criminal proceedings, i.e. in particular his

procedural authorization, is based on the position (rights) of the

accused person. Establishing an exception for attorneys leaves open a

fundamental question, that of the accused’s access to classified

information which is part of the evidence in criminal proceedings. From

the viewpoint of Art. 37 par. 3 and Art. 38 par. 2 of the Charter, as

well as Art. 6 par. 3 let. c) of the Convention, it is hard to imagine

restricting such access. Similarly, it is hard to imagine the National

Security Office “clearing” the accused person in order to permit his

access to classified information (a hyperbolic example taking these

consequences ad absurdum would be the idea of security clearances on a

person accused of crimes under § 105 and § 106 of the Criminal Code).

This interpretation would then lead to another absurd consequence: It

could create a situation where it would be necessary to require an

attorney in criminal proceedings to pass a security clearance in order

to have access to evidentiary material containing classified

information, but in civil law court proceedings, or in administrative

court proceedings, the same attorney, acting as representative of a

party to those proceedings, would not be required to pass this security

clearance for access to the identical evidentiary material, containing

the identical classified information.
 

Here

we must point to the fact that, in a number of its decisions (II. ÚS

315/2001, II. ÚS 326/98, Pl. ÚS 2/99, II. ÚS 221/98), the Constitutional

Court applied analysis per reductione ad absurdum, which is a form of

teleological analysis (teleological reduction): in that analysis, in the

event of several alternative interpretations, any which leads to

unacceptable results relative to the purpose and aim of a norm is ruled

out.
 

Another argument is the

conclusion arising from objective teleological analysis, i.e. from the

principal difference in the roles which an attorney fulfils under the

Act on Advocacy and under the codes of procedure: if, on the one hand,

that role can mean that an attorney is authorized to manage another’s

property, including acting as bankruptcy trustee, on the other hand it

can mean legal representation of parties, generally in civil law

proceedings, criminal proceedings, or administrative court proceedings.

In this regard, we must point to the amendment of the Act which amends

Act no. 85/1996 Coll., on Advocacy, as amended by later regulations, and

Act no. 6/2002 Coll., on Courts and Judges (which was passed on 9 May

2002 and published as no. 228/2002 Coll.). The provision of § 56 of the

Act on Advocacy, as amended by this Act, established the authorization

of an attorney to manage another’s property, including acting as

bankruptcy trustee; it provided for an attorney an exception from the

obligation of confidentiality under § 21 of the Act on Advocacy, for

information which he learns in connection with acting as bankruptcy

trustee, and it preserved a bankruptcy trustee’s obligation of

confidentiality under the provisions of special legal regulations. The

authorization to manage another’s property, including the authorization

to act as bankruptcy trustee, is, depending on the nature of the managed

property, also tied to the potential need for access to classified

information.
 

Based on this

teleological differentiation, one can conclude that, precisely in view

of § 56 of the Act on Advocacy, as amended by Act no. 228/2002 Coll., an

attorney, under § 42 par. 1 of Act no. 148/1998 Coll., as amended by

later regulations, is subject to a security clearance for access to

classified information, unless a special act provides otherwise. Such

special acts, according to the referring norm contained in § 38 par. 7

of the Act on Classified information are the Civil Procedure Code and

the Administrative Procedure Code. In addition, special conditions, for

access to classified information by an attorney acting as defense

counsel in criminal court proceedings, different from those of the Act

on Classified information, are also established in the Criminal

Procedure Code (in particular § 35 par. 4 and § 198a of the Criminal

Procedure Code): “If there is a conflict between a general and special

rule, one can assume that the legislature wished to deviate from the

general rule through the special statute.” (Ch. Perelman, Logique

Juridique. Paris 1976; citation from German translation: Juristische

Logik als Argumentationslehre. Freiburg-München 1979, p. 65). However,

the referring norm itself does not establish the precedence of the

special over the general, it only plays an informative role (in this

regard, it is also appropriate to point out that, despite the

formulations chosen by the legislature, § 38 par. 7 of Act no. 148/1998

Coll., as amended by later regulations, is not a delegation, but a

reference – delegation is conceptually tied to the hierarchy of legal

force of an authorizing norm and a delegated norm). Thus, a contrario,

one can not conclude from the absence of a norm in § 38 par. 7 of Act

no. 148/1998 Coll., as amended by later regulations, referring to a

special regulation governing criminal proceedings, that the general

framework in the Act on Classified information takes precedence over the

special framework for access to classified information by an attorney

acting as defense counsel in criminal proceedings, contained in the

Criminal Procedure Code.
 

The

conclusion reached by objective teleological analysis, as well as by

analysis per reductionem ad absurdum, is also supported by an argument

based on the maxim of internal lack of conflict and consistency of the

legal order (in other words, it is based on the axiom of a rational

legislature – e.g., when applying the current teleological analysis the

Constitutional Court of the Republic of Poland relies on the theoretical

concept of a “rational legislature” – see A. Kozak, Rodzaje wykladni

prawa w uchwalach Trybunalu Konstytucyjnego. In: Z zagadnień wykladni

prawa. Red. S. Kaźmierczyk, Wroclaw 1997, p. 57-60). If the legislature,

in the Act on Classified information, were to regulate the obligation

of attorneys acting as defense counsel in criminal proceedings to

undergo security clearance when having access to classified information

it would consequently have to reflect the results of that framework in a

special definition establishing grounds for excluding chosen defense

counsel under § 37a of the Criminal Procedure Code and removing

appointed defense counsel from the defense under § 40a of the Criminal

Procedure Code. If it did not do so, one can only conclude that the

assumed premise was not met.
 

On

the level of methodological analysis of simple law, in particular

relying on the argument reductionis ad absurdum and the maxim of

internal lack of conflict and consistency of the legal order, one can

conclude that the second alternative analysis of § 38 par. 7 a § 42 par.

1 of Act no. 148/1998 Coll., as amended by later regulations is

justified. This conclusion is based on a doctrinaire opinion, under

which in the event of conflicting analyses, the decisive viewpoint,

tertium comparationis, is teleological reduction (in other words,

analysis per reductione ad absurdum): “Argumentum reductione ad absurdum

is applied either independently, or if analysis under several different

arguments leads to inconsistent (incompatible) conclusions.” (V. Knapp,

Teorie práva. Prague 1995, p. 173. Neil MacCormick calls Argumentum ad

absurdum, or teleological reduction, the “golden rule” of analysis: N.

MacCormick, Argumentation and Interpretation in Law. Ratio Juris, No. 1,

1993, p. 26).
 

Just this

reconstruction of the relevant, valid simple law leads to the conclusion

that access to classified information by an attorney acting as defense

counsel in criminal proceedings is governed by the Criminal Code, and

not by the Act on Classified information, and thus under the existing

valid legal framework, the Czech legal order does not require a security

clearance by the National Security Office for that purpose, i.e. for

access to classified information by defense counsel in criminal

proceedings.
 


VIII./b

Constitutional Law Review
 

Constitutional

law review of the conflicting alternative interpretations of the

relevant simple law is based on the principle of proportionality and on

the principle of giving priority to a constitutionally consistent

analysis over derogation of a law.
 

Based

on the fact that the position of defense counsel in criminal

proceedings is derived from the position of the accused, at the

constitutional level the nucleus of the matter being adjudicated is

conflict between the public value (on the concept of a public value see

judgment file no. Pl. ÚS 15/96) of security of the state as an element

of its sovereignty (Art. 1 of the Constitution), one component of which

is ensuring protection of classified information, and the accused

person’s fundamental right to a defense under Art. 40 par. 3 of the

Charter and Art. 6 par. 3 let. c) of the Convention, his fundamental

right to express his views on all evidence admitted in the proceedings

under Art. 38 par. 2 of the Charter, as well the fundamental right

arising from the principle of equal “weapons” under Art. 37 par. 3 of

the Charter.
 

Similarly as all

democratic constitutional courts, so too the Constitutional Court of

the Czech Republic applies the principle of proportionality to resolve

conflicts between fundamental rights, or public values protected by the

constitutional order, in proceedings on review of norms and in

proceedings on constitutional complaints, (the Court first

comprehensively analyzed the principle of proportionality when

evaluating the constitutional institution of keeping secret the personal

data of witnesses in criminal trials - Pl. ÚS 4/94).
 

The principle pf proportionality is methodologically based on three steps:
The

first is review of simple law from the viewpoint of suitability; this

involves reviewing the chosen normative means in terms of whether they

will fulfill the aim pursued. If given normative means are not capable

of attaining the aim pursued, this is a manifestation of arbitrariness

by the legislature, which is considered inconsistent with the principles

of a state governed by the rule of law.
 

The

second step in applying the principle of proportionality is reviewing

simple law from the point of view of necessity, which analyzes a number

of possible normative means in relation to the intended aim and their

subsidiariness in terms of restricting constitutionally protected values

– a fundamental right or a public good. If the aim pursued by the

legislature can be achieved by alternative normative means, then the one

which restricts the given constitutionally protected value in the

smallest degree is the one which is constitutional.
 

If

the reviewed simple right aims to protect a certain constitutionally

protected value, but also restricts another, the third viewpoint of the

principle of proportionality, balancing, is a methodology of weighing

these conflicting constitutional values.
 

To

arrive at a conclusion in the case of conflict of fundamental rights,

or the public good, as principles, unlike the case of conflict of norms

of simple law, the Constitutional Court is guided by the requirement to

optimize, i.e. the postulate of minimizing the limitation of a

fundamental right or freedom, or a public good. This involves the maxim

that, if it is concluded that one of two conflicting fundamental rights

or public estates has justified priority, a necessary condition of the

final decision is to use all possibilities to minimize interference in

one of them. The requirement to optimize can be normatively derived from

Art. 4 par. 4 of the Charter, under which fundamental rights and

freedoms must be preserved when applying provisions on the bounds of

fundamental rights and freedoms, and thus,  analogously, they must be

preserved if they are limited as a result of being in conflict.
 

Based

on these viewpoints for constitutional review of the issue, it must be

said that in terms of the postulate of suitability, i.e. the

relationship between the legal means used and the legislature’s aims,

having an attorney pass a security clearance is an effective means for

achieving the pursued aim, a public value. However, in terms of the

subsidiariness of possible alternative instruments which would ensure

the given aim, i.e. in terms of the criterion of necessity, one can

conclude that security clearances are not a proportional means to

achieving the desired aim, because in criminal proceedings that can be

achieved through a combination of other instruments (instruction by the

court about obligations arising from the Act on Classified information

and about criminal penalties, the obligation of confidentiality under

the Act on Advocacy, etc.), which, in this context, do not affect, and

in no way limit the fundamental rights which are in conflict with the

public value (security of the state) – the fundamental right to a

defense, to equal “weapons,” or the right to express one’s views on all

evidence. The framework contained in the Criminal Procedure Code not

only guarantees protection of fundamental rights under Art. 37 par. 3,

Art. 38 par. 2, and Art. 40 par. 3 of the Charter and Art. 6 par. 3 let.

c) of the Convention, but also, through a number of its norms, as well

as a number of other related norms of simple law, meets the requirement

of minimizing limitation of protection of a public good (ensuring

security of the state by protecting classified information) that is in

conflict in a given matter, and thus also follows the constitutional

requirement of optimization.
 

In

this regard, the framework contained in the Criminal Procedure Code can

also be considered consistent with the results of interpretation of

Art. 6 par. 3 let. c) of the Convention by the European Court of Human

Rights. In the Court’s judgment in the case of Meftah and others v.

France, 2002: “The Court reiterates that the right for everyone charged

with a criminal offence to be defended by counsel of his own choosing

(see Pakelli v. Germany, judgment of 25 April 1983, Series A no. 64, p.

15, § 31) cannot be considered to be absolute and, consequently the

national courts may override that person's choice when there are

relevant and sufficient grounds for holding that this is necessary in

the interests of justice (see Croissant, cited above, p. 33, § 29).” The

European Court of Human Rights came closest to expressing a view

regarding analysis of the concept “relevant and sufficient grounds

required by the interests of justice, which limit the absolute nature of

the right to choose an attorney,” in the context of the matter being

decided by the Constitutional Court, in the case Chazal v. United

Kingdom, 1996, and Tunelky and others v. United Kingdom, 1998. Insofar

as English law allows the appointment of a special attorney in certain

types of proceedings, one who has access to classified information

concerning national security, but who is bound by an obligation of

confidentiality in relation to the client, the European Court of Human

Rights found this circumstance to be a limitation in terms of Art. 6

par. 1 of the Convention. Under a doctrinaire interpretation of these

decisions, “it does not appear, however, that only an attorney

registered on a special list, or an attorney specially cleared from a

state security viewpoint could be appointed as a special attorney” (B.

Repík, Advokát ve světle judikatury Evropského soudu pro lidská práva

[The Attorney in Light of the Case Law of the European Court of Human

Rights]. part I, Bulletin advokacie, no. 10, 2002, p. 19).
 

If

the requirement to optimize two conflicting values guaranteed by the

constitutional order leads one to conclude that security clearances on

attorneys acting as defense counsel in criminal proceedings for purposes

of permitting access to classified information are constitutionally

unacceptable, but that the conditions for defense counsel’s access to

classified information which are established in the Criminal Procedure

Code and do not limit the fundamental rights to a defense, equality of

“weapons” and the right to express one’s views on all evidence are

acceptable, it becomes necessary to apply the principle of giving

priority to a constitutional interpretation over derogation, when

evaluating the constitutionality of § 42 par. 1 of Act no. 148/1998

Coll.. The Constitutional Court applied this principle in a number of

its decisions. It first did so in judgment Pl. ÚS 48/95, in which it

said that, in a situation where a certain provision of a legal

regulation allows two different interpretations, one being in accordance

with the constitutional order and the other is inconsistent with it,

grounds for annulling that provision do not exist; when applying the

provision, courts must interpret it in the constitutionally consistent

manner. The Constitutional Court then applied the principle of

preferring constitutionally consistent interpretation over annulment in a

number of other decisions in proceedings to review norms (e.g. Pl. ÚS

5/96; Pl. ÚS 19/98; Pl. ÚS 15/98; Pl. ÚS 4/99; Pl. ÚS 10/99; Pl. ÚS

17/99).
 

These conclusions

concerning optimization when resolving conflict between constitutionally

guaranteed values, based on the content and purposes of the simple law

reviewed, together with the method of giving priority to a

constitutional interpretation over annulling a statute, are

constitutional arguments for reviewing the constitutionality of § 42

par. 1 of Act no. 148/1998 Coll., as amended by later regulations, which

fully correspond to the conclusions reached by applying the methodology

of analyzing simple law, based on teleological reduction, objectively

teleological analysis, and systematic analysis, which includes the rule

lex specialis derogat legi generali. For this reason the Constitutional

Court denied the petition of the District Court in Přerov to annul § 42

par. 1 of Act no. 148/1998 Coll., on Protection of Classified

information and Amending Certain Acts, as amended by later regulations.
 

In

a number of its decisions the Constitutional Court addressed the

interpretation of Art. 89 par. 2 of the Constitution, in particular, in

its most recent case law, in the judgment Pl. ÚS 2/03, under which, “it

is not only the verdict of the judgment which is binding, but also the

reasoning, or those parts of it which contain ‘significant’ grounds “

(similarly, judgment file no. III. ÚS 200/2000). The Constitutional

Court continues to hold these opinions.
 

A

special situation arises in this regard with proceedings on the review

of norms where the Constitutional Court denies a petition to annul a

statute, other legal regulation, or their individual provisions, and

bases its decision on the principle of giving priority to constitutional

interpretation over annulment of a statute, other legal regulation, or

their provisions, under which principle, in a situation where a certain

provision of a legal regulation permits two different interpretations,

one being consistent with the constitutional order and the other

inconsistent, there are no grounds to annul that provision; when

applying the statute, other legal regulation, or their provisions, the

bodies of public power, in particular courts, must interpret that

provision in a constitutional manner (Pl. ÚS 48/95 and other decisions).

A different interpretation of Art. 89 par. 2 of the Constitution, in

judgments which deny petitions to annul legal regulations on the grounds

of giving priority to constitutional interpretation, would make the

Constitutional Court’s decisions legally meaningless, or confusing, and

at the same time would force the Constitutional Court to steps which

lead to absurd and unsustainable results: to not rely on the possibility

of constitutionally consistent interpretation, abandon the principle of

judicial self restraint, and if there is the slightest chance of

constitutionally inconsistent interpretation of a contested regulation,

to annul it. For these reasons, in these proceedings on review of norms,

given a negative verdict with interpretative arguments, the

Constitutional Court placed the fundamental constitutional principle,

arising from a number of significant grounds, in the verdict section of

the judgment.
Notice:  Decisions of the Constitutional Court can not be appealed.
Brno, 28 January 2004
 



Dissenting Opinion
of

Constitutional Court judge JUDr. Vojen Güttler to the decision of the

Plenum of the Constitutional Court of 28 January 2004 in the matter of a

petition from the District Court in Přerov seeking the annulment of §

42 par. 1 of Act no. 148/1998 Coll., on Protection of Classified

Information and Amending Certain Acts, as amended by later regulation
 


I.
 

1) The Plenum of the Constitutional Court decided in part I. of its verdict that the petition is denied.
The

nucleus of this verdict in the judgment of the Plenum of the

Constitutional Court is the idea that protection of classified

information is a special area in criminal proceedings, so that the

regime for it is governed by the Criminal Procedure Code, and not by the

Act on Classified information, which does not apply at all to this area

(i.e. also not to the issue of access to classified information by

attorneys acting as defense counsel).
 

I do not accept this thinking.
First

of all, I point out – as was also said during the Plenum’s discussions –

that the wording of the contested provision of the statute – read

outside of any particular context – does not in itself actually create

unconstitutionality. Of course, the contested provision can not be read

so narrowly. It is evident that the amended § 42 par. 1 of the Act

deleted attorneys – to which it previously expressly applied – from the

original text precisely because the amendment wished, in contrast to the

previous legal framework, to include attorneys in the group of person

who are generally subject to the regime of security clearances by the

National Security Office (the “NSO”), including in criminal proceedings.

If the Constitutional Court denied the petition to annul the contested

provision, and in the reasoning of its judgment merely expressed the

opinion that Act no. 148/1998 Coll. does not apply at all to the area of

criminal proceedings (and thus also not to attorneys acting as defense

counsel), in my opinion it created the risk that in practice, some (and

not only in the courts) will not accept this, it being merely the

reasoning section of the judgment. In this regard, it is appropriate to

point out that the contested (amended) provision of the Act is a lex

posterior in relation to the Criminal Procedure Code, on which the

Plenum’s judgment relies. For this reason as well, it is not

indisputable whether the Criminal Procedure Code really is a lex

specialis, as regards protection of classified information, in relation

to Act no. 148/1998 Coll., or whether the opposite is the case. In my

opinion, in this overall context, it is necessary to review the

constitutionality of the contested provision, insofar as it deleted

attorneys from the group of people who are not subject to security

clearances by the NSO. I believe that there is an unconstitutional gap

in the statute, which I discuss more closely elsewhere.
 

Therefore,

I believe that the cited opinion should outweigh the arguments (though

they are well worked out) in the Plenum’s judgment, which are based

particularly on comparison with the new § 40a of the Civil Procedure

Code (which establishes a special framework for this area) and conclude

that if, before the amendment of the Act on Classified information,

there was an exception for defense counsel from the obligation to

undergo a security clearance, arising both from the Act on Classified

information, and from the Criminal Procedure Code, this can only be seen

as superfluous.
 

The Plenum’s

judgment argues – among other things – that the possible establishment

of an exception (from NSO security clearances) for defense counsel does

not address the fundamental issue, i.e. the access of the accused person

to classified information. However, as far as we know, no relevant body

of the Czech Republic has posed this question. In any case, the

accused’s right to have access to classified information in his own case

is not questioned in the opinion from the NSO, which, on the

substantive side, is most affected by this issue.
 

I

emphasize that in relation to part I of the verdict this dissenting

opinion is mainly guided by the attempt to ensure the highest possible

degree of legal certainty in this exceptionally sensitive area.
2) In

part II. of its verdict the Plenum of the Constitutional Court said

that clearance of defense counsel in criminal proceedings for purposes

of access to classified information through a security clearance by the

National Security Office is inconsistent with Art. 37 par. 3, Art. 38

par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and

Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection

of Human Rights and Fundamental Freedoms.
 

On

the substantive side I naturally agree with this verdict. It

corresponds to my opinion, discussed in more detail in the next part of

this dissenting opinion. Therefore, I went on to say that the

Constitutional Court should have annulled the contested provision.

 

However,

on the formal side I do not agree with that verdict. This is because

the statement of law given there is part of the verdict of the

Constitutional Court’s judgment, although it is undoubtedly a

significant statement, which belongs in the reasoning of the

Constitutional Court’s judgment. Although I am basically against

excessive formalism, I state that under Article 88 par. 2 of the

Constitution judges of the Constitutional Court are (also) bound in

their decision making … by the Act in paragraph 1, i.e. Act no. 182/1993

Coll., on the Constitutional Court. That Act provides, in § 70 par. 1

and 2, that the Constitutional Court – depending on the conclusion it

reaches – shall decide either that a statute or other legal regulation

or their individual provisions are annulled, or shall deny the petition.

The Act on the Constitutional Court does not recognize any other type

of verdict in proceedings to annul a statute or other legal regulation.

So, if the Constitutional Court overlooked these provisions, it acted –

in my opinion – in too activist a manner, and thus exceeded the bounds

given to it by the Constitution and by the Act on the Constitutional

Court. In this regard one can only add that this is a ground-breaking

verdict, which has never yet been heard in the history of the

Constitutional Court of the Czech Republic.
 


II.
 

I

am of the opinion that the Constitutional Court should have granted the

petition, annulled the contested § 42 par. 1 of Act no. 148/1998 Coll.,

as amended by later regulations, and postponed the enforceability of

this judgment for an appropriate time so that the legislature would have

the opportunity to pass a legal framework which would proportionately

guarantee the constitutional right to a defense, but also reflect the

public interest in protection of classified information.
 

On the substantive side, this opinion can be justified as follows:
A)

The right to a defense is considered a fundamental right of the

individual, which is provided in all the basic international documents

concerning fundamental human rights and freedoms.
 

The

International Covenant on Civil and Political Rights, in Art. 14 par. 3

let. d) provides the right of everyone who is accused of a crime “to be

tried in his presence, and to defend himself in person or through legal

assistance of his own choosing; to be informed, if he does not have

legal assistance, of this right; and to have legal assistance assigned

to him, in any case where the interests of justice so require, and

without payment by him in any such case if he does not have sufficient

means to pay for it.”
 

The

right to a defense is also enshrined in the Convention for the

Protection of Human Rights and Fundamental Freedoms, in Art. 6 par. 3

let. c), under which everyone who is accused of a crime has the

following minimum rights: “to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means to pay

for legal assistance, to be given it free when the interests of justice

so require.”
 

The extent of

the right to a defense is also emphasized in decisions of the European

Court of Human Rights, which concluded that the aim and subject matter

of Art. 6 par. 3 let. c) is to ensure effective protection of the right

to a defense, and therefore a person charged with a criminal offense who

does not wish to defend himself in person must be able to have recourse

to legal assistance of his own choosing [Pakelli v. Germany, decision

of 25 April 1983, series A no. 64, cited in Berger V., Judikatura

Evropského soudu pro lidská práva, {Case Law of the European Court of

Human Rights} IFEC, 2003 (Czech edition ), p. 313]. the European Court

of Human Rights also stated that Although not absolute, the right of

everyone charged with a criminal offence to be effectively defended by a

lawyer,
assigned officially if need be, is one of the fundamental

features of a fair trial [Poitrimol v. France, decision of 23 November

1993, series A no. 277-A, id., p. 307].
 

The

Constitutional Court of the CR also addressed the right to a defense;

in its decisions it stated certain attributes of this fundamental right

based on the Czech legal order, specifically the Charter of Fundamental

Rights and Freedoms (see, e.g. Constitutional Court judgment file no. I.

ÚS 592/2000, volume 25, p. 118 et seq.). Under Art. 37 par. 2 of the

Charter of Fundamental Rights and Freedoms, in proceedings before

courts, other state bodies, or public administrative authoritieseveryone

shall have the right to assistance of counsel from the very beginning

of such proceedings.Under Art. 40 par. 3 of the Charter an accused has

the right to be given the time and opportunity to prepare a defense and

to be able to defend himself, either pro se or with the assistance of

counsel. The judgment also refers to the Convention for the Protection

of Human Rights and Fundamental Freedoms, which provides in Art. 6 par. 3

let. b) and c), that everyone charged with a criminal offence has,

among other things, the right to have adequate time and facilities for

the preparation of his defence and the right to defend himself in person

or through legal assistance of his own choosing. These provisions

enshrine certain fundamental procedural guarantees of the right to a

fair trial which are an indispensable part of the concept of a state

governed by the rule of law. The right to a defense is one of the most

important fundamental rights of persons prosecuted in criminal

proceedings and is aimed at achieving a just decision, issued not only

in the interest of the prosecuted person, but undoubtedly also in the

interests of a democratic state governed by the rule of law, founded on

respect for the rights and freedoms of man and of citizens (Art. 1 of

the Constitution of the CR). Therefore, the state must ensure conditions

so that these principle can be realized through appropriate procedural

guarantees of the position of the defense counsel and of the accused.
 

It

must be emphasized that the constitutionally guaranteed right to a

defense (Art. 37 par. 2, Art. 40 par. 3 of the Charter of Fundamental

Rights and Freedoms – the “Charter”) together with the presumption of

innocence (Art. 40 par. 2 of the Charter) are fundamental conditions for

a fair criminal trial (Art. 36 par. 1 of the Charter); these

constitutional guarantees are also reflected in the applicable

procedural regulation, the Criminal Procedure Code (§ 33 par. 1 of the

Criminal Procedure Code), which, in accordance with the Constitution, is

quite clearly built on the principle of giving priority to the choice

of defense counsel (§§ 33 par. 1, 37 par. 2 of the Criminal Procedure

Code), which the accused (defendant) is entitled to apply at any stage

of proceedings in progress (§ 37 par. 2 of the Criminal Procedure Code);

therefore, it is fundamentally up to the accused (defendant), when and

whom of the persons authorized to provide legal assistance through

defense in criminal proceedings (§ 37 of the Criminal Procedure Code) he

will entrust with his defense, or whether he will make use of his right

to choose. Of course, the accused (defendant) bears responsibility

himself for his choice, once made, and therefore a general court is not

authorized to evaluate the “quality” of the defense or the “inactivity”

of defense counsel, as he (the defendant) may not be denied the right to

choose the trial tactics which he intends to use to present his case in

proceedings before the court; the contrary situation would be obvious

interference by the state power in the constitutionally guaranteed

fundamental right to a defense, and perhaps also a certain – clearly

undesirable and primarily constitutionally inadmissible – form of state

control over exercise of that right.

B) The Constitutional Court

also relies on these principles in these proceedings, even though,

naturally, it also weights arguments emphasizing the lawful need of the

state to reflect its legitimate interests (public interests in the area

of classified information). Therefore, one must evaluate whether the

fundamental right to a defense may be limited by the public interest in

protecting classified information (the public disclosure of which could

damage the security interest of the state) and whether – if so –

including attorneys (specifically defense counsel in criminal

proceedings) in the group of persons subject to the regime of Act no.

148/1998 Coll. and therefore NSO clearance is a limitation which, in the

matter being adjudicated, is sufficiently proportional that it still

preserves the essence and significance of the fundamental right to a

defense.
 

The Constitutional

Court concludes that protection of classified information can basically

be described as a legitimate public interest which can – in some aspects

– also affect the fundamental right to a defense. This can also be

concluded from a number of comparable articles of the Charter of

Fundamental Rights and Freedoms, which govern the possibility of

limiting one or another freedom by statute, if it is a measure which is

necessary in a democratic society for – among other things – the

security of the state (cf. Articles 14 par. 3, 17 par. 4, 19 par. 2, 20

par. 3, and 27 par. 3 of the Charter). However, the Constitutional Court

nevertheless believes that including attorneys – defense counsel – in

the group of persons subject to NSO clearance would be such a necessary

measure which is proportional to the essence and significance of the

fundamental right to a defense. It concludes this based on, in

particular, the following considerations:
 

a)

The primary essential point is that including attorneys (defense

counsel) in the group of persons subject to clearance means violating

one of the fundamental principles of advocacy, the principle of the

attorney’s independence from the state, so that he can practice advocacy

freely, that is, act as the legal representative of a natural person or

legal entity, including against the state, without fear of state

penalties against him. Imposing security clearance on an attorney as a

condition for providing legal services in a trial in which classified

information may appear could mean as a consequence that the state could

determine who is entitled to provide such legal services, and in

practice thereby eliminate those attorneys who are “uncomfortable”

persons. This would naturally be flagrant interference in the accused’s

right to a defense. It must be emphasized here that a client

fundamentally has a right to representation by an attorney of his

choosing. It is obvious that there is no legal regulation under which

attorneys can be forced to submit to security clearance. A contrary

legal regime could lead to a situation where a “cleared” attorney would

not be available at all, which would, as a consequence, also limit a

general court, where it is required by law to designate defense counsel

in cases of so-called “compulsory defense.” Here one can also rely on

the persuasive arguments of the petitioning general court and the

grounds used by the Senate in its opinion on the petition to annul the

contested provision.
 

b) Thus,

the Constitutional Court must weigh whether – in view of the reasons

presented – the contested § 42 par. 1 of Act no. 148/1998 Coll., as

amended by later regulations (note: in particular as amended by Act no.

310/2002 Coll.), is inconsistent with Art. 37 par. 2 and Art. 40 par. 3

of the Charter, with Art. 14 par. 3 let. d) of the International

Covenant on Civil and Political Rights, and with Art. 6 par. 3 let. c)

of the Convention on Protection of Human Rights and Fundamental

Freedoms, on which the petitioner relies. The Constitutional Court is

convinced that such conflict exists. However, it does not lie in the

actual text of the Act (in its wording) but in the gap which the Act

created. Thus, what is unconstitutional is the legislature’s silence –

undoubtedly intentional – which results in the constitutionally

unacceptable limitation of the right to a defense. (On a doctrinal

concept of the term “legislative omission” cf. Šimíček V., Legislative

Omission as violation of Fundamental Rights, in: Deset let Listiny

základních práv a svobod v právním řádu České republiky a Slovenské

republiky [Ten Years of the Charter of Fundamental Rights and Freedoms

in the Legal Order of the Czech Republic and the Slovak Republic],

Dančák, B., Šimíček, V., eds., Brno 2001 p. 144-159.) One can surely

conclude that if the legislature’s silence arising from simple omission

can be found unconstitutional, this applies all the more to cases where

the legislature – in a particular case – created a gap in the law

intentionally.
 

However, in

this particular case, the gap is not a false one,  meaning

incompleteness (absence) of written law, in contrast to the explicit

regulation of similar cases, i.e. incompleteness in terms of the

principle of equality or from the viewpoint of general legal principles.

An illustration of how to address such a gap is the judgment file no.

Pl. ÚS 48/95 (see Collection of Decisions, vol. 5, judgment no. 21), in

which the Constitutional Court normatively filled in the gap created by

inequality in the statutory framework using a constitutionally

consistent interpretation of the statutory framework, and denied the

petition to annul it, as it was not inconsistent with the constitutional

order.
 

However, that method

can not be used in the present matter. The provision whose current text

removes attorneys from the list of persons not subject to NSO clearance

– whereby it establishes unacceptable limitation of the right to a

defense – should contain a legal framework under which a person who is

being criminally prosecuted is not restricted as regards choosing from

only a certain limited group of defense counsel. However, the wording of

the contested provision completely rules out the possibility of that

interpretation.
 

Finally, in

this regard one can also point to Constitutional Court judgment file no.

Pl. ÚS 36/01, vol. 26, p. 329, which specifically considered the

question of unconstitutional legislative omission.
 

c)

In its position statement, the NSO also stated that the unique position

of attorneys in relation to classified information would be “a certain

disproportion, in view of the requirements imposed on bodies acting in

criminal proceedings, including state prosecutors, who are required to

meet conditions for access to classified information under Act no.

148/1998 Coll.” However, the Constitutional Court can not accept this

argument either. This is because the NSO is comparing non-comparable

things: the position of a state prosecutor, who represents the state in

criminal proceedings, and the position of defense counsel, whom the

accused can freely chose and who will defend him against the state. It

is logical that the state can set rules for access to classified

information for persons who are its, that is “state employees” and

perform its tasks, which, in this context, applies to state prosecutors.

However, one can not take the same view of the role of defense counsel,

whose defense protects the client precisely against that state whom the

state prosecutor represents in criminal proceedings.

d) For

completeness, the Constitutional Court also considered the legal

framework of some other democratic European countries concerning the

issues under review.
 

According

to the expert report from The Law Society in London, issuing of “state

license” to attorneys does not exist in England and Wales. Thus, there

is no privileged group of attorneys who would obtain information from

the state to which another group of attorneys would not have access.

Under common law the judge in a criminal matter orders information to be

made public which the state considers “sensitive” (i.e. which it tries

to keep secret) if such material can prove the innocence of an accused

person or otherwise prevent judicial error ?see Kean (1994) 99 CR.App.R 1

appendix 1?. In such case, the prosecution must either make the

material public or stop the proceedings. If, on the contrary, the judge

upholds the right to designate the material “sensitive,” then the

material is not made public; it is then edited so that key sensitive

passages are removed. As regards the statutory framework, dissemination

of certain information provided in the law is forbidden, so that the

judge’s options are limited thereby. The statutes which are cited in the

expert report from The Law Society basically concern the ban on

disseminating and making public sensitive or secret material (under

these statutes), however, they do not directly address the issue of a

state license for a certain group of attorneys. The Law Society says in

conclusion that the English system does not create a special category of

persons who are trustworthy for work with sensitive materials, but it

is “the material itself” which is protected against unauthorized

publication.
 

As regards

France, the Constitutional Court has at its disposal a written report

from the foreign department of the Czech Bar Association, reporting

information from Me. Laurin, secretary of the Paris Bar Association.

According to this information, France does not have a special list of

attorneys or clearances. If the relevant ministry does not de-classify a

matter – if it is part of a fact which is a state secret – the relevant

document can not be part of the file, so that such fact is not proved,

“doubts remain, and those act in favor of the accused.” Neither the

attorney, or the investigating judge, or the prosecutor are informed of

the state secret, and neither the judge deciding the matter nor any of

the others undergo any sort of clearance.
 

As

regards, Austria, it was determined from a report from the Czech Bar

Association (prepared according to information from Dr. Winternitz, an

attorney in Vienna, registered in with the Czech Bar Association with

authorization to practice in the Czech Republic), that there is no

statutory norm in Austria which would require attorneys to have passed a

special security exam if state secrets are to be discussed in

proceedings. Nor is any such exam known to be required in practice. In

such matters the attorney is, however, bound by the duty of

confidentiality. In addition, in these cases the public can be excluded

from proceedings; then neither the parties nor the attorney may disclose

the contents of proceedings in which state secrets were discussed,

subject to criminal penalties.
 

As

regards Germany, these issues are addressed by the Directive for

Criminal Proceedings and for Proceedings on Fines (RiStBv) of 1 January

1977, in the version in effect as of 1 June 1998 (Art. 213, Art. 214).

These provide, in particular, the following:

a) Facts and

information which must be kept secret, especially state secrets, may be

contained in case files only if it is necessary for the proceedings.

When handling classified information, regulations concerning them must

be observed, and when handling classified information of inter-state or

international origin, special regulations on protecting secrets which

apply to them must be observed. This also applies to disclosing

classified information to defense counsel, experts, and other

participants in proceedings (e.g. interpreters) unless mandatory legal

principles prevent it.
 

Likewise,

when disclosing classified information to attorneys, experts, or other

participants in proceedings, if there are mandatory legal principles

cutting through regulations on classified information or special

regulations on the protection of secrets, the recipients must be

emphatically reminded of their duty to keep the secret; they must be

advised, when handling classified information, to proceed according to

regulations concerning individual cases, which will be explained to

them. A note is entered in the file about these warnings and

recommendations, which is to be signed by the recipient.
 

b)

Disclosing classified information to defense counsel has the same

regime as viewing files concerning classified information. Files

containing classified information classified as confidential, secret,

and top secret, it must be especially carefully verified
-    whether there are any serious reasons which prevent giving files to the attorney to view in his office or home,
-    whether there are legal stipulations as regards attorneys making notes, transcripts, extracts or photocopies by attorneys.
 

c)

In appropriate cases the state prosecutor is to formally bind

attorneys, experts, and other participants of the proceedings to keep

secret information disclosed to them which requires secrecy, and to

point out that violating the secrecy is subject to criminal penalties.

It must be taken into account that this duty to preserve a secret is

possible only on the basis of a statute or with the consent of the

injured party.
 

d) In

investigations which concern the loss or “issuing” of classified

information (i.e., evidently, relevant materials) it is necessary to

review whether there is an obligation to take into account foreign

interests in preserving the secret. Therefore, it is recommended to

consult the federal minister of the interior, who maintains a list of

international treaties on protection of secrets.
 

Thus,

one can close by saying that in the compared European countries, there

are no special groups of attorneys who would be cleared for access to

so-called classified information by the appropriate state body. That too

can be considered one of the arguments in favor of the opinion

presented in this text.

Brno, 28 January 2004