2004/02/11 - PL. ÚS 31/03: Protection of Secret Information

11 February 2004

HEADNOTES

Applying

the method of teleological interpretation leads to the unquestioned

conclusion that the purpose of the Act is to legally ensure that all

information is kept secret which, under the definition, (§ 2 par. 2)

conflict with the interests of the Czech Republic. This aim is projected

in the substantive condition of § 3 par. 1 of Act no. 148/1998 Coll. It

would be absurd to assume that the legislature, by including a second,

formal, condition in § 3 par. 1 of Act no. 148/1998 Coll., intended to

make it impossible to effectively fulfill the purpose of the Act. This

is the absurd conclusion which would be reached if one accepted the

thesis that the list of secret information, assembled by the government

as instructed by the Act is to contain only completely specific items,

and at the same time be a final, definitive list. The combination of

great specificity and definitiveness in assembling the list of secret

information would make it impossible to meet the purpose of the Act

without anything further, and would inherently carry the risk that a

piece of information which meets the substantive requisite for secrecy

would not be kept secret, as it did not fall under any of the specific

items on the list assembled by the government. The government did not

have a mandate for such a “risky” combination.

Of

course, legal certainty and the foreseeability of acts by the public

power are not absolute categories which could be set above other

components of the concept of “a democratic state governed by the rule of

law.” Protection of the interests of the Czech Republic as a sovereign

state is also a constitutionally protected value (Art. 1 par. 1 of the

Constitution). Thus, the task of the legislature, as well as of the

government, is to optimize the possible discordant effects of the

protective mechanisms for both values, in other words, to narrow as much

as possible the room for possible arbitrariness in acts by the public

power, and at the same time ensure the effective protection of state

interests. Proportional limitation of foreseeability (legal certainty)

is such necessary limitation as is still able to ensure effective

fulfillment of the aims of Act no. 148/1998 Coll.

Legal

certainty and the foreseeability of acts by the public power must also

be preserved in relation to other subjects of international law. Under

Art. 1 par. 2 of the Constitution “the Czech Republic shall observe its

obligations under international law”. The Czech Republic has accepted

international obligations vis-à-vis its allies regarding keeping secret

certain important and sensitive information. It is obligated to transmit

these international obligations into domestic law, and through it

ensure the secrecy of appropriate information. For these other states, a

“foreseeable” legal framework for the actions of bodies of public power

of the Czech Republic will be one which is capable of securing their

international obligations as regards secrecy. In contrast, an

“unforeseeable” framework will be one which is incapable of ensuring in

all cases the secrecy of information which the CR has undertaken to

protect under international law. Of course, the CR has an international

responsibility vis-à-vis its allies only for the “result”: it violates

its obligation at the point when it does not ensure the protection o a

particular piece of information which is subject to secrecy under an

international treaty. In order for the CR to be capable of meeting its

international obligations in this area, its bodies must have the

authorization to judge whether or not a particular piece of information

is to be secret under an international treaty. If the CR is not able,

due to the particular content of its domestic law, to fully ensure such

specific evaluation and subsequent secrecy, its conduct is

“unforeseeable” for its contractual partners, and violates legal

certainty in internal law relations. The contractual partners may then

not disclose certain sensitive information to the Czech Republic,

possibly to the detriment of its security or other of its fundamental

interests protected by Art. 1 par. 1 of the Constitution.

The

Constitutional Court believes that the contested provision in the wider

procedural context, as just defined, is also consistent with

conclusions which the European Court of Human Rights reached on the

required precision of a legal norm and the foreseeability of acts by the

public power. That court requires in cases, where a legal regulation

authorizes discretion by a body of public power, that the scope and

modalities of the exercise of that discretion be defined with sufficient

clarity in view of the particular legitimate aim, and that the provide

the individual the corresponding protection against arbitrariness

[Kruslin v. France (1990), §§ 27, 29, 30 and M. and R. Andersson v.

Sweden, (1992), § 75].


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, consisting of JUDr. František

Duchoň, JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří

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

Pavel Varvařovský, JUDr. Miloslav Výborný and JUDr. Eliška Wagnerová,

ruled in the matter of a petition from the Ombudsman, JUDr. Otakar

Motejl, seeking the annulment of point 18 of appendix no. 3 to

government directive no. 246/1998 Coll., which provides lists of secret

information, as amended by later regulations, as follows:
 

The petition is denied.
 



REASONING


I.
 

On

26 June 2003 the Constitutional Court received a petition from the

Ombudsman (also the “petitioner”), seeking the annulment of point 18 of

appendix no. 3 to government directive no. 246/1998 Coll., which

provides lists of secret information, as amended by government directive

no. 89/1999 Coll., government directive no. 152/1999 Coll., government

directive no. 17/2001 Coll., government directive no. 275/2001 Coll.,

government directive no. 403/2001 Coll. and government directive no.

549/2002 Coll. (“government directive no. 246/1998 Coll.”) due to

inconsistency with § 3 of Act no. 148/1998 Coll., on Protection of

Secret Information, as amended by later regulations (“Act no. 148/1998

Coll.”), and due to inconsistency with Art. 1 and Art. 78 of the

Constitution of the Czech Republic (the “Constitution”) and Art. 4 par. 2

and Art. 17 par. 1 and 5 of the Charter of Fundamental Rights and

Freedoms (the “Charter”). The petitioner states that he was consulted by

Petr Uhl, residing at Anglická 8, Prague 2, with an initiative aimed

against the Ministry of Foreign Affairs, which kept secret its plan for

human rights of 2000, and against certain provisions of appendix no. 3

to government directive no. 246/1998 Coll., on which the Ministry of

Foreign Affairs relied as a basis for keeping the plan for human rights

secret. After completing an investigation of the initiative, the

Ombudsman, under § 18 par. 2 of Act no. 349/1999 Coll., on the

Ombudsman, as amended by later regulations, took a position in which he

concluded, among other things, that point 18 of appendix no. 3 to

government directive no. 246/1998 Coll. (the “contested provision”) is

inconsistent with certain provisions of Act no. 148/1998 Coll., and

certain provisions of the Charter and the Constitution. On the basis of

that position, he is submitting the present petition.
 

The

petitioner states that Act no. 148/1998 Coll. is based on the premise

that only information can be kept secret which was designated as secret

information by an appropriate body and assigned a degree of secrecy.

Substantive law definition of secret information has two levels under

Act no. 148/1998 Coll. The starting point is the substantive definition

of secret information in § 3 of Act no. 148/1998 Coll., under which

secret information is information unauthorized handling of which could

damage the interests of the Czech Republic or interests which the Czech

Republic undertook to protect, or could be disadvantageous to these

interests, together with § 4 of Act no. 148/1998 Coll., which provides

an illustrative list of areas in which secret information may appear.

The Act expressly assumes that specifics will be provided by a

government decree that will provide in detail, for the individual

ministries, lists of information which may be subject to secrecy. Under

Art. 78 of the Constitution the government is authorized to issue a

directive only to implement a statute and only within its bounds.

Therefore, it can not by directive include in a list of secret

information other information that which meets, or may meet, the

statutory definition of secret information.
 

The

government is thus required to issue a list of secret information by

directive. Without a detailed list it would not be possible to apply the

Act at all. The legislature is allegedly aware that keeping information

secret interferes in the fundamental rights and freedoms (freedom of

expression and the right to information under Art. 17 of the Charter)

and that secrecy, given its nature, is relatively easily abused. In this

regard the petitioner refers to Constitutional Court Judgment file no.

Pl. ÚS 11/2000. The list must materially specify individual pieces of

information, because otherwise the instruction to the government would

be completely useless. It would therefore be circumvention of the Act,

or transgression of its bounds, if the government formulated the list of

secret information so vaguely and generally that its provisions would

practically not differ from the basic definition contained in the Act.

The requirement for a sub-statutory legal norm to provide material

specifics of information which may be subject to secrecy is also

consistent with the principle of legal certainty and foreseeability of

actions by the public power, which, under the settled case law of the

Constitutional Court, are one of the basic components of a democratic

state governed by the rule of law (Art. 1 of the Constitution). With the

list, the government makes known, in advance and in binding form, what

will be excluded from the scope of the fundamental right to freedom of

expression and to information, and under the threat of criminal penalty

(§ 10 and § 107 of Act no. 140/1961 Coll., the Criminal Code). Thus, in

terms of substantive law, one can only make secret information whose

characteristics meet the basic substantive definition under the Act and

which is included by government decree in the list of secret

information, assuming that the definition of secret information on the

list is substantive in content and more specific, in degree of

generality, than the statutory definition.
 

Under

the contested provision, it is within the jurisdiction of the Ministry

of Foreign Affairs to make secret “sensitive political, security and

economic information in the area of foreign relations.” The Ombudsman

considers the criterion of “sensitivity” of information to be

superfluous, given the provisions of Act no. 148/1998 Coll.

“Sensitivity” is only evaluated when deciding to make secret particular

information, as part of considering whether unauthorized handling of

such information can or can not damage the interests of the Czech

Republic, or what kind of damage it can cause. This procedure is

prescribed by the Act itself in § 5 in conjunction with § 2 par. 1 a 2

of Act no. 148/1998 Coll. As a result of such evaluation, a specific

level of secrecy is set according to the degree of “sensitivity” of the

secret information. Thus, from that point of view the modifier

“sensitive” is redundant. The definition of foreign relations in the

contested provision is also redundant, because in appendix no. 3 to

government directive no. 246/1998 Coll. that is self-explanatory.

Repeating the provisions of regulations of higher legal force in

regulations of lower legal force is generally not considered desirable.

Nonetheless, that alone can not lead to the conclusion that the

regulation of lower legal force is defective for that reason. However,

in the case of the contested provision, revealing the redundancy of the

modifiers “sensitive” and “in the area foreign relations” is important

for reasons of determining the true content of this norm. After

eliminating these duplicate modifiers, it is evident that the Ministry

of Foreign Affairs can make secret “political, security and economic

information.” However, that definition of secret information obviously

does not meet the requirements in the Act on Protection of Secret

Information imposed on the list issued by the government. The definition

is vague, and does not in any way materially specify information which

may be kept secret. Thus, it permits the Ministry of Foreign Affairs to

arbitrarily make secret anything at all. In addition to this item, the

other provisions of appendix no. 3 to government directive no. 246/1998

Coll. also appear unnecessary, because in all cases they concern

political, security or economic information. Thus, the government,

inconsistently with Art. 78 of the Constitution, by including “sensitive

political, security and economic information in international

relations” in the list of secret information, exceeded the bounds

provided by Act no. 148/1998 Coll. (§ 3), which can lead to

unconstitutional interference in the right to information under Art. 17

par. 5 of the Charter if that provision is applied in a particular case.

In addition, the contested provision, to the extent that it permits the

Ministry of Foreign Affairs to act arbitrarily in making information

secret, is inconsistent with the constitutional principles of legal

certainty and the foreseeability of acts by the public power, which are

indispensable attributes of a democratic state governed by the rule of

law in the meaning of Art. 1 of the Constitution.
 


II.
 

The

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

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

the Constitutional Court”), requested an opinion on the petition from

the government of the Czech Republic, as a party to the proceedings. It

also requested opinions under § 48 par. 2 of the Act on the

Constitutional Court from the Ministry of Foreign Affairs and the

National Security Office.
 

The

prime minister, PhDr. Vladimír Špidla, in his official letter of 12

August 2003, informed the Constitutional Court that the government of

the Czech Republic approved its opinion on the present petition at a

meeting on 6 August 2003. The government believes that lists of secret

information contained in a government directive must be set forth to a

certain degree by more general formulations so that, in the meaning of §

3 par. 1 of Act no. 148/1998 Coll., they will be an essential legal

basis for the possibility of making certain information secret, and also

so that they will not be, as a result of a casuistic legal framework, a

barrier to such secrecy. Therefore, general information was also used

with the contested provision of the government decree. Particularly in

the situation of the Ministry of Foreign Affairs the accumulation of

conditions contained in § 3 par. 1 of Act no. 148/1998 Coll. “forces”

the inclusion of a more general provision on the list of secret

information. Otherwise, when obtaining certain information from abroad,

which can not be specified more precisely in advance, and which, if

revealed, could clearly damage the interests of the Czech Republic, it

would not be possible to designate such information as secret and keep

it secret, if it were not possible to classify it under some provision

of the list of secret information in the jurisdiction of the Ministry of

Foreign Affairs. Yet, the danger that the interests of the Czech

Republic will be damaged in the event of not making secret foreign

information which is uncertain in advance is considerable. The issue of

the possibility of making such information secret is related to the

issue of the Czech Republic’s trustworthiness vis-à-vis foreign partners

and with the issue of access to such foreign information in general.
 

According

to the government’s statement, the contested provision, when applied in

practice, helps to protect the key principle of the entire system of

protection of secret information, expressed in § 3 par. 1 of Act no.

148/1998 Coll., i.e. the protection of the interests of the Czech

Republic, yet one can not claim that it threatens the principle of

proportionality in the manner of providing information. The criterion of

“sensitivity” of information is an expression used in practice which is

meant to more closely indicate the substance and emphasize the specific

nature of secret information, and only after evaluating the

circumstances arising from § 3 par. 1 and § 2 par. 1 and 2 of Act no.

148/1998 Coll. will it become apparent whether that sensitive

information will be designated as secret information. Thus, the bounds

of administrative discretion in the contested provision can be

considered wider than is usual, but not unlimited.
 

In

its statement, the government acknowledges the redundancy, as regards

the definition of foreign relations, as the Ombudsman pointed out in his

petition. However, the redundancy is meaningless as regards possible

annulment of the contested provision, given that this is a duplicate

expression contained in the framework of appendix no. 3 to government

directive no. 246/1998 Coll. as such, because appendix no. 3 of that

directive is introduced by the heading “List of Secret Information in

the Jurisdiction of the Ministry of Foreign Affairs.” The redundancy

leads to the fact that even after deleting the words “in the area of

foreign relations” the Ministry of Foreign Affairs can not, under the

contested provision of the government directive, make secret just any

political, security, or economic information, but only such political,

security and economic information as arises within the jurisdiction of

the Ministry of Foreign Affairs, i.e. in the area foreign relations.

Thus, the framework of the appendix again makes more concrete the

content of secret sensitive information, as presupposed by § 3 par. 3 of

Act no. 148/1998 Coll.
 

The

government also states that the contested provision was added to

appendix no. 3 to government directive no. 246/1998 Coll. upon the

proposal of the Ministry of Foreign Affairs by government directive no.

403/2001 Coll., the draft of which was prepared by the National Security

Office. These steps correspond to the requirements of § 3 par. 2 and 3

of Act no. 148/1998 Coll. Thus, one can not agree that the contested

provision does not meet the requirements imposed by the Act on the list

issued by the government. The contested provision is not inconsistent

with § 3 of Act no. 148/1998 Coll., nor inconsistent with Art. 78 of the

Constitution, because it does not exceed the bounds of the Act. Under

Art. 17 par. 5 of the Charter, state bodies and territorial

self-governing bodies are obliged to provide, in an appropriate manner,

information with respect to their activities. Conditions therefor and

the implementation thereof shall be provided for by law. That law is Act

no. 106/1999 Coll., on freedom of access to information, which

recognizes limitation of the right to information in the case of secret

information. In view of the fact that the government, by including the

contested provision in the government directive, did not exceed the

bounds provided by the Act, making appropriate information secret under

the contested government directive also can not lead to interference

with the right to information. The government considers it open to

discussion whether setting designating sensitive political, security and

economic information in the area of international relations as secret

information, or the bounds of administrative discretion arising from

this provision, can, in this day and age, be interpreted with certainty

as failure to observe the constitutional principle of legal certainty

and the foreseeability of acts by the public power. Given the fact that

the Czech Republic has belonged to international democratic society for a

number of years now, one can assume that it is possible, in connection

with international events, at least at the general level to deduce and

predict of what nature secret information falling under the contested

provision can be and what intensity of information value it can have.

Thus, it also does not see the contested provision as inconsistent in

relation to the meaning of Art. 1 of the Constitution. It points out

that the principle of including secret information in a list issued as a

legal regulation is not applied in other countries. The only condition

for a particular piece of information to be designated secret is that if

it is revealed it may lead to endangering or damaging the interests of

the relevant country. Therefore, the substantive outline of a new legal

framework for secret information, approved by the government of the

Czech Republic, assumes that secret information will be classified by

the party processing it only on the basis of an expert evaluation of the

potential and scope to damage the interests of the Czech Republic, or

interests which the Czech Republic undertook to protect, in the event of

disclosure of information, its unauthorized acquisition or unauthorized

use, without a list of secret information being issued.
 

The

Ministry of Foreign Affairs (the “Ministry”) said in its statement that

the present petition is very one-sided. It emphasizes only making

possible the widest possible access to information and devotes

considerably less attention to the obligation to ensure protection of

secret information. It also focuses on one of the conditions for

assigning particular information an appropriate level of secrecy – per

the specific provision from the list of secret information in the area

of jurisdiction of the Ministry of Foreign Affairs, which the ministry

considers a supporting, basically formal, condition. It believes that

the petition does not take into account all the possibility that in a

particular case the primary and fundamental condition may not have been

met, that is, that there may have only been incorrect evaluation of

whether and how much unauthorized dealing with the information in

question can damage the interests of the Czech Republic. The problem at

hand allegedly lies not in the contested provision, but in § 3 of Act

no. 148/1998 Coll., under which both these conditions are cumulative. In

the ministry’s situation this statutory provision necessitates

including a more general provision in the list of secret information. If

certain information were obtained from abroad (which can not be

specified more closely in advance), the disclosure of which could damage

the interests of the Czech Republic, it would not be possible to

designate it as secret information unless it were simultaneously

possible to classify it under a provision from the list of secret

information in the area of jurisdiction of the Ministry of Foreign

Affairs. The danger that the interests of the Czech Republic would be

damaged in such cases is substantially greater than the risk that some

information, where the possible risk was assessed incorrectly, might not

be made public. The ministry also emphasizes the issue of

trustworthiness vis-à-vis foreign partners. If it were not possible to

guarantee in advance that information provided, of which nothing is

known at a given moment, can not be protected under the regime of secret

information, one can assume that such information will not be provided.

The ministry believes that if protection of secret information in the

jurisdiction of the Ministry of Foreign Affairs and the possibility of

obtaining information of a sensitive nature from foreign partners are

not to be endangered, it is necessary first to amend § 3 of Act no.

148/1998 Coll. If the formal condition requiring that information which

is to be assigned a level of secrecy must be listed in the list of

secret information were deleted from that provision, then it would be

possible to annul government directive no. 246/1998 Coll. completely.
 

The

National Security Office (the “NSO”) says in its statement that the

list of secret information is, to a certain extent, only a guideline. It

serves primarily as a general aid for designating individual pieces of

information as secret and for classifying individual kinds of secret

information at levels of secrecy. That is why lists of secret

information use general formulations in some cases, as in the contested

provision. The NSO does not agree that the contested provision is

inconsistent with § 3 of Act no. 148/1998 Coll. The Act itself does not

impose more detailed requirements on the contents of the list.

Therefore, the contested provision is also not inconsistent with Article

78 of the Constitution, as it does not exceed the bounds of the law and

is not formulated sufficiently vaguely and generally as to make its

wording not differ from the basic definition contained in the Act, as

the petition says. The wording of the contested provision is also not

inconsistent with Art. 17 par. 5 of the Charter, as that entrusts

conditions for and implementation of the right to information to a

statute, and it is clear that the right to information is restricted in

cases of secret information, as is also recognized by § 7 of Act no.

106/1999 Coll. The contested provision, just like other items on the

list of secret information, when applied in practice, help protect the

key principle of the system for protecting secret information –

protecting the interests of the Czech Republic. Apparently no great

problems occur in practice. The NSO also adds that the classification of

secret information depends on the particular cases, as the decision on

the correct setting and designation of the appropriate level of secrecy

is the obligation and responsibility of a statutory body [§ 12 par. 2

let. l) of Act no. 148/1998 Coll.]. However, secret information may only

be such information as is listed in the list of secret information.

Therefore, a level of secrecy can not be assigned to information whose

content meets the conditions for secret information, but it can not be

classified under any of the areas given in the list. In other countries

this principle is not applied, and the only condition for a particular

piece of information to be designated as secret is the possibility that

its disclosure can lead to endangering or damaging the interests of the

country. The substantive outline of the new legal framework, approved by

the government, and likewise the draft of the new Act on Protection of

Secret Information, therefore assume that the classification of secret

information will be done by the party processing it (its author), and

only on the basis of expert assessment of its potential for damaging the

interests (or disadvantages for the interests) of the Czech Republic,

or interests which the Czech Republic undertook to protect, in the event

of its disclosure, unauthorized acquisition or unauthorized use.
 


III.
 

The

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

on the Constitutional Court, reviewed whether the government directive

whose provision the petitioner claims to be unconstitutional, was passed

and issued within the bounds of constitutionally provided jurisdiction

and in a constitutionally prescribed manner. Constitutional

authorization to issue directives is given to the government by Art. 78

of the Constitution, under which the government is authorized to issue

directives to implements a statute and within its bounds. A directive is

signed by the prime minister and appropriate minister. One can conclude

from Act no. 148/1998 Coll. that the appropriate minister in the

present case is the prime minister himself. Under § 7 par. 1 of the Act

the central administrative office for the area of protection of secret

information, which also prepares lists of secret information (§ 3 par. 2

of the Act), is the National Security Office, which is supervised by

the prime minister (§ 7 par. 3 of the Act).
 

In

this case the Constitutional Court determined that the government, by

resolution no. 678 of 19 October 1998, approved the draft government

directive which provides lists of secret information. Out of 15 cabinet

members present, all 15 voted in favor. The directive was signed by

Prime Minister Miloš Zeman. The directive was published as required in

the Collection of Laws in part 86 as no. 246/1998 Coll. It went into

effect on 2 November 1998. The contested provision of point 18 of

appendix no. 3 was added to the contested government directive when it

was amended by directive no. 403/2001 Coll., which amends government

directive no. 246/1998 Coll., which provides lists of secret

information, as amended by later regulations. This amendment was passed

by government resolution no. 1048 of 15 October 2001. Out of 15 cabinet

members present, all 15 voted in favor. This government directive too

was signed by Prime Minister Miloš Zeman, and it was duly published in

the Collection of laws under the number cited above.
 

In

these circumstances, the Constitutional Court concludes that the

contested government directive was passed and issued within the bounds

of constitutionally provided jurisdiction and in a constitutionally

prescribed manner, within § 68 par. 2 of Act no. 182/1993 Coll., on the

Constitutional Court. Therefore, the Constitutional Court could consider

it on the merits.
 


IV.
 

In

the petition, the petitioner seeks the annulment of point 18 of

appendix no. 3 to government directive no. 246/1998 Coll. Appendix no. 3

of that directive is titled “List of Secret Information in the

Jurisdiction of the Ministry of Foreign Affairs“ and point 18 of the

appendix reads: “Sensitive political, security and economic information

in the area of international relations.” This directive was issued to

implement Act no. 148/1998 Coll. Under § 3 par. 1 secret information is

such information, the unauthorized handling of which could damage the

interests of the Czech Republic or interests which the Czech Republic

undertook to protect, or could be disadvantageous for these interests

and which is listed in the list of secret information. Under par. 2 and 3

of this provision, the lists of secret information are processed by the

National Security Office at the application of central offices and they

are issued by the government by directive.
 

The

petitioner claims first of all that the government acted inconsistently

with Article 78 of the Constitution by passing the contested provision.

Under the first sentence of the provision, the government is authorized

to issue directives in order to implement statutes, within the bounds

thereof. It must thus act secundum et intra legem, not outside the law

(praeter legem). A government directive merely expands on or updates the

disposition or hypothesis of the implemented statutory norm, and it is

not possible for this statutory norm to be substantively widened or

narrowed within in. It is required that a government directive be

general and apply to an uncertain group of addressees, as the

Constitution authorizes it to make a legal framework, not to issue an

individual administrative act. The barrier of things reserved to be

regulated exclusively by statute (the so-called “statutory reservation”)

guards against abuses of the executive power (cf. Constitutional Court

judgment Pl. ÚS 45/2000).
 

The

provision of § 3 par. 1 of Act no. 148/1998 Coll. defines the concept

“secret information” with the help of two conditions, a substantive

condition (unauthorized handling of such information may damage the

interests of the Czech Republic or interests which the Czech Republic

undertook to protect, or could be disadvantageous for these interests)

and a formal condition (it is listed in the list of secret information).

It is clear from the present petition that the petitioner, in

interpreting § 3 of Act no. 148/1998 Coll. relied primarily on

linguistic methods. He concluded that the Act foresees the existence of a

definitively and concretely defined list of secret information. He then

concludes from that that the government’s actions deviated from the

bounds of the law, because the list issued by the government does not

meet this requirement.
 

The

interpretation of a legal norm is nonetheless a complex, multi-layered

intellectual operation, which knits together a number of methods. In the

present circumstances the Constitutional Court considers e ratione

legis to be an indispensable interpretative method. In its prior case

law it accepted the principle of a looser relationship between a statute

and a directive, with the provision that it considered the directive’s

consistency with the meaning and purpose of a statute as a whole to be a

priority in assessing constitutionality (cf. judgment Pl. ÚS 45/2000).

One of the primary aims of Act no. 148/1998 Coll., on Protection of

Secret Information, is to protect the interests of the Czech Republic.

This is shown by the wording of § 1a of the Act, under which its subject

matter is primarily the definition of information which needs to be

kept secret in the interest of the Czech Republic. This purpose of the

Act is also to be fulfilled by its other provisions, not least § 3 par.

1. Applying the method of teleological interpretation leads to the

unquestioned conclusion that the purpose of the Act is to legally ensure

that all information is kept secret which, under the definition, (§ 2

par. 2) conflict with the interests of the Czech Republic. This aim is

projected in the substantive condition of § 3 par. 1 of Act no. 148/1998

Coll. It would be absurd to assume that the legislature, by including a

second, formal, condition in § 3 par. 1 of Act no. 148/1998 Coll.,

intended to make it impossible to effectively fulfill the purpose of the

Act. This is the absurd conclusion which would be reached if one

accepted the thesis that the list of secret information, assembled by

the government as instructed by the Act is to contain only completely

specific items, and at the same time be a final, definitive list. The

combination of great specificity and definitiveness in assembling the

list of secret information would make it impossible to meet the purpose

of the Act without anything further, and would inherently carry the risk

that a piece of information which meets the substantive requisite for

secrecy would not be kept secret, as it did not fall under any of the

specific items on the list assembled by the government. The government

did not have a mandate for such a “risky” combination. It is not

authorized to substantively narrow an implemented statutory norm (see

above). This procedure would be “implementation of the statute and

within its bounds,” but a procedure contra legem, which Art. 78 of the

Constitution does not permit.
 

The

petitioner also believes that the list in government directive no.

246/1998 Coll. does not meet the principles of legal certainty and

foreseeability of acts by the public power, which are required in a

democratic state governed by the rule of law (Art. 1 par. 1 of the

Constitution).
 

The

Constitutional Court naturally agrees that the foreseeability of the law

is one of the fundamental elements of the principle of legal certainty,

and one can not imagine a democratic state governed by the rule of law

without it. It also agrees with the petitioner’s opinion that

“foreseeability” is connected with a clear normative definition of

individual groups of secret information, and with the definitive nature

of the government-compiled list of such information.
 

Of

course, legal certainty and the foreseeability of acts by the public

power are not absolute categories which could be set above other

components of the concept of “a democratic state governed by the rule of

law.” Protection of the interests of the Czech Republic as a sovereign

state is also a constitutionally protected value (Art. 1 par. 1 of the

Constitution). The Act on Secret Information defines these interests as

“preserving constitutionality, sovereignty, territorial integrity,

ensuring the defense of the state, public safety, protection of

important economic and political interests, the rights and freedoms of

natural persons and legal entities and protection of life or health of

natural persons.” Thus, the task of the legislature, as well as of the

government, is to optimize the possible discordant effects of the

protective mechanisms for both values, in other words, to narrow as much

as possible the room for possible arbitrariness in acts by the public

power, and at the same time ensure the effective protection of state

interests. It would not be “optimization” if a government directive

ensured perfect legal certainty, as well as perfect foreseeability, at

the expense of protection of state interests, which would have to

unconditionally give way to the requirement of foreseeability, thus

conceived.
 

In this context,

the Constitutional Court points to the principle of proportionality,

which is a different expression of the concept of optimization. It too

must be used to evaluate the list in appendix no. 3 to government

directive no. 246/1998 Coll., which is the subject of the petition.

Proportional limitation of foreseeability (legal certainty) is such

necessary limitation as is still able to ensure effective fulfillment of

the aims of Act no. 148/1998 Coll. It is obvious that in the

“optimization” operation, the government was forced to optimize, in the

list of secret information, on the one hand, considerably opposing

requirements for accuracy and specificity of items, and, on the other

hand, the definitiveness of the entire group.
 

There

were hypothetically two possible approaches: to choose a completely

specific expression of the individual items in the list and define the

list as illustrative. The legislature itself obviously chose a similar

path, when in § 4 of Act no. 148/1998 Coll. it assembled a list of

“areas” in which secret information can occur. Despite its unusual size

(27 items), it did not neglect to introduce the list with the term “in

particular.”
 

In a similar

situation, the government could not choose this approach, as linguistic

interpretation of § 3 par. 1 of Act no. 148/1998 Coll., as regards the

formal condition (listing the information on the list), results in the

requirement of a definitive enumeration in the list. Therefore, it had

to proceed inversely, preserve the definitiveness of the list, and

“optimize” in the degree of generality (specificity) of individual items

in the list and the list as a whole.
 

The

Constitutional Court states that appendix no. 3 to government directive

no. 246/1998 Coll. (List of Secret Information in the Jurisdiction of

the Ministry of Foreign Affairs) contains 18 items. Of those, 17 are

relatively specific, whereas item no. 18 is relatively general. The list

as a whole thus gives the ministry, a body of public power, room for

broader substantive discretion only within item no. 18, which must be

understood as a “residual” area not covered by items nos. 1-17. Only in

this residual area (not in the entire area of international relations)

there is objective room for acts which could theoretically be described

as “unforeseeable.”
 

Of

course, the Constitutional Court points out that the petitioner extends

his idea of legal certainty and foreseeability to an impermissibly

narrowed concept of a democratic state governed by the rule of law.

Legal certainty and the foreseeability of acts by the public power must

also be preserved in relation to other subjects of international law.

Under Art. 1 par. 2 of the Constitution “the Czech Republic shall

observe its obligations under international law” The Czech Republic has

accepted international obligations vis-à-vis its allies regarding

keeping secret certain important and sensitive information. It is

obligated to transmit these international obligations into domestic law,

and through it ensure the secrecy of appropriate information. For these

other states, a “foreseeable” legal framework for the actions of bodies

of public power of the Czech Republic will be one which is capable of

securing their international obligations as regards secrecy. In

contrast, an “unforeseeable” framework will be one which is incapable of

ensuring in all cases the secrecy of information which the CR has

undertaken to protect under international law. Of course, the CR has an

international responsibility vis-à-vis its allies only for the “result”:

it violates its obligation at the point when it does not ensure the

protection of a particular piece of information which is subject to

secrecy under an international treaty. In order for the CR to be capable

of meeting its international obligations in this area, its bodies must

have the authorization to judge whether or not a particular piece of

information is to be secret under an international treaty. If the CR is

not able, due to the particular content of its domestic law, to fully

ensure such specific evaluation and subsequent secrecy, its conduct is

“unforeseeable” for its contractual partners, and violates legal

certainty in internal law relations. The contractual partners may then

not disclose certain sensitive information to the Czech Republic,

possibly to the detriment of its security or other of its fundamental

interests protected by Art. 1 par. 1 of the Constitution.
 

In

view of the foregoing considerations, the Constitutional Court believes

that the degree of legal uncertainty, non-foreseeability, that results

form the list of secret information in the jurisdiction of the Ministry

of Foreign Affairs as a whole is proportional in relation to the

statutorily required degree of protection of state interests and in view

of the constitutional principle of fulfilling obligations which arise

to the Czech Republic from international law.
 

The

petitioner also believes that government directive no. 246/1998 Coll.,

through the list, allows the Ministry of Foreign Affairs, when keeping

information secret, to act in a way that may lead to unconstitutional

interference in the right to information under Art. 17 par. 1 and 5 of

the Charter. The Constitutional Court does not share his belief. Act no.

148/1998 Coll. limits freedom of expression and the right to seek out

and disseminate information, on the grounds, among other things, of

ensuring defense of the state or public security, i.e. on grounds which

are expressly permitted by Art. 17 par. 4 of the Charter. In the

contested provision, the government, while implementing this statute,

did not exceed its bounds, and a certain, proportional degree of

administrative discretion in applying the government directive is

required by the purpose of the statute. Thus, applying the contested

provision in the list does not prevent the Ministry of Foreign Affairs

from appropriately providing information about its activities in

accordance with the law.
 

The

Constitutional Court also did not agree with the petitioner’s claim

regarding alleged violation of Art. 4 par. 2 of the Charter. The bounds

of fundamental rights and freedoms (in the present case the right to

information) in the present matter are indisputably defined by statute

(by Act no. 148/1998 Coll., which specifies what is secret information,

and by Act no. 106/1999 Coll., on Freedom of Access to Information,

which, in § 7, provides that an obligated subject shall not provide

secret information). As was discussed above, in the present case the

government did not exceed the bounds of the law, and thus did not limit

the constitutionally guaranteed right to information more than the law

allows.
 

The Constitutional

Court recognizes that application of government directive no. 246/1998

Coll. and its appendices in particular cases may cause certain problems

and doubts, as happened in the case which prompted the petitioner to

act. In individual situations, the statutory room for administrative

discretion can be abused to arbitrarily make secret a particular piece

of information which at the time does not meet the substantive condition

of § 3 par. 1 of Act no. 148/1998 Coll. In such a case, however, the

legal order permits one to seek protection of his right to information,

through means which are defined by Act no. 106/1999 Coll., on Freedom of

Access to Information. Under § 16 par. 1 of the Act an appeal

[“odvolání”] can be filed against a decision by the obligated entity

denying an application to provide information, or an administrative

appeal [“rozklad”] can be filed against a decision by a central state

administration body (par. 5 of that section). A decision denying an

application is also reviewable by a general court (§ 16 par. 6 of the

Act), and that court’s decision is then reviewable by the Constitutional

Court.
 

Thus, possible

arbitrariness in determining specific information which is to be kept

secret can be effectively countered. The Constitutional Court therefore

believes that the contested provision in the wider procedural context,

as just defined, is also consistent with conclusions which the European

Court of Human Rights reached on the required precision of a legal norm

and the foreseeability of acts by the public power. That court requires

in cases, where a legal regulation authorizes discretion by a body of

public power, that the scope and modalities of the exercise of that

discretion be defined with sufficient clarity in view of the particular

legitimate aim, and that they provide the individual the corresponding

protection against arbitrariness [Kruslin v. France (1990), §§ 27, 29,

30 and M. and R. Andersson v. Sweden, (1992), § 75].
 

In

view of all the foregoing, the Constitutional Court denied the petition

to annul point 18 of appendix no. 3 to government directive no.

246/1998 Coll., under § 70 par. 2 of Act no. 182/1993 Coll., on the

Constitutional Court.

Notice: Decisions of the Constitutional Court can not be appealed.


Brno, 11 February 2004                    

 


 
Dissenting Opinion
of JUDr. Eliška Wagnerová, Ph.D.

I was led to express this dissenting opinion on the following grounds:


I.
 

The

petition to annul point 18 of appendix no. 3 to government directive

no. 246/1998 Coll., which provides lists of secret information, as

amended, was filed by the Ombudsman, motivated by a request for

investigation presented to his office by Petr Uhl, who unsuccessfully

requested the Ministry of Foreign Affairs to provide information in the

form of a “plan for human rights.” The Ombudsman, in connection with

addressing this particular case, was faced with the application of the

above provision of the cited government directive, whose

constitutionality he then questioned before the Constitutional Court.

Therefore, his petition can be considered as grounds to open proceedings

on so-called “specific review of norms,” i.e. the norm which is to be,

or was, applied by the body of public power to the particular case.
 

From

a constitutional law viewpoint, the relationship between Petr Uhl and

the Ministry of Foreign Affairs involved resolving the question of

whether refusal of information on the plan for human rights meant

interference in Petr Uhl’s fundamental right to freely seek information,

as declared by Art. 17 par. 4 of the Charter of Fundamental Rights and

Freedoms (the “Charter”). The constitutional question at the level of

proceedings on specific review of norms at the instigation of the

Ombudsman, was then, viewed in a consistent manner, whether the

contested provision can be interpreted in a constitutionally consistent

way so that, in Petr Uhl’s case there was no interference in his

fundamental right, or whether the contested provision is incapable of

such interpretation, and therefore must be annulled as unconstitutional.


 

It is evident from the

genesis of the case as described and the unique nature of proceedings on

specific review of a norm, that the contested norm should have been

first (perhaps exclusively) reviewed in terms of Art. 17 par. 4 of the

Charter, i.e. in terms of that fundamental right, the violation of which

was the initial impetus to open proceedings before the Constitutional

Court.
 

I reached this

conclusion after deliberation motivated by questions connected with

applying the principle of minimalism in the approaches and procedures of

the Constitutional Court. This principle should be applied not only in

final decisions, which is the approach that the Constitutional Court

routinely practices when it gives priority to a constitutionally

consistent interpretation of a legal norm over annulling it (from recent

times, see the judgment in matter file no. Pl. ÚS 41/02), but also in

the scope of review of contested legal acts, particularly in the case of

proceedings on so-called “specific review of norms.” In this type of

proceedings it is practical life itself which formulates the

constitutional questions connected with the application of a particular

legal norm in specific, factually created situations, which the

Constitutional Court is to answer. In contrast, “gray” academic

consideration about what could (but need not) may have a future

influence on the interpretation of a legal norm, which clearly can never

comprise the entire “green tree of life,” should be answered in this

type of proceedings as little as possible, if at all.
 

The

practical effect of this minimalist approach is tied to the creation of

the obstacle res iudicata. The more minimal the approach which the

Constitutional Court takes, the smaller the obstacle it will create in

the form of an already adjudicated matter, and on the contrary – the

greater the room it will leave for the development of real life, with

its organically arising further questions.
 


II.
 

Article

17 of the Charter guarantees the right to information as a political

right whose purpose is to ensure the public’s ability to participate in

decision-making processes, and is thus one of the conditions making it

possible to connect citizens to the operation of power. Being informed

fundamentally affects one’s ability to express relevant opinions on

issues of public life. In contrast, the institution of secrecy is an

instrument which strengthens the power interests of the bureaucratic

apparatus of the executive power (government in the wider sense). In

modern society it is the bureaucracy which exercises power, and the

bureaucratic administration has a tendency to be an administration

without public participation. Controlling the provision of information,

however necessary it may be in certain areas, is also a significant risk

for the democratic principles of government. All these facts must be

taken into account when interpreting the constitutional right to

information.
 

Therefore, in

light of this importance of the right to information, this right, in the

form of a right to seek information (Art. 17 par. 4 of the Charter) can

not be interpreted solely as a status negativus. Much more in line with

its fundamental importance for democracy itself is an interpretation of

the right as a right expressing a status positivus, with the

corresponding obligations on the public power. Limitation of the

obligations of the public power to provide information can range only in

the limits set forth by Art. 17 par. 4 of the Charter. In my opinion,

this par. 5 Art. 17 of the Charter must be interpreted along these

lines. This restrictively interpreted purpose for limiting the right to

information also corresponds to the wording of Art. 19 par. 3 of the

International Covenant on Civil and Political Rights.
 

In

any case, as follows from the doctrine of European legal knowledge, it

is a question of the interpreter’s legal philosophy, which gives openly

formulated fundamental rights one or another status (see, e.g.,

Böckenförde, E. W.: Grundrechtstheorie und Grundrechtsinterpretation, in

Neue juristische Wochenschrift – NJW 35/1974, p. 1529 et seq.) And, of

course, the specific circumstances of the case, viewed in terms of

significance or the overlaps of an applied personal fundamental right

into the public sphere, will play a role in determining the nature of

the right applied. And it is precisely in proceedings on the specific

review of norms that these specific circumstances can be taken into

account.
 


III.
 

I

can not agree with the method for reviewing the contested provision as

expressed in the judgment’s reasoning. Primarily, I object that, insofar

as the contested provision was interpreted teleologically, and only in

relation to the purpose of Act no. 148/1998 Coll., on Protection of

Secret Information, as amended (the “Act”), without the purpose of that

Act being tested by the purpose for which the right to seek information

can be limited from the viewpoint of Art. 17 par. 4, that test was

incomplete. The Act can undoubtedly be considered a statute limiting the

right to seek information, the passage of which is presupposed and

permitted by that provision of the Charter, but, of course, only for the

purpose stated therein. This test must be applied even though the

relevant provisions of the Act were not, and could not be, contested by

the petitioner. the Constitutional Court would address this issue as a

“preliminary” issue, with effect on the decision on the merits .
 

I

believe that there can be serious doubts as to whether the purpose of

the Act (i.e. protection of the interests of the CR, as indicated by §

1a of the Act, and which is elaborated by § 3 par. 1 of the Act, which

sets substantive conditions for designating secret information such that

the information in question must be information, the unauthorized

handling of which could damage the interests of the CR or interests

which the CR undertook to protect, or could be disadvantageous for these

interests) ranges within the limits of the purpose of the cited

provision of the Charter, expressed there as “protecting the rights and

freedoms of others, the security of the state, public security, public

health, or morals.” If, from this point of view, the purpose of the Act

itself were cast in doubt, then of course, the contested provision,

which is actually merely a formal condition supplementing § 3 par. 1 of

the Act, also could not stand.
 


IV.
 

Only

if the test of whether the purpose of the Act matches the purpose

arising from Art. 17 par. 4 of the Charter were answered in the

affirmative, would it be possible to further test the contested

provision in terms of the principle of a democratic state governed by

the rule of law (Art. 1 par. 1 of the Constitution of the CR), where the

principle of foreseeability of law and the ban on arbitrariness by

bodies of public power are immanent, both closely related to the issue

of certainty in the terms used in the hypothesis and disposition of a

legal norm, or their deontological expression.
 

The

majority’s starting point is the opinion that the contested provision

creates room for wider substantive administrative discretion. I can not

agree with this opinion, because both the construction of the

Administrative Procedure Code (under § 78 of the Administrative

Procedure Code a court reviews only the bounds of administrative

discretion, perhaps abuse of administrative discretion), and the case

law of the administrative courts indicate that the content of

administrative discretion is outside judicial review. In this situation,

one must insist that the norms or public law (including the contested

norm) that are directly tied to a fundamental right be formulated

deontologically so that they do not provide room for administrative

discretion, even if they use relatively abstract concepts. Unlike

administrative discretion, interpretation of abstract or uncertain terms

is not removed from judicial review.
 


V.
 

In

the reasoning of the judgment the majority expressed an opinion which

is difficult for me to accept, that the foreseeability of the contested

provision must also be evaluated “in relation to other subjects of

international law,” with reference to the declaration contained in Art. 1

par. 2 of the Constitution of the CR, which states that “the Czech

Republic shall observe obligations which arise to it from international

law.” The majority apparently takes this provision of the Constitution

of the CR to be general grounds for limiting any fundamental right,

including the fundamental right to seek information. I can not accept

the majority’s optics. I am of the opinion that the state may undertake

only such international obligations as will respect the constitutional

order of the Czech Republic, and in the event of conflict, the

constitutional order of the CR should take precedence. In any case, the

so-called “Euro-amendment” of the Constitution of the CR (constitutional

Act no. 395/2001 Coll.), as well as the related opening of proceedings

on preventive review of the constitutionality of international treaties

before the Constitutional Court, were evidently based on this concept.

However, this does not rule out a posteriori review of the

constitutionality of international treaties, or their effects at the

level of domestic law, as one must insist that the fulfillment of

international law obligations (whether in the domestic or international

sphere) must always be consistent with the constitutional order of the

CR. This conclusion must also be applied in view of the text of Art. 10

of the Constitution of the CR, under which an international treaty takes

precedence in application over a statute (and by argument a maiori ad

minus also over a sub-statutory legal regulation). Therefore the

argument applied by the majority is unacceptable to the extent that it

quite sweepingly sets international law obligations over the content of

domestic law, without, however, taking into account the effect of norms

of the constitutional order of the CR (in this case Art. 17 par. 4 of

the Charter).
 

For that

reason too I consider the majority’s position unacceptable, and in view

of this it was also necessary to evaluate the contested provision

through the lens of Art. 17 par. 4 of the Charter, and not through the

lens of the Act on Protection of Secret Information and international

treaties, or the international obligations of the CR. In my opinion, the

priority of the constitutional order of the CR over international

treaties must be insisted on at least in a scope which corresponds to

the “essential requirements of a democratic state governed by the rule

of law,” which may not be changed (Art. 9 par. 2 of the Constitution of

the CR) by any legal act, whether international or domestic, regardless

of its legal force. The essential requirements of a democratic state

governed by the rule of law also include, at a minimum, respect for

fundamental rights by bodies of public power when exercising their

jurisdiction (in certain cases one can also require bodies of public

power to protect fundamental rights), according to the standard provided

by the domestic constitutional order. Only in cases where an

international treaty on fundamental rights (whether designated as a

treaty on human rights or a treaty on civil and political rights) by

which the Czech Republic is bound provides a higher standard of

fundamental rights than the domestic constitutional order is it

possible, because of the content of treaties, or the nature of the

rights contained in them, for the domestic framework to give way to the

international framework, which would be respected by bodies of public

power when exercising their jurisdiction. This approach corresponds to

the interpretation of Art. 1 par. 1 of the Constitution of the CR which

indicates that in a democratic state governed by the rule of law the

individual is pre-eminent before the state, and the state, in contrast,

is bound by respect for the fundamental rights of the individual.

Brno, 23 February 2004