2005/04/26 - Pl. ÚS 11/04: Judicial Review of Security Clearances

26 April 2005

HEADNOTES

Although

the case of judicial review of security clearances involves an area

which permits a certain limitation of fundamental rights, the

Constitutional Court points out that this subject matter must be viewed

in terms of requiring the constitutional prohibition of discrimination

(Art. 1 par. 1 of the Constitution of the Czech Republic, Art. 1 and

Art. 3 par. 1 of the Charter), which gives rise to, at a minimum, the

right to review whether the conduct and results of a security clearance,

which is fully in the hands of the executive power, with broad

discretion, were not discriminatory and whether they were not marked by

arbitrariness. In addition to the right to a free choice of profession,

modified per the foregoing, with some categories of persons subject to

clearance, Art. 21 par. 4 of the Charter also undoubtedly applies, which

provides that “Citizens shall have access, on an equal basis, to any

elective and other public office.”

The constitutional order of the CR (Art. 81 and 82 of the Constitution

of the Czech Republic) provides that the judicial power is exercised

only by independent and impartial courts, that is, independent and

impartial judges, who are guided by the fundamental rules of a fair

trial (Art. 1 par. 1 of the Constitution, Chapter Five of the Charter).

These provisions can be interpreted as institutional guarantees of the

substantively understood exercise of the judicial power, and therefore,

in terms of the right to a fair trial, it is not necessary for a court

under § 36 par. 2 of the Charter to be, in all cases, exclusively a body

within the system of general courts, but it must be an independent body

whose members are independent and impartial in their decision making.

It must also have unconditional access to review all relevant aspects of

a matter (factual and legal), while observing the fundamental

principles of a fair trial (e.g. the principal that no one may be a

judge in his own case or the principle that both sides must be heard),

and an executable decision can not be reversed by another act by a state

power (the definition of the judiciary in a substantive sense).

Independence and impartiality are ideals which can never be fulfilled

absolutely – we can only approach them – which comes from their social

nature. Independence means ruling out the possibility of affecting the

free formation of the will of judges; impartiality (independence from

the parties) is the absence of a leaning by the court toward one of the

parties, where the concept party to a proceedings can be understood on a

general and specific level. Independence is a category of relationship

which is closely tied to the concept of power understood as the

opportunity of forcing one’s will on others (Weber, M., Autorita, etika a

společnost [Authority, Ethics and Society], Mladá Fronta, 1997, p. 49;

originally in Wirtschaft und Gesellschaft, Tübingen, JCB Mohr Siebeck

1972, p. 541-544). The long-term legal and political development of

liberal democracies was generated by experience with the indicators of

independence and impartiality from which one can form objectivized

criteria for evaluating whether the elements independence and

impartiality have been met, because at the subjective level of the

psychological (conscious or unconscious) state of the decision making

entity (it is at this level that the undesirable influencing of free

judgment occurs), they can not be captured by legal instruments. At an

objective level, impartiality and independence are generally evaluated

in terms of the relationship to other components of power (the principle

of separation of powers), in terms of the ability of persons (with a

potential interest in a particular outcome or course of a dispute) to

influence the creation, duration and termination of the office of a

member of judicial body (tribunal). Therefore, judges and members of

judicial-type bodies must have a sufficiently independent status to rule

out the possibility that their decision making activity can be directly

or indirectly influenced. The existence of protection against external

pressures is evaluated, e.g., in terms of the existence of a potential

opportunity to influence a judge’s career, or the opportunity to bring

about the termination of his office. A guarantee of financial

independence is also undoubtedly part of an independent status. Only

then does the formal order not to be guided by the orders of others

receive material content, and only thus are neutrality and distance from

the parties ensured.

In

evaluating impartiality and independence one can not completely ignore

the appearance aspect of the matter, where the appearance independence

and impartiality for third parties is also considered a valid criterion,

because this aspect is also important for ensuring confidence in

judicial decision making. This criterion too reflects the social nature

of judicial decision making, which indicates that, even if realistic

grounds for doubts about impartiality and independence does not in fact

exist (both subjectively and objectively), one can not overlook the

possible existence of a collective belief that such grounds exist.

The general sociological concept known as Thomas’s theorem (see, e.g.

in Collective of Authors, Velký sociologický slovník [Big Dictionary of

Sociology], I., Prague, Karolinum, 1996, p. 171) also applies to the

justice system; the theorem says that if a particular situation – here,

the non-existence of independence or impartiality – is defined by people

as real, then it also has real consequences – there is a lack of

general trust that a decision is a fair one by an independent and

impartial tribunal. Confidence in the law is among the fundamental

extra-legal attributes of a law-based state.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of JUDr. Stanislav Balík,

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

JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Nykodým, JUDr.

Pavel Rychetský, JUDr. Miloslav Výborný, JUDr. Eliška Wagnerová (judge

rapporteur) and JUDr. Michaela Židlická, decided on 26 April 2005 on a

petition from the Regional Court in Brno seeking the annulment of § 77 k

par. 6 of Act no. 148/1998 Coll., on Protection of Classified

Information, in the wording in effect on 30 September 2004, as follows:

The

provision § 77k par. 6 of Act no. 148/1998 Coll., on Protection of

Classified Information and Amending Certain Acts, as amended by later

regulations, is annulled as of the day this judgment is promulgated in

the Collection of Laws.

 


REASONING


I. (Recapitulation of the Petition and its Admissibility)
 

In

the petition, delivered to the Constitutional Court on 19 February

2004, the Regional Court in Brno requested, through the procedure under

Art. 95 par. 2 of the Constitution of the Czech Republic, annulment of §

77k par. 6 of Act no. 148/1998 Coll., on Protection of Classified

Information, in the wording in effect as of 30 September 2003 (the

“APCI”), because, while deciding the matter of a complaint from Ing.

P.P. against the Collegium in the department of protection of classified

information at the Supreme Public Prosecutor’s Office (the

“Collegium”), under file no. 36 Ca 9/2003, it concluded that the

provision in question is inconsistent with the constitutional order of

the Czech Republic. The Regional Court maintained its petition, despite

the fact that in the interim, since it interrupted proceedings in order

to submit the matter to the Constitutional Court, that part of the Act

on the Public Prosecutor’s Office which prescribed evaluation of the

professional qualification of state prosecutors (part nine of Act no.

283/1993 Coll., in the wording then in effect), was annulled; the

existence of that part had been the primary reason for filing the

petition to open proceedings under § 64 par. 3 of Act no. 182/1993

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

“Act on the Constitutional Court”). According to the Regional Court, it

can not now be claimed that evaluation of a state prosecutor’s

professional qualification can have an effect on the progress of his

career; nevertheless there are other reasons (also stated in the

original petition). Moreover, in the present matter the Collegium made

its decision under the original legislative provisions.
 

The

Constitutional Court first stated that the petition was filed by an

authorized person in accordance with § 64 par. 3 of the Act on the

Constitutional Court, and that it is an admissible petition (§ 66 of the

Act on the Constitutional Court per eliminationem).
 

The

essence of the Regional Court’s petition are its doubts about the

Collegium, as an independent, impartial tribunal, capable of conducting a

fair trial under Art. 6 par. 1 the Convention for the Protection of

Human Rights and Fundamental Freedoms (the “Convention”) and Art. 36

par. 2 of the Charter of Fundamental Rights and Freedoms (the

“Charter”). The Collegium rules on appeals against decisions of the

director of the National Security Office (the “NSO”), of the Minister of

the Interior, the Director of the Intelligence Service, or the

President of the Police (§ 77a of the APCI), decisions on complaints

from persons undergoing security clearances about non-issuance (or

termination of validity) of a clearance or certification (§ 75 and § 76

and their par. 1, 2 and 5 of the APCI) on meeting conditions permitting

access to classified information of a given classification level. The

original legal framework did not allow at all the possibility of review

of these decisions by an independent body. Only after intervention by

the Constitutional Court was their explicit reservation for court review

first annulled (judgment of 12 July 2001, file no. Pl. ÚS 11/2000,

published in Collection of Decisions of the Constitutional Court of the

Czech Republic – “CDCC” - vol. 23, p. 105, in the Collection of Laws as

no. 322/2001, in electronic form on www.judikatura.cz, “judgment Pl. ÚS

11/2000”). Subsequently, the APCI was amended by Acts no. 151/2002 Coll.

and no. 310/2002 Coll., which, on one hand, established the right to

contest a decision not to issue a clearance through a complaint (§ 73

par. 2 APCI), and, on the other hand, to also contest that decision

(together with other decisions cited above) through an appeal to the

Collegium (§77a to §77k. of the APCI). Under § 77k par. 6 of the APCI a

final decision of the Collegium is not subject to judicial review. These

legislative measures created a very unclear situation, particularly as

regards the possibility of independent review of a decision not to issue

a clearance (§ 75 par. 5 of the APCI), which can probably be contested

by a complaint in the administrative judicial system (§ 73 par. 2 of the

APCI) and by an appeal to the Collegium (§77a of the cited Act); all

decisions of the Collegium (including decision on appeals against other

decisions, as described above) are expressly not subject to judicial

review (§ 77k par. 6 of the cited Act). Moreover, according to the

Regional Court, the situation is complicated by lack of clarity on the

issue of whether a complaint can be used to contest a final

administrative decision issued on the basis of § 75 par. 1 and 5 of the

Act on Protection of Classified Information, because only this

individual administrative act, issued in the matter of issuance of a

clearance, can be considered a decision – no decision is issued to not

issue a clearance.
 

The

Regional Court pointed to the decision of the European Court of Human

Rights (the “ECHR”) in the matter Incal v. Turkey, where, doubts were

expressed about the independence of military judges, regardless of

legislative bans on interfering in their authority. There were also

doubts concerning their four-year renewable mandate. In conclusion, the

Regional Court pointed to the above-mentioned Constitutional Court

judgment, which stated the need to permit the implementation of

appropriate guarantees for protection by a court (or impartial

tribunal), even if, per the nature of the matter and taking into account

the relevant position, this involved considerably unusual and

differentiated protection.
 

Proceedings

on the petition were interrupted by resolution of the Plenum of the

Constitutional Court of 23 March 2004, because the Constitutional Court

did not have a sufficient number of judges. The obstacle to reviewing

the petition was removed on 16 June 2004, when the President of the

Republic appointed the twelfth judge to the Constitutional Court. On 22

June 2004 the Constitutional Court continued the proceedings, and the

judge rapporteur, in accordance with § 42 par. 4 and § 69 par. 1 of the

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

requested statements from both chambers of the Parliament of the Czech

Republic and statements from the person whose rights were affected by

application of the provision sought to be annulled.

II. (Recapitulation of Statements)
A)

The Chamber of Deputies of the Parliament of the Czech Republic,

represented by its Chairman PhDr. Lubomír Zaorálek, in its statement of

26 July 2004, said that it can not agree with the petitioner’s

arguments. First it proposed for consideration whether the petitioner

acted in accordance with Art. 95 par. 2 of the Constitution of the Czech

Republic, which can be used only if a general court concludes that a

statute which is to be applied is inconsistent with the constitutional

order. The concept of constitutional order is defined exhaustively in

the Constitution of the Czech Republic and does not include

international agreements. However, the petitioner repeatedly asks for

evaluation of the question whether the Collegium meets the requirements

imposed by the Convention. Regardless of the foregoing, however, the

Chamber of Deputies does not agree with the petitioner’s conclusion that

the Collegium is not an impartial and independent tribunal, as meant by

Art. 6 of the Convention. According to the Chamber of Deputies, ECHR

case law judges the independence of a particular tribunal according to

individual circumstances, and any conclusions can not be applied

generally, which is also supported by the case cited by the petitioner,

Incal v. Turkey, where a narrow majority of judges concluded that a

court composed of active army officers, which judged acts committed by

civilians, was insufficiently independent. The Chamber of Deputies

stated that there is no reason to doubt the subjective independence of

the Collegium members, and that the Collegium also meets the criteria of

objective independence.
 

Even

if the evaluation of professional qualification were not deleted from

the Act on the Public Prosecutor’s Office, one could not conclude that

the mechanism of performing that evaluation violated the Collegium’s

independence. Fulfillment of the tasks of a Collegium member could not

be subject to the evaluation of professional qualification. The

statutory formulation, under which performance of the office of a

Collegium member is considered to be performance of the office of a

state prosecutor, is to be understood “only as a statutory guarantee of

recognition of the activity performed by a state prosecutor in the

Collegium. If this formulation did not exist, a state prosecutor would

be forced to perform the office of a Collegium member in his free time.”

The Chamber of Deputies pointed to the non-existence of professional

subordination of a Collegium member in relation to the supreme state

prosecutor (in particular § 7a par. 4 of the Act on the Public

Prosecutor’s Office). The criteria of independence of the tribunal,

formulated by the ECHR, can not be applied mechanically. The mere fact

of appointment by an executive body can not be considered to endanger

the Collegium’s independence and impartiality. In the end, the selection

and appointment of judges is also ensured and performed by executive

bodies.
 

It is true that the

term of office of Collegium members is two years, which could be

interpreted as a sign of the existential and decision-making dependence

of its members. In the specific example of Collegium members that is not

so. Its members, as state prosecutors working at the Supreme Public

Prosecutor’s Office, are persons enjoying general respect, with stable

employment independent of performance of their role in the Collegium.

The performance of the office does not bring any material advantages or

other benefits. A member has no material incentive to remain in the

office; on the contrary membership means additional work burdens, and

limitations on the ability to work on one’s usual duties. If a Collegium

member performs this office, “he does so only from a sense of

responsibility for fulfilling the Act on Protection of Classified

Information". The Chamber of Deputies emphasized that it fundamentally

rejects the idea that in individual cases there could be pressure

applied by the executive branch on Collegium members to decide a

particular way. There is no way to apply effective pressure on a

Collegium member to decide in a particular way. Possible failure to

extend a member’s term of office does not injure a member in any way; on

the contrary, if anything, he is relieved of some of his work burden.

Membership in the Collegium is more a moral choice than an act which

would improve one’s career or material status. One can not reasonably

think that a Collegium member would let himself be influenced in

performing his role or would submit to any pressure. Therefore, we can

not speak of objectively justified doubts about the Collegium’s

independence, as required by ECHR case law.
 

In

the conclusion of his statement, the Chairman of the Chamber of

Deputies added that the current legal framework has features of being

temporary, as the very existence of the Collegium depends on the

decisions of individual state prosecutors to become members, or to

remain in the Collegium, which they can not be forced to do. At the time

it was passed, this framework was not expected that to be permanent.

The Act was to go out of effect on 31 December 2003, and at present it

has been extended until 30 June 2005. The temporary framework addressed

the situation which arose after issuance of judgment Pl. ÚS 11/2000,

where, after annulment of part of the APCI, the government was to be

given sufficient time to prepare a completely new legal framework for

protection of classified information and the process of security

clearances. For that reason too the term of office of Collegium members

was two years. Despite possible substantive inadequacies, the Chamber of

Deputies does not share the opinion that the regulation of the

Collegium’s status and proceedings before it are not consistent with the

constitutional order, or with Art. 6 of the Convention.

B) The

Senate of the Parliament of the Czech Republic, represented by its

Chairman, JUDr. Petr Pithart, in its statement of 30 July 2004, said

that in the Senate, which was well acquainted with Constitutional Court

of the CR judgment file no. Pl. ÚS 11/2000, the opinion ultimately

prevailed that the proposal to introduce an appeal to the Collegium is a

legally adequate and purposeful solution to the conflict of interest in

security and the guarantees of due process. The proponents of that

opinion dispersed some doubts about the suitability of that solution by

pointing to the fact that the statute had limited period of validity,

and in the given period of a year and a half, the construction in

question could be perfected or replaced by another. The Senate returned

the draft act to the Chamber of Deputies for other reasons.
 

The

Senate pointed out peripherally that the criteria for evaluating the

degree of independence and impartiality of a court (tribunal),

established by constitutional law theory, ECHR case law, and by the

Constitutional Court, consider the basis of judicial independence to be a

democratic environment, division of powers, and essential existential

(material) security for judges. The independence of judges is guaranteed

through their exclusive appointment without fundamental influence from

the government and the legislative branch (in the Czech Republic, by the

president), the multi-year (unlimited) judicial mandate, guaranteeing

resistance against the possibility of receiving instructions for how to

perform the judicial position (non-recallability, non-transferability,

etc.). The impartiality of judges is tied to ruling out prejudice (to

persons and matters). incompatibility of the office with other offices

and other employment activity and with guarantees that rule out all

legitimate doubts about impartiality. On the subjective level of

impartiality, trustworthiness and autonomous decision making are always

required (in the judicial oath the judge promises to decide according to

his “knowledge and conscience”). Externally, impartiality is ensured by

a ban on endangering it (e.g., by a ban on sending petitions to

courts). Comparing these criteria with the framework of requirements for

ensuring the independence and impartiality of the Collegium and the

status of state prosecutor in the Supreme Public Prosecutor’s Office as a

Collegium member, the Senate did not find any quantitatively

significant differences. According to the Senate, a certain qualitative

inadequacy in the Collegium’s independence lies in the appointment being

in the jurisdiction of the government, and the structural inclusion in

the relationships of the state prosecutor’s office, and therefore the

executive, “although in the other contexts considered this requirement

can be somewhat relativized.”
 

The

Senate pointed out that under the Constitutional Court’s case law, the

Charter contains some fundamental rights which are, by their nature,

social values that tend to function as type categories that express

ultimate aims. The right to a free choice of profession is one of these

rights. While the rights to security, life and health are fundamental

rights without anything further, it is presumed that the right to a free

choice of profession will be made more specific by statute. The Senate

takes this point of view on the restriction of access to the general

courts in matters of constitutionally consistent, if a right which is a

higher value which can be protected in this way. The characteristics of

this subject matter are not compatible with ordinary court practice. A

security clearance is not always based on undoubtable evidence; it often

arises on the basis of very loose deliberation under the rule of

“applying doubts to the disadvantage of the evaluated person.” Review of

the decision is primarily supposed to rule out rough subjectivism or

ill intent “in the essence of the decision.” Classified information

evaluated during the review must simultaneously be effectively

protected. The Senate pointed out, that insofar as the ECHR found

violation of Art. 6 par. 1 of the Convention in the area of requirements

for judicial independence and impartiality, this basically always

concerned criminal courts or bodies which applied criminal law (cf.

Incal v. Turkey, Findlay v. United Kingdom). Review of the decision to

not issue a clearance for work with classified information is not on a

comparable level of gravity.

C) Ing. P.P., whose rights were

affected by application of the contested provision, and whose matter

also defined the specific subject matter for proceedings before the

Constitutional Court, was also called on to make a statement. In his

statement, Ing. P. said that he had to have a level II security

clearance to perform his profession as a soldier, and, when he did not

obtain it, his commission was not renewed, and as it was impossible to

obtain a position corresponding to his qualifications, he was released

from service in the Army of the Czech Republic as of 31 December 2003.

D)

The director of the National Security Office Mgr. Jan Mareš also sent a

statement to the Constitutional Court, without being asked to do so, or

on the basis of the activity of the Chamber of Deputies. The

Constitutional Court is aware, from the proceedings in the matter file

no. Pl. ÚS 41/02, that the government of the Czech Republic puts the

preparation of draft legislation in the area of classified information

in the hands of the NSO (see, e.g. the draft of the new legislative

framework sent to the Constitutional Court in the matter Pl. ÚS 41/02,

or government resolution no. 88 of 22 January 2003, file no.

615/2003-NSO/80, or no. 293 of 31 March 2004, see the document portal

www.vlada.cz - thus, the NSO’s opinions have an important influence in

the comment proceedings). In view of these circumstances, the

Constitutional Court considered it relevant to also consider this

un-requested statement as well. The NSO Director primarily stated that

the petitioner erroneously considers the Collegium to be an

administrative body. The Collegium is an independent body, and therefore

judicial review of its decisions appears superfluous. The Collegium is,

to the greatest possible degree, independent both of the executive

administrative apparatus (whether the NSO, its director, or the

intelligence services), and of other state bodies, which must include

the Supreme Public Prosecutor’s Office. This guarantees the objectivity

of its decision making, and it prevents the possibility that a person

who is the subject of a decision, or that person’s legal representative,

could have access to classified information. Protection of classified

information is balanced in relation to the procedural status of the

person who is the subject of a decision. If the “classification

principle” were denied, classified information could be presented to an

unauthorized person. There could be both violation of international

cooperation in the area of intelligence services and investigative

bodies, and theoretically direct endangerment of the life of, e.g.

intelligence agents, witnesses, etc. This is inconsistent with the

international obligations of the CR. “The standard court proceedings in

matters of security clearances, including presentation of evidence,

poses the danger of serious disclosure of classified information.

Theoretically, it could even be possible that a court case would be

conducted by certain persons purely for the purpose of discovering

classified information through legal means.
 

In

another part of his statement, the NSO director presented similar

arguments applied in the proceedings in the matter of judgment Pl. ÚS

11/2000, which ended by annulling the ban on judicial review of

decisions in matters of security clearances. According to the NSO,

deciding to issue or not issue a clearance does not result in any

interference in the area of fundamental rights. In any case, he says

that even the Constitutional Court did not conclude that such

decision-making directly violated the right to a free choice of

profession. A clearance, as a positive result of a security review, is

nothing more than demonstration of a particular special qualification.

There is no legal entitlement to access to classified information; the

holder of a clearance may be, again only in cases where there is a

reason for it, designated for access to classified information. Only the

state decides what is and what is not classified information, and

“therefore, it should be only the state (i.e. the state administration)

that permits access to such information.” Only the state should evaluate

the suitability of a person who is to be given this access. The

Collegium is a kind of super-structure above the state administration,

and replaces the position of a court. The NSO also stated, that the

Constitutional Court partly (sic) considered the conflict between the

level of national security and the level of human rights in its judgment

file no. Pl. ÚS 11/2000, where it granted that a very clear security

interest of the state can be a legitimate justification for a certain

degree of interference in the rights of an individual. However,

according to the NSO, the Constitutional Court only touched this

conflict very lightly, rather, it only stated its existence, and did not

provide a deeper theoretical analysis of it. The NSO believes that the

Collegium resolves the conflict. In contrast, it raises a fundamental

objection to judicial review, because under § 45 par. 5 of Act no.

150/2002 Coll., the Administrative Procedure Code, as amended (the

“APC”) classified information will be disclosed to a person whom the

state does not considerable suitable to have access to classified

information (§ 45 par. 5 of the APC: “The parts of the file which were

not excluded from viewing may be viewed only by the party and his legal

representative, or a person who presents a clearance for the appropriate

level of classification of facts being adjudicated”; § 45 par. 4 of the

APC: “Parts of the file which the court has used or will use to present

evidence can not be excluded from viewing. In addition, those parts of

the file which the party had a right to view in proceedings before the

administrative body also can not be excluded from viewing.”) This

situation is prevented by § 36 par. 8 of the APCI ("If any of the

reasons for not issuing or revoking a clearance are classified

information, the notice shall contain only a reference to the documents

on which the Office relied.”). According to the NSO, in that case

classification is legitimate.
 

Legislation

on clearances of natural persons is reserved exclusively to national

legislation in EU and NATO countries. Nevertheless, the NSO pointed out

that full judicial review is not usual. Even where the highest review

body is a court, the affected individual and his representative are not

permitted to have access to the results of the investigation which was

the basis for not issuing a clearance, or even a decision to terminate a

clearance. In France a court is not permitted access to classified

information. If they were the basis for a decision, that is simply

stated, without anything further. In Denmark a matter is reviewed by the

Ministry of Justice, and the individual is not given an opportunity to

become acquainted with sensitive information. A court complaint is not

permitted. In the Dutch two-level court proceedings the procedural

rights of a person undergoing security clearance are fundamentally

restricted. Only the judge has access to classified or sensitive

information. The Slovak framework includes judicial review (analogously

to the previous situation in the CR, under chapter five of the Civil

Procedure Code) without full jurisdiction and without reviewing the

matter on the merits. Only the legality of the process is reviewed,

without the court being familiarized with classified information. The

Lithuanian framework limits procedural rights, just like the Dutch

regulations.
 

In Turkey and

Spain the person subject to clearance has no opportunity to intervene in

the clearance process in any way, has no opportunity to learn the

grounds for the decision “and, of course, has no opportunity to raise

any objections or to appeal.” A similar trend is now happening in Italy.

These countries are also bound by the Convention, and they also have

provisions analogous to Art. 36 par. 2 of the Charter. In these

countries it was accepted that the relevant legal regulations are not

inconsistent with the right to a fair trial guaranteed by the

Convention. The NSO pointed out that one can not get a comprehensive

international comparison of this subject, but in Europe the principle

indicated in the cited Constitutional Court judgment, limiting the

individual’s procedural rights with the (allegedly) clear priority of

protecting classified information is generally considered legitimate.

There are differing approaches to this subject. The developments in

western democracies historically did not result in fundamental lack of

confidence in the state administration, or the activities of security

bodies, that is, citizens do not, as a result of differing opinions on

the correctness of official decisions, demonstrate mistrust in an area

as important as security, which is documented by the number of appeals.

In the united Kingdom, France or Belgium, statistically there are a few

appeals a year (up to ten); in the CR last year there were about a

hundred. In conclusion the NSO stated that it considers § 77k par. 6 of

the Act to be consistent with the constitutional order and with

international agreements by which the CR is bound.
 

The

Constitutional Court asked the NSO director to state (1.) whether there

have already been cases where the Collegium decided on an appeal (§§

77a-77k of the APCI) differently than a general court decided on a

complaint in the same matter filed under § 73 par. 2 of the APCI, and

(2.) if it has happened, how the NSO then proceeded, that is, which

decision it accepted. The answer to the first question was that so far

this has happened in one case, where the court annulled a decision,

while the Collegium denied the appeal. In four other cases the court

denied the complaint. However, the NSO also protested that here the

court “did not respect the obstacle of lis pendens,” as it considers the

Collegium to be an impartial and independent judicial-type body. In the

case of differing decisions, the NSO does not know which one to follow.

The NSO could not answer the second question, because the decision

which led to the divergence has not yet been delivered to it. However,

it pointed out that it is expressly bound by decisions of the Collegium,

by law (§ 77j par. 1 of the APCI). Without further arguments, it also

pointed out that annulling the contested provision will open the door to

damaging the interests of the CR in cryptography. In closing, it

cleared up procedural issues concerning a security interview from which a

protocol is made. The person subject to clearance, or his legal

representative, is told the grounds for not issuing a clearance. The NSO

stated that it basically makes no difference which body will review a

decision; however, the person subject to clearance and his

representative must not be given access to classified information, and

it is desirable for the proceedings to occur by a fixed deadline. It

also noted that the lower the number of persons who have had access to

the material in the file during review, the lower the risk and the lower

the costs of maintaining secrecy
 

The

Constitutional Court asked the parties to the proceedings for consent

to waive a hearing (§ 44 par. 2 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations), because further

clarification of the matter could not be expected from a hearing. After

that it could turn to review of the matter on the merits.
 


III. (Constitutionality of the Legislative Procedure and Legislative History of the Reviewed Statute)
 

Before

the Constitutional Court turned to reviewing the content of the

contested statutory provision in terms of its consistence with

constitutional laws, it was required, under § 68 par. 2 in fine, of the

Act on the Constitutional Court, to review whether formal requirements

for passage of the legal norm had been met. However, the Constitutional

Court had already found the legislative process of passing Act no.

310/2002 Coll., to be constitutional in its judgment of 28 January 2004,

file no. Pl. ÚS 41/02 (in Collection of Decisions, vol. 32, p. 61, no.

98/2004 Coll.).
 

The

provision of § 77k par. 6 was added to the Act on Protection of

Classified Information by Act no. 310/2002 Coll., which arose as an

initiative by parliamentary deputies in response “to practical problems

which have appeared in connection with the application of the Act so

far, specifically the impossibility of independent inspection, or review

of a negative decision by the National Security Office as part of a

clearance taking place under the Act” (background report of 10 July

2001). In the course of discussing the draft, on 12 July 2001

Constitutional Court judgment file no. Pl. ÚS 11/2000 was issued, which,

with effect as of 30 June 2002 annulled the original wording of § 73

par. 2 of the APCI, which prohibited judicial review. The deputies’

draft, by inserting § 77a to § 77k into the APCI, addressed the problem

of the lack of independent review by establishing the Collegium and

defining procedural rules for proceedings before it. After the draft was

approved by the Chamber of Deputies on 27 March 2002, the Senate on 3

May 2002, returned it to the Chamber of Deputies with amending

proposals, one of which proposed annulling the judicial review which had

been created in the interim (cf. let. C of Senate resolution no. 372 of

3 May 2002). By its resolution of 13 June 2002, the Chamber of Deputies

retained the original draft of the act, which was published in the

Collection of Laws on 12 July 2002, and went into effect on the same

day.
 

In the interim, the

government presented to the parliament a draft act which amended certain

acts in connection with the passage of the Administrative Procedure

Code (Act no. 151/2002 Coll.) This Act (the Chamber of Deputies approved

it on 15 February 2002, the Senate on 12 March 2002, and it was

published in the Collection of Laws on 17 April 2002) inserted into the

APCI § 73 par. 2, under which a complaint can be filed against a

decision to not issue a clearance within 15 days from delivery of the

decision, when proceedings on the complaint do not permit the

participation of persons involved in the proceedings. This regulation

went into effect on 1 January 2003. However, on 27 September 2002 the

Collection of Laws was distributed in which, on the basis of authority

contained in Act no. 310/2002 Coll., the Prime Minister promulgated the

full text of the Act on Protection of Classified Information, under

number 418/2002, in which § 73 was not divided into paragraphs and the

possibility of judicial review was not mentioned.
 


IV. (Definition of the Subject Matter of the Proceedings)
 

The

petition being reviewed by the Constitutional Court arose from

proceedings before a general court, in which a person undergoing an NSO

clearance filed an administrative complaint against the Collegium’s

decision. The complaint objects that § 77k par. 6 of the Act on

Protection of Classified Information is virtually identically with the

wording of § 73 par. 2 of the Act, annulled by the Constitutional Court.

On 1 January 2003 the new wording of § 73 par. 2 of the Act went into

effect, which permits judicial review of a decision to not issue a

clearance.
 

The

Constitutional Court has already considered the effects of security

clearances on the area of fundamental rights and freedoms several times

(cf. judgments file no. Pl. ÚS 44/02, Pl. ÚS 36/01, and I. ÚS 577/01, I.

ÚS 752/02 or II. ÚS 241/01, II. ÚS 28/02 and II. ÚS 142/03). Primarily,

in judgment Pl. ÚS 11/2000 it stated that it “respects the fact that,

in view of the specifics and importance of decisions in matters of

classified information, where there is a very clear state security

interest, it is not always possible to guarantee all the usual

procedural guarantees of a fair trial (e.g. public proceedings).

Nevertheless, even in this kind of proceedings it is the task of the

legislature to make possible, through statutory means, the

implementation of appropriate guarantees for protection by a court (or

another independent and impartial tribunal under Art. 6 par. 1 of the

Convention) even if – according to the nature of the matter and taking

into account the nature of the office – it is a protection considerably

unusual and differentiated.” (cf. in Collection of Decisions, vol. 23,

p. 105, in the Collection of Laws as no. 322/2001, or the electronic

version of the judgment at www.judikatura.cz).
 

In

the cited judgment, the Constitutional Court annulled as

constitutionally inconsistent the statutory exclusion of judicial review

for decisions by bodies of the executive branch in matters of security

clearances. The legislature responded to the resulting situation by

permitting general judicial review (§ 73 par. 2 of the APCI) and by

introducing proceedings before a review body sui generis, which was the

Collegium (§ 77a to § 77k of the APCI). The adjudicated matter concerns

the right to verification of the relevant procedure, not the “right to

receive a security clearance,” which, of course, is not guaranteed.
 

The

Constitutional Court’s case law indicates that, from the point of view

of protection of fundamental rights and freedoms, the public interest in

preserving secrecy can not, in review of a decision which has the

direct consequence of limiting the opportunity to practice a particular

profession, be grounds for excluding that decision from application of

Art. 36 par. 2 of the Charter and Art. 6 par. 1 of the Convention, which

enshrine the right to judicial protection. Although the Constitutional

Court acknowledged that judicial review of security clearances is a

unique situation, nonetheless, when reviewing the constitutionality of §

77k par. 6 of the APCI, it is necessary, in addition to Art. 4 par. 4

of the Charter, to also take into account Art. 1 par. 1 of the

Constitution, which declares the Czech Republic to be a democratic state

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

freedoms of man and of citizens, whereby it sets both the fundamental

manner in which public power is exercised and the principal attributes

of the right to judicial protection. Although the case of judicial

review of security clearances involves an area which permits a certain

limitation of fundamental rights, the Constitutional Court points out

that this subject matter must be viewed in terms of requiring the

constitutional prohibition of discrimination (Art. 1 par. 1 of the

Constitution of the Czech Republic, Art. 1 and Art. 3 par. 1 of the

Charter), which gives rise to, at a minimum, the right to review whether

the conduct and results of a security clearance, which is fully in the

hands of the executive power, with broad discretion, were not

discriminatory and whether they were not marked by arbitrariness. In

addition to the right to a free choice of profession, modified per the

foregoing, with some categories of persons subject to clearance, Art. 21

par. 4 of the Charter also undoubtedly applies, which provides that

“Citizens shall have access, on an equal basis, to any elective and

other public office.”
 


V. (Can the Collegium Be Considered a Court?)
 

A)

The contested § 77 k par. 6 of the APCI, which prohibits judicial

review of Collegium decisions, is inconsistent with § 73 par. 2 of the

APCI, which guarantees judicial review. The Regional Court in Brno

submitted the matter to the Constitutional Court on the basis of

concluding that the relationship between these two mutually inconsistent

provisions without stating which proceedings are to take place first

creates lack of clarity, and the relationship between a Collegium

decision and a court decision is not addressed, even for a situation

where these decisions do not correspond. Before evaluating the

consequence of the conflict of the two provisions, we had to answer the

question of what the nature of the Collegium is.
 

The

constitutional order of the CR (Art. 81 and 82 of the Constitution of

the Czech Republic) provides that the judicial power is exercised only

by independent and impartial courts, that is, independent and impartial

judges, who are guided by the fundamental rules of a fair trial (Art. 1

par. 1 of the Constitution, Chapter Five of the Charter). These

provisions can be interpreted as institutional guarantees of the

substantively understood exercise of the judicial power, and therefore,

in terms of the right to a fair trial, it is not necessary for a court

under § 36 par. 2 of the Charter to be, in all cases, exclusively a body

within the system of general courts, but it must be an independent body

whose members are independent and impartial in their decision making.

It must also have unconditional access to review all relevant aspects of

a matter (factual and legal), while observing the fundamental

principles of a fair trial (e.g. the principal that no one may be a

judge in his own case or the principle that both sides must be heard),

and an executable decision can not be reversed by another act by a state

power (the definition of the judiciary in a substantive sense). The

existing Constitutional Court case law mentioned independence and

impartiality as essential attributes the fulfillment of which is

typically guaranteed in the case of the judicial power, and can not be

fulfilled by various executive bodies (cf. e.g., the judgment of 23

November 1999, file no. Pl. ÚS 28/98 in Collection of Decisions, vol.

16, p. 185, 2/2000 Coll., in relation to the nature of a decision by the

National Audit Office, or the judgment of 17 January 2001, file no. Pl.

ÚS 9/2000, in Collection of Decisions, vol. 21, p. 55, no. 52/2001

Coll. – in relation to a police decision on an offense). The

Constitutional Court spoke concerning the content of the attributes of

independence in particular in cases where it reviewed statutes governing

the organization of the judicial power (see, e.g. judgment of 18 June

2002, file no. 7/02 in Collection of Decisions., vol. 26, p. 273, no.

349/2002 Coll.) The Plenum of the Constitutional Court is for the first

time comprehensively reviewing the impartiality and independence of a

tribunal sui generis, although it does so with the natural support

provided by the Constitutional Court decisions cited below, as well as

decisions of the European Court of Human Rights (also cited below).
 

Independence

and impartiality are ideals which can never be fulfilled absolutely –

we can only approach them – which comes from their social nature.

Independence means ruling out the possibility of affecting the free

formation of the will of judges; impartiality (independence from the

parties) is the absence of a leaning by the court toward one of the

parties, where the concept party to a proceedings can be understood on a

general and specific level. Independence is a category of relationship

which is closely tied to the concept of power understood as the

opportunity of forcing one’s will on others (Weber, M., Autorita, etika a

společnost [Authority, Ethics and Society], Mladá Fronta, 1997, p. 49;

originally in Wirtschaft und Gesellschaft, Tübingen, JCB Mohr Siebeck

1972, p. 541-544). The long-term legal and political development of

liberal democracies was generated by experience with the indicators of

independence and impartiality from which one can form objectivized

criteria for evaluating whether the elements independence and

impartiality have been met, because at the subjective level of the

psychological (conscious or unconscious) state of the decision making

entity (it is at this level that the undesirable influencing of free

judgment occurs), they can not be captured by legal instruments. At an

objective level, impartiality and independence are generally evaluated

in terms of the relationship to other components of power (the principle

of separation of powers), in terms of the ability of persons (with a

potential interest in a particular outcome or course of a dispute ) to

influence the creation, duration and termination of the office of a

member of judicial body (tribunal). Therefore, judges and members of

judicial-type bodies must have a sufficiently independent status to rule

out the possibility that their decision making activity can be directly

or indirectly influenced. The existence of protection against external

pressures is evaluated, e.g., in terms of the existence of a potential

opportunity to influence a judge’s career, or the opportunity to bring

about the termination of his office. A guarantee of financial

independence is also undoubtedly part of an independent status. Only

then does the formal order to not be guided by the orders of others

receive material content, and only thus are neutrality and distance from

the parties ensured.
 

For

completeness, we must add that the prohibition on affecting judicial

decision making (forcing another to do something, omit to do it, or

tolerate it) is supported both by limiting the right to petition and the

right to assembly where implementing them might influence judicial

decision making, and at the criminal law level, where such acts are

defined as a crime (§ 169a of the Criminal Code) The absence of

independence or impartiality can be found both at a general (type) level

and at a specific level (the relationship of a particular judge to a

particular matter or person). Therefore, procedural regulations provide

the possibility of raising an objection of prejudice, if one of the

parties has doubts about impartiality, or impose mandatory exclusion of a

judge from handling a matter due to a relationship to the matter or to

the parties, which ensures impartiality where there are already

justifiable doubts on the basis of specific facts.
 

In

the case of the administrative judiciary, which most often decides

disputes between the executive branches of the state and private law

entities, which is also the case in the present matter, the maxims of

independence and impartiality require the existence of effective and

persuasive guarantees that any potentially undesirable ties to the

executive power are broken; this is guaranteed in the case of judges by,

among other things, making holding the position of a judge incompatible

with a wide range of activities which are of a type presumed to affect

free judgment, because the conduct of these activities pursues an

interest which is incompatible with the ability to fairly decide a

dispute in which each of the parties defends an opposing interest. In

evaluating impartiality and independence one can not completely ignore

the appearance aspect of the matter, where the appearance of

independence and impartiality for third parties is also considered a

valid criterion, because this aspect is also important for ensuring

confidence in judicial decision making. This criterion too reflects the

social nature of judicial decision making, which indicates that, even if

realistic grounds for doubts about impartiality and independence does

not in fact exist (both subjectively and objectively), one can not

overlook the possible existence of a collective belief that such grounds

exist (cf. the ECHR decision of 23 June 1981, Le Compte, Van Leuven and

de Meyere v. Belgium, no. 6878/75, cited below). The general

sociological concept known as Thomas’s theorem (see, e.g. in Collective

of Authors, Velký sociologický slovník [Big Dictionary of Sociology],

I., Prague, Karolinum, 1996, p. 171) also applies to the justice system;

the theorem says that if a particular situation – here, the

non-existence of independence or impartiality – is defined by people as

real, then it also has real consequences – there is a lack of general

trust that a decision is a fair one by an independent and impartial

tribunal. Confidence in the law is among the fundamental extra-legal

attributes of a law-based state (see also, e.g. judgment of 11 November

2003, file no. IV. ÚS 525/02 in Collection of Decisions, vol. 31, p.

173).

B) The Constitutional Court turned to analysis of the

Collegium’s independence and impartiality in the area of protection of

classified information, established at the Supreme Public Prosecutor’s

Office.
 

The Constitutional

Court states that (from a formal viewpoint) a Collegium decision is

prima facie not a judicial decision. The Public Prosecutor’s Office is

constitutionally classified with the executive power (Art. 80 of the

Constitution places it in Chapter Three, which defines the executive

power) and it is constitutionally established to represent criminal

complaints. In view of the uniqueness of the area of security

clearances, the Constitutional Court considered the question whether the

Collegium can be considered a court in a substantive sense. We must

agree with the objections that the Act on the state Prosecutor’s Office

really does contain guarantees of the independence of Collegium members.

However, it is necessary to further review whether these formal

guarantees are also fulfilled substantively, that is, whether they are

sufficient for protection against potential external pressures and

whether they are capable of creating a general belief in independence.
 

It

can not be overlooked that membership in the Collegium is accessorily

tied to appointment to the Supreme Public Prosecutor’s Office;

appointment is decided by the Minister of Justice (§ 19 par. 2 of the

Act on the Public Prosecutor’s Office). The Supreme Public Prosecutor,

to whom members of the Supreme Public Prosecutor’s Office are

subordinate (see § 18 par. 2 of Act no. 283/1993 Coll., on the Public

Prosecutor’s Office, as amended, the “Act on the Public Prosecutor’s

Office”) is also appointed and, without having to give reasons (sic!),

recalled by the government (§ 9 par. 1 and 2 of the Act on the Public

Prosecutor’s Office). Collegium members must have a security clearance

from the NSO (§ 7a par. 2 third sentence of the Act on the Public

Prosecutor’s Office); the clearance is limited to a period of five years

(§ 37 par. 1 let. d) APCI) and subject to removal at any time (§ 37

par. 2 let. b) of the APCI). The relationship of the NSO director to the

government is defined the same way as with the supreme state prosecutor

(§ 7 par. 2 and 3 of the APCI). The NSO director is directly

responsible to the Prime Minister, who is his superior and supervises

the office’s activities (§ 7 par. 3 of the APCI). A proposal to open

disciplinary proceedings against a state prosecutor appointed to the

Supreme Public Prosecutor’s Office is filed by the Supreme Public

Prosecutor or the Minister of Justice (§ 8 par. 3 let. a) of Act no.

7/2002 Coll., as amended). These legal instruments objectively create a

line which permits the potential influencing of the free judgment of

Collegium members, which can not be changed by the guarantees of formal

independence contained in the law.
 

The

mandate of Collegium members is for two years (which, according to the

Chamber of Deputies, was tied to the fact that the regulation was

considered to be temporary). Collegium members are approved ad hoc by

the government at the proposal of the Minister of Justice (see, e.g.

government resolution no. 704 of 14 July 2004, in which the government

approved a candidate for Chairman of the Collegium, which decision was

changed by resolution no. 898 of 15 September 2004, when it approved a

different chairman – see www.vlada.cz). In any case, the Chamber of

Deputies said in its statement that “the very existence of the Collegium

depends on the decision of individual state prosecutors to become

members, or to remain in the Collegium, which they can not be forced to

do.” From that point of view, the Collegium falls short of the

requirements for the relative permanence of its composition, which is

supposed to make it impossible to influence the results of its decision

making through a change in the Collegium’s composition, which implies

that it can not meet the requirements for stability of a decision making

body which were expressed in the principle of a judge (Art. 38 par. 1

of the Charter).
 

It must

also be considered an important fact that Collegium members must have a

security clearance, and that this decision can be changed (§ 36 par. 5

and 7 of the APCI). Thus, the selection of members of a body which

inspects the proper conduct of security clearances can be very

effectively interfered in by the NSO, whose activities they are to

inspect, not to mention the fact that the selected structure creates the

potential threat of an uninterrupted line of selection which is

completely in the hands of an executive body. The view that there is no

effective opportunity to exert pressure is inconsistent with the very

concept of clearances, which determine, among other things, whether

there are any circumstances through which an unauthorized person could

influence the future decision making of the persons subject to clearance

/being cleared. In a situation where the statute stands on a

presumption of defect-free work of administrative bodies (here, the NSO)

which has not been verified through experience, we can not, in view of

the principles of checks and balances in proceedings to review norms,

overlook the fact that the NSO, as an executive body, has, thank to a

concentration of sensitive information of a personal nature, remarkable

potential power. This only increases the urgency of truly independent

inspection, which permits verification of both the proper exercise of

powers in security background checks and, e.g. determining whether facts

are classified which do not need to be (i.e. whether the taxonomy of

classification is not overly strict and whether the limitation of rights

is really necessary).
 

In

the context of the adjudicated matter, which is viewed in terms of the

necessary balancing of the public interest in security with the

protection of individual rights and freedoms, we can not overlook the

fact that state prosecutors are personally bound, by statute and by

oath, to protect the public interest (§ 18 par. 3 of the Act on the

Public Prosecutor’s Office), which can lead to legitimate doubts about

their impartiality in evaluating the conflict of fundamental rights and

freedoms with the public interest in security, protected in this case by

classifying information. In any case, state prosecutors in criminal

proceedings (in particular in preliminary proceedings and custody)

procedurally benefit from classification, because, unlike the defense,

they also have access to those parts of the file which are classified.

Their position on success and the degree of secrecy is not neutral. In

the case of judges, these aspects of the possible conflict of interest

are routinely eliminated by applying the principle of conflict of

interest with the office. With tribunals sui generis a composition of

the tribunal is ensured whose heterogeneity neutralizes the application

of various, largely unconscious, interests (in this country, e.g. § 5 of

Act no. 7/2002 Coll. on Proceedings in the Matter of Judges and Public

Prosecutors).
 

The background

report on Act no. 310/2002 Coll. also indicates that review by the

Collegium was not included in the Act in order to ensure judicial review

of administrative decisions issued in the course of security clearances

of individuals, but to increase the trustworthiness and objectivity of

executive security clearances: “a negative decision by the NSO has very

serious effects on the professional and personal life of the person

subject to clearance; the proposers are convinced that it is necessary

to introduce in the entire system of security clearances an external

inspection element in the form of an independent appeals body which will

be authorized to review NSO decisions. Moreover, establishing an

independent inspection body will bring to the process of security

clearances a higher degree of trustworthiness and objectivity than has

existed thus far, without at the same time complicating the entire

process in terms of time or otherwise.” (Background report to the draft

of deputies F. Ondruš, P. Nečas and I. Langer of 10 July 2001; see also

Šimíček V., “Přezkum rozhodnutí o nevydání bezpečnostního osvědčení”

[Review of Decisions to Not Issue Security Clearances] in Dančák, B.,

Šimíček,V., Bezpečnost České republiky [The Security of the Czech

Republi], MPÚ, Brno, 2002, p. 150).
 

In

view of the foregoing, the Constitutional Court had to give a negative

answer to the question whether the Collegium is a body which is, even

while observing the specific requirements of security background checks,

still capable of conducting a fair trial. (Therefore, the

Constitutional Court found it unnecessary to consider the quality of

procedural guarantees in proceedings before the Collegium). We can not

say that doubts about the independence and impartiality of the Collegium

composed of state prosecutors are not legitimate. Collegium embers do

not have institutionally created conditions for the appropriate distance

from bodies of executive power. This conclusion is objectively valid,

and it is not necessary to prove specifically how effective pressure

could be brought to bear on Collegium members. For completeness, we must

add that the decision making freedom of Collegium members is not

supported by the same criminal law protection as is the case with judges

(§169a of the Criminal Code). If the Senate and the Chamber of Deputies

consider review by the Collegium to be sufficient (or the NSO considers

judicial review to be unnecessary), we must point out that Art. 36 par.

2 of the Charter guarantees the review of administrative decisions by

the court, which need not in all cases be institutionally included in

the court system, but they must be institutions which meet the

fundamental guarantees of impartiality and independence, and which

observe the principles of a fair trial. However, the Collegium can not

be consider a court, even substantively, when doubts about its

independence arise structurally, on the objective level, which, however,

at the same time in no way casts doubt on the independence of state

prosecutors performing the roles of public prosecution, not does it in

any way cast doubt on the professional and human qualities of current or

past Collegium members.
 


VI. (Is Judicial Review Necessary?)
 

A)

The Constitutional Court then considered the arguments of the NSO that

judicial review of executive decision making in the area of security

clearances is not usual, which the NSO supported by pointing to foreign

regulations. Therefore the Constitutional Court also used comparative

methods of analysis and reviewed the approach to judicial review of

security clearances in countries which have gone through similar legal

development and have assumed the same international legal obligations to

protect classified information as has the Czech Republic.
 

The

Constitutional Court of the Slovak Republic, in its judgment of 11

February 2004, annulled those parts of the Act on Protection of

Classified Information (Act no. 241/2001 Coll., on Protection of

Classified Information), which permitted judicial review of a decision

to terminate security clearances, but without the affected person being

able to request judicial review on the basis of knowing the specific

reasons, i.e. terminating a security clearance without a result

statement, and it also annulled the provision where limited the affected

person in requesting judicial review of the termination of validity of a

result statement (see the electronic version of the Judgment of the

Constitutional Court of the Slovak Republic of 11 February 2004 file no.

Pl. ÚS. 15/03 available on www.concourt.sk). The Constitutional Court

of the SR stated that it recognizes the centrality of state security

interests, and also recognize the means which the Act on Protection of

Classified Information selected for achieving that aim, but it did not

agree with achieving the aim of that Act by denying the principle of a

law based state or at the expense of the fundamental rights of the

individual. According to the Constitutional Court of the Slovak

Republic, it is a component of a law based state to subject the

interference by a body of public power into the rights of an individual

to effective inspection, which must be ensured, at least in the final

instance, by he judicial power, as it provides the best guarantees of

independence, impartiality and regularity of proceedings (p. 15 of the

judgment). The Constitutional Court allowed a certain limitation on

reviewability (p. 16 of the judgment), but only so as to guarantee a

real, an only fictional, implementation of the fundamental right to

judicial protection and to create sufficient guarantees of protection

against arbitrariness (p. 17 and 18 of the judgment). The Constitutional

Court of the Slovak Republic thus reached the clear conclusion that

even the interest in security can not be grounds for denying the right

to review before an independent and impartial court, which results from

the fact that the person subject to clearance does not know at least

basic information about the reasons for the decision. For completeness,

we should add that the Constitutional Court of the Slovak Republic

refused to subordinate the matter under the application of the right to

free choice of profession, with which two judges disagreed in their

dissenting opinions. One judge did not agree with denying review of the

matter from the point of view of the right to information.
 

Similarly,

the Constitutional Court of the Polish Republic, in its judgment of 10

May2000, annulled that part of the Act on Protection of Classified

Information (ustawa z 22 stycznia 1999 r. o ochronie informacji

niejawnych), which did not permit judicial review of decision on

security clearances, due to inconsistency with the constitutional right

to access to a court and with the right to access to the civil service,

as well for inconsistency with Art. 13 of the Convention (see the

electronic form of the decision of 10 May2000, Sygn. K. 21/99, available

at www.trybunal.gov.pl). The Polish Constitutional Court said

that security clearances themselves, as well as their results, can

directly interfere in the fundamental rights and freedoms of individuals

(p. 36 of the judgment).
 

Trybunal

Konstytucyjny, on the basis of analysis of its administrative case law,

ECHR case law (p. 25-27 and 29 of the judgment), and on the basis of a

comparison of foreign legal regulations submitted by a legal expert (p.

24-25 of the judgment), stated, with reference to its settled

interpretation of the right to a fair trial (p. 33-35), that the rights

of persons subject to security clearance, in the context of a guarantee

of the right to equal access to the civil service (Art. 60 of the

Constitution of the Polish Republic), are subject to the constitutional

prohibition on denying access to the courts (Art. 77 par. 2 of the

Constitution of the Polish Republic), because they fall into the

framework of constitutionally protected rights and freedoms. Therefore

the provision of the Act on Protection of Classified Information (§ 42

par. 1) which limited review by the Supreme Administrative Court without

simultaneously expressly entrusting these matters to the authority of

the general courts was found to be inconsistent with Articles 45 par. 1

and 77 par. 2 of the Constitution of the Polish Republic, which enshrine

the right to judicial review of decisions interfering with fundamental

rights and freedoms (p. 38 of the judgment). The Polish Constitutional

Court stated that international standards of the guarantee of the right

to access to courts are minimal standards, which are lower in this area

than the standards of Polish law (p. 29 of the judgment).
 

The

Constitutional Court could not agree with the NSO’s objection that the

foreign comparison indicates that judicial review of security clearances

is not usual. In any case, the NSO itself provided examples of

countries in which such review is possible (the Netherlands, Lithuania).

We must add to the absolute figures of the numbers of appeals which the

NSO stated, that without an approximate statement of the number of

positions which require a clearance these data are irrelevant.

B)

The Regional Court also based its petition on the case law of the

European Court of Human Rights, although the statements submitted

doubted its relevance. Primarily, one can not accept the objection based

on stating that the Convention on the Protection of Human Rights and

Freedoms is not part of the constitutional order of the Czech Republic

and it is thus not appropriate to argue on the basis of ECHR case law,

which gives binding analyses of the Convention. The Constitutional Court

has already, in its judgment of 25 June 2002, file no. Pl. ÚS 36/01,

(see Collection of Decisions, vol. 26, p. 317 or the Collection of Laws

no. 403/2002), as well as in other judgments (se. Pl. ÚS 19/02 in

Collection of Decisions vol. 29, p. 279, or 403/2002 Coll., Pl. ÚS 44/02

in Collection of Decisions, vol. 30, p. 417, 210/2003 Coll., or Pl. ÚS

41/02 in Collection of Decisions vol. 32, p. 61, 98/2004 Coll.), stated

that the Convention has acquired a firm place in the constitutional

order of the Czech Republic. Moreover, in each individual case the

nature of the contested provision comes into conflict with the

safeguards guaranteed by the Convention, which takes precedence over

statutes in application. Moreover, the Regional Court also claimed that

there was violation of Art. 36 par. 2 of the Charter, and the

Constitutional Court, taking into consideration the development which

led to expansion of domestic standards for judicial protection, sees no

reason why the guarantees of a fair trial, tied to Art. 6 par. 1 of the

Convention, should not also apply on the basis of Art. 36 par. 2 of the

Charter. We also can not agree with the objection that the case Incal v.

Turkey (decision of the Grand Chamber of 9 June 1998, available in

electronic from under file no. 22678/93 in the official database of the

ECHR, HUDOC, at www.echr.coe.int) can not be used as an argument

because evaluation of impartiality and independence must reflect the

individual circumstances of the case and the ECHR’s conclusion therefore

has limited applicability. Here the Constitutional Court points out,

only peripherally, that accepting such a general approach to case law

would de facto make it impossible to use it in analysis, and would

result in lowering legal certainty, because it would, above all, open

the door to the court themselves to make differing decisions in cases

which are in principal the same, that is to arbitrariness in decision

making. The courts, if they are to decide fairly, must judge the same

cases the same way. We must also point out that a court decision is a

court decision regardless of the majority by which it was passed. In any

case, the same principle is applied in relation to other decisions by

the state powers (the Parliament, the government, etc.), i.e. obtaining

the majority set by the Constitution or by statute.
 

The

Constitutional Court believes that the ECHR has already spoken on a

number of aspects which are highly relevant in evaluating the human

rights dimension of security clearances.
 

In

the case Incal v. Turkey (see this decision in HUDOC at

www.echr.coe.int, § 65, § 67-8; note, all electronic versions of

ECHR decisions cited in this judgment were obtained in the English

version, divided into numbered paragraphs) there was a positive answer

to the question whether doubts about the impartiality of judges can

exist in terms of their institutional relationship to the subject matter

of a dispute, and whether judges had, in professional terms, a special

relationship to the protection of the public interest whose violation

they were to evaluate, that is, where they were disposed to primarily

protect the state interest in security rather than to dispense justice.

The Constitutional Court also states that the principle applied by the

ECHR in the Incal case, under which evaluation of independence can not

be content with formal guarantees, is so firmly tied to the idea of fair

decision making that it can not be limited only to criminal

proceedings. In any case, this principle is also firmly connected to our

constitutionality, which is based on the concept of a substantively law

based state (see, e.g. the judgment of 21 December 1993, file no. Pl.

ÚS 19/03 in Collection of Decisions, vol. 1, p. 1, 14/1994 Coll.). The

Senate objected that, insofar as the ECHR found violation of Art. 6 par.

1 of the Convention in the area of requirements for independence and

impartiality of courts, this always basically involved criminal courts

or bodies applying criminal law. Review of a decision not to issue a

certification for work with classified information is not at a

comparable level of gravity. However, the frequent citing of this

decision in other cases decided by the ECHR also indicate that the Incal

case has become one of the leading cases, and therefore the principles

in it can not be overlook by reference to the fact that they were

expressed in evaluating a criminal matter. However much it is legitimate

to distinguish the gravity of interference in fundamental rights, the

Constitutional Court also can not overlook the fact that it also in the

past considered a statutory exception to judicial review in matters of

trivial offenses, subject to a fine of up to CZK 2,000 to be a violation

of the “right to a court” (see the judgment of 17 January 2001, file

no. Pl. ÚS 9/2000 in Collection of Decisions, vol. 21, p. 55 no. 52/2001

Coll.).
 

The ECHR also

applied (and found violation of) Art. 6 par. 1 of the Convention in the

case of review of a decision by an administrative body (decision of the

plenum of 22 October 1984, Sramek v. Austria , 8790/79: § 34). The

concept of a court was analyzed substantively, and in evaluation

independence and impartiality the ECHR also held up as an important

criterion an impression which can create doubts about independence, when

it is necessary to have a guarantee of protection against external

pressures (§ 42 of the decision, or also Berger, V.: Judikatura

Evropského Soudz pro Lidska Práva [Case Law of the European Court of

Human Rights], Prague, IFEC, 2003, p. 193, or Sudre, F.: Mezinárodní a

evropské právo lidských práv [International and European Human Rights

Law], Brno, MU, 1997, p. 177 or Čapek, J.: Evropský soud a Evropská

komise pro lidská práva [The European Court and European Commission for

Human Rights], Prague, Linde, 1995, p. 395). Mrs. Sramek’s matter was

decided by a tribunal one of whose members was hierarchically

subordinate to one of the parties, which violated Art. 6 par. 1 of the

Convention. The ECHR proceeded the same way in the case Tinnelly &

Sons and Others v. Great Britain (decision of the Grand Chamber of 10

July 1998, 20390/92: § 72 and 78), where the right to access to the

court, which was to verify the fairness of awarding a public contract in

Northern Ireland, was restricted on the grounds of public interest in

security. The court applied the proportionality test to this limitation

(§ 76 of the decision) and decided that Art. 6 par. 1 of the Convention

gave the plaintiffs the right to access to the courts.
 

The

Constitutional Court stated in the matter Pl. ÚS 11/2000 that the ECHR,

in the case of special groups of state employees, recognized (only)

that in the case of the special group of state employees, disputes of

state employees “whose employment is typified by specific activities of

public administration in the extent to which that administration acts as

a holder of public power, entrusted with protection the general

interests of the state or other public societies. Obvious examples of

such activities are the armed forces and the police” are taken out of

the sphere of jurisdiction of Art. 6 par. 1 of the Convention (see the

decision of the Grand Chamber of the ECHR of 8 December 1999, Pellegrin

v. France no. 28541/95: § 66; also Reports of Judgments and Decisions of

the European Court of Human Rights no. 1/2000, p. 7 et seq., or Berger,

op. cit., p. 280). The ECHR also looked to previous case law, which did

not question certain reservations of discretion to the state

administration, but pointed out that exceptions to the application of

Art. 6 par. 1 of the Convention must continue to be interpreted

narrowly.
 

However, in the

case Wille v. Liechtenstein (decision of the Grand Chamber of 28 October

1999, 28396/95: § 41) the ECHR stated that the right of recruitment to

the civil service was deliberately omitted from the Convention.

Consequently, the refusal to appoint a person as a civil servant cannot

as such provide the basis for a complaint under the Convention. This

does not mean, however, that a person who has been appointed as a civil

servant cannot complain of being dismissed if that dismissal violates

one of his or her rights under the Convention. Civil servants do not

fall outside the scope of the Convention. In Articles 1 and 14, the

Convention stipulates that “everyone within [the] jurisdiction” of the

Contracting States must enjoy the rights and freedoms in Section I

“without discrimination on any ground”. Moreover, Article 11 § 2 in

fine, which allows States to impose special restrictions on the exercise

of the freedoms of assembly and association by “members of the armed

forces, of the police or of the administration of the State”, confirms

that as a general rule the guarantees in the Convention extend to civil

servants (see the decision of the plenum of 28 August 1986, Glasenapp

and Kosiek v. Germany, 9228/80: § 49, or 9704/82: § 5 or Berger, op.

cit., p. 518; or the decision of the Grand Chamber of 26 September 1995,

Vogt v. Germany, 17851/91: § 43 or Berger, op. cit., p. 521).

 

The

ECHR does not interpret the concept of citizens’ rights and

obligations, contained in Art. 6 par. 1 of the Convention, narrowly, but

includes under them all proceedings with a result which is definitive

for private rights and obligations (see decision of the plenum of 28

June 1978, König v. Germany, 6232/73: § 90; also Sudre, op. cit., p.

174, or Berger, op. cit., p. 270). Where the decisions taken by

administrative bodies which decide on citizen’s rights and obligations

themselves do not meet the requirements of Art. 6 of the Convention, it

is necessary for such decisions to be subject to the subsequent review

of a judicial body with full jurisdiction, which provides a guarantee of

protection of this article (for all, see decision of the plenum of 23

June 1981, Le Compte, Van Leuven and de Meyere v. Belgium, 6878/75, § 41

et seq., or Berger, op. cit. p. 185). In the case Kingsley v. Great

Britain (senate decision of 7 November 2000, 35605/97, which was

confirmed as to the merits on 28 May 2002 by decision of the Grand

Chamber), an administrative decision on revoking a license to operate

casinos was classified under Art. 6 par. 1 of the Convention (§ 15 a §

45 decision of the small senate, or §18 of the decision of the Grand

Chamber) and the ECHR clearly classified under the concept of full

jurisdiction the right of a court cancel an administrative court

decision and assign the matter to an impartial court for a decision (in

the event that there are doubts about a tribunal’s impartiality

(Kingsley v. Great Britain: § 32 of the decision of the Grand Chamber).

In deciding whether a particular body can be considered independent of

the executive power, one must take into account the manner of appoint

and length of mandate of its members, the existence of guarantees

against external pressures and whether the body creates the appearance

of independence (see Le Compte § 55 or the senate decision of 28 June

1984, Campbell and Fell v. UK, 7819/77: § 78; or Sudre, op. cit., p.

176). Naturally, the ECHR does not consider appointment of judges by

decision or recommendation of bodies of state power or the Parliament to

be a fact which casts doubt on their independence, without anything

further. In the case of Campbell & Fell the Prison Board of Visitors

(whose heterogeneous composition is ensured both professionally and in

terms of relationship to the executive branch, as well as in other

aspects – cf the decision, § 32), was found capable of conducting a fair

trial (cf. Čapek, op. cit., p. 395).
 

We

can not overlook the fact that the ECHR also, in case of a conflict of

fundamental rights with the interest in security, often points out the

necessity of ensuring an opportunity to refute possible untrue

information about private life, even if it involves secret information

(senate decision of 26 March 1987, Leander v. Sweden, 9248/81: § 48),

when it is necessary to ensure impartial supervision, which is best

ensured by a court, as was stated in the decision Rotaru v. Romania

(decision of the Grand Chamber of 4 May 2000, 28341/95 § 43, § 46 and §

72, available in Czech in Sbírka soudních rozhodnutí Evropského soudu

pro lidská práva ve Štrasburku [Collection of Decisions of the European

Court of Human Rights in Strasbourg] 1/2003). The ECHR stated that it is

necessary to be convinced that there exist adequate and sufficient

guarantees against the misuse of collected untrue information, because

the system of secret surveillance, intended to protect national

security, carries the risk of subverting, even destroying democracy,

with the justification that it is protecting it (cf. decision of the

plenum of 6 September 1978, Klass and Others v. Germany, 5029/71: §§

49-50 or Berger, op. cit., p. 449-450). For the system of secret

surveillance to be compatible with Art. 8 of the Convention, it must

contain statutorily required guarantees which also apply to inspection

of the activities of the relevant services. Inspection procedures must

as much as possible respect the values of a democratic society,

primarily the exclusive status of the law, which is expressly cited by

the preamble of the Convention. “The rule of law implies, inter alia,

that interference by the executive authorities with an individual's

rights should be subject to effective supervision, which should normally

be carried out by the judiciary, at least in the last resort, since

judicial control affords the best guarantees of independence,

impartiality and a proper procedure” (see Klass and Others v. Germany, §

55, cited in Rotaru § 59).
 

The

Constitutional Court states that ECHR case law devotes special

attention to the need to ensure an independent and impartial inspection

of classified information about an individual. (We also can not fail to

note the fact that although the Swedish government was successful in the

Leander dispute, and the court gave priority to the public interest,

after the archives were opened it was found – contrary to the assurances

given to the ECHR by the Swedish government – that the secret

information concerned only the complainant’s political activities, and

not national security. In 1997 the Swedish government publicly

apologized to the complainant and provided compensation (Töllborg D. in

Greenwood, D., Huisman, S.: Transparency and Accountability of Police

Forces, Security Services and Intelligence Services, George C. Marshall

Association, Sofia, 2004, p. 119, or Mendel, T.: Freedom of Information:

A Comparative Legal Survey, UNESCO 2003, p. 11-12). We must also point

out that the Constitutional Court also, in the matter Pl. ÚS 11/2000,

confirmed (just as the Polish constitutional court), that the standard

of judicial protection provided by the Constitution and the Charter is

broader in this area. Fundamental rights other than those considered in

the Pellegrin case can also be affected in connection with the conduct

and result of security clearances, because the potential interference in

the right to information about one’s self, the right not to be

discriminated against, or the right to protection of privacy exceed the

framework of a labor law dispute, which was also confirmed by the

Leander case (§ 76), where the ECHR also evaluated the matter in terms

of Art. 13 of the Convention, which recognizes the right to an effective

appeal (cf. also how this decision is used as a basis for arguments in

ECHR case law).
 


VII. (The Interim Nature of the APCI)
 

In

proceedings before the Constitutional Court, the interim nature of the

Act on Protection of Classified Information was repeatedly pointed out,

which was apparently meant to explain its inadequacies.
 

Act

no. 310/2002 Coll. provided in Art. IX.: “Act no. 148/1998 Coll., on

Classified Information, ceases to be in effect on 31 December 2003.”

Because the amending proposal of the parliamentary committee for defense

concerning Act 310/2002 Coll. (resolution no. 206 of 15 March 2002,

which the chamber accepted on 25 March 2001) contained the sentence:

“This Act goes into effect on the day it is promulgated and ceases to be

in effect on 31 December 2003” (see Chamber of Deputies publication

1000/4), one can justifiably assume that the original intent was only to

limit the validity of the amendment to the APCI, which was a response

to Constitutional Court judgment Pl. ÚS 11/2000 (cf. a statement in

debate in the Chamber on 22 March 2002).“ The Act on Protection of

Classified Information contains a number of other problematic places,

and it will be absolutely necessary to revise them thoroughly after the

elections. Therefore, the committee proposes to limit the validity of

this amendment to 31 December 2003, and thus motivate the next

government to expedited work on a very thorough amendment (in www.psp.cz

- the Chamber of Deputies: 1998 - 2002: Chamber of Deputies publication

1000: conduct of discussions), although the wording of Act no. 310/2002

Coll. as passed limited the validity of the entire Act on Protection of

Classified Information (likewise Šimíček V, p. 150). Subsequently the

legislature, in Act no. 436/2003 Coll., Amending the Act on the Prison

Service and Judicial Guard of the Czech Republic and Amending Certain

Other Acts, with effect as of 1 January 2004 extended the validity of

the Act on Protection of Classified Information to 30 June 2004. This

was a proposal which passed on the basis of a resolution of the Chamber

of Deputies Committee for Defense and security (no. 89 of 1 October

2003). It was stated in debate in the chamber that there is a real

danger that as of 1 January 2004 the legal order of the CR would, at

least for a certain time, have no legal regulation of protection of

classified information (see the record of the chamber of deputies debate

on 22 October 2003). Finally, by Act no. 386/2004 Coll., the

legislature, with effect s of 29 June 2004, postponed the expiration of

the Act on Protection of Classified Information by one year, to 30 June

2005, with this justification: “a draft new act on protection of

classified information and security qualification was prepared. The

Government’s Legislative Council, at its meeting on 12 February 2004,

decided to return the submitted material to the proposers for revision

according to the intentions of its position. This revision will take

some time. Subsequently, the draft is again supposed to be submitted to

the legislative process, which would create a real danger that as of 1

July 2004 the legal order would contain no regulation for the protection

of classified information. To make it possible to responsibly revise

both the original proposals according to the comments from the

Government´s Legislative Council, and also ensure the existence of a

legal regulation governing the issue of protection of classified

information after 30 June 2004” (see background report to Act no.

386/2004 Coll.).
 

The

Constitutional Court, whose plenum is now reviewing Act no. 148/1998

Coll. for the third time, was always assured that a new regulation would

be passed soon. However, this continually did not happen. The draft act

prepared by the NSO at the request of the government was presented to

the Chamber of Deputies on 27 January 2005. On 30 March 2005 the Chamber

of Deputies extended the validity of the Act on Classified Information

to 31 December 1005 (resolution no.1619, 42nd meeting of the Chamber of

Deputies, Chamber of deputies publication 735; editorial note: in the

interim from the decision of the plenum to promulgation of this

judgment, this Act was also approved by the Senate at its 5th meeting –

see resolution no. 113 of 28 April 2005). The Constitutional Court

states that the uncertainty connected to the extension of this

provisional state serves neither protection of fundamental rights and

freedoms nor the interest in state security. On the other hand, it is

certain that the draft act presented to the Chamber of Deputies really

has not yet been passed, and that the provisional state will continue.
 


VIII. (Conclusion)
 

After

it was found that the Collegium does not meet the requirements for a

substantively understood court as foreseen in Art. 36 par. 2 of the

Charter, the Constitutional Court, according to the intent of the

submitted draft act, reviewed the relationship of § 73 par. 2 of the

APCI, which permits judicial review of a decision in the area of

security clearances, with § 77k par. 6 of the APCI, which removes

Collegium decisions from the framework of judicial review. In terms of

Art. 36 par. 2 of the Charter, it appears that Collegium decisions

should be subject to judicial review.
 

The

possibility of procedural parallels suggested by the statute creates

uncertainty in the question of which means for protecting his rights the

affected person must exhaust before turning to a general court. This

creates an undesirable uncertainty which is incompatible both with the

principles of a fair trial and with general principles on which the

legal regulations of every law based state must be based. From that

point of view the very existence of § 77k par. 6 is undesirable. The NSO

director’s arguments that Collegium decisions are res iudicata is

unsustainable from a constitutional viewpoint. The regulation violates

the constitutional principles of legal certainty and foreseeability of

law.
 

The Constitutional

Court states that the prohibition of judicial review provided by the

still-valid § 77k par. 6 of the Act on Protection of Classified

Information is inconsistent with the constitutional order, because it

conflicts with the constitutionally guaranteed right to judicial

protection (Art. 36 par. 2 of the Charter) and also conflicts with the

principles of legal certainty and foreseeability of law which follow

from the concept of a law based state (Art. 1 par. 1 of the Constitution

of the Czech Republic). This statement is not an expression of

underestimating the security interests of the Czech Republic, the

ensuring of which, after all, makes possible the peaceful implementation

of the fundamental rights and freedoms, but is an expression of respect

to the fundamental rights and freedoms, among which the right to

judicial protection plays an irreplaceable role. It is not the

Constitutional Court’s role to participate in the legislative process,

and it can not predict the form of the regulation which will go into

effect after 31 December 2005; nevertheless, in view of the objections

contained in the statements of the parties, it will recapitulate some of

the reasons (apart from those mentioned above) which led it to issue

its previous judgments.
 

In

the matter Pl. ÚS 16/99 the Constitutional Court stated that the

Convention “clearly requires that a court, or body similar to a court,

decide on the law (i.e., about the matter itself, and not just about the

lawfulness of the foregoing administrative act). Thus, in our framework

a court may remove only an unlawful decision, but not one which is

substantively defective. In other words, at this time the administrative

consideration of a dependent body can not be replaced by independent

judicial consideration. If that is so in matters of ‘civil rights and

obligations’ and ‘administrative punishment’ under the Convention, that

state of affairs is unconstitutional; in other matters it will stand”

(in Collection of Decisions, vol. 22, p. 329, no. 276/2001 Coll.).
 

The

Constitutional Court is aware of the delicacy of the problem, and to a

certain degree understands the NSO fear of marring the purpose of the

APCI, which is protecting the security of the Czech Republic. In any

case, in the matter file no. Pl. ÚS 11/2000 it was found that the area

of security clearances is sufficiently unique that “even from a

constitutional law viewpoint it is not possible to guarantee all the

procedural rights of these person in such a degree as with other

professions and the labor disputes of their employees. On the other

hand, however, even the unique aspects of protection of classified

information can not lead to a conscious resignation of constitutional

protection fo the rights of the persons subject to clearance. Thus,

insofar as Art. 36 par. 1, 2 of the Charter and Art. 6 par. 1 of the

Convention guarantee everyone the fundamental right to a fair trial and

if review of decisions concerning fundamental rights and freedoms under

the Charter can not be excluded from judicial review, in this case too

the legislature must guarantee, in this case too, review of

administrative decisions by an independent judicial body, although a

non-ordinary type of proceedings which will sufficiently differentiate

individual cases can not be ruled out. The current legal framework has

the consequence that in the process of conducting a security clearance

there is considerable concentration of power in one body of the

executive branch, and its decision can palpably affect the individual

sphere of the person subject to clearance.” (in Collection of Decisions,

vol. 23, p. 105, no. 322/201 Coll.). However, the proceedings before

the Collegium which were later introduced did not meet these

requirements. In view of the comment form the Regional Court in Brno,

the Constitutional Court considers it appropriate to add that the notice

of non-issuance of certification, or notice of revocation of clearance,

must be considered a decision which can be contested by an

administrative complaint (analogously, judgment of 25 November 2003,

file no. I. ÚS 577/01 in Collection of Decisions, vol. 31, p. 223). In

the matter file no. II. ÚS 28/02 it was stated that “The NSO’s deciding

that a cleared person ceased to meet the conditions provided in § 18 of

Act no. 148/1998 Coll. is, by its nature, also a decision which concerns

Art. 26 par. 1 of the Charter." (judgment of 25 June 2003, Collection

of Decisions, vol. 30, p. 447).
 

As

regards the NSO’s concerns about expanding the circle of persons who

become acquainted with classified information in court proceedings, we

can state that in the matter Pl. ÚS 41/02 (cf. judgment of 28 January

2004 in Collection of Decisions, vol. 32, p. 61, no. 98/2004 Coll.) the

question of giving access to classified information to the defendant and

his defense counsel was addressed in great detail. The Constitutional

Court pointed out the way this question was addressed in the Civil

Procedure Code and the Administrative Procedure Code, and did not find

any reason why these regulations should not apply to all court

proceedings. At the same time, it is indisputable that a judge too must

maintain confidentiality, and therefore one can not speak of a a

violation or endangerment of security if a judge becomes acquainted with

classified information during proceedings.
 

The

Constitutional Court has no reason to diverge from these conclusions,

and it states that it considers judicial review of the process of

security clearances to be compatible with the interest in the security

of the CR and with the interest in its international trustworthiness;

one can imagine a regulation which, while limiting access to classified

information in judicial review in accordance with the principle of

proportionality, chooses a differentiated approach, so that the scope of

any limitation of a fundamental right in a particular case will

correspond as much as possible to the degree of gravity of the protected

interest. Classified information reviewed during judicial review must

also be effectively protected, but one can hardly make a rule that makes

classified information inaccessible to judicial review.
 


IX. (obiter dictum)
 

It

remained to evaluate whether proceedings before the Collegium are

necessary, only as obiter dicta, usable in the already ongoing

parliamentary process of passing the government draft act on protection

classified information and on security qualification (Chamber of

Deputies publication no. 880 - see www.psp.cz Parliament of the Czech

Republic, Chamber of Deputies from 2002). Thus, it was necessary to

apply the test of proportionality to §§ 77a to 77k of the APCI.
 

The

Constitutional Court has considered the test of proportionality, which

in continental and Anglo-Saxon law is one of the standard instruments

used by the courts in evaluation the conflict of a public interest with

individual rights or freedoms in many of its judgments (see also

decisions of the Polish and Slovak constitutional courts, as well as

numerous decisions of the ECHR). In its judgment of 13 August 2002, file

no. Pl. ÚS 3/02, the Constitutional Court, with reference to the

preamble and first article of the Constitution of the Czech Republic,

stated that in cases of conflict between fundamental rights or freedoms

with a public interest, or with other fundamental rights or freedoms,

“it is necessary to evaluate the purpose (aim) of that interference in

relation to the means used, and the measure for this evaluation is the

principle of proportionality (in the wider sense), which can also be

called a ban on excessive interference in rights and freedoms. This

general principle contains three criteria for evaluating the

admissibility of interference. The first of these is the principle of

the capability of meeting the purpose (or suitability), under which the

relevant measure must be capable of achieving the intended aim, which is

the protection of another fundamental right or public good. Next is the

principle of necessity, under which it is permitted to use, out of

several possible ones, only the means which most preserve the affected

fundamental rights and freedoms. The third principle is the principle of

proportionality (in the narrower sense), under which detriment in a

fundamental right may not be disproportionate in relation to the

intended aim, i.e. the negative consequences of measures limiting

fundamental human rights and freedoms may not, in cases of conflict

between a fundamental right or freedom with a public interest, exceed

the positive benefits represented by the public interest in these

measures” (in Collection of Decisions, vol. 27, p. 177, Collection of

Laws no. 405/2002).
 

The

Constitutional Court also states that ensuring the security of the state

is certainly a legitimate aim. However, the constituted proceedings

before the Collegium do not meet the requirements of the criteria of

capability of meeting the aim (or suitability), under which the relevant

measure must be capable of achieving the intended aim, which is

protection of another fundamental right or a public interest. Although

it permits achieving protection of the interest in security, it is not

able to meet the requirements of Art. 36 par. 2 of the Charter and

ensuring judicial protection to rights which could be affected in

connection with security clearances. This aim can best be achieved by

judicial review, whose role a review conducted by the Collegium is not

capable of replacing.
 

In a

situation where a Collegium decision must be subject to judicial review,

it is evident that proceedings before the Collegium will also not hold

up in terms of the criteria of necessity, because they must be further

reviewed by a court, and implementation of these proceedings only

increases the number of persons who become acquainted with both

classified information (similarly, see the above mentioned answer to the

submitted questions from the NSO director), and with private data about

the person undergoing clearance (Art. 10 par. 2 and 3 of the Charter).

We must add that Art. 7 par. 1 of the Charter, guaranteeing the

inviolability of privacy, also gives rise to both the maxim of limiting

the number of person who have access to information about the person

undergoing clearance (often of a highly intimate nature) and the

necessity of ensuring independent review of the entire process. Under

the principle of necessity, only the most sparing – in relation to the

affected fundamental rights and freedoms – of several possible means may

be used. Proceedings before the Collegium are not such a means. Because

the Constitutional Court concluded that proceedings before the

Collegium do not meet the criteria of suitability and purposefulness,

there was no point in reviewing whether the proceedings would meet the

principle of proportionality in the narrow sense. The Constitutional

Court only points out that according to NSO information, from November

1998 to February 2002 security clearances affected 15,352 individuals

and 563 “organizations” (see resolution no. 274 of the National Security

Council of 27 March 2002, available at www.vlada.cz). Proceedings

before the Collegium are superfluous, and in view of their failure to

meet the criteria of proportionality, it can not be said that this

superfluity is harmless.
 

For

all the foregoing reasons the Constitutional Court annulled § 77k par. 6

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

Amending Certain Acts, as amended by later regulations as of the day

this judgment is promulgated. In view of the fact that another provision

in the Act serves the purpose of the deleted provision, and the Act

itself will cease to be in effect on 30 June 2005, the Constitutional

Court found no reason to postpone the execution of this judgment.

Notice: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).

Brno, 26 April 2005