2009/11/19 - Pl. ÚS 10/07: Service Relationship

19 November 2009

HEADNOTES

In earlier

case decisions, the Constitutional Court concluded that Article 95 para.

2 of the Constitution of the Czech Republic implies that the

Constitutional Court’s obligation is to review the constitutionality of

the contested provision of an act, even when such a provision has

already been annulled (altered), this under the condition that the

addressee of the reason claimed for unconstitutionality is a public

power, i.e. not a subject of private law, and under the condition that

the contested provision of the act is to be applied by an ordinary court

in solving a case which has yet to be closed. In the case under

consideration, these conditions have been met.
The lump sum death

benefit as a welfare benefit is a part of the right to adequate material

security in the case of the loss of a provider, protected by Article 30

para. 1 of the Charter.
 

In

accordance with Article 4 para. 2 of the Charter, limitations may be

placed upon fundamental rights and basic freedoms only by law and under

the conditions prescribed in the Charter. In this, the essence and

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

para. 4 of the Charter). A legal arrangement which excludes a judicial

review of a decision by a service body on claims of a social nature is

not compatible with the condition of preservation of fundamental rights

and basic freedoms.
 

Even

when in the field of economic, social and cultural rights, as well as

the rights of minorities, it is the state which has been afforded the

opportunity of preferential treatment for certain groups of society

which is otherwise intricately stratified in terms of social, cultural,

professional or other status, while the legislature materialises,

through adopting legal norms, their concepts of admissible limitations

of factual inequalities within society, there is an increasingly

conspicuous effort to guarantee members of security corps the same

standard of protection of their procedural rights as belongs to other

government employees, and to provide them with the possibility of

attaining protection of their fundamental rights pursuant to Article 1,

Article 36 para. 1 and para. 2, and Article 37 para. 3 of the Charter of

Fundamental Rights and Basic Freedoms with an independent and impartial

court. The contested provisions of § 139 para. 1, clause a) of Act No.

154/1994 Coll. on the Security Information Service, in the wording prior

to the amendment adopted via Act No. 362/2003 Coll., when the same did

not allow the reviewing powers of a court in cases of claims made in

accordance with § 124 of Act No. 154/1994 Coll., did not honour such a

standard.
 

The

Constitutional Court is aware of specific features of decision making

on service affairs relating to members of intelligence services.

Information which comes to light in the course of such decision making

relates to the field of security risks and interests of the state, which

may be reflected in the restriction of warranties of some standard

procedural safeguards of a fair trial, such as the public nature of a

hearing. The Constitutional Court, in Judgment file No. II. ÚS 377/04,

emphasised that “also in this form of proceedings, it is the task of the

legislature to make possible, in a statutory form, implementation of

reasonable safeguards for protection by a court, be it, according to the

nature of the matter, … for special and differentiated protection”.
 

From

the viewpoint of protection of fundamental rights and basic freedoms,

public interest in not publishing such specific facts cannot constitute a

complete resignation to protection of fundamental human rights and

basic freedoms, in particular the judicial review of administrative

decisions.
 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT


On

19 November 2009, the Constitutional Court Plenum, composed of Pavel

Rychetský, the Chairman, and Justices Stanislav Balík, František Duchoň,

Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar

Lastovecká, Jiří Mucha, Jan Musil (Justice Rapporteur) and Jiří Nykodým,

adjudicated on a petition by the Supreme Administrative Court for

declaration of the unconstitutionality of the provisions of § 139 para. 1

of Act No. 154/1994 Coll. on the Security Information Service, as

amended by later regulations, with participation by the Chamber of

Deputies of the Parliament of the Czech Republic as a party to the

proceedings, as follows:
 

The

provisions of § 139 para. 1 of Act No. 154/1994 Coll. on the Security

Information Service, in the wording prior to the amendment adopted via

Act No. 362/2003 Coll., when the same did not allow the reviewing powers

of a court in cases of claims made in accordance with § 124 of Act No.

154/1994 Coll., were in conflict with Article 1, Article 36 para. 1 and

para. 2, Article 37 para. 3 of the Charter of Fundamental Rights and

Basic Freedoms, and with Article 6 para. 1 of the Convention on the

Protection of Human Rights and Fundamental Freedoms.



REASONING


I. Recapitulation of the petition

 

1.

In a petition delivered to the Constitutional Court on 25 May 2007, the

Supreme Administrative Court demanded that the Constitutional Court

decide that the provisions of § 139 para. 1 of Act No. 154/1994 Coll. on

the Security Information Service (hereinafter referred to only as the

“Act on the Security Information Service”), in the wording effective

until 31 December 2006, i.e. prior to the amendment adopted via Act No.

362/2003 Coll., are in conflict with Art. 1, Art. 36 and Art. 37 para. 3

of the Charter, that is with the constitutional order of the Czech

Republic.

The provisions contested by the petition read as follows:
“The court shall not review a decision by a service body with the exception of a decision on the following:
a) discharge from the service relationship in accordance with § 40 para. 1, clause c) or clause d);
b) compensation for loss if the sum required exceeds CZK 5,000.00”.

2.

The petitioner stated that they filed said petition in connection with

their decision-making activities in the case administered by the Supreme

Administrative Court under file No. 5 As 65/2006. In the same, Bc. E.

R., the complainant, contests, through a cassational complaint on the

merits, a resolution by the Municipal Court in Prague dated 30 May 2006,

ref. No. 8 Ca 57/2006-27, whereby her action was dismissed, such an

action being against a decision of the Director of the Security

Information Service, dated 10 January 2006, ref. No. 29-7/2005-BIS-1,

whereby her appeal against the decision of the Director of the Security

Information Service dated 7 November 2005, ref. No. 11-31/2005-BIS-1, on

awarding lump sum death benefit, was rejected as overdue. The Municipal

Court in Prague dismissed the action by resolution as inadmissible, as

the same was filed against a decision which is excluded from judicial

review in accordance with the provisions of § 139 para. 1 of the Act on

the Security Information Service.

3. The Supreme Administrative

Court, which was to decide on the cassational complaint on the merits,

during the preliminary hearing of the case concluded that the provisions

of § 139 para. 1 of the Act on the Security Information Service, which

had already been applied and will have to be applied again in the given

case, cannot be interpreted in a constitutionally conforming way since

the same are in conflict with the constitutional order of the Czech

Republic. Therefore, the Supreme Administrative Court suspended the

proceedings and, pursuant to the provisions of Art. 95 para. 2 of the

Constitution of the Czech Republic, proposed that the Constitutional

Court declare the unconstitutionality of § 139 para. 1 of the Act on the

Security Information Service, in the wording preceding the amendment

adopted via Act No. 362/2003 Coll. The Supreme Administrative Court

specified that the legal opinion of the Constitutional Court would be

binding upon them in further proceedings.

4. In support of their

opinion, and with reference to a “procedurally similar situation”, the

petitioner refers to a Judgment of the Constitutional Court dated 10

January 2001, file No. Pl. ÚS 33/2000 (published in Collection of

Judgments and Rulings of the Constitutional Court, Volume 21, p. 29 et

seq.), in which the Constitutional Court also adjudicated on a petition

by an ordinary court that contested the statutory provisions which had

already been amended, at the time of decision making by the

Constitutional Court.
 
5. Beyond the scope of the petition, the

petitioner refers to the wording of the provisions of § 67 para. 1 of

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

regulations (hereinafter referred to only as the “Act on the

Constitutional Court”), which is, with respect to derogation of legal

regulations within norm control proceedings, based on ex nunc not ex

tunc effects. This rule, in their opinion, cannot be perceived

mechanically, since in such a case, the essence of normative regulation

could be omitted.
 
6. In connection with prohibition of the

retroactive effect of legal regulations, a direct consequence of which

is an obligation on the part of all bodies applying law to employ legal

regulations in the form in which they were valid at the time when the

decisive legal facts actually occurred, the petitioner emphasises that

even when a legal regulation may be, or is, at the time of decision

making of the Constitutional Court, changed or even annulled without

being superseded, the same must henceforth be applied to previous legal

relationships which originated at the time of the validity and

effectiveness of such a regulation. The petitioner highlighted that

should the Constitutional Court refuse to deal with their petition for

the very reason of subsequent derogation of the contested legal

regulation, the Constitutional Court by such a course of action would

trigger a situation in which the fundamental rights and basic freedoms

of the parties to the proceedings would be violated. The possible

protection of constitutional rights of the parties to the proceedings,

which would be provided by the Constitutional Court only as late as

following a decision by the ordinary courts, appears to the petitioner

to be “ineffective” and “unsystematic”, as it is always necessary to

proceed from the contents of Article 4 of the Constitution of the Czech

Republic, which guarantees judicial protection of fundamental rights and

basic freedoms. For this reason the petitioner insists that the

Constitutional Court, in its decision making, does not neglect to pursue

the interest of the entire structure of ordinary courts in the proper

functioning of all partial elements of such a system.

7. The

petitioner is aware of the fact that the Constitutional Court, when

applying the provisions of § 67 of the Act on the Constitutional Court,

within an “abstract norm control” [pursuant to § 64 para. 1, clauses a)

and b) of the Act on the Constitutional Court], discontinues such

proceedings if the contested provisions of the act lose validity.

However, the petitioner emphasised that the other type of norm control –

a concrete norm control [§ 64 para. 1, clauses c) and e), para. 3 of

the Act on the Constitutional Court] – is based on a completely

different concept, the meaning of which is to eliminate the

unconstitutional application of a contested section of a legal

regulation in a specific case.
 
8. In relation to the merits of

the matter, the petitioner reasons by referring to the impossibility of

judicial protection of the fundamental rights of the complainant, since

in accordance with the contested provisions, a judicial review of

decisions of the Director of the Security Information Service is not

allowed, which in their opinion represents a flagrant violation of the

fundamental rights of the complainant pursuant to Article 36 para. 1 and

para. 2 of the Charter, i.e. affecting the fundamental procedural right

to have, under realistic conditions, access to a court and to seek

therewith protection for one’s rights, including the right to a fair

trial. From the viewpoint of constitutional protection in the field of

administrative law, the petitioner refers to the second sentence of

paragraph 2 of Article 36 of the Charter, which does not permit any

possibility of eliminating from judicial review such cases in which a

body of public power has come into conflict with any fundamental rights

or basic freedoms. Exclusion from judicial review is possible in the

case of decision making by a body of public administration on subjective

public rights, but not in decision making by a body of public power on

fundamental rights or basic freedoms guaranteed by the Charter. In this

case, the issue involves a social right being affected – a fundamental

right regulated in Article 30 para. 1 of the Charter – wherein the right

of citizens to adequate material security in the case of the loss of

their provider is established. Following termination of the service

relationship, certain benefits are disbursed to members of the Security

Information Service, such as an ex-service pension, pay off, and, if the

service relationship is terminated by death, survivors are paid lump

sum death benefit. In the given case, the lump sum death benefit is a

special form of security for the survivors in the case of the loss of

their provider.

9. If such a decision relating to a fundamental

social right was excluded from judicial review in accordance with the

wording of the above-quoted provisions in the wording effective until 31

December 2006, such an arrangement was not, according to the

petitioner, in harmony with the right to a fair trial, and thus not in

line with Article 36 of the Charter.

10. The petitioner expressed

doubts concerning the realistic possibility of objectively independent

and impartial decision making by the Director of the Security

Information Service if the principles of a fair trial are to be adhered

to, this under the situation when the Director of the Security

Information Service, in accordance with the provisions of § 135 para. 1

of the Act on the Security Information Service, decides on a remedy

exercised by a party to the proceedings against a decision of the

Director of the Security Information Service.

11. The reasons

that led the petitioner to the conclusion on the unconstitutionality of

the provisions of § 139 para. 1 of the Act on the Security Information

Service, in the wording effective until 31 December 2006, were employed

earlier in argumentation relating to the decision of the Constitutional

Court Plenum dated 26 April 2005, file No. Pl. ÚS 11/04, on a petition

for annulment of the provisions of § 77k para. 6 of Act No. 148/1998

Coll. on Protection of Classified Information (published in Collection

of Judgments and Rulings of the Constitutional Court of the Czech

Republic, Volume 37, under No. 89, p. 207, or in Collection of Laws

under No. 220/2005).

12. Even though the petitioner admits that

attaining safeguards specified under the provisions of Article 36 para. 2

of the Charter does not mean an unconditional review of a decision

merely by a court (but is also possible by another tribunal), it is

necessary to insist that the same must be an independent body, the

members of which are and may objectively be independent and impartial in

their decision making. Besides, the Constitutional Court has previously

dealt with this issue, for example, in a Judgment dated 23 November

1999, file No. Pl. ÚS 28/98, published under No. 2/2000 Coll., or in a

Judgment dated 17 January 2001, file No. 9/2000, published under No.

52/2001 Coll.).

13. Finally, the petitioner remarks that the

administrative judiciary most often (as is the case in the matter under

consideration) adjudicates disputes between executive branches of the

state and parties of private law, which demands a sufficiency of

effective safeguards to maintain the independence and impartiality of

decision making, without concurrent links towards the executive power.

These criteria are satisfied in the case of judges; it is not so in the

enforcement of the right to procedural defence of the appellant against

the decision of the Director of the Security Information Service, which

the petitioner finds to be in conflict with Article 1, Article 36, and

with Article 37 para. 3 of the Charter.



II. Recapitulation of the prior proceedings


14.

From the appended file by the Supreme Administrative Court administered

under file No. 5 As 65/2006 (to which a file from the Municipal Court

in Prague, file No. 8 Ca 57/2006 was annexed) it was ascertained that

Bc. E. R. (who held the procedural position of a plaintiff in the

previous proceedings) demanded, by an action filed against the Security

Information Service, the annulment of a decision of the Director of the

Security Information Service dated 10 January 2006, ref. No.

29-7/2005-BIS-1, whereby an appeal by the complainant was rejected

against the decision of the Director of the Security Information Service

dated 7 November 2005 on awarding lump sum death benefit, subsequent to

the death of her husband, at the amount of CZK 112,491 (in accordance

with the provisions of § 124 of the Act on the Security Information

Service), which was awarded to (and apportioned between) her and her two

minor children. The plaintiff did not agree with this distribution of

the awarded sum, as in her opinion, the lump sum death benefit at the

given amount should have been awarded to each of the survivors and not

apportioned.

15. The plaintiff stated that she had confirmed

receipt of the decision of the Director of the Security Information

Service dated 7 November 2005 with her signature as late as 7 December

2005, even though she had been earlier familiarised with the wording of

the same. She submitted a remedy on 22 November 2005 to be delivered by

post, which was, in her opinion, within the statutory term.

16.

By a decision of the Director of the Security Information Service dated

10 January 2006, ref. No. 29-7/2005-BIS-1, the appeal by the plaintiff

(delivered to the Director of the Security Information Service on 28

November 2005) was rejected on the grounds of “expiry of the period for

appeal”.

17. As is specified in the reasoning for the above

rejection, the plaintiff received the decision of the Director of the

Security Information Service, dated 7 November 2005, ref. No.

11-31/2005-BIS-1, as early as 8 November 2005 and signed for the receipt

of such. Therefore, the fifteen-day term for filing an appeal commenced

on 9 November 2005 and ended on 23 November 2005. When the appeal was

delivered to the Director of the Security Information Service on 28

November 2005, it was delivered only following the statutory period for

appeal.

18. The Municipal Court in Prague, by a resolution dated

30 May 2006, ref. No. 8 Ca 57/2006-27, dismissed the action (verdict

I). The reason for such a dismissal was the fact that the given case

involved neither a decision of the service body on discharge from a

service relationship in accordance with § 40 para. 1, clause c) or

clause d) of the Act on the Security Information Service, nor a decision

on compensation for loss with the sum exceeding CZK 5,000.00. Since

reviewing other decisions of a service body is not possible (§ 139 para.

1 of the Act on the Security Information Service), and the action was

brought against a decision which is excluded from a judicial review, the

Municipal Court in Prague found the action to be inadmissible [§ 68

clause e) and § 46 para. 1, clause d) of the Code of Administrative

Justice].
 
19. The plaintiff contested such a negative resolution

by the Municipal Court in Prague with a cassational complaint on the

merits, filed for the reason specified in the provisions of § 103 para.

1, clause e) of the Code of Administrative Justice.
 
 


III. Statement by the party to the proceedings


20.

In its statement concerning the petition, signed by Ing. Miloslav

Vlček, the Chairperson, the Chamber of Deputies of the Parliament of the

Czech Republic stated that the contested provisions of § 139 para. 1 of

the Act on the Security Information Service were, in an unaltered form,

part of this Act until the annulment of the same by Act No. 362/2003

Coll. with effectiveness as of 1 January 2007. The Act on the Security

Information Service (Print of the Chamber of Deputies No. 1015) was

approved at the 21st session of the Chamber of Deputies on 7 July 1994,

and on 27 July 1994 it was promulgated in the Collection of Laws as Item

49 under No. 154/1994 Coll.
 
21. Act No. 362/2003 Coll. on

Alteration of Acts Relating to the Adoption of the Act on a Service

Relationship of Members of Security Corps (Print of the Chamber of

Deputies No. 257), was approved on 2 July 2003 at the 18th session of

the Chamber of Deputies, and was promulgated in the Collection of Laws

on 31 October 2003 under No. 362/2003 Coll. and became effective on 1

January 2007 (the provisions of Art. II of Act No. 530/2005 Coll.). Both

acts, these being the Act on the Security Information Service and Act

No. 362/2003 Coll., were properly adopted, signed and promulgated. The

legislature proceeded from the conviction that the adopted statutory

legal arrangement was in accordance with the constitutional order of the

Czech Republic, even though the contested provisions of the Act on the

Security Information Service were subsequently annulled by the

legislature.
 
22. The Chamber of Deputies does not concur with

the legal interpretation of Article 95 para. 2 of the Constitution of

the Czech Republic, contained in particular in Judgment of the

Constitutional Court file No. Pl. ÚS 33/2000 (one which was also

inclined to by the Supreme Administrative Court). Through this

interpretation, the Constitutional Court allegedly “inferred

jurisdiction not included in Art. 87 of the Constitution of the Czech

Republic”, while such a legal interpretation allegedly does not take

into account the intention of the legislature, which placed the

above-quoted Article of the Constitution in a specific constitutional

context further elaborated by the Act on the Constitutional Court.
 
23.

In the next section of the statement, arguments of the petitioner are

criticised whereby the petitioner tried to support their opinion on the

necessity and unsubstitutability of the role of the Constitutional Court

in assessing the petition for declaration of the unconstitutionality of

specific provisions of an act. The party to the proceedings claims that

even when the legislature adopts a legal arrangement which proves to be

“ineffective”, it is (only) up to the legislature to evaluate the

effectiveness of the legal arrangement and thereafter possibly replace

the same with another, a more comprehensive legal arrangement.

24.

Allegedly, however, the ordinary courts are not at all entitled to not

apply, on the basis of their own decisions, the statutory arrangement,

even though the same appears to be ineffective. The point is that it is

not up to an (ordinary) court to assess, in accordance with its own

internal conviction, as to “what is and what is not in accordance with

the constitutional order”. The argument specified by the petitioner is,

in this connection, reduced to a construct of an inferred direct

application of Article 95 para. 2 of the Constitution; that is to

“entitlement of the ordinary courts to a consultation with the

Constitutional Court”. If the legislature did not provide such

jurisdiction to the Constitutional Court, there is no statutory

possibility available entitling the ordinary courts to appeal to the

same.
 
25. The party to the proceedings compares the legal

situation occurring in the case under consideration with a similar one

dealt with in a Judgment of the Constitutional Court, file No. Pl. ÚS

33/2000, and infers that the ordinary court should have first examined

whether or not it was possible to interpret the provisions questioned in

a constitutionally conforming manner, and possibly whether application

of the same in the case under consideration is essential and proper. The

party to the proceedings reproaches the petitioner for their having

chosen an intricate course of action, when they have elected, out of all

possible interpretations of ‘ordinary law’, the one which forces them

to apply already invalid provisions of the Act on the Security

Information Service concerning the exclusion of a judicial review, and

then claim there is a conflict between the contested provision and the

constitutional order of the Czech Republic and initiate review of such

provisions by the Constitutional Court with a sole objection – to not

apply the contested provisions in the case being settled by the same

court. The petitioner allegedly did not sufficiently take into account

the fact that the contested provisions were not valid at the time of

examining the same and that the new legal arrangement contained in Act

No. 362/2003 Coll., effective since 1 January 2007, does not disallow a

judicial review in similar cases any more.

26. Even when the

party to the proceedings proceeds from the valid legal arrangement which

determines that the court, when reviewing a decision of an

administrative body, proceeds from the factual and legal conditions

which existed at the time of decision making by the administrative body,

the party believes that, following annulment of the hitherto legal

arrangement, the court responsible for decision making should no longer

be bound by the same, provided that “employment of the same is not

imposed by the interim provisions of the new legal arrangement”. Within

the scope of these deliberations, the party to the proceedings declares

the conviction that it is not evident which values of a law-based state

or which fundamental rights and basic freedoms would be violated by the

petitioner, if the petitioner, with regard to the new legal arrangement,

had admitted a judicial review of the decision of the administrative

body, which, in accordance with the hitherto legal arrangement, was not

feasible.
 
27. The party to the proceedings considers the

petition by the petitioner for declaration of the unconstitutionality of

the provisions of § 139 para. 1 of the Act on the Security Information

Service to be inadmissible.
 

 
IV. Dispensation of an oral hearing


28.

According to the provisions of § 44 paragraph 2 of the Act on the

Constitutional Court, the Constitutional Court may, upon consent by the

parties, dispense with an oral hearing if further clarification of the

matter cannot be expected from said hearing. With respect to the fact

that the petitioner in their petition and the Chairperson of the Chamber

of Deputies of the Parliament of the Czech Republic both expressed

consent for dispensation of an oral hearing, and, with respect to the

fact that the Constitutional Court deemed that further clarification of

the matter cannot be expected from such a hearing, the same was

dispensed with in respect of the given case.

 


V. Control of the constitutionality of a legal norm which is invalid but still applicable


29.

The Constitutional Court has first dealt with evaluating whether it is

competent, in terms of merits, to hear the petition filed, since the

petitioner did not demand annulment of the contested statutory

provisions, but only declaration of the unconstitutionality of the same.

Such a proposed verdict of the petition was influenced by the fact that

Act No. 362/2003 Coll. on Alteration of Acts Relating to the Adoption

of the Act on a Service Relationship of Members of Security Corps

(hereinafter referred to only as “Act No. 362/2003 Coll.”), which

altered not only the Act on the Security Information Service, but also a

whole number of other legal regulations, became valid on 31 October

2003 and effective on 1 January 2007.
 
30. Act No. 362/2003 Coll.

annulled the provisions of § 139 para. 1 of the Act on the Security

Information Service (cf. Section four, Art. IV, clause 3) which were

contested by the petition. These issues are now regulated by another

act, Act No. 361/2003 Coll. on a Service Relationship of Members of

Security Corps (hereinafter referred to only as “Act No. 361/2003

Coll.”), whose provisions of § 196 para. 1 allow review by a court of

all decisions which were issued within the proceedings in accordance

with such an act. According to the statement of the petitioner, the

contested provisions of § 139 para. 1 of the Act on the Security

Information Service were applied within the proceedings before the

Municipal Court in Prague in the wording prior to the amendment; meaning

that – within the proceedings on the filed cassational complaint on the

merits – application of the contested provisions will also have to be

reviewed, which was the crucial reason why the petitioner, in accordance

with the provisions of § 95 para. 2 of the Constitution of the Czech

Republic, turned to the Constitutional Court.

31. In earlier case

decisions, the Constitutional Court concluded that Article 95 para. 2

of the Constitution of the Czech Republic implies that the

Constitutional Court’s obligation is to review the constitutionality of

the contested provision of an act, even when such a provision has

already been annulled (altered), this under the condition that the

addressee of the reason claimed for unconstitutionality is a public

power, i.e. not a subject of private law, and under the condition that

the contested provision of the act is to be applied by an ordinary court

in solving a case which has yet to be closed. Such legal opinion has

previously been declared, for example, in a Judgment dated 10 January

2001, file No. Pl. ÚS 33/2000 (published in Collection of Judgments and

Rulings of the Constitutional Court, Volume 21, Judgment No. 5,

promulgated under No. 78/2001 Coll.), as well as in other judgments (for

example, Judgment dated 29 January 2008, file No. Pl. ÚS 72/06,

promulgated under No. 291/2008 Coll., Judgment dated 6 February 2007,

file No. Pl. ÚS 38/06, promulgated under No. 84/2007).
 
32. In the case under consideration, these conditions have been met.

33.

In the case under consideration, it is necessary to answer the question

whether the contested provisions were, in the case administered by the

Municipal Court in Prague under file No. 8 Ca 57/2006, truly applied to

the scope the review of which is proposed, and if it was not so, even

though reference is made to the same in the reasoning of the resolution

by the Municipal Court in Prague dated 30 May 2006, ref. No. 8 Ca

57/2006-27, whether and to what extent this fact must be granted

relevance in just the proceedings on norm control before the

Constitutional Court.
 
34. As results from the description of the

given proceedings before the ordinary court, it is clear that the

subject of the proceedings on the merits of the case consisted of lump

sum death benefit granted to the survivors of a member of the Security

Information Service, which is, with respect to the legal arrangement

specified in Chapter Eight of the Act on the Security Information

Service in the wording effective until 31 December 2006, one of the

claims relating to the termination of an service relationship [§ 124 in

relation to the provisions of § 38 clause e) of the quoted Act].
 
35.

Therefore, the Constitutional Court concluded that the Supreme

Administrative Court is a justified petitioner and thus conditions for

their active standing in the proceedings on a norm control in

relationship to the provisions of § 139 para. 1 of the Act on the

Security Information Service have been fulfilled.
 


VI. Evaluation of the constitutionality of the contested statutory provisions in terms of their contents


36.

Furthermore, the Constitutional Court proceeded to evaluate, in terms

of contents, (a part of) the contested statutory provisions from the

viewpoint of their harmony with the constitutional order of the Czech

Republic, while the Constitutional Court took into account that the

proposed verdict of the petition contested not the entire provisions of §

139 of the Act on the Security Information Service, but only paragraph 1

of the same, which regulates an exception to the rule that the court

does not review decisions of a service body.
 
37. Exceptions to

the rule of not reviewing the decisions of a service body apparently

apply to the field of claims related to the termination of a service

relationship of a member of the Security Information Service upon

discharge from the same (§ 38 and § 40 of the Act on the Security

Information Service); in connection with termination of the service

relationship of a member of the Security Information Service, claims

originate to a disbursement of some benefits, such as pay off (§ 116),

salary settlement (§ 117), and service benefits (§ 119); if the service

relationship of a member of the Security Information Service ends

through the death of such a person, survivors are paid lump sum death

benefit (§ 124).
 
38. The Constitutional Court has dealt with the

issue of service benefits and ex-service pensions in its decisions on a

number of occasions (for example, Judgment of the Constitutional Court

dated 28 February 1996, file No. Pl. ÚS 9/95, resolution file No. II. ÚS

164/01, III. ÚS 209/01, and Judgment dated 9 October 2003, file No. IV.

ÚS 150/01, all available at nalus.usoud.cz).

39. In

Judgment file No. Pl. ÚS 9/95, the Constitutional Court inclined towards

the opinion of the Ministry of Labour and Social Affairs and stated

that “in the legal order of the Czech Republic, these benefits are

framed as a certain form of financial compensation for work carried out

under aggravated conditions and certain personal limitations resulting

from the nature of the work in the armed forces of the state (or

security corps). They form a part of those benefits of a social nature

related to the termination of a service relationship of members of such

corps”.

40. In this sense, lump sum death benefit may be

indisputably seen as a social benefit. The lump sum death benefit is a

part of the right to adequate material security in the case of the loss

of a provider, protected by Article 30 para. 1 of the Charter.
 
41.

In accordance with Article 4 para. 2 of the Charter, limitations may be

placed upon fundamental rights and basic freedoms only by law and under

the conditions prescribed in the Charter. In this, the essence and

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

para. 4 of the Charter). A legal arrangement which excludes a judicial

review of a decision by a service body on claims of a social nature is

not compatible with the condition of preservation of fundamental rights

and basic freedoms.

42. By an amendment to the Act on the

Security Information Service, adopted via Act No. 362/2003 Coll. with

effectiveness from 1 January 2007, the provisions of § 22 to 146a,

including footnotes Nos. 8) to 28) and 30), were annulled, that is

including the contested provisions of § 139 para. 1 of the Act on the

Security Information Service. It is thus apparent that the legislature,

having been aware of the unequal position of members of security corps

compared to other government employees, made it possible through the new

legal arrangement to review by a court all legally effective decisions

of service bodies issued in proceedings in accordance with the above

act.

43. Even when in the field of economic, social and cultural

rights, as well as the rights of minorities, it is the state which has

been afforded the opportunity of preferential treatment for certain

groups of society which is otherwise intricately stratified in terms of

social, cultural, professional or other status, while the legislature

materialises, through adopting legal norms, their concepts of admissible

limitations of factual inequalities within society, there is an

increasingly conspicuous effort to guarantee members of security corps

the same standard of protection of their procedural rights as belongs to

other government employees, and to provide them with the possibility of

attaining protection of their fundamental rights pursuant to Art. 1,

Art. 36 para. 1 and para. 2, and Art. 37 para. 3 of the Charter with an

independent and impartial court. In the contested provisions of § 139

para. 1, clause a) of the Act on the Security Information Service, such a

standard was not honoured. The new legal arrangement expressed the

conviction of the legislature that there are no relevant reasons for

further continuance of a different approach in this field of legal

arrangement.

44. Besides, the Constitutional Court, already in a

Judgment dated 9 October 2003, file No. IV. ÚS 150/01, in which they

dealt with the issue of service benefits and their influence on the

legal sphere of the complainant, expressed its opinion that if the

hitherto (that is as of 31 December 2006) legal arrangement does not

permit all decisions of administrative bodies concerning civil rights

and obligations to be subject to review by a court or another

independent body in such a way as is conceived by Art. 6 para. 1 of the

Convention, such a course of action may be considered an undesirable

excess.

45. The Constitutional Court has dealt with the issue

whether the judicial exclusion of review of a decision of a functional

body in the matter of a claim to lump sum death benefit, in accordance

with § 124 of the Act on the Security Information Service (with

exceptions specified in the contested provisions of § 139 para. 1 of the

Act on the Security Information Service), ensured independence and

impartiality of decision making to the parties to the proceedings, and

thus also fairness of proceedings administered in accordance with the

Act on the Security Information Service; the Constitutional Court

reached the conclusion that it was not so. The executive body which

represents its interests in the area of a service relation not only

issued a first instance decision, but also made a decision at the second

instance on a remedy against said decision. In a situation when there

was not any review by an independent and impartial body, the decision

depended on the will of one institution, which, just by the nature of

the matter, cannot be considered independent or impartial. It is clear

that such an arrangement contravenes the generally acknowledged meaning

and purpose of Art. 36 para. 2 of the Charter, as well as Art. 6 para. 1

of the Convention on the Protection of Human Rights and Fundamental

Freedoms, and Art. 4 of the Constitution of the Czech Republic, which

determines that fundamental rights and basic freedoms are under the

protection of judicial power.

46. The Constitutional Court is

aware of specific features of decision making on service affairs

relating to members of intelligence services. Information which comes to

light in the course of such decision making relates to the field of

security risks and interests of the state, which may be reflected in the

restriction of warranties of some standard procedural safeguards of a

proper and thus also fair trial, such as the public nature of a hearing.

A similar situation was assessed by the Constitutional Court in a

Judgment dated 6 September 2007, file No. II. ÚS 377/04, in relation to

dealing with a constitutional complaint contesting the decision making

in cases of classified information, and it was emphasised that “also in

this form of proceedings, it is the task of the legislature to make

possible, in a statutory form, implementation of reasonable safeguards

for protection by a court, be it, according to the nature of the matter,

… for special and differentiated protection”. From the viewpoint of

protection of fundamental rights and basic freedoms, public interest in

not publishing such specific facts cannot constitute a complete

resignation to protection of fundamental human rights and basic

freedoms, in particular the judicial review of administrative decisions.

47.

The Constitutional Court, for the reason specified above, concluded

that the provisions of § 139 para. 1 of Act No. 154/1994 Coll. on the

Security Information Service, in the wording prior to the amendment made

by Act No. 362/2003 Coll. on Alteration of Acts Relating to the

Adoption of the Act on a Service Relationship of Members of Security

Corps, as amended by later regulations, are in conflict with Art. 1,

Art. 36, Art. 37 para. 3 of the Charter, Art. 6 para. 1 of the

Convention, and therefore, in accordance with Art. 95 para. 2 of the

Constitution, the Constitutional Court granted the petition of the

Supreme Administrative Court.
 
48. With respect to Art. 89 para.

2 of the Constitution of the Czech Republic, bodies of public power are

obliged to reflect the consequences of established unconstitutionality

in their decision-making practice, i.e. not to apply the above-quoted

provisions in dealing with specific cases.
   
Note: Decisions of the Constitutional Court cannot be appealed.

In Brno on 19 November 2009
 

Pavel Rychetský
President of the Constitutional Court