2010/03/30 - Pl. ÚS 2/10: Freedom of Information

30 March 2010

HEADNOTES

The key

hypothesis is that one cannot (naturally) rule out a priori the

possibility that in a particular case protection of a fundamental right

will outweigh the cited values, i.e. that there will not be a “pressing

social need” to limit the fundamental right (“this hypothesis”). That is

precisely why it is necessary to review, in each particular matter

(according to the circumstances of the particular matter), whether the

condition of the necessity for limiting an individual’s fundamental

right or freedom in a democratic society has been met.

 

However,

the contested norm is clearly inconsistent with this hypothesis. It

does not permit reviewing in every particular case (in view of the

circumstances of the given matter) the existence of a “pressing social

need” for limiting a fundamental right (i.e. the necessity of limiting

the fundamental right). The contested norm indicates that – in the event

of the existence of a statute and a legitimate aim of limiting an

individual’s fundamental right to information (provision of a decision

that has not entered into effect), i.e. values cited in Art. 17 par. 4

of the Charter and Art. 10 par. 2 of the Convention – these values will

always (automatically) be given priority over the individual’s

fundamental right to freedom of expression in the form of the right to

information; thus, the contested norm (a priori) breaches the

individual’s fundamental right in every case. Thereby it also

(considering all consequences) denies the common knowledge [arising

from, among other things, the Constitutional Court’s case law; cf. e.g.,

the judgment in the matter file no. Pl. ÚS 15/96 of 9 October 1996 (N

99/6 SbNU 213; 280/1996 Coll.)], that constitutional values (including

constitutional rights) are prima facie equal. Thus, the contested norm

basically turns the requirement that limitation of an individual’s

fundamental right or freedom in a democratic society must be necessary

into a non-reviewable postulate, because, taken comprehensively, it

rules out review of the requirement in view of the circumstances of a

particular case.

 

In

this regard we must point out that freedom of expression – including,

under Art. 10 par. 1 of the Convention, the freedom to receive

information – is one of the most important foundations of a democratic

society; therefore, its guarantees are especially important. One cannot

fail to see that the right to information as the collection of

information is a fundamental preparatory step (among other things)

especially in journalism, and is an inherent, protected part of the

freedom of the press. The functioning of the press includes the creation

of forums for public discussion. However, this function is not limited

to the media and professional journalists. In different situations it

creates space for public discussion, e.g. in relation to

non-governmental organizations, but also in relation to individuals.

Thus, the purpose of that activity, i.e. collecting information, can be

considered one of the basic elements of an informed society. A civic

society plays an important role in discussion of public issues. There is

no doubt that a decision that has not entered into effect may address a

matter of public interest; persons requesting information are, or at

least may be, involved in the legitimate collection of information about

these matters. Their aim may be to impart such information to the

public, and thereby contribute to public discussion, which is not only

legitimate, in a democratic law-based state, but also necessary. Thus,

the monopoly on information that a court enjoys is a form of censorship

sui generis. The censorship of this information monopoly may lead to

interference in the exercise of the scrutiny that belongs to civic

society, as it may have a function analogous to that of the press.

 

Thus,

the Constitutional Court emphasizes that it will be necessary in each

individual matter to review (depending on the circumstances of the

particular case) whether the requirement that a limitation of an

individual’s fundamental right to information must be necessary has been

met, i.e. including a limitation on the right to provide a decision

that has not entered into effect.

 

Yet,

public discussion of a matter being handled by a court need not

necessarily (automatically) interfere in the independence or

impartiality of the judiciary. There is a presumption that a judge (e.g.

the deciding judge in an appeal on a matter that has not yet been

concluded with legal effect) has abundant personal qualities (otherwise

he would not have been appointed as a judge) that guarantee his ability

to decide a matter independently and impartially, including

independently of any opinion ultimately expressed in the public sphere.

Moreover, the case law of the European Court of Human Rights is of a

similar opinion (cf., e.g. the abovementioned judgment in the matter

Campos Dâmaso v. Portugal.)

 

Public

discussion of a matter that is addressed by a judgment that has not

entered into effect may, on the contrary, contribute to independent and

impartial decision making, because sometimes it can reveal the existence

of impermissible influences on judicial decision making. That is one of

the purposes of the fundamental right to information as a derivative of

freedom of expression. A legitimate aim of public discussion is public

scrutiny of the performance of justice, adjudication in the light of

day, not in the darkness of a non-public trial. In contrast,

insufficiently public adjudication can reduce the authority of the

judiciary, because it may generate public suspicion that “there’s

something to hide” (in the sense of committing injustice). The proper

exercise of state authority is not possible in a democratic state

without public confidence. Thus, the element of confidence is also a

functional requirement for the exercise of democratic state power, and

therefore it is necessary to protect confidence in the acts of the state

authority; confidence in judicial decision making is among the

fundamental extra-legal attributes of a law-based state [cf. judgment

file no. IV. ÚS 525/02 of 11. 11. 2003 (N 131/31 SbNU 173)]. The

Convention for the Protection of Human Rights and Fundamental Freedoms

itself describes the authority of the judiciary as a public interest –

one capable of limiting a fundamental right or freedom – in Art. 10 par

2. Thus, the state authorities must take into consideration what

expectations they raise through their conduct and activities. The

censorship of an information monopoly (in the form of a blanket

prohibition on providing decisions that have not entered into effect)

may result in interference in the functions of public scrutiny, which

belongs to not only the press, but also civic society, and as a

consequence may also violate the authority of the judiciary. Ruling out

public scrutiny a priori (without limitation) by not providing decisions

that have not entered into effect would therefore express inadequate

understanding of the purpose of the fundamental right to information and

the freedom of expression in relation to state authority and inadequate

reflection of the purpose of public scrutiny of the state power. A

court too is a body of power that exercises power in a state, so it is

subject to public scrutiny.

 

Moreover,

that too is a reason for the constitutional imperative at the end of

Art. 96 par. 2 of the Constitution, that “Judgments shall always be

pronounced publicly.” A judgment is basically a written form of what has

already been publicly pronounced (cf. also the text below); thus, if a

blanket prohibition on providing judgments that have not entered into

effect were to be rationally justifiable on the grounds of protecting

the independence and impartiality of the judiciary, then – logically – a

prohibition on public pronouncement of a judgment (at the first level)

in general would also have to be valid, on the same grounds.

 

There

is also an opinion that in private law relationships the state should

not even be a person obligated to provide information, and that if a

judgment that has not entered into effect addresses a private law

relationship between the state (thus in the same position in a court

proceeding as any other party) and a natural person or legal entity, the

state should not have – ever – an obligation to provide judgments that

have not entered into effect.

 

However,

that conclusion does not match the abovementioned constitutional law

arguments, which are based on the fact that conflict between

constitutional values must be resolved in view of the particular

circumstances of each case.

 

That

opinion is also based on the inapt premise that the state, in the

position of a party to a proceeding before a general court in a private

law dispute, is asked to provide a judgment that has not entered into

effect on the grounds of its  participation in the court proceeding.

However, the fundamental rights (including the right to information) are

subjective public rights, so the addressee of the obligations (i.e. to

observe these rights and protect them, i.e. to take positive action) is

the state authority. The state is asked to provide a judgment that has

not entered into effect as a bearer of state authority, because the

information requested (the judgment that has not entered into effect) is

the outcome of the decision making authority, i.e. the outcome of the

exercise of state authority (not of private law actions). Therefore, in

the event of an obligation to provide such information the state would

not bear any greater degree of responsibility than the other party to

the proceeding; such an obligation on the state – as the sovereign power

– is based on completely different legal grounds, which do not relate

to its legal position as a party to a proceeding in the private law

dispute itself.

 

The

conclusion that the addressee of the fundamental right to information

under Art. 17 of the Charter of Fundamental Rights and Freedoms is not

the state, as a party to a private law court proceeding, but the state,

as the bearer of state authority, is also not inconsistent with the

opinion that not only a court, but also any other state body – e.g.

appearing previously as a party to a court proceeding – will have an

obligation to provide a judgment that has not entered into effect, if

the requesting party requests it, and it will have the requested

information at its disposal. The addressee of the fundamental right to

information under Art. 17 of the Charter of Fundamental Rights and

Freedoms is the state (as the bearer of state authority), not a court or

other state body. Thus, if there is a right to the provision of

information and a corresponding obligation on the state to provide the

information, then in terms of the significance and purpose of that right

it is not decisive which state body provides the requested information.

That other state body (in the case of the petitioner, the Ministry of

Finance) will act as a body of state authority, just like a court; both

cases involve a body of the same state. This also shows the difference

from a hypothetical situation where the party in the civil law

proceeding would not be the state, but, e.g. two individuals; in that

case it would not be possible to request information (a judgment that

had not entered into effect) from a party to the proceeding, i.e. from a

private individual.

 

That

opinion is also based on the inapt premise that the state, in the

position of a party to a proceeding before a general court in a private

law dispute, is asked to provide a judgment that has not entered into

effect on the grounds of its  participation in the court proceeding.

However, the fundamental rights (including the right to information) are

subjective public rights, so the addressee of the obligations (i.e. to

observe these rights and protect them, i.e. to take positive action) is

the state authority. The state is asked to provide a judgment that has

not entered into effect as a bearer of state authority, because the

information requested (the judgment that has not entered into effect) is

the outcome of the decision making authority, i.e. the outcome of the

exercise of state authority (not of private law actions). Therefore, in

the event of an obligation to provide such information the state would

not bear any greater degree of responsibility than the other party to

the proceeding; such an obligation on the state – as the sovereign power

– is based on completely different legal grounds, which do not relate

to its legal position as a party to a proceeding in the private law

dispute itself.

 

We

can also state that, as regards the significance and purpose of the

fundamental right to information, it is not (basically) important

whether the judgment that has not entered into effect concerns a private

law dispute (e.g. between the state, as an owner, and a third party or

parties) or a public law matter. The significance and purpose of the

right to information is public scrutiny of the exercise of state

(including judicial) authority; by the logic of the matter that

authority is exercised – and is thus subject to legitimate scrutiny– not

only in decision making on public law matters, but also in decision

making in private law disputes. A public interest can also be seen – as

the Constitutional Court stated, e.g. in judgment file no. I. ÚS 260/06

of 24 January 2007 (N 10/44 SbNU 129) – in the state’s activities in

managing state assets; managing state assets is done, among other

things, by concluding private law contracts, which can, in future, lead

to private law disputes. The actions of a state company can be

classified as actions in the public interest on the grounds that the

company does business through using assets entrusted to it by the state.


 

The

opinion that the state, in private law relationships, should not even

be a party obligated to provide information, is thus in conflict with

the hypothesis that managing state assets (i.e., including private law

relationships where the state is a party) is undoubtedly a public

interest (based on the fact that this involves managing funds collected

from taxpayers, wherefore they are legitimately entitled to scrutinize

it; regarding this, cf. also the maxim of priority of the individual

before the state, as a requirement of a state governed by the rule of

law), so the significance and purpose of Art. 17 of the Charter and Art.

10 of the Convention apply to it.



CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REOPUBLIC

 

The

Plenum of the Constitutional Court, consisting of Stanislav Balík,

František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,

Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,

Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and

Michaela Židlická, ruled on 30 March 2010 on a petition from Mgr. F. K.,

Ph.D., seeking the annulment of the word “effective” [i.e., that have

entered into effect] in § 11 par. 4 let. b) of Act no. 106/1999 Coll.,

on Freedom of Information, as amended by later regulations, joined with a

constitutional complaint against a decision of the Supreme

Administrative Court of 29 April 2009 ref. no. 8 As 50/2008-75, as

follows:

The

word “effective” in provision of § 11 par. 4 let. b) of Act no.

106/1999 Coll., on Freedom of Information, as amended by later

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

the Collection of Laws.
 



REASONING

I.
Course of the proceeding and recapitulation of the petition


1.

On 17 July 2009 the Constitutional Court received the petitioner’s

petition, seeking annulment of the decision of the Supreme

Administrative Court of 29 April 2009 ref. no. 8 As 50/2008-75 on the

grounds that it violates his fundamental right to information under Art.

17 of the Charter of Fundamental Rights and Freedoms (the “Charter”).

In

that matter, the Municipal Court in Prague, by decision of 18 June

2008, ref. no. 9 Ca 4/2007 43, denied the petitioner’s complaint against

a decision by the Minister of Finance of 30 October 2006, ref. no.

10/99 897/2006-RK, which denied the petitioner’s appeal against a

decision by the Minister of Finance of 29 September 2006, ref. no.

22/92219/2006/3341IK-255, and also confirmed that decision on partial

refusal of information, or non-provision of court decisions, that had

not yet entered into effect, in complaints against persons acquiring

property transferred for payment by the Fund of Children and Youth “in

liquidation” under Act no. 364/2000 Coll., on Annulment of the Fund of

Children and Youth and on the Amendment of Certain Acts, as amended by

later regulations. The petitioner filed a cassation complaint against

this decision by the Municipal Court, but that was denied by the

contested decision of the Supreme Administrative Court. The Supreme

Administrative Court concluded that, as regards decisions that have not

entered into effect, these decisions too must be included in the

decision-making activity of courts (if effective judgments [i.e. those

that have entered into effect] are decision-making activity of courts,

there is no reason for judgments that have not yet entered into effect

to not also be part of that activity; on the contrary). The provision of

§ 11 par. 4 let. b) of the Information Act thus clearly prevents

obligated subjects from providing any information on the decision-making

activity of courts (with the exception of providing information in the

form of effective decisions). All the more so, then, this provision of

the Act prevents providing information on the decision-making activity

of courts in the form of decisions that have not yet entered into

effect. The Supreme Administrative Court also stated that it is not up

to it to pronounce basic evaluations about whether the regulation of §

11 par. 4 let. b) of the Information Act, in the wording in effect as of

23 March 2006, is well-chosen or not, but it stated that it is not

inconsistent with the right to information guaranteed by the

constitutional order, in particular Art. 17 par. 5 of the Charter of

Fundamental Rights and Freedoms. Limiting the right to information on

the decision-making activity of courts is not, in principle, based on

refusing the public access to any information whatsoever on the

decision-making activity of courts (cf. providing information in the

form of effective decisions). This limitation is limited by the

requirement to not interfere during a trial – in the interest of each

matter being adjudicated objectively and impartially– in a court’s

actual decision-making activity (including decision-making activity in

the form of decisions that have not yet entered into effect), and is

also limited by necessary measures in the interests of national

security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for maintaining the

authority and impartiality of the judiciary [Art. 10 par. 2 of the

Convention for the Protection of Human Rights and Fundamental Freedoms

(the “Convention”)]. Thus, the exercise of freedom of speech and the

right to information can be limited by statute, including in the

interest of preserving the authority and impartiality of the judiciary.

2.

The core of the constitutional complaint is the question of how to

interpret § 11 par. 4 let. b) of Act no. 106/1999 Coll., on Freedom of

Information, as amended by later regulations, (also the “Act on Freedom

of Information” or the “Information Act”) applying constitutional

principles and the bounds set forth in Art. 17 and Art. 4 par. 4 of the

Charter of Fundamental Rights and Freedoms, in the particular matter of

the complainant’s application for the provision of court decisions that

have not entered into effect. The Ministry of Finance refused to provide

the complainant copies of decisions in cases in which it was a party,

citing the fact that they had not entered into effect. The complainant

believes that the decisions, as results of the decision making activity

of courts are – with statutory, narrowly-defined exceptions – public.

This is all the more so if information about them is requested by a

public authority that was involved in a dispute over state property in

the foregoing proceedings. In the complainant’s opinion, the question of

whether a decision has entered into effect is not a criterion that can

meet the material requirements for limiting the right to information

under Art. 17 par. 4 of the Charter of Fundamental Rights and Freedoms.

Such a limitation betrays not only the complainant’s fundamental

political right, but also the historical meaning and purpose of the

public nature of judicial decision making, which is meant, in the long

term, to contribute to confidence in the predictability, transparency

and fairness of the justice system itself.

3. Together with the

constitutional complaint, the complainant filed a petition seeking

annulment of part of § 11 par. 4 let. b) of the Act on Freedom of

Information, specifically the word “effective” [that have entered into

effect].

4. The first panel of the Constitutional Court found no

grounds to reject the petitioner’s constitutional complaint under § 43

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

later regulations, (the “Act on the Constitutional Court”), because

application of the contested provision led to the fact that is the

subject matter of the constitutional complaint. The formal prerequisites

for review under § 43 par. 1 have been met and the constitutional

complaint was not found to be manifestly unfounded under § 43 par. 2

let. a) of the cited Act. Therefore, the first panel, pursuant to § 78

par. 1 of the Act, suspended the proceeding on the constitutional

complaint (by decision of 4 January 2010 file no. I. ÚS 1885/09) and

submitted the petition for the annulment of the abovementioned

provisions to the Plenum of the Constitutional Court for a decision

pursuant to Art. 87 par. 1 of the Constitution of the Czech Republic

(the “Constitution”).
 



II.
Recapitulation of the briefs from the parties


5.

In accordance with § 69 of the Act on the Constitutional Court, the

Constitutional Court requested statements from the parties to the

proceeding – both chambers of Parliament.

6. In its brief, the

Chamber of Deputies only recapitulated the legislative process leading

to the adoption of the Act containing the contested provision, and

stated that the legislative assembly acted in the belief that the

adopted Act is consistent with the Constitution and our legal order. In

the conclusion it consented to waive a hearing.

7. In its brief,

the Senate recapitulated the legislative process leading to the adoption

of the Act containing the contested provision. It stated, among other

things, that the Senate approved an amending proposal to § 11 par. 4

let. b) of the Act on Freedom of Information that substantively expanded

the proposed statute so that requesters of information could be

provided all effective court decisions, instead of effective judgments,

as proposed. None of the comments made on the content of the Act during

discussion in the Senate mentioned any doubts concerning the

constitutionality of limiting provision of court decision only to those

that had entered into legal effect. The Senate discussed the draft,

containing the contested part of § 11 par. 4 let. b) of the Act on

Freedom of Information, within the bounds of its constitutionally

provided competence and in a constitutionally prescribed manner. During

its deliberations the Senate did not find the statutory provision to be

inconsistent with Art. 17 par. 4 of the Charter of Fundamental Rights

and Freedoms. The Senate agreed to waive a hearing.

8. The

Constitutional Court also requested (pursuant to § 48 par. 2 a § 49 par.

1 of the Act on the Constitutional Court) a brief from the Ministry of

Justice, which, however, did not respond by the deadline given.



III.
The text of the contested provision of the Act
 


9.

The text of § 11 par. 4 let. b) of the Act on Freedom of Information

reads: “The obligated subjects also will not provide information on the

decision making activity of courts, with the exception of effective

judgments.”



IV.
The petitioner’s active standing


10.

The petitioner’s active standing to submit the present petition can be

derived from § 74 of the Act on the Constitutional Court. The petitioner

thus meets the conditions for active standing to submit the present

petition to the Constitutional Court.

 


V.
The constitutionality of the legislative process


11.

Under § 68 par. 2 of the Act on the Constitutional Court, the

Constitutional Court – apart from to reviewing whether a contested

statute is consistent with constitutional acts – determines whether a

statute was adopted and issued within the bounds of constitutionally

provided competence and in a constitutionally prescribed manners.

12.

In view of the fact that the petitioner did not claim any defects in

the legislative process of that the legislature exceeded its

constitutionally provided competence, following the principles of

procedural economy it is not necessary to review this issue in detail,

and it will suffice, apart from taking into account the briefs presented

by the Chamber of Deputies and the Senate, to formally verify the

conduct of the legislative process from publicly available information

at www.psp.cz.

13. The contested wording of § 11 par. 4

let. b) was inserted into the Act on Freedom of Information by an

amendment made by Act no. 61/2006 Coll., which amends Act no. 106/1999

Coll., on Freedom of Information, as amended by later regulations, Act

no. 121/2000 Coll., on Copyright, on Rights Related to Copyright, and on

the Amendment of Certain Other Acts (the Copyright Act), as amended by

Act no. 81/2005 Coll., and Act no. 128/2000 Coll., on Municipalities

(Municipal Establishment), as amended by later regulations, (Chamber of

Deputies Publication no. 991). The Act was passed by the Chamber of

Deputies on 14 October 2005. The Senate returned the Act to the Chamber

of Deputies with amending proposals (resolution no. 250), but the

Chamber of Deputies maintained the original draft of the Act (resolution

no. 2153). The Act was promulgated in the Collection of Laws in part 26

as number 61/2006 Coll. Thus, the Constitutional Court states that the

Act was adopted and issued within the bounds of constitutionally

provided competence and in a constitutionally prescribed manner.

 


VI.
The Constitutional Court’s review

VI. a)


14.

The petitioner first submits to the Constitutional Court the

alternative that § 11 par. 4 let. b) of the Act on Freedom of

Information could be interpreted to mean that it does not prohibit

providing court judgments that have not entered into effect. The

petitioner considers the contrary interpretation (followed, among

others, by the Supreme Administrative Court in its judgment of 29 April

2009 ref. no. 8 As 50/2008-75), to be “too restrictive.”

15. In

the proceeding, the petitioner first presented the question of

interpretation of § 11 par. 4 let. b) of the Act on Freedom of

Information as to whether it really prohibits or does not prohibit

providing judgments of courts that have not entered into effect.

16.

The Constitutional Court concluded that § 11 par. 4 let. b) of the Act

on Freedom of Information cannot be interpreted constitutionally as

regards the possibility of providing, for information, judgments of

courts that have not entered into effect. This is because in § 11 par. 4

let. b) of the Act on Freedom of Information the legislature uses a

definitive list. Thus, providing information on the decision making

activity of courts is possible only in the form of judgments that have

entered into effect. Using an argument a contrario, that (indirectly)

gives rise to a prohibition on providing information about other

decision making activity, i.e. including judgments that have not entered

into effect. Otherwise, the permission in the text, to provide

information on the decision making activity of courts only in the form

of decisions that have entered into effect, would cease to make any

sense. A contrary interpretation could not be accepted even by applying

the rule of applying a constitutional interpretation, because – as is

also clear from the Constitutional Court’s case law [cf. d.g. judgment

file no. Pl. ÚS 72/06 of 29 January 2008 (N 23/48 SbNU 263; 291/2008

Coll.), point 31] – this rule is applicable only in the situation

whether there are two (or more) possible interpretations of a legal

regulation; otherwise this would logically not be legal interpretation,

but creation of a statute. For completeness, the Constitutional Court

states that this (only possible) interpretation cannot be a restrictive

interpretation (as the petitioner erroneously believes), because it is

based on the literal (and definitively formulated) wording of § 11 par. 4

let. b) of the Act on Freedom of Information. Restrictive

interpretation means that the wording is meant by the legislature to

have a narrower effect than would correspond to the literal wording,

thus the expression used indicates more than the legislature actually

had in mind.

17. In this regard the Constitutional Court refers

to the relevant part of the reasoning in the abovementioned judgment of

the Supreme Administrative Court: “On 23 March 2006, § 11 par. 4 let. b)

of the Information Act, in the wording in effect at the time in

question, entered into effect; under that provision, obligated subjects

shall not provide information on the decision making activity of courts

with the exception of effective judgments. The amendment of the

Information Act (Act no. 61/2006 Coll.) added to the text of the

original § 11 par. 4 let. b) of the Information Act (“obligated subjects

also shall not provide information on the decision making activity of

courts”) a clear obligation for obligated subjects, with effect as of 23

March 2006, to make available effective judgments. However, this is not

an insignificant explanation of § 11 par. 4 let. b) of the Information

Act only to the effect that obligated subjects must make available court

judgments that have entered into effect. This amendment also has

serious consequences for the definition of the term “decision making

activity of the courts” in relation to the scope of the obligation of

the appropriate subjects to provide information. Written versions of

judgments are always a result of the decision making activity of the

courts, necessarily bearing information about that activity in a

particular matter (the verdict and the reasoning of the judgment).

Therefore, decision making activity under § 11 par. 4 let. b) of the

Information Act must also be considered to include not only the actions

of courts in proceedings and their actions aimed at determining the

facts of a matter and its legal review, but also the actual decision

making of the courts, i.e. the decision on the merits. The text

“obligated subjects also shall not provide information on the decision

making activity of courts, with the exception of effective judgments”

indicates that judgments that have entered into effect, i.e. the results

of the decision making activity of courts in the form of effective

judgments are, as exceptions to that activity, by law necessarily a

component of the decision making activity of courts (thus, effective

judgments are included in the concept of the decision making activity of

courts). As regards judgments that have not entered into effect, here

too we must conclude that these too must be included in the decision

making activity of the courts (if effective judgments are decision

making activity of the courts, there is no reason for judgments that

have not yet entered into effect to not also be part of that activity;

on the contrary). The provision of § 11 par. 4 let. b) of the

Information Act clearly prevents obligated subjects from providing any

information on the decision making activity of the courts (with the

exception of providing information in the form of effective judgments).

All the more so, then, this provision of the Act prevents providing

information on the decision making activity of the courts in the form of

decisions that have not yet entered into effect. This is because, if

information on the decision making activity of the courts as such is

subject to the statutory exception (with the exception of decisions that

have entered into effect), then information about this activity, in

judgments that have not yet entered into effect, also cannot be provided

(argumentum a contrario, which reveals the meaning of a legal norm

following the rules of formal logic) ….”
 


VI. b)


18.

Thus, in terms of the content of the petition, the question arose of

the constitutionality of the norm itself that forbids providing

judgments that have not entered into effect, but at the same time

permits providing judgments that have entered into effect (also referred

to as the “contested norm.”).

19. In the cited judgment the Supreme Administrative Court concluded that the contested legal norm was constitutional.

20.

In contrast, the petitioner, to support his conclusion that the

contested norm is constitutional, states basically the following. The

request to provide judgments that had not yet entered into effect, which

the petitioner intended to use as a source for interpretation of the

law and a source of legal arguments, could not, in any way, have

interfered in the judicial proceeding or in the actual decision making

activity of the court. If making available judgments that have not yet

entered into effect were to endanger a court’s decision making activity,

then for the same reason such judgments should not and could not even

be publicly announced. If a conflict could actually occur between the

right to protection of the person and the right to protection of

personal data or privacy, it is necessary to look for a solution first

through other, less restrictive legal institutions or legal norms, and

only if that were unsuccessful to apply a provision limiting the right

to information. In the case of, e.g. the right to protection of personal

data or privacy, a provision providing sufficient protection of these

rights is contained in the Act on Freedom of Information in § 8a, which

refers to legal regulations that regulate such protection. Further

sufficient protection or “insurance” is contained in § 12 of the Act on

Freedom of Information. The Supreme Administrative Court’s argument that

these, as yet ineffective, judgments could undergo considerable change

as a result of review, is relevant, but the requester must take that

fact into account, and treat the information accordingly. In such a

case, the requester must know that a judgment that has not entered into

effect is not unchangeable, and is not final, but that cannot be a

reason to deny providing that judgment as information. Decisions

published as a source for legal interpretation are not only final

decisions, but also, for example, dissenting opinions, whether those of

the abovementioned court or, e.g. the European Court of Human Rights.

Moreover, even a judgment that has entered into effect need not be the

final decision in a case, because it can be annulled, e.g. by a decision

of the Supreme Court or the Constitutional Court. Insofar as a judicial

proceeding is governed by the principle of being public, and a judgment

is announced publicly, without exception, information concerning a

court proceeding that has not been concluded with legal effect is de

facto made public (whether during the proceeding itself or by

announcement of the judgment) and the judgment itself is merely a

written form of what has already been announced.



VI. c)


21.

The Constitutional Court – not bound by the reasoning of the petition,

but only by the requested judgment – turned to a review of the

constitutionality of the contested norm.

22. Under Art. 17 par. 1

of the Charter, “the freedom of information and the right to

information are guaranteed.” Under Art. 17 par. 2 of the Charter,

“Everyone has the right to express his views in speech, in writing, in

the press, in pictures, or in any other form, as well as freely to seek,

receive, and disseminate ideas and information irrespective of the

frontiers of the state.” Under Art. 17 par. 5 of the Charter, “State

bodies and territorial self-governing bodies are obliged, in an

appropriate manner, to provide information with respect to their

activities. Conditions therefore and the implementation thereof shall be

provided for by law.”

23. Under Art. 10 par. 1 of the

Convention, “Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and receive and impart

information and ideas without interference by public authority and

regardless of frontiers ….”

24. The provision of § 11 par. 4

let. b) of the Act on Freedom of Information does not permit providing

information on the decision making activity of the courts in the form of

judgments that have not entered into effect. It thereby interferes in

an individual’s fundamental right to information (under Art. 17 of the

Charter) and in the fundamental freedom of an individual to receive

information (under Art. 10 of the Convention) and limits them.

25.

In this regard it is appropriate to also point to the more general case

law of the European Court of Human Rights concerning the right to

information. We can refer to the decision on the permissibility of a

complaint Sdružení Jihočeské matky v. the Czech Republic of 10 July

2006, Application no. 19101/03, which consists of an express recognition

of the applicability of Article 10 of the European Convention in cases

of rejection of an application for access to public or administrative

documents (cf. the Parliamentary Institute: Access of non-governmental

non-profit organizations to the courts in selected EU member states in

cases when a large number of persons is in danger of discrimination,

available at www.psp.cz/cgi-bin/win/kps/pi/prace/pi-5-269.pdf).

We can also cite the judgment in the matter Campos Dâmaso v. Portugal of

24 April 2008, Application no. 17107/05, in which protection was given

to a reproduction of a complaint made by a journalist, in view of (among

other things) the right (of the public) to receive information under

Art. 10 of the Convention.

26. After all, even the Supreme

Administrative Court does not question, in the contested judgment, that

the contested norm interferes in Art. 17 of the Charter and Art. 10 of

the Convention.

27. However, not every limitation of an

individual’s fundamental right is unconstitutional. This is expressly

anticipated by Art. 17 par. 4 of the Charter: “The freedom of expression

and the right to seek and disseminate information may be limited by law

in the case of measures that are necessary in a democratic society for

protecting the rights and freedoms of others, the security of the state,

public security, public health, or morals.” Art. 10 par. 2 of the

Convention is similar: “The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are prescribed by

law and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for the

prevention of disorder or crime, for the protection of health or morals,

for the protection of the reputation or rights of others, for

preventing the disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary.”

28.

In other words, interference in the rights arising from Art. 17 of the

Charter and from Art. 10 par. 1 of the Convention violates the Charter

and the Convention if it does not meet the requirements set forth in

Art. 17 par. 4 of the Charter and in Art. 10 par. 2 of the Convention.

Thus, it must be determined whether the interference was “provided for

by law,” whether it pursued one or more legitimate aims enshrined in

these provisions, and whether it was “necessary in a democratic society”

in order to achieve these aims.

29. In view of § 11 par. 4 let.

b) of the Act on Freedom of Information, there is no dispute that the

interference is “provided for by law” under Art. 17 par. 4 of the

Charter and Art. 10 par. 2 of the Convention.

30. The

Constitutional Court also considers the condition of a legitimate aim to

have been met. The interference in question can be viewed as serving to

protect values cited in Art. 17 par. 4 of the Charter and in Art. 10

par. 2 of the Convention. Thus far the Constitutional Court agrees with

the reasoning in the cited decision of the Supreme Administrative Court.

31.

Nonetheless, the Constitutional Court is of the opinion that the

contested norm does not meet the condition of the necessity of limiting

an individual’s fundamental right or freedom in a democratic society.

32.

The European Court of Human Rights has consistently held the opinion

that the adjective “necessary” in Article 10 par. 2 of the Convention

contains the existence of a “pressing social need” [see the judgment in

the matter Lingens, 1986, cited, e.g. in Constitutional Court resolution

file no. IV. ÚS 606/03 of 19 April 2004 (U 23/33 SbNU 453)].

33.

The key hypothesis is that one cannot (naturally) rule out a priori the

possibility that in a particular case protection of a fundamental right

will outweigh the cited values, i.e. that there will not be a “pressing

social need” to limit the fundamental right (“this hypothesis”). That

is precisely why it is necessary to review, in each particular matter

(according to the circumstances of the particular matter), whether the

condition of the necessity for limiting an individual’s fundamental

right or freedom in a democratic society has been met.

34. This

also arises from the Constitutional Court’s case law. For example, in

judgment file no. IV. ÚS 154/97 of 9 February 1998 (N 17/10 SbNU 113)

the Constitutional Court stated that, “In a conflict between the

political right to information and dissemination thereof with the right

to protection of the person and private life, that is, fundamental

rights that are on the same level, it will always be up to the

independent courts to carefully review, taking into account the

circumstances of each particular case, whether one right was not given

unjustified priority over the other right.”

35. After all, this

hypothesis was also stated by the administrative court regarding this

issue, specifically the Municipal Court in Prague, in its decision of 23

February 2007 file no. 10 Ca 144/2005 (available in the ASPI system),

which the Supreme Administrative Court cited in the abovementioned

decision. The Municipal Court stated pertinently in this context that

“Any conflict between the right to information and another fundamental

human right … must be evaluated according to the particular matter,

which of these rights should be given priority in the particular matter …

Therefore, the requirement to provide anonymous effective decisions in

matters of a certain kind cannot be generally rejected on the grounds

that this is information about ‘the decision making activity of courts’

…, but it is necessary to clearly determine the necessity and particular

reason leading to restricting the right to the information, and to

evaluate whether in the given matter the limitation of this right is

necessary.”

36. This hypothesis also follows from the case law of

the European Court of Human Rights. For example, in the judgment in the

matter Campos Dâmaso v. Portugal of 24 April 2008, Application no.

17107/05 (available in the ASPI system) [addressing a case where a

journalist published the text of a complaint before it was officially

submitted in a proceeding] it was stated: “32. Thus, the court must now

determine whether the disputed interference is commensurate with

‘pressing social need,’ whether it was appropriate to legitimate aims

that were pursued, and whether the grounds which the domestic

authorities cite to justify it appear ‘relevant and sufficient’ … 33. As

regards the circumstances of the adjudicated matter, the Court first

stresses that the article based on which the complainant was convicted

obviously dealt with the question of public interest … 35. It is

necessary to determine whether, in the particular circumstances of the

adjudicated matter, the interest in informing the public outweighed

‘obligations and responsibilities’ ….” In that judgment the European

court of Human Rights pointed out that “31. Above all, we cannot assume

that matters handled by the courts cannot be subject to previous or

simultaneous debates elsewhere, whether in professional journals, the

national press, or by the public as such. The mission of the media to

disseminate such information and ideas corresponds to the public’s right

to receive them.” That opinion can also be applied to the present

adjudicated matter, because it concerns only the submission of a

judgment that has not yet entered into effect to a person merely

requesting information (a contrario publishing it in the newspapers and

subsequent debate about it, as was the case in the judgment in Campos

Dâmaso v. Portugal). We can also cite the well-known judgment of the

European Court of Human Rights in the matter Sunday Times v. the United

Kingdom of 26 April 1979 (cf., e.g., Berger, V.: Judikatura Evropského

soudu pro lidská práva / Case Law of the European Court of Human Rights,

1st Czech edition, IFEC, Prague, 2003, pp. 477-482), which concerned an

injunction on publishing information on civil law trials in progress

that was issued against that periodical. In that judgment, the European

Court of Human Rights concluded that the interference in freedom of

expression did not correspond to a pressing social need that would

outweigh the public interest in freedom of expression; in terms of Art.

10 par. 2 of the Convention it was not based on sufficient grounds, and

was not proportionate to the aim pursued or necessary in a democratic

society in order to maintain the authority of the judiciary. The last

cited case addressed by the European Court of Human Rights applies all

the more so to the presently adjudicated matter which involves – as was

already stated – merely providing a decision that has not entered into

effect to a person requesting information (in contrast to publishing it

in newspapers and possible critical commentary therein).

37. This

hypothesis was also stated, for example, in the recommendation of the

Committee of Ministers of the Council of Europe Rec(2003)13 on the

provision of information through the media in relation to criminal

proceedings (cf., e.g.: “…Considering the possibly conflicting interests

protected by Articles 6, 8 and 10 of the Convention and the necessity

to balance these rights in view of the facts of every individual case,

with due regard to the supervisory role of the European Court of Human

Rights in ensuring the observance of the commitments under the

Convention …” – cited from the abovementioned judgment in the case

Campos Dâmaso v. Portugal).

38. However, the contested norm is

clearly inconsistent with this hypothesis. It does not permit reviewing

in every particular case (in view of the circumstances of the given

matter) the existence of a “pressing social need” for limiting a

fundamental right (i.e. the necessity of limiting the fundamental

right). The contested norm indicates that – in the event of the

existence of a statute and a legitimate aim of limiting an individual’s

fundamental right to information (provision of a decision that has not

entered into effect), i.e. values cited in Art. 17 par. 4 of the Charter

and Art. 10 par. 2 of the Convention – these values will always

(automatically) be given priority over the individual’s fundamental

right to freedom of expression in the form of the right to information;

thus, the contested norm (a priori) breaches the individual’s

fundamental right in every case. Thereby it also (considering all

consequences) denies the common knowledge [arising from, among other

things, the Constitutional Court’s case law; cf. e.g., the judgment in

the matter file no. Pl. ÚS 15/96 of 9 October 1996 (N 99/6 SbNU 213;

280/1996 Coll.)], that constitutional values (including constitutional

rights) are prima facie equal. Thus, the contested norm basically turns

the requirement that limitation of an individual’s fundamental right or

freedom in a democratic society must be necessary into a non-reviewable

postulate, because, taken comprehensively, it rules out review of the

requirement in view of the circumstances of a particular case.

39.

In this regard we must point out that freedom of expression –

including, under Art. 10 par. 1 of the Convention, the freedom to

receive information – is one of the most important foundations of a

democratic society; therefore, its guarantees are especially important.

One cannot fail to see that the right to information as the collection

of information is a fundamental preparatory step (among other things)

especially in journalism, and is an inherent, protected part of the

freedom of the press. The functioning of the press includes the creation

of forums for public discussion. However, this function is not limited

to the media and professional journalists. In different situations it

creates space for public discussion, e.g. in relation to

non-governmental organizations, but also in relation to individuals.

Thus, the purpose of that activity, i.e. collecting information, can be

considered one of the basic elements of an informed society. A civic

society plays an important role in discussion of public issues. There is

no doubt that a decision that has not entered into effect may address a

matter of public interest; persons requesting information are, or at

least may be, involved in the legitimate collection of information about

these matters. Their aim may be to impart such information to the

public, and thereby contribute to public discussion, which is not only

legitimate, in a democratic law-based state, but also necessary. Thus,

the monopoly on information that a court enjoys is a form of censorship

sui generis. The censorship of this information monopoly may lead to

interference in the exercise of the scrutiny that belongs to civic

society, as it may have a function analogous to that of the press.

Obstacles created for the purpose of preventing access to information in

the public interest may also deter those who work in the media and

similar areas from seeking information. As a result, they would not be

able to continue to fulfill their role of public inspection, and their

ability to provide accurate and reliable information would be negatively

affected. Stated somewhat more specifically, for example, in relation

to a criminal proceeding, the Committee of Ministers of the Council of

Europe adopted recommendation Rec(2003)13 on the provision of

information through the media in relation to criminal proceedings, in

which it correctly points out that, due to the right of the public to

receive information, the media have the right to inform the public, and

it also emphasizes the importance of reporting on criminal proceedings,

which the media do for the purpose of informing the public and making it

possible for the public to exercise its right to scrutiny of the

functioning of the criminal justice system. Moreover, the appendix to

the recommendation includes, among other things, the public’s right to

receive information through the media on the activities of bodies active

in criminal proceedings, which includes the right of journalists to

freely report on the functioning of the criminal justice system (cf. the

judgment of the European Court of Human Rights in the matter Campos

Dâmaso v. Portugal, cited above). There is no reason not to thing that

these arguments can be applied mutatis mutandis not only to the press,

but also to the ability of a civic society to have access to information

in the public interest.

40. Thus, the Constitutional Court

emphasizes that it will be necessary in each individual matter to review

(depending on the circumstances of the particular case) whether the

requirement that a limitation of an individual’s fundamental right to

information must be necessary has been met, i.e. including a limitation

on the right to provide a decision that has not entered into effect.
 


VI. d)
 

41.

The opinion that the prohibition on providing decisions that have not

entered into effect is justified by the constitutional value of

protecting the independence and impartiality of the judiciary has been

answered with the arguments stated above (see point 33 et seq. of this

judgment). It is not possible to rule out a priori the possibility that,

in a particular case, protection of a fundamental right to such

information will outweigh another protected constitutional value, i.e.

that there will be no “pressing social need” to limit the fundamental

right. Here we cannot fail to see that constitutional values (including

constitutional rights) are prima facie equal (see point 38 of this

judgment). It is also necessary to reflect the case law of the European

Court of Human Rights, under which one cannot a priori assume that

matters handled by the courts cannot be the subject matter of previously

or simultaneous debate elsewhere, whether in professional journals, the

nationwide press, or in public as such (see point 36 of this judgment).

42.

Yet, public discussion of a matter being handled by a court need not

necessarily (automatically) interfere in the independence or

impartiality of the judiciary. There is a presumption that a judge (e.g.

the deciding judge in an appeal on a matter that has not yet been

concluded with legal effect) has abundant personal qualities (otherwise

he would not have been appointed as a judge) that guarantee his ability

to decide a matter independently and impartially, including

independently of any opinion ultimately expressed in the public sphere

[moreover, judges swear an oath that they will, in accordance with the

best of their knowledge and conscience, make decisions independently and

impartially – cf. § 62 par. 1 of the Act on Courts and Judges and also §

79 par. 1 of Act no. 6/2002 Coll., on Courts, Judges, Trainee Judges,

and State Administration of Courts, and on the Amendment of Certain

Other Acts (the Act on Courts and Judges)]. Moreover, the case law of

the European Court of Human Rights is of a similar opinion (cf., e.g.

the abovementioned judgment in the matter Campos Dâmaso v. Portugal:

“Besides that, the matter could not be decided by any judge who was not a

career judge, which reduced the risk that articles like the article

affected in the original trial would influence the outcome of the trial

... The court in Esposende itself recognized that publishing the

disputed article did not in anyway interfere with the investigation …

Moreover, the government did not specify how publication of the disputed

article could have interfered in the investigation …”).

43.

Nevertheless, public discussion of a matter that is addressed by a

judgment that has not entered into effect may, on the contrary,

contribute to independent and impartial decision making, because

sometimes it can reveal the existence of impermissible influences on

judicial decision making. That is one of the purposes of the fundamental

right to information as a derivative of freedom of expression. A

legitimate aim of public discussion is public scrutiny of the

performance of justice, adjudication in the light of day, not in the

darkness of a non-public trial. In contrast, insufficiently public

adjudication can reduce the authority of the judiciary, because it may

generate public suspicion that “there’s something to hide” (in the sense

of committing injustice). The proper exercise of state authority is not

possible in a democratic state without public confidence. Thus, the

element of confidence is also a functional requirement for the exercise

of democratic state power, and therefore it is necessary to protect

confidence in the acts of the state authority; confidence in judicial

decision making is among the fundamental extra-legal attributes of a

law-based state [cf. judgment file no. IV. ÚS 525/02 of 11. 11. 2003 (N

131/31 SbNU 173)]. The Convention for the Protection of Human Rights and

Fundamental Freedoms itself describes the authority of the judiciary as

a public interest – one capable of limiting a fundamental right or

freedom – in Art. 10 par 2. Thus, the state authorities must take into

consideration what expectations they raise through their conduct and

activities. The censorship of an information monopoly (in the form of a

blanket prohibition on providing decisions that have not entered into

effect) may result in interference in the functions of public scrutiny,

which belongs to not only the press, but also civic society, and as a

consequence may also violate the authority of the judiciary. Ruling out

public scrutiny a priori (without limitation) by not providing decisions

that have not entered into effect would therefore express inadequate

understanding of the purpose of the fundamental right to information and

the freedom of expression in relation to state authority and inadequate

reflection of the purpose of public scrutiny of the state power. A

court too is a body of power that exercises power in a state, so it is

subject to public scrutiny.

44. Moreover, that too is a reason

for the constitutional imperative at the end of Art. 96 par. 2 of the

Constitution, that “Judgments shall always be pronounced publicly.” A

judgment is basically a written form of what has already been publicly

pronounced (cf. also the text below); thus, if a blanket prohibition on

providing judgments that have not entered into effect were to be

rationally justifiable on the grounds of protecting the independence and

impartiality of the judiciary, then – logically – a prohibition on

public pronouncement of a judgment (at the first level) in general would

also have to be valid, on the same grounds.

45. One can also

reason that any public discussion (especially specialized), criticizing

judgment that have not entered into effect, not groundlessly, can

certainly, through well-founded arguments, contribute to a just outcome

in a continuing court proceeding. That can hardly be seen as

interference in the independence and impartiality of the judiciary;

moreover, under § 82 par. 2 of the Act on Courts and Judges, as amended

by later statutes, a judge is required to complete continuing education

to increase his specialized legal and other knowledge necessary to

properly perform his office.

46. The hypothetical opinion

defending – on the grounds of protecting the independence and

impartiality of the judiciary – a general prohibition on providing

judgments that have not yet entered into effect, and at the same time

permitting the provision of judgments that have entered into effect,

also runs into the logical reasoning that even judgments that have

entered into effect can realistically be changed; that happens

relatively often through extraordinary remedies, a constitutional

complaint, or a complaint to the European Court of Human Rights.



VI. e)


47.

There is also an opinion that in private law relationships the state

should not even be a person obligated to provide information, and that

if a judgment that has not entered into effect addresses a private law

relationship between the state (thus in the same position in a court

proceeding as any other party) and a natural person or legal entity, the

state should not have – ever – an obligation to provide judgments that

have not entered into effect; if the state is asked to provide a

judgment that has not entered into effect based on participation in a

proceeding, then the state – in such a case – would have to bear a

greater degree of responsibility than the other party. However, the

degrees of responsibility are provided by the Civil Procedure Code, and

are the same for both parties to a private law dispute.

48.

However, that conclusion does not match the abovementioned

constitutional law arguments, which are based on the fact that conflict

between constitutional values must be resolved in view of the particular

circumstances of each case.

49. That opinion is also based on

the inapt premise that the state, in the position of a party to a

proceeding before a general court in a private law dispute, is asked to

provide a judgment that has not entered into effect on the grounds of

its  participation in the court proceeding. However, the fundamental

rights (including the right to information) are subjective public

rights, so the addressee of the obligations (i.e. to observe these

rights and protect them, i.e. to take positive action) is the state

authority. The state is asked to provide a judgment that has not entered

into effect as a bearer of state authority, because the information

requested (the judgment that has not entered into effect) is the outcome

of the decision making authority, i.e. the outcome of the exercise of

state authority (not of private law actions). Therefore, in the event of

an obligation to provide such information the state would not bear any

greater degree of responsibility than the other party to the proceeding;

such an obligation on the state – as the sovereign power – is based on

completely different legal grounds, which do not relate to its legal

position as a party to a proceeding in the private law dispute itself.

50.

. That opinion is also based on the inapt premise that the state, in

the position of a party to a proceeding before a general court in a

private law dispute, is asked to provide a judgment that has not entered

into effect on the grounds of its  participation in the court

proceeding. However, the fundamental rights (including the right to

information) are subjective public rights, so the addressee of the

obligations (i.e. to observe these rights and protect them, i.e. to take

positive action) is the state authority. The state is asked to provide a

judgment that has not entered into effect as a bearer of state

authority, because the information requested (the judgment that has not

entered into effect) is the outcome of the decision making authority,

i.e. the outcome of the exercise of state authority (not of private law

actions). Therefore, in the event of an obligation to provide such

information the state would not bear any greater degree of

responsibility than the other party to the proceeding; such an

obligation on the state – as the sovereign power – is based on

completely different legal grounds, which do not relate to its legal

position as a party to a proceeding in the private law dispute itself.
That

other state body (in the case of the petitioner, the Ministry of

Finance) will act as a body of state authority, just like a court; both

cases involve a body of the same state. This also shows the difference

from a hypothetical situation where the party in the civil law

proceeding would not be the state, but, e.g. two individuals; in that

case it would not be possible to request information (a judgment that

had not entered into effect) from a party to the proceeding, i.e. from a

private individual.

51. After all, the obligation to provide a

judgment that has not entered into effect can hardly (by the nature of

the matter) be a violation of the principle of equal weapons, equal

procedural standing under the Civil Procedure Code. It is an act outside

the civil court proceeding, not related to it in any way. It is the

implementation of a public law obligation based on a different legal

regulation than a private law norm (this obligation is established by

administrative and constitutional law). Even if the foregoing were not

so, that would not in any way interfere in the procedural rights of a

party to a proceeding under the Civil Procedure Code. The significance

and purpose of the principle of equal weapons, equal rights and

obligations in a civil (or other) proceeding before a state body is to

guarantee the conditions for a just outcome to the proceeding; that

might not happen if one of the parties were at a disadvantage in the

process (typically, by lack of an opportunity to present its own

statement, evidence, etc.). However, the present matter is obviously not

such a case.

52. We can also state that, as regards the

significance and purpose of the fundamental right to information, it is

not (basically) important whether the judgment that has not entered into

effect concerns a private law dispute (e.g. between the state, as an

owner, and a third party or parties) or a public law matter. The

significance and purpose of the right to information is public scrutiny

of the exercise of state (including judicial) authority; by the logic of

the matter that authority is exercised – and is thus subject to

legitimate scrutiny– not only in decision making on public law matters,

but also in decision making in private law disputes (the latter case

also involves authoritative decision making on the rights and

obligations of persons that, e.g., could be abused, etc.). In terms of

the teleology of Art. 17 of the Charter and Art. 10 of the Convention,

the difference between deciding private law disputes and public law

matters can rest only in the degree (not in the principle) of the

interest taken by the public, because that can often be higher in the

case of a matter of public interest; the public will then not only

scrutinize the conduct of the court, but will also have an interest in

knowing, or evaluating the facts about what happened before the court

proceeding began, e.g. about the state’s management of finances. A

public interest can also be seen – as the Constitutional Court stated,

e.g. in judgment file no. I. ÚS 260/06 of 24 January 2007 (N 10/44 SbNU

129) – in the state’s activities in managing state assets; managing

state assets is done, among other things, by concluding private law

contracts, which can, in future, lead to private law disputes. In the

cited judgment the Constitutional Court approved of the opinion of the

Supreme Administrative Court in the proceeding in question, under which

the actions of a state company can be classified as actions in the

public interest on the grounds that the company does business through

using assets entrusted to it by the state. In the cited judgment the

Constitutional Court also pointed to specialized literature that states

that the term “public institution managing public funds” under the Act

on Freedom of Information (and thus a subject obligated to provide

information) can also include companies established by the state.

53.

The opinion that the state, in private law relationships, should not

even be a party obligated to provide information, is thus in conflict

with the hypothesis that managing state assets (i.e., including private

law relationships where the state is a party) is undoubtedly a public

interest (based on the fact that this involves managing funds collected

from taxpayers, wherefore they are legitimately entitled to scrutinize

it; regarding this, cf. also the maxim of priority of the individual

before the state, as a requirement of a state governed by the rule of

law), so the significance and purpose of Art. 17 of the Charter and Art.

10 of the Convention apply to it. Moreover, the idea that the state

should not even be a person obligated to provide information in private

law relationships does not thoroughly reflect the significance and

purpose of sub-constitutional regulations either. Until the amendment of

the Act on Freedom of Information by Act no. 61/2006 Coll., an

obligated subject under the Act on Freedom of Information included “a

public institution managing public funds.” The legislature thereby

explicitly emphasized that the issue of managing public funds is in the

public interest, that it is subject to public scrutiny. A legal

definition of “public funds” is found in § 2 let. g) of Act no. 320/2001

Coll., on Financial Scrutiny in Public Administration and on the

Amendment of Certain Other Acts (the Act on Financial Scrutiny): “public

finances, things, property rights, and other property values belonging

to the state or other entity set forth in letter a).” Although the cited

amendment of the Information Act deleted the phrase “managing public

funds” (§ 2 par. 1), it was explained, e.g. in judgment file no. I. ÚS

260/06 (see above), that the purpose was to guarantee the right to

information related to the functioning of a public institution,

regardless of whether it was managing public funds or not. It is also

necessary to realize that the opinion that the state should not even be a

person obligated to provide information in private law relationships

opens the potential for corruption and other similar negative phenomena.

54.

It remains to add that the purpose of providing judgments that have not

entered into effect may also lie in the predictability of court

decisions, and may also be a source of interpretation of the law, i.e. a

source of legal arguments. By the logic of the matter, nothing about

this is changed by the fact that these judgments may be changed later.

After all, even a judgment that has entered into effect may be annulled,

and judges’ dissenting opinions to the majority opinion are published.
 


VI. f)

 

55.

However, the Constitutional Court also found another reason supporting

the conclusion that the contested legal norm is unconstitutional.

56.

The cited legal regulation does not meet the requirement that a

limitation on an individual’s fundamental right or freedom in a

democratic society must be necessary, because it will not infrequently

be possible to achieve the legitimate pursued aim (protection of the

cited values) by using a different means, one that does not limit a

fundamental right to such an extent (i.e. denying the fundamental right

to freedom of speech will not be necessary). Thus, the contested norm

does not (in a comparison of the conflicting constitutional values) meet

the requirement of necessity, i.e. the requirement to compare the

legislative means that interferes in a constitutional value with another

measure that permits achieving the same aim, but does not affect the

constitutional value.

57. Stated somewhat differently, in this

regard the contested norm cannot stand, given its inconsistency with

Art. 4 par. 4 of the Charter, which mandates preserving the essence and

significance of rights and freedoms when applying provisions concerning

limitations on them. If everybody has a right to information, then a

statute that limits the right to seek out and disseminate information

(Art. 17 par. 4 of the Charter), may not essentially annul (negate) that

right, and thereby eliminate it. Thus, the contested norm does not

respect the principle of minimizing interference in the fundamental

rights and freedoms when limiting them and maximizing the preservation

of the essential content of a fundamental right.

58. In this

regard we can point to § 7 of the Act on Freedom of Information, under

which, if information requested in accordance with legal regulations

(Act no. 412/2005 Coll., on Protection of Classified Information and on

Security Clearance) is designated as classified information, which the

requester is not authorized to access, the obligated subject shall not

provide it. Under § 8a of the Act on Freedom of Information, an

obligated subject shall provide information concerning personality,

statements of a personal nature, an individual’s privacy, and personal

data only in accordance with legal regulations governing protection

thereof (for example, § 11 to 16 of the Civil Code, § 5 and 10 of Act

no. 101/2000 Coll., on Personal Data Protection and on the Amendment of

Certain Acts). Under § 9 of the Act on Freedom of Information, if the

requested information is a business secret (§ 17 of Act no. 513/1991

Coll., the Commercial Code), the obligated subject shall not provide it.

Under § 10 of the Act on Freedom of Information, an obligated subject

shall not provide information on the financial situation of a person who

is not an obligated subject, obtained on the basis of laws on taxes,

fees pension or health insurance, or social security. The provision of §

11 of the Act on Freedom of Information enshrines other limitations to

the right to information; for example, paragraph 2 let. c) prohibits

providing information if that would violate the protection of third

parties to material that is subject to copyright. The provision of § 12

of the Act on Freedom of Information states that an obligated subject

shall implement all limitations to the right to information by providing

the requested information together with accompanying information, after

removing such information as is required to be removed by law (the

right to refuse information exists only during the period that the

grounds for refusal exist; in justified cases the obligated subject

shall verify whether the grounds for refusal still exist). Thus, § 12 of

the Act on Freedom of Information contains a rule of selection; this

corresponds to the requirement that a justified limitation on access to

information always be applied only in the smallest necessary degree.

Only this provision fulfills and guarantees the requirement to minimize

interference in a fundamental right or freedom, not the contested norm,

which basically denies the fundamental right to information – in the

case set forth therein - completely.

59. Here we can also refer

to the background report to these provisions of the Act on Freedom of

Information. The report states: “Excepted from this rule is information

that the draft Act expressly rules out or limits as necessary. This

involves, in particular, information that is, based on law, designated

as classified, or information that would violate the protection of

personality and individuals’ privacy … These provisions govern

exceptions from the right to information that is expressed in the

foregoing provisions. Limitation of the right to information is

constitutionally established. The Charter of Fundamental Rights and

Freedoms permits protection information from being provided “in the case

of measures that are necessary in a democratic society for protecting

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

security …” (Art. 17 par. 4 of the Charter), or expresses positively

everyone’s rights to protection of personality and protection from

unauthorized public revelation of personal data (Art. 10 of the

Charter). The Act guarantees these exceptions (limitations) by defining

criteria for determining information that the obligated subject may not

or need not provide.” (cf. www.psp.cz).
 


VI. g)


60.

The petitioner also argues by citing the end of Art. 96 par. 2 of the

Constitution, “Judgments shall always be pronounced publicly.” In this

regard, it makes the logical objection that the judgment is only a

written form of what has already been pronounced publicly.

61.

In this regard the arguments of the Supreme Administrative Court are

considerably unpersuasive. The Court basically limits itself to

declaring that providing information about a judgment and the

requirement to pronounce a judgment publicly are two completely

different legal institutions.

62. However, the Supreme

Administrative Court thereby overlooks the maxim of internal consistency

of the legal order. A legal order founded on the principles of unity,

rationality, and internal consistency of content necessarily carries an

imperative to look at comparable legal institutions the same way, even

if they are governed by different legal regulations or even different

branches [cf. e.g., Constitutional Court judgment file no. Pl. ÚS 72/06

of 29 January 2008 (N 23/48 SbNU 263; 291/2008 Coll.), point 50]. The

Supreme Administrative Court itself relied on analogous principles in

its case law. For example, in judgment file no. 2 Afs 81/2004 (available

at www.nssoud.cz) it stated, likewise, that “a legal order founded on

the principles of unity, rationality, and internal consistency of

content necessarily carries an imperative to look at comparable legal

institutions the same way, even if they are governed by different legal

regulations or even different branches.” In judgment file no. 5 Afs

138/2004 (available at www.nssoud.cz) the Supreme Administrative Court

stated that “We cannot accept an interpretation under which a

substantial difference exists between a public law guarantee and a

private law guarantee; that follows from the decision of the expanded

panel of the Supreme Administrative Court (1 Afs 86/2004, available at

www.nssoud.cz).”

63. There is no doubt that the purpose of the

constitutional requirement to pronounce all judgments publicly and the

purpose of providing even a judgment that has not entered into effect is

similar; i.e. to permit the participation of the public as a guarantee

of public scrutiny of the judiciary. The Constitutional Court already

considered this in the foregoing text of this judgment (point 44).

64.

As the Constitutional Court already stated in its judgment file no. Pl.

ÚS 28/04 of 8 November 2005 (N 205/39 SbNU 171; 20/2006 Coll.), “The

general legal consciousness traditionally perceives the right to have a

matter adjudicated publicly as an instrument of public scrutiny of the

judiciary. The purpose of a public trial ‘is so that everyone can see

for himself that justice is carried out by the state, and through this

scrutiny by the audience any partiality by judges becomes impossible’

(cf. the entry “Public,” in Riegrův slovník naučný [Rieger’s

Dictionary], IX, Prague 1872, p. 997). In the Czech lands this was for a

long time considered to be the only purpose of a public trial. The case

law of the First Republic Czechoslovak Supreme Court repeatedly states

that the ‘aim that the law pursues through the provision of trial

hearings being public is that a court proceeding not be conducted

without enabling public scrutiny thereof. In this one aim for having

trial proceedings be public there is, under law, no difference between a

hearing before a jury and a hearing before a panel [of judges], and the

law does not aim, even with a jury, to permit a strong impression of

the audience’s mood to influence the jury in the jury room” [cf.

decision no. 4336/1932 in: F. Vážný, Rozhodnutí Nejvyššího soudu

československé republiky ve věcech trestních [Decisions of the Supreme

Court of the Czechoslovak Republic in Criminal Cases] (“Vážný”), XIII,

1932, p. 568]. The First Republic Supreme Court similarly concluded that

‘the purpose of the law is public scrutiny of the performance of

justice, adjudication in the light of day, not in the darkness of a

secret trial. Thus, the concept of a public hearing is presented as the

opposite of secrecy, and it is only a question of practicality, to what

extent the public can be provided access to proceedings, while

preserving the inviolable postulate that detrimental influences

affecting the lawful conduct of a trial and the persons taking part in

it are impermissible” (cf. decision no. 1729/1925, in: Vážný, VI, 1925,

p. 549).”

65. Thus, in this regard the petitioner must be

considered to be correct that, from the point of view of the end of Art.

96 par. 2 of the Constitution, a priori ruling out the possibility of

providing judgments that have not entered into effect to a person who

requests them cannot stand.



VII.


66.

For all these reasons the Constitutional Court granted the petition,

and annulled the word “effective” in § 11 par. 4 let. b) of Act no.

106/1999 Coll., on Freedom of Information, as amended by later

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

Collection of Laws, due to inconsistency with Art. 17 par. 1, 2, 3, 4

and 5, and Art. 4 par. 4 of the Charter of Fundamental Rights and

Freedoms, and with Art. 10 par. 1 and 2 of the Convention for the

Protection of Human Rights and Fundamental Freedoms.

67. For

certainty, the Constitutional Court adds that the arguments and

conclusions in this judgment do not apply to judgments that were

annulled or amended [note: in that case there is no “judgment” under §

11 par. 4 let. b) of Act no. 106/1999 Coll., on Freedom of Information,

as amended by later regulations, because an annulled or amended judgment

will not, de jure, exist – in the scope in which it was annulled or

amended.




Dissenting opinions were submitted under §

14 of Act no. 182/1993 Coll., on the Constitutional Court, as amended by

later regulations, to the judgment of the Plenum, by Judges Vlasta

Formánková, Pavel Holländer, Jiří Mucha, Jiří Nykodým, Pavel Rychetský

and Michaela Židlická, and to the reasoning of the judgment by Judge

Dagmar Lastovecká.

1. Dissenting opinion of Judges Pavel

Holländer, Vlasta Formánková, Jiří Mucha, Jiří Nykodým and Michaela

Židlická to the verdict of the judgment

The

Constitutional Court decided to annul § 11 par. 4 let. b) of Act no.

106/1999 Coll., on Freedom of Information, as amended by later

regulations, in a proceeding on specific review of a norm. In the matter

file no. I. ÚS 1885/09 (reference to be added after the proceeding

ends), where the complainant seeks annulment of the Supreme

Administrative Court judgment of 29 April 2009 ref. no. 8 As 50/2008-75,

it joined, under § 74 of Act no. 182/1993 Coll., as amended by later

regulations, with a constitutional complainant a petition seeking

annulment of the statutory provision in question.

The

Constitutional Court has spoken on the purpose of specific review of

norms in a number of its decisions. In resolution file no. Pl. ÚS 51/05

of 3 March 2009 (to be published in volume 52 of the Collection of

Decisions of the Constitutional Court) it formulated a fundamental

hypothesis in this regard: “The purpose of specific review of norms

under § 74 of the Act on the Constitutional Court is to protect the

subjective fundamental constitutional rights. A proceeding on annulment

of a statute or other legal regulation that a complainant may file under

this provision is of an accessory nature.”

The complainant filed

a complaint with the Municipal Court in Prague against a decision by

the Ministry of Finance of 30 October 2006 ref. no. 10/99 897/2006-RK,

which denied the complainant’s appeal against a decision by the Ministry

of Finance of 29 September 2006 ref. no. 22/92219/2006/3341IK-255, and

confirmed the decision on partial denial of information, i.e.

non-provision of court judgments in cases of complaints against persons

acquiring property transferred for payment by the Fund of Children and

Youth “in liquidation” under of Act no. 364/2000 Coll., which had not

yet entered into effect. The Municipal Court in Prague, by judgment of

18 June 2008 ref. no. 9 Ca 4/2007 43 denied the complaint, and the

Supreme Administrative Court subsequently denied a cassation complaint

against that judgment by the Municipal Court.

The complainant

thus under of the Act on Freedom of Information requested provision of

the judgment that had not entered into effect from the party to the

proceeding (the Czech Republic, in whose name the Ministry of Finance

acted), in a civil suit.

Under § 11 par. 4 let. b) of the Act on

Freedom of Information, obligated subjects shall not provide

information on the decision making activity of the courts, with the

exception of judgments that have entered into effect. Under § 2 par. 1

and 2 of the act, obligated subjects that have an obligation under the

Act to provide information related to their function are state bodies,

territorial self-government units and their bodies and public

institutions; obligated subjects are also those subjects to whom the law

entrusted decision making on rights, legally protected interests or

obligations of individuals or legal entities in the public

administration sphere, only in the extent of their decision making

activity.

Under § 21 of the Civil Code, if the state is a party

of civil law relationships, it is a legal entity. According to doctrine,

“there is no doubt that the state, as an owner, has the same rights and

obligations as other owners” (J. Švestka, J. Spáčil, M. Škárová, M.

Hulmák a kol., Občanský zákoník I. Komentář [The Civil Code I.

Commentary]. Prague 2008, p. 261), or, “if the state enters legal

relationships as a person in the same position as other parties to those

relationships, if in those relationships it pursues its interests by

relying on the principle of the free will of the parties … the state

becomes a party to private law, or civil law relationships” (K. Eliáš a

kol., Občanský zákoník. Velký akademický komentář. 1. svazek [The Civil

Code. Long Academic Commentary. vol. 1], Prague 2008, p. 199–200).

If

the state is a party to a civil trial under § 7 of the Civil Procedure

Code (the “CPC”), it takes part in court hearings and decision making of

the dispute or other legal matter arising from civil law, labor, or

commercial relationships, and under § 18 of the CPC it has the rights

arising from the principles that all parties to a proceeding are equal.

It

follows that the state, in the position of a party to a civil court

proceeding, is legal entity, and not a subject of state authority with a

sovereign position, wherefore in that position it is not an obligated

party under of the Act on Freedom of Information. The opposite

interpretation would breach the principle that all parties to a civil

court proceeding are equal, and thus would also affect their rights

arising from Art. 37 par. 3 of the Charter of Fundamental Rights and

Freedoms [regarding the state’s position as a subject of fundamental

rights – e.g. property rights– see, a contrario, the opinion of the

Plenum in file no. Pl. ÚS-st. 9/99 of 9 November 1999 (ST 9/16 SbNU

372)]. If the majority vote here points to the state’s Janus-like

appearance, we can object that this is manifest in its various roles

(the role of public law subject and a private law subject); however, if

it acts in one of these roles, it cannot be regarded from the point of

view of the other. This difference in no way prevents exercising the

rights arising from the Act on Freedom of Information vis-à-vis the

state as a public law corporation in matters of public ownership [see, a

fortiori, also judgment file no. III. ÚS 686/02 of 27 February 2003 (N

30/29 SbNU 257)], if there are no grounds to refuse to provide

information or priority of a lex specialis, which in this matter is the

Civil Procedure Code.

Based on the foregoing, we are of the

opinion that in the adjudicated matter the requirements for reviewing a

petition under § 74 of the Act on the Constitutional Court were not met,

because the essential reason – regardless of the arguments applied by

the courts – for the decisions contested by the constitutional complaint

must be found in § 2 of the Act on Freedom of Information. If one must

conclude that in this case the state acted as a legal entity in a civil

law relationship, then it does not meet the requirement of public law

status of an obligated person under the cited Act, and thus application

of § 11 par. 4 let. b) no longer comes into consideration.

Beyond

the framework of those arguments, we also state the opinion that the

European Court of Human Rights case law cited by the majority vote does

not apply to the present matter. Both cases, Campos Dâmaso v. Portugal

and the Sunday Times v. the United Kingdom, do not concern the

obligation of the state (the courts) to provide judgments that have not

entered into effect to third parties in an ongoing, unfinished court

proceeding; rather, they provide for protection of the freedom of the

press to provide information about ongoing court proceedings, and within

that also protection of their sources of information. However, they do

not, in any case, give rise to an obligation on the state (the courts)

to act positively – deliver judgments that have not entered into effect

beyond the scope set forth by the codes of procedure.

The

consequences of the judgment are a breach of the principle that the

Constitutional Court formulated in judgment file no. Pl. ÚS 41/02 of 28

January 2004 (N 10/32 SbNU 61; 98/2004 Coll.), and under which in a case

of conflict of laws governing the rights and obligations of the state

and its bodies (the Act on Protection of Classified Information, the Act

on Freedom of Information, etc.) and laws governing the process of the

courts in civil court proceedings, in criminal proceedings, and in

administrative court proceedings, the procedural codes have the status

of legi speciali. In that matter – based on the principle of necessity –

the Constitutional Court reasoned on the basis of the fact that the

aims of the Act on Protection of Classified Information are ensured in a

court proceeding by particular procedural institutions. Likewise, in

the present matter, freedom of access to information (to a judgment that

has not entered into effect) in a court proceeding is ensured by the

procedural institution of public pronouncement of the judgment.

Finally,

the majority vote considers “key” the hypothesis “that one cannot

(naturally) rule out a priori the possibility that in a particular case

protection of a fundamental right will outweigh the cited values, i.e.

that there will not be a “pressing social need” to limit the fundamental

right (“this hypothesis”). That is precisely why it is necessary to

review, in each particular matter (according to the circumstances of the

particular matter), whether the condition of necessity for limiting an

individual’s fundamental right or freedom in a democratic society has

been met.” This gives rise to discretion for a court (or another state

body of state authority, or public institution) to decide whether to

provide or not provide a judgment that has not entered into effect,

discretion which is – under the Administrative Procedure Code – subject

to judicial review. Thus, under the banner of “scrutiny of the state” we

are witness to its proliferation, cancerous proliferation of the

process, with such paradoxical consequences that, for example, an

administrative court will review the actions of a court in a criminal

matter.

The cited reasons lead us to disagree with the verdict

of the judgment in the matter file no. Pl. ÚS 2/10 and to submit this

dissenting opinion.



2. Dissenting opinion of Judge Pavel Rychetský to the verdict of the judgment


This

dissenting opinion, which I am filing under § 14 of Act no. 182/1993

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

dissents from the verdict whereby the majority of the Plenum of the

Constitutional Court removed from § 11 par. 4 let. b) of the Act on

Freedom of Information the word “effective.” In this case, the core of

the adjudicated issue is a conflict between two interests protected by

the constitutional order. On one side the right to free access to

information (and the correlated obligation of the state to make it

available), which is a complementary derivative of the fundamental right

to free speech and the freedom to obtain and disseminate information.

On the other side is the principle enshrined in the Charter that this

right may be limited by law in the case of measures that are necessary

in a democratic society for protecting the rights and freedoms of

others, the security of the state, public security, public health, or

morals. From that point of view, there is no doubt that limiting the

right to free speech in relation to the judiciary only to proceedings

that have been completed with legal effect is impermissible, because at a

general level this does not involve any of the constitutional limits

that permit limiting the freedom of speech. However, I conclude that

when interpreting the right to access to information, which is not

exactly identical to the right to free speech and the right to

disseminate information, we cannot overlook the text of Art. 17 par. 5

of the Charter of Fundamental Rights and Freedoms, which requires state

bodies and territorial self-governing bodies “in an appropriate manner,

to provide information with respect to their activities,” and

“Conditions therefor and the implementation thereof shall be provided

for by law.” In this case, the legislature, by giving a definitive list

of exceptions from the obligation of state bodies to provide information

about its activities, removed, for the judiciary “information on the

decision making activities of the courts, with the exception of

judgments that have entered into effect.” It seems quite obvious to me

that this statutory limitation on access to information pursues the aim

of protecting the integrity, independence, and impartiality of a court

proceeding as one of the fundamental constitutionally protected values

of a democratic state governed by the rule of law. Moreover, I do not

see this statutory exception as a prohibition on dissemination

information or on public discussion of ongoing court proceedings, but

only as a statutory instruction to the courts, not to take part in such

discourse in any way during the time that a court proceeding is ongoing.

Informing the public, and its access to information, are sufficiently

ensured by the general laws governing the public nature of a court

proceeding in all procedural regulations (the Criminal Procedure Code,

the Civil Procedure Code, and the Administrative Procedure Code). I

conclude that the majority of the Plenum of the Constitutional Court did

not sufficiently appreciate this feature, as it argues broadly in the

judgment why a law without the limitation in question would be

desirable. One cannot disagree with these arguments, and even I do not

consider a legal framework that makes accessible to the public even

court judgments that have not entered into effect to be unconstitutional

– on the contrary, that is undoubtedly the most user friendly law on

the right to information. However, the role of the Constitutional Court

is not to seek the optimal forms of a sub-constitutional right (that is

exclusively the domain of the legislature), but, in accordance with the

principle of judicial restraint, merely to annul those norms that are

inconsistent with the constitutional order, where the inconsistency

cannot be removed through constitutional interpretation of the law. I

did not find the contested provision to have such inconsistency.



3. Dissenting opinion of Judge Dagmar Lastovecká to the reasoning of the judgment


I

agree with the essential grounds in the reasoning of the judgment

concerning the possibility of providing judgments that have not entered

into effect in terms of fulfilling the fundamental rights enshrined in

Article 17 of the Charter. Providing judgments that have not entered

into effect in a situation where there is no pressing social need to

limit a fundamental right under Art. 17 par. 4 of the Charter permits,

in specific cases, giving the public more precise, undistorted

information.

I also respect the opinion expressed in the

reasoning of the judgment concerning the need for scrutiny of the

exercise of state power (which is, in any case, the significance and

purpose of the right to information), and in a certain degree also the

exercise of the judicial power.

I submit this dissenting opinion

only to certain passages in the reasoning of the judgment, the

arguments contained, e.g., in points 39, 42, and 43, and especially in

point 45.

Scrutiny of the exercise of the judicial power through

the provision of information may not, under any circumstances,

interfere in the constitutional value of the independence and

impartiality of the judiciary, which is stated in point 42 of the

judgment, but only with the words “public discussion of a matter being

handled by a court need not necessarily (automatically) interfere in the

independence or impartiality of the judiciary.”

In my opinion,

the abovementioned points, by accentuating public discussion, and not

just specialized discussion, which “may contribute to a just outcome in a

continuing court proceeding,” recognize a certain possibility that

public discussion will affect the subsequent decision making activity of

the courts. Although I do not criticize the possibility for public

discussion, even in relation to the exercise of the judicial power, I am

convinced that judges cannot and must not be influenced in any way by

such discussion in their decision making activity.

In that

regard, I also see a certain inconsistency in the cited passages of the

reasoning with point 42, as well as with the citation given in point 64:

“In this one aim for having a trial proceeding be public there is,

under law, no difference between a hearing before a jury and before a

panel [of judges], and the law does not aim, even with a jury, to permit

a strong impression of the audience’s mood to influence the jury in the

jury room.”