2008/03/13 - Pl. ÚS 25/06: Institute for Study of Totalitarian Regime

13 March 2008

HEADNOTES

1.

The Constitutional Court must preface its arguments by stating that the

mere establishment of the Institute for the Study of Totalitarian

Regimes has no constitutional dimension. The actual decision to

establish it is a political decision which was approved by a legitimate

majority of Parliament, and the Constitutional Court is not the third

chamber of that body, so as to allow it to intrude upon that process.

After all, it is the legitimate right of the State to establish such an

institution, even despite the fact that there are already other

institutions in this country which concern themselves with similar

issues. As scholarly research is conceptually tied up with the category

of freedom (see Art. 15 para. 2 of the Charter of Fundamental Rights and

Basic Freedoms), all statutorily-established scholarly institutions are

constructed on the principle of self-administration, independence and

separateness from state power.

2.

The Constitutional Court gauged the proportionality between the right

of access to public office in the sense of Art. 21 of the Charter of

Fundamental Rights and Basic Freedoms, on the one hand, and the

principle of the protection of democracy, on the other. It came to the

conclusion that the public interest consisting in the protection of

democracy is preponderant. It inferred that the belonging to the

totalitarian regime and institutions defined in the Act on the part of

persons listed in § 19 para. 1 of Act No. 181/2007 Sb., on the Institute

for the Study of Totalitarian Regimes and on the Archive of Security

Organs and on the Amendment of Certain Statutes, remains a relevant

circumstance which can cast doubt upon the political loyalty and harm

the credibility of institutions such as the Institute for the Study of

Totalitarian Regimes and the Archive of Security Organs.

3.

In a situation where the dominant intent of the legislature, within the

framework of the means which it has at its disposal, is to attain the

maximum independence for this institution, it is legitimate to lay down

non-partisanship as a condition for membership in it. If we conceive of

the Institute for the Study of Totalitarian Regimes as an institution,

the mission of which, as is postulated in the Preamble to the Act, is

the protection of democracy, then the above-mentioned restrictions on

the fundamental rights for membership in the Institute’s Council are

legitimate.

4.

What must be designated as unacceptable, in terms of the guarantee of

the freedom of research, is the method for removal of the members of the

Institute’s Council by the Senate of the Parliament of the Czech

Republic pursuant to § 7 para. 9, which creates an unrestricted scope

for removal. The Constitutional Court has already previously held (see

Judgment No. II. ÚS 53/06 of 12 September 2006, published at

www.judikatura.cz) that Art. 21 para. 4 of the Charter of Fundamental

Rights and Basic Freedoms does not relate solely to access to public

office in the sense of entry into office, rather it comprises also the

right to the undisturbed performance of the office, including the right

to protection from unlawful deprivation of the office, as participation

in the administration of public affairs, which is the sense of Article

21 in its entirety, is not exhausted merely by gaining office, but

logically it persists throughout the period an office is held.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court, in its Plenum composed of its Chief Justice,

Pavel Rychetský, and Justices Stanislav Balík, František Duchon, Vlasta

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

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav

Výborný, Eliška Wagnerová and Michaela Židlická, on the petition of a

group of Deputies proposing the annulment of Act No. 181/2007 Sb., on

the Institute for the Study of Totalitarian Regimes and on the Archive

of Security Organs and on the Amendment of Certain Statutes,

alternatively of particular provisions thereof, as well as the annulment

of individual provisions of certain other acts, with the participation

of 1) the Assembly of Deputies of the Parliament of the Czech Republic,

and 2) the Senate of the Parliament of the Czech Republic, as parties to

the proceeding, decided as follows:


I.

The words, „in due fashion or“, in § 7 para. 9 of Act No. 181/2007 Sb.,

on the Institute for the Study of Totalitarian Regimes and on the

Archive of Security Organs and on the Amendment of Certain Statutes, are

annulled on the day this judgment is published in the Collection of

Laws.

II. In other respects the petition is rejected on the merits.

 


REASONING

I.
Summary of the Petition
 

1.

In conformity with Art. 87 para. 1, lit. a) of Constitutional Act of

the Czech National Council No. 1/1993 Sb., the Constitution of the Czech

Republic (hereinafter “Constitution”), a group of Deputies proposed the

annulment of Act No. 181/2007 Sb., on the Institute for the Study of

Totalitarian Regimes and on the Archive of Security Organs and on the

Amendment of Certain Statutes (hereinafter “the Act”), or individual

provisions thereof, and the annulment of individual provisions of

certain further acts. This Act established the Institute for the Study

of Totalitarian Regimes (hereinafter “the Institute“) and the Archive of

Security Organs (hereinafter “the Archive”). In the introduction to

their petition, the petitioners emphasized that the Act raises a great

number of doubts as regards its conformity with the constitutional order

of the Czech Republic (Art. 112 para. 1 of the Constitution), of which,

according to the Constitutional Court’s view, ratified and promulgated

international agreements on human rights and fundamental freedoms also

form a part [Judgment No. Pl. ÚS 36/01 (The Collection of Judgments and

Rulings of the Constitutional Court, Volume 26, Judgment No. 80,

published as No. 403/2002 Sb.), and Judgment No. I. ÚS 752/02 (The

Collection of Judgments and Rulings of the Constitutional Court, as No.

54, Vol. 30)]. They therefore propose the annulment of the Act in its

entirety, alternatively the annulment of those of its provisions

expressly designated in the prayer for relief.
 

2.

In the petitioners‘ view, basic doubts are raised by the mere

establishment of the Institute as a state institution whose operation is

covered from a separate chapter of the state budget (§ 3 para. 3 of the

Act). The Institute is an organizational component of the state (§ 3

para. 2 of the Act). At the same time, there are several other public

institutions, directly or indirectly financed from the state budget,

which perform, or might perform, research tasks in the field of history,

and the financing of the Institute would work to their detriment (as

can, according to the petitioners‘ view, be expected). First and

foremost, they are the university-level schools which, in accordance

with Act No. 111/1998 Sb., on University-Level Schools and on Amendments

and Supplements to Further Acts (Act on University-Level Schools), as

subsequently amended, are the centers of education and independent

learning and which are recognized as playing a key role in the scholarly

development of society (§ 1 of Act No. 111/1998 Sb.). Further, there is

the Academy of Sciences of the Czech Republic (Act of the Czech

National Council No. 283/1992 Sb., on the Academy of Sciences of the

Czech Republic (ASCR), as subsequently amended), which is an

organizational component of the Czech Republic and whose operation is

financed from the Czech Republic‘s state budget (for budgetary purposes

it even has the status of a central body of the Czech Republic). In its

capacity as a public research institute, the Academy in turn

established, among others, the Historical Institute of the ASCR, the

Institute for Contemporary History of the ASCR, and the Institute of

State and Law of the ASCR. The Military History Institute of Prague is a

further institution concerning itself with history. The freedom of

scholarly research is also guaranteed in Art. 15 para. 2 of the Charter

of Fundamental Rights and Basic Freedoms (hereinafter „Charter“).
 

3.

The petitioners see in the establishment of the Institute and the

Archive the etatization of historical research on „the period of

non-freedom“ and the „era of Communist totalitarian power„ [§ 2, lit. a)

and b) of the Act], and that creates the genuine danger that its output

will be considered as „official“. They refer to the fact that members

of the Institute‘s Council (hereinafter „the Council“), its highest

body, are appointed and removed by the Senate, one of the chambers of

the Parliament of the Czech Republic, and they see in this an actual

restriction on the constitutionally-guaranteed freedom of scholarly

research. Even though the Act does not explicitly speak to the

precedence and binding nature of the research findings made by the

Institute, nonetheless they are in actual fact introduced by the Act.

According to the petitioners, this is evidenced by, among other things,

the privileged status of the Institute in light of the obligation

imposed by law upon all state bodies, contributory organizations of the

state, territorial self-governing bodies, contributory organizations of

territorial self-governing units, and archives managed by them which are

in possession of documents and archival material relating to the

Institute’s tasks from the period defined in the Act, to extend to the

Institute all necessary cooperation, free of charge and without

unnecessary delay (§ 5 para. 2 of the Act). No such similar obligation

is found in the case of any other of the mentioned research scholarship

institutions.
 

4. The

petitioners criticize the Act because the period which should be the

subject of the Institute‘s research is defined solely by its temporal

designation, as if that would be fully sufficient; apart from that, it

makes use of terminology which does not have scholarly, rather

ideological, meaning. Thus, for ex., the Preamble speaks of the

„totalitarian and authoritarian regimes of the 20th Century“, without

taking into consideration that, according to the customary doctrinal

opinion, there is a more or less significant difference between them

(See, e.g., Aron, R.: Democracy and Totalitarianism, Atlantis, Prague

1993; also Pavlíček, V. and Jirásková, V., in Pavlíček. V. et al.:

Constitutional Law and Politics, Part I, General Politics, Linde, Prague

1998). As far as concerns the period from 1938 until 1945, § 2 lit. a)

of the Act designated this period as the „period of non-freedom“, even

though there is a fundamental difference between the still independent

Republic and the subsequent Protectorate of Bohemia and Moravia as a

part of the Greater German Reich. In the case of the period from 1948

until 1989, the Act (in contrast to its Preamble) does not distinguish

an authoritarian regime from a totalitarian regime, rather it speaks

explicitly and unambiguously of the era of „Communist totalitarian

power“ [§ 2 lit. b)], without distinguishing between the individual

stages of that era, and includes into this „era of Communist

totalitarian power“ the period „preceding“ the temporal segment of 25

February 1948 until 29 December 1989, „in which occurred events relating

to the preparations for the totalitarian seizure of power by the

Communist Party of Czechoslovakia“. The delimitation of this period is

utterly indeterminate, yet the Institute‘s tasks are bound up to it, as

is in connection therewith, for ex., its authorization to process

personal data (§ 5 para. 1). The petitioners further criticize the Act

because the segment of Czechoslovak history from 25 February 1948 until

29 December 1989 is authoritatively designated as the „era of Communist

totalitarian power“ and does not take into account that this era was

variable in terms of the manner in which state power was exercised.

According to the petitioners, the comprehensive assessment, and explicit

designation, of the entire period, from 25 February 1948 until 29

December 1989, as the era of „Communist totalitarian power“, does not

correspond to reality and conflicts with the directive which the

Constitution places upon the Act, namely to investigate and evaluate

this era impartially, whereas the Act a priori designates this era as

the era of „totalitarian“ power.
 

5.

The petitioners object that the Institute‘s competence is defined in § 4

in a not very clear or comprehensible manner. In the first part of the

sentence in lit. a), the Institute is given the obligation „to

investigate and impartially evaluate the period of non-freedom and the

era of Communist totalitarian power“. In another portion of the

sentence, however, it is in addition given the obligation to investigate

„anti-democratic and criminal activities of state bodies“ and „criminal

activities of the Communist Party of Czechoslovakia, as well as further

organizations founded on its ideology“. Since this second portion of

the sentence concerns the two mentioned periods, it is not very clear,

as far as the period of non-freedom is concerned, to which state organs

it refers: state organs of the still free „Second Republic“, bodies of

the Protectorate of Bohemia and Moravia, or even the bodies of the Great

German Reich. The petitioners further criticize this provision because

it speaks of „criminal activities“, which they consider as inappropriate

since, in legal terminology until 1950, this referred to criminality in

the sense of the commission of a certain type of criminal offenses,

which was explicitly distinguished in criminal law, whereas after 1950

this distinction had already disappeared. Further § 4 lit. e) makes use

of the expression, „Nazi crimes“, which cannot only not concern the

entire „period of non-freedom“, but in and of itself is imprecise and

inapposite, as it would make sense only in the case that it concerned

not only the „crimes“ which bodies of the Great German Reich committed

on the territory of the Protectorate [for ex. no mention is made of the

NSDAP (translator‘s note: This is the abbreviation for

Nationalsozialistische Deutsche Arbeiterpartei or National Socialist

German Workers‘ Party) in litera a) and e)], but also the crimes

committed by bodies of the Protectorate government and collaborating

organizations and individuals. The petitioners consider the expression,

„Nazi and Communist crimes“, to be ideologizing. According to them it

is, by its nature, „journalistic“ and not juristic, so that it cannot

fulfill the task which it evidently is meant have, that is, to define in

a legal manner the Institute‘s competence (tasks). The same as was

stated of litera a) applies to the term, „crime“, in litera e).
 

6.

According to the petitioners, in constitutional law terms, doubts arise

from the condition of reliability for the purposes of this Act as set

down in its § 19 para. 1, lit. a), according to which persons who were

members or candidates for membership in the Communist Party of

Czechoslovakia or the Communist Party of Slovakia are unreliable. They

raise the objection that the grounds for finding unreliability is the

formal membership in these political parties, but no further

consideration is given to the actual conduct of these persons, for ex.,

whether they committed acts conflicting with the general moral

principles, or even acts that are legally criminal. In addition,

according to § 10 of the Act, membership in the Council is a public

office and, according to Art. 21 para. 4 of the Charter, citizens shall

have access, on an equal basis, to any elective and other public office.

In this connection they refer also to Art. 15 of the International

Covenant on Civil and Political Rights. According to the petitioners, to

designate unreliability for membership in the Institute’s Council on

the basis of strictly formal attributes resulting from citizens’

one-time political conviction without consideration of their actual

conduct and attitudes violates the above-mentioned fundamental right

guaranteed by the Charter and violates the Czech Republic’s obligations

arising from the International Covenant on Civil and Political Rights.
 

7.

They object that § 7 para. 6 of the Act, according to which „membership

in the Council is incompatible with membership in a political party or

political movement“, is in conflict with the prohibition of

discrimination in the sense of Art. 3 para. 1 of the Charter (political

conviction) and thereby results in a violation of the right to take part

in the administration of public affairs through holding public office

(Art. 21 paras. 1 and 4 of the Charter). The obligations resulting from

the European Convention for the Protection of Human Rights and

Fundamental Freedoms (the freedom of thought and conscience under Art.

9) are also violated, as are those resulting from the International

Covenant on Civil and Political Rights (the right to take part in the

conduct of public affairs without unreasonable restrictions and without

distinction based, among others, on political or other opinion - Art.

25; equality before the law and the prohibition of discrimination, for

ex., on the grounds of political or other conviction - Art. 26). The

restriction upon these rights is possible only to the extent which

follows from Art. 44 of the Charter and relates to the offices,

employments and activities exhaustively enumerated therein.
 

8.

They further analyze § 5 para. 1 of the Act, according to which „[t]he

Institute is authorized to process personal data to the extent necessary

for the fulfillment of the Institute‘s tasks“, and § 13 para. 3 of the

Act, which says that „[t]he Archive is authorized to process personal

data to the extent necessary for the fulfillment of its tasks“. The

Charter provides (Art. 10 para. 3) that everyone has the right to be

protected from the unauthorized gathering, public revelation, or other

misuse of his personal data. According to the petitioners, the

“authorization” of the Institute and the Archive in the mentioned

provisions of the Act is formulated so indefinitely as to result in a

violation of the principles of legal certainty and the protection of

citizens’ trust in the law, which belong inseparably among the

attributes of a law-based state. They deduce this conclusion from the

fact that the Institute’s tasks defined in § 4 of the Act as its

competencies are formulated indefinitely, as for ex. its pivotal

competence „to investigate and impartially evaluate the period of

non-freedom and the era of the Communist totalitarian power [§ 4 lit.

a)]. Even less definite is the term, „to the extent necessary“, which is

extremely subjective and would enable the Institute even to make

arbitrary interpretations, for ex., also in connection with the

Institute‘s competencies pursuant to § 4 lit. f), („The Institute shall

provide the public with the results of its activities, in particular it

shall publish information . . . on acts and fates of individuals“). The

petitioners have analogous reservations also to the Archive‘s

competencies in the sense of § 13 para. 3 of the Act.
 

9.

According to § 9 para. 1, lit. a) of the Act, the Institute‘s Council

has the competence „to lay down the methods for the fulfillment of the

Institute‘s tasks“. The petitioners object that this provision is

indefinite. Its own scholarly investigation and impartial evaluation of

the „period of non-freedom and the era of Communist totalitarian power“,

which according to § 4 of the Act is the Institute‘s task, cannot be

the task of the Council or its members, rather of the Institute‘s

employees. They state that a „method“ is generally understood to mean a

purposeful, objectively substantiated manner for investigating phenomena

and attaining scholarly knowledge, a systematic approach which leads to

the objective in the given field, etc. If then the Council (in essence a

political body, as its members are elected and removed by the Senate)

should lay down „methods“ for scholarly investigation and impartial

evaluation, a genuine danger arises that the laying down of these

„methods“ could in reality encroach upon the freedom of scholarly

research, constitutionally guaranteed in Art. 15 para. 2 of the Charter.

The petitioners further call into question the constitutionality of § 9

para. 1, lit. e) of the Act, according to which the Council should

establish a scholarly council, as an expert advisory body to the

Director of the Institute for the Institute‘s research activities, and

appoint its members. The Act does not provide more details; nonetheless,

from the fact that it should be an expert advisory body to the Director

of the Institute, it is clear that this presupposes that the Director

directs the Institute‘s research activities , whereas employees will be

obliged, pursuant to their employment contracts, to perform their work

personally and in accordance with their employer‘s instructions, as

follows from § 38 para. 1 of the Labor Code. They consider as

normatively empty § 9 para. 1, lit. h) of the Act, according to which

the Council has the competence „to decide appeals against decisions of

the Institute“. That is to say, the Act does not provide for the case

that the Institute (as an organizational component of the state) would

make an authoritative decision such that an „appeal“ against its

decision, as a procedural remedial step, could come into consideration.
 

10.

According to the petitioners, the rules on the status of the Archive of

Security Units also raise fundamental doubts. The amendments to Act No.

499/2004 Sb., on Archival Science and the Records Service and on the

Amendment of Certain Other Acts, effected by Part Three (§ 24) of the

Act, modified as well the wording of § 42 para. 2 of Act No. 499/2004

Sb., such that the Archive of Security Units was placed as another

public archive among the group of archives [§ 42 para. 2, lit. b) of the

mentioned act]. The status and competence of the Archive are thus

regulated partly in the general Act on Archival Science and the Records

Service and partly by separate provisions of Act No. 181/2007 Sb. (in

particular §§ 12 to 17). Certain serious organizational and procedural

confusions result from these provisions. According to § 12 para. 2 of

the Act, the Archive is an administrative office (Art. 79 para. 1 of the

Constitution), thus a body within the executive power; however it is

not directly managed by the Ministry of the Interior (as are the

National Archive and the state provincial archives), rather by the

Institute, which, however, in contrast to the Ministry of the Interior,

does not have the status of an administrative office, and is designated

simply as „an organizational component of the state“. Thus, it is not a

body within the executive power. Among other things, the Archive also

„supervises the performance of records service at the Institute“ [§ 13

para. 1, lit. c) of the Act], thus at an organizational component of the

state which is directly managed, that is, which is subordinate. This

competence of the Archive is explicitly stated in § 71 para. 1, lit. d)

of Act No. 499/2004 Sb. According to § 71 para. 1 of this Act, it

carries out this supervision in accordance with „a separate legal

enactment“, which is identified in footnote No. 27 as Czech National

Council Act No. 552/1991 Sb., on State Supervision, even though,

according to § 3 para. 2 of that statute, state supervision pursuant to

Czech National Council Act No. 552/1991 Sb. is not considered as

supervision carried out within the framework of a relationship of

subordination and superiority. According to the petitioners, an absurd

situation thus comes about in which a subordinate administrative office

supervises the activities of the organizational component of the state

superior to it and asserts authority in relation to that organizational

component in accordance with to the given Act (including decision-making

on any perspective objections by the Institute against inspection

protocols and the decision-making on disciplinary fines against a

natural persons who caused the Institute, as a person subject to

supervision, to violate its duties under § 14 of the given Act).

Although the Archive is subordinate to the Institute, it is the Ministry

of Interior which monitors the Archive as to is observation of its

obligations in the sector of archival science and the performance of

records service [§ 71 para. 1, lit. a), point 2 of Act No. 499/2004 Sb.,

as amended by Act No. 181/2007 Sb.]. Further, the petitioners refer to

the fact that, according to the general statute on archival science and

the records service, it is the case that a request to inspect archival

materials and to make excerpts or to obtain duplicates or copies of

archival materials, can be refused by a procedure to which the

Administrative Code does not apply; then the competent administrative

office in the sector of archival science and the performance of records

service (§ 38 para. 2, § 40 para. 3 of Act No. 499/2004 Sb.) decides on a

researcher’s non-conforming submission in a proceeding pursuant to the

Administrative Code. However, when refusing on the grounds laid out in §

15 of Act No. 181/2007 Sb., „the Archive‘s Director decides appeals

against a decision to refuse“, where the decision on the refusal is

evidently made by a leading employee of the Archive, without the Act

having prescribed whether, and in which cases, it shall decide in the

first or second instance in accordance with the Administrative Code

(otherwise the Act in no way lays down the extent to which the

Administrative Code is to be applied for matters regulated in the given

Act ).
 

11. They also

criticize, as having little normative definiteness, § 17 of the Act,

which provides that on 1 January 2030, the Archive (of Security

Components) will become a part of the National Archive. It must be

deduced from § 17 of the Act that on 1 January 2030, the Archive of

Security Components will cease to exist as an administrative agency and

organizationally will „dissolve“ into the National Archive, an

administrative agency (thus, the Archive will be merged with it). To the

extent that the legislature authoritatively laid down that, as of 1

January 2030, the Archive of Security Components will become a part of

the National Archive, at the same time it must lay down the rules for

the consequences resulting therefrom (the changes in the competencies of

the Institute and the National Archive, especially in terms of the

legal relations of employees of the Archive, etc.). However, the

legislative did not do so, so that § 17 of the Act is incomplete and

indefinite and has unforeseeable legal consequences.
 

12.

The petitioners consider as incomprehensible and in part

unimplementable § 21 para. 1 of the Act, according to which the exercise

of rights and obligations arising from employment relations of

employees of the Czech Republic, assigned to work in the Ministry of

Interior, the Ministry of Defense, including Military Intelligence, the

Ministry of Justice, the Security Information Services, the Office for

International Relations and Information, and the Police of the Czech

Republic - Office of Documentation and Investigation of the Crimes of

Communism, pass to the Archive on the first day of the seventh calendar

month following the promulgation of this Act, if these employees are

performing activities which, as of the day this Act enters into force,

shall be carried out by the Archive and if they fulfill the conditions

pursuant to § 18 of the Act. They refer, in particular, to the fact that

members of the mentioned security corps are not in employment

relations, but are in a public-law service relation with the Czech

Republic, so that the mentioned provisions cannot apply to them. Apart

from that, they consider the compulsory transfer of rights and

obligations of employees of the Czech Republic from employment relations

to be in conflict with Art. 26 para. 1 of the Charter, according to

which everybody has the right to the free choice of his profession. In

this connection they draw attention to a number of dissimilarities from

the ordinary delimitation of administration bodies, especially to the

fact that reliability and irreproachability, newly defined only in § 18

of the Act, constitute a condition of the transfer.
 

13.

The petitioners refer to the fact that, in the conditions of a

democratic law-based state, a statute must be definite, clear,

transparent, comprehensible, unambiguous, non-contradictory,

linguistically and stylistically flawless, as the Constitutional Court

has indicated in a number of its judgments [for ex., its judgment

published as No. 331/2005 Sb.]; that it is necessary that an individual

legal enactment to be comprehensible and that foreseeable consequences

follow from it [for ex., Judgment No. 106, Volume 19 of The Collection

of Judgments and Rulings of the Constitutional Court]; that solely a

statute whose consequences are clearly foreseeable fulfills the

conditions placed upon the functioning of the democratic law-based

state, conceived in the substantive sense [for ex., Judgment No. 29,

Volume 3 of The Collection of Judgments and Rulings of the

Constitutional Court]; that from the concept of the law-based state

follows the principle that neither the legislature nor the executive may

deal arbitrarily with the forms of law, that is, with the sources of

law, rather they must conduct themselves in accordance with the criteria

set by the Constituent Assembly, as well as other criteria, above all

transparency, accessibility, and clarity [Judgment No. 73, Volume 18 of

The Collection of Judgments and Rulings of the Constitutional Court].

According to the petitioners, to the extent that a statute comes into

conflict with these principles, then it comes into conflict with the

principles of the democratic, law-based state (Art. 1 para. 1 of the

Constitution).
 

14. On the basis of the above-made arguments, the petitioners thus propose
1) alternatively:
a)

the annulment in its entirety of Act No. 181/2007 Sb., on the Institute

for the Study of Totalitarian Regimes and on the Archive of Security

Organs and on the Amendment of Certain Statutes, as a large number of

its provisions are in conflict with the constitutional order and, as a

whole, conflict with the requirements which are placed upon the content

of statutes in a democratic, law-based state.
b) should the

Constitutional Court not grant the petition under a/, then to annul the

following provisions of Act. No. 181/2007 Sb.:
-    the word,

„totalitarian“, (in its various forms) in the title of the Act, in the

title of Part One and of Part Two, and in § 1, § 2 lit. b) and c), § 4

lit. a), b), c) and f), § 13 para. 1, lit. d), § 13 para. 2, lit. a);
-    the words, „Nazi and Communist crimes“, in § 4 lit. e);
-    § 5 para. 2;
-    § 7 para. 6, the final sentence;
-    § 9 para. 1, lit. a);
-    § 9 para. 1, lit. h);
-    § 13 para. 1, lit. c);
-    § 15, the final sentence;
-    § 17;
-    § 19 para. 1, lit. a);
-    §21 para. 1.
2) the annulment of the word, „totalitarian“, (in its various forms) in the following provisions of the statutes cited below:
-  

 in § 10 para. 3, the third sentence, of Act No. 140/1996 Sb., on

Access to Files Compiled by the Former State Security Agency, as amended

by Act No. 181/2007 Sb.;
-    in § 37 para. 6, § 71 para. 1, lit. d)

and in Appendix No. 2, point 1, lit. q) of Act No. 499/2004 Sb., on

Archival Science and the Records Service and on the Amendment of Certain

Other Acts, as amended by Act No. 181/2007 Sb.;
-    in § 1 lit. f),

in the title to Part Eight, and in §§ 27c to 27e of Act No. 236/1995

Sb., on Salary and Additional Perquisites connected with the Holding of

Office by Representatives of State Power and Certain State Bodies,

Judges, and Members of the European Parliament, as amended by Act No.

181/2007 Sb.;
-    in § 3 para. 1, lit. b), point 8 of Act of the

Czech National Council No. 589/1992 Sb., on Insurance Premiums for

Social Security and Contributions to the State Employment Policy, as

amended by Act No. 181/2007 Sb.;
-    in § 5 lit. a), point 9 of Act

No. 48/1997 Sb., on Public Health Insurance and on Amendments and

Supplements to Certain Other Related Acts, as amended by Act No.

181/2007 Sb.;
-    in § 5 para. 1, lit. i) of Act No. 155/1995 Sb., on Pension Insurance, as amended by Act No. 181/2007 Sb.;
-  

 in § 5, lit. a), point 10 and in § 92 para. 2, lit. k) of Act No.

187/2006 Sb., on Sickness Insurance, as amended by Act No. 181/2007 Sb.:
-  

 in § 36 lit. zb) of Act of the Czech National Council No. 582/1991

Sb., on the Organization and Implementation of Social Security, as

amended by Act No. 181/2007 Sb.;
-    in § 25 para. 1, lit. o) of Act No. 435/2004 Sb., on Employment;
-  

 in § 124 para. 3 and § 303 para. 1, lit. b), point 15 of Act No.

262/2006 Sb., the Labor Code, as amended by Act. No. 181/2007 Sb.
 


II.
Summary of the Main Parts of the Statements by Parties to the Proceeding
[omitted]


III.
The Wording of the Contested Provisions
 

40.

In view of the fact that the Act is being contested in its entirety,

the wording of the statutory provisions which are alternatively

contested in the prayer for relief will not be given.

 


IV.
Conditions for the Petitioners’ Standing,
Constitutional Conformity of the Legislative Process
 

41.

The petition proposing the annulment of the Act, alternatively specific

provisions thereof, was submitted by a group of 57 Deputies of the

Parliament of the Czech Republic, thus in conformity with the conditions

contained in § 64 para. 1, lit. b) of the Act on the Constitutional

Court. It has thus been established that, in the instant case, the

conditions for the petitioner’s standing have been satisfied.
 

42.

In conformity with § 68 para. 1 of the Act on the Constitutional Court,

in proceedings on the review of a statute or of individual provisions

thereof, the Constitutional Court is obliged to adjudge whether the

contested legal enactment was adopted and issued in the constitutionally

prescribed manner.
 

43. The

Court ascertained the following from the content of the petition, the

parties’ statements, and from the web-sites of both chambers of the

Parliament of the Czech Republic: The Senate of the Czech Parliament

initiated the legislative process on the Act. In its first reading (7

November 2006), the Assembly of Deputies referred it to committee for

consideration. Its consideration in committee resulted in a

comprehensive proposed amendment, which the Assembly of Deputies adopted

as the basis for its further action in the second reading (16 March

2007). The bill was then adopted in its third reading (2 May 2007) by a

majority of 92 of the 118 Deputies present; 24 Deputies voted against

the bill.
 

44. The submitted

bill was voted on by the full Senate on 8 June 2007, after it had been

considered in committee. A majority of 46 of the 50 Senators present

approved the bill in the wording submitted to it by the Assembly of

Deputies; 3 Senators voted against the bill, and one abstained.
 

45.

The President of the Republic signed the Act on 12 July 2007, as did

the Chairman of the Assembly of Deputies and the Prime Minister of the

Czech Republic, after which the Act was promulgated in Part 59 of the

Collection of Laws as Number 181/2007 Sb.
 

46. The Constitutional Court affirms that the contested act was adopted and issued in the prescribed manner.

 


V.
The Public Hearing
 

47.

In the course of the public hearing, held on 13 March 2008, the parties

adhered to their original positions, as stated in the petition and

statements respectively. On the issue of whether, in the petitioners‘

view, there existed some time period, between 25 February 1948 and 29

December 1989, in which the Communist Party of Czechoslovakia

[translator’s note: the party‘s name in the Czech language is

“Komunistická strana Československa“, hence the abbreviation “KSČ”,

which is used throughout the remainder of the opinion] ceased to assert

its leading role or in which it distanced itself from Marxist Leninist

ideology, the Communist Manifesto or Lenin‘s treatise, State and

Revolution, the representative of the petitioners referred to the fact

that such a long period cannot be precisely characterized, rather it is

necessary to scrutinize how that regime evolved and changed. On the

issue as to whether after 1960 the leadership of the KSČ actively

strived to repeal Art. 4 of the Constitution of 1960, the representative

of the petitioners state that „if we wish to make a substantive

assessment of the possibility for change within the Communist regime,

then we cannot seriously pose such a question.“ In response to

questions, the representative of the Senate state that membership in the

NSDAP [translator‘s note: this is the German abbreviation of the name

of the Nazi Party, “Nationalsozialistische Deutsche Arbeiterpartei“] or

Vlajce was not defined in the Act because, „people who were active

during the period of the occupation have already passed their

professional zenith so that it certainly would not affect them“. He

further state that in the case of applicants for a position from the

ranks of members of the former Communist Party „it would necessarily be

complicated to scrutinize the degree to which they have themselves come

to terms with their own past“. In searching for the legal form of the

Institute, they benefited from the Slovak experience.
 



VI.
Actual Review

VI.a. In Relation to Objections to the Act as a Whole
 

48.

In the first place the Constitutional Court concerned itself with the

petitioners‘ general objection, according to which basic doubts were

aroused by the very establishment of the Institute as a state

institution whose activities are financed in a separate chapter of the

state budget, and the petitioners‘ reference to the fact that other

public institutions financed directly or indirectly from the state

budget perform research assignments in the field of history. It sees in

the existence of the Institute a danger of etatization of historical

research concerning the statutorily-defined segment of history and calls

into doubt the formulation by which this era is defined in the Act, as

it preempts how this era should be evaluated, in consequence of which

the constitutionally guaranteed freedom of scholarly research is

restricted.
 

49. The

Constitutional Court must preface its arguments by stating that the mere

establishment of the Institute has no constitutional dimension. After

all, it is the legitimate right of the State to establish such an

institution, even despite the fact that there are already other

institutions in this country which concern themselves with similar

issues. The Court may not, as the petitioners urge, include in its

deliberations the issue of the expedience of an institution established

by law because such considerations fall within the field of political

decision-making and, to the extent it bases its decision on such

considerations, it would violate the principle of the separation of

powers.
 

50. The objection

relating to the freedom of scholarly research, as guaranteed by Art. 15

para. 2 of the Charter, is, however, of constitutional dimension. The

two historical periods which are meant to be the subject of the

Institute‘s research are defined in § 2 of the Act: they are the „period

of non-freedom“, which is the period from 30 September 1938 until 4 May

1945, and the „era of Communist totalitarian power“ which is the

segment of Czechoslovak history from 25 February 1948 until 29 December

1989, as well as the period which preceded the latter temporal segment

and in which, in the words of the Act, „events occurred relating to the

preparations for the totalitarian seizure of power by the Communist

Party of Czechoslovakia“. In the petitioners‘ view, this definition

already implicitly contains an historical evaluation.
 

51.

The designation of certain historical segments by a name always

represents to some degree a simplification, which however also contains

within itself certain characteristics of the given era. For ex., it is

quite commonplace to speak of the era of Habsburg Dominion or the era of

the Hussite Wars. The mere designation of an historical segment by the

name „the period of non-freedom“ or the „era of Communist totalitarian

power“ cannot, without more, imply restrictions on the scholarly

research relating to these eras, as such names merely delimit the

temporal segment of history which should be the subject of inquiry.
 

52.

The petitioners criticize the Act for the use of terminology which has

not only an academic, but also an ideological, significance; in

particular, the Preamble speaks of „the totalitarian and authoritarian

regimes of the 20th Century“. They object to the fact that the phrase,

„the period of non-freedom“, designates the entire period from 1938

until 1945, although in their view there was a fundamental difference

between the still independent Republic and the later Protectorate of

Bohemia and Moravia, and that the period from 25 February 1948 until 29

December 1989 is designated as the „era of Communist totalitarian

power“, without it being taken into account that the manner in which

state power was exercised during this period varied.
 

53.

The fundamental defect in the petitioners‘ arguments consists in the

fact that it is they who are imputing to the text of the Act a

signification which, in actuality, it does not have. The mentioned

provisions do not constitute „comprehensive evaluations“ of historical

periods delimited in the Act, rather they are only their names. The

intent of the Act is to form an institution which, once it is formed,

should itself be engaged in the comprehensive evaluation of those

periods, moreover under the conditions which are formulated in § 4 of

the Act, which explicitly state that it should be done impartially. It

is not the ambition of the Act, nor can it be, to make a scholarly

treatise on a given period. Its objective is to create a state-financed

institution which should concern itself with this problem, whereas the

reasons for it to do so are expressed in the Act‘s preamble with the

words: „The knowledge of historical sources and further evidence

concerning the given regimes, as well as the events leading to them,

making possible a better grasp of the consequences of the systematic

destruction of the traditional values of European civilization, the

deliberate violation of human rights and freedoms, the moral and

economic bankruptcy carried out by means of judicial crimes and terror

against those holding differing opinions, the replacement of a

functioning market economy with a command system, the destruction of the

traditional principles of ownership rights, the abuse of upbringing,

education, science and culture for political and ideological purposes,

and by the heedless destruction of the environment.“ That these

consequences came to pass during the given historical periods is an

objectively ascertained fact having no ideologically-loaded tincture.
 

54.

The petitioners‘ objections aiming at the annulment of the Act in its

entirety express their apprehension that such a nascent institution will

be misused for a political battle. On the one hand, such considerations

are legitimate insofar as each institution can be misused for purposes

other then the ones for which it was established. In fact, the era which

is meant to be the subject of the Institute‘s research was strewn with

cases of such abuse, among other things. On the other hand, however, the

possibility for such abuse depends on the conditions under which the

institute must operate. If the conditions are those of a functioning

democracy, then such abuse cannot occur. The petitioners‘ concerns in

this respect are, in their essence, the expression of their mistrust in

democracy, although as Deputies they partake, to a significant degree,

in forming the outlines, and in the exercise, of democracy. It is thus

up to them to prevent any prospective attempts at misuse of the

Institute. The actual decision to establish it is, however, a political

decision which was approved by a legitimate majority of Parliament, and

the Constitutional Court is not the third chamber of that body, so as to

allow it to intrude upon that process.
 


VI.b. In Relation to the Objections to Particular Provisions
 

55.

The petitioners have called into question the constitutionality of

specific provisions of the Act, or parts thereof. Above all they object

to the provisions’ conflict with the principles of the democratic,

law-based state, enshrined in Art. 1 para. 1 of the Constitution of the

Czech Republic, as well as their incomprehensibility, and the lack of

predictability of interpretation resulting therefrom. They then propose

the annulment of the phrase, “Nazi and Communist crimes”, which is

employed in § 4 lit. e) of the Act. In their view it is an

ideologically-loaded phrase which, by its very nature, is journalistic

and not legal. They call to mind the fact that, in legal terminology

until 1950, this phrase defined a type of criminal activity, in

consequence of which it is not clear whether, for the period up until

that date, the phrase refers to this type of criminal activity or merely

to the moral aspect of this activity. This provision does not,

therefore, fulfill the task which it should perform, namely to define

the Institute’s competences in a legal manner. It also considers the

term, “totalitarian”, as being ideologically-loaded and therefore

proposes its annulment in all the various ways it is used - in the title

to the Act, in the title of Part One, and in the title of Chapter Two,

as well as in § 1, § 2 lit. b) and c), § 4 lit. a), b), c) and f), § 13

para. 1, lit. d), § 13 para. 2, lit. a), and further in all acts listed

in point 2 of the relief requested in the petition (see point 14).
 

56.

In relation to an analogous objection, the Constitutional Court adopted

a position in its Judgment No. Pl. ÚS 19/93, published as No. 14/1994

Sb., in which it decided on the petition proposing the annulment of Act

No. 198/1993 Sb., on the Lawlessness of the Communist Regime and on

Resistance to It. In that case it stated the following: „The

constitutional foundation of a democratic state does not deny the

Parliament the right to express its will, as well as its moral and

political viewpoint, by means which it considers suitable and reasonable

within the confines of general legal principles - and possibly in the

form of a statute, if it considers it suitable and expedient to stress

its significance in the society and the scope of its declaration in the

legal form of a statute. Such an example was the statute issued under

the First Republic which stated that T. G. Masaryk deserves credit for

the building of the state.” It emphasized that the Parliament did not

thereby formulate a new definition of the material elements of a

criminal offense. Nor may anything of the sort be deduced from the

wording of the Act presently under adjudication. Moreover, Article 40

para. 6 of the Charter (according to which the criminality of an act

shall be considered, and penalties shall be imposed, in accordance with

the law in effect at the time the act was committed) applies as a

general norm for the assessment of the criminality of any act

whatsoever. It can thus be concluded that the act under adjudication

constitutes the Parliament’s moral and political-legal proclamations,

which cannot be criticized due to the fact that it did not make use of

common legal terminology.
 

57.

Further the constitutionality of § 5 para. 1 of the Act is called into

doubt in point F of the petition; however, the petition does not propose

the annulment of this provision (it is only proposed that § 5 para. 2

of the Act be annulled). The Constitutional Court is thus in no way

obliged to give its substantive view on the reservations directed

against § 5 para. 1 of the Act. Beyond the stated confines, however, it

can note that, even if this provision of the Act had been included in

the  relief requested in the petition, that would not have resulted in

its derogation. The designated provision is merely to supplement the

general regulation on the protection of personal data contained in the

Act itself. The objection of “brevity” does not have any constitutional

foundation in the least.
 

58.

The petition further proposes the annulment of § 5 para. 2 of the Act,

which places a duty upon all state bodies, organizational units of the

state, contributory organizations of the state, territorial

self-governing bodies, contributory organizations of territorial

self-governing units, and archives managed by them, to extend, free of

charge, all necessary cooperation and assistance to the Institute, as

far as concerns documents of the Archive relating to their duties from

the period defined in the Act. The petitioners emphasize that such an

obligation cannot be found in the case of any other scholarly institute

concerned with historical research, so that they find in this provision a

confirmation of the Institute’s privileged status, which increases the

risk that the results of its research will be considered as official.
 

59.

In the first place, it follows from the mentioned provisions that this

cooperation and assistance concerns solely the submission of requested

documents, and the Institute is authorized ex lege to acquire, at its

own expense, a copy thereof. Such an obligation does not go beyond the

conditions of ordinary cooperation among state institutions and

territorial autonomous regions. No infringement of a

constitutionally-guaranteed right can be found in this obligation. Nor

does it give grounds for the petitioners’ conclusion that the freedom of

scholarly research is threatened thereby. This provision does not

establish for the Institute a monopoly on the study and analysis of

historical documents from the period at issue. These documents will also

remain accessible to other researchers dealing with the history of this

period, and the Institute’s research results will have to face

comparison with the results of their work. This provision does not

establish the Institute’s competence, rather the conditions for

cooperation with institutions listed in the cited statutory provision

when gathering archival materials having some relation to the periods

which are the subject of the Institute’s research. Of course, that does

not mean all materials deposited in the archives of the listed

institutions, rather only those which are already of a merely historical

nature.
 

60. The petitioners

further propose the annulment of § 7 para. 6 of the Act, according to

which membership in the Institute’s Council is incompatible with

membership in a political party or political movement. They refer to the

fact that, according to Art. 20 para. 2 of the Charter, each citizen

has the right to associate in political parties and movements and that

restrictions upon this right are permitted only in connection with the

holding of certain offices, or the performance of certain jobs or

activities, exhaustively enumerated in Art. 44 of the Charter. According

to them, the Institute’s Council bears no relation to any such cases,

nor with any of the cases for which the Charter permits a restriction of

this fundamental right. They draw from this the conclusion that the

contested provision results in a violation of the prohibition of

discrimination (Art. 3 para. 1 of the Charter) and a violation of the

right to take part in the administration of public affairs through

holding public office (Art. 21 para. 1 and 4 Charter).
 

61.

In order to assess these reservations, it is necessary, in the first

place, to assess the objective which is pursued by the establishment of

the Institute. It follows primarily from the Preamble to the Act, in

which the Parliament of the Czech Republic declares that it is

establishing the Institute with awareness of its obligation to come to

terms with the consequences of the totalitarian and authoritarian

regimes of the 20th Century. According to § 3 para. 2 of the Act, the

Institute is an organizational component of the State, whose activities

can be intervened into solely on the basis of a statute, and according

to paragraph 3 it is an accounting unit and its operation is covered

from a separate chapter of the state budget. It is thus a state

organization endowed by law with a large measure of independence, which

is further enabled also through its independent financing from a

separate chapter in the state budget. As follows from § 9 para. 1 of the

Act, the Institute‘s Council has a basic influence on the functioning

of this institution. In a situation where the dominant intent of the

legislature, within the framework of the means which it has at its

disposal, is to attain the maximum independence for this institution, it

is entirely legitimate to lay down non-partisanship as a condition for

membership in it. The subject of the Institute‘s research will be a

period which continues to be politically sensitive, and its findings may

affect various political parties, including those which are in the

Parliament. In its Judgment Pl. ÚS 9/01, published as No. 35/2002 Sb.,

the Constitutional Court formulated - even though in a rather different

context - the conclusion that a democratic state, and not only in a

transitional period after the fall of totalitarianism, can tie an

individual’s entry into state administration and public services, as

well as their continuance therein, to meeting certain prerequisites.

This conclusion is significant for the matter under adjudication in the

sense that the Court recognized the setting of certain limits on the

exercise of fundamental rights, namely in cases where the protection of

democracy is concerned. If we conceive of the Institute as an

institution, the mission of which, as is postulated in the Preamble, is

the protection of democracy, then the above-mentioned restrictions on

the fundamental rights for membership in the Council are legitimate.
 

62.

The petitioners further propose the annulment of § 9 para. 1, lit. a)

and lit. h) of the Act, which provides that the Council has competence

“to lay down the methods for the fulfillment of the Institute‘s tasks”

and “to decide appeals against the Institute’s decisions”. It sees in

the Council’s power to lay down the methods for the fulfillment of the

Institute‘s tasks a genuine danger of encroachment upon the freedom of

scholarly research.
 

63. It

can be said in relation thereto that there is always the risk of a

statutory provision being abused. In its decision-making, through which

it will fill in the content of its competences, the Council cannot

decide outside of the constitutional framework, which, among other

things, obliges it to respect the fundamental freedom of scholarly

research found in Art. 15 para. 2 of the Charter. The Council can

exercise its powers solely within the confines of this constitutional

directive.
 

64. As far as

concerns the Council’s decision-making on appeals against the

Institute’s decisions, the petitioners consider this provision to be

normatively empty, as the Act does not provide for any instances where

the Institute would make authoritative decisions such that an appeal

against its decision, as a procedural remedy, would be a genuine

possibility
 

65. In relation

thereto, the Constitutional Court observes that the referential

criterion for its decision on the annulment of a statute or a part

thereof is conflict with the Constitution. The circumstance that a

statutory provision is normatively empty logically cannot be in conflict

with anything, thus not even with the Constitution. There is no

constitutional foundation for proposing the annulment of the

above-mentioned provisions. Moreover, the Act establishes the competence

of the Council as an appellate instance; the Council shall decide on

appeals relating to the refusal to provide information pursuant to Act

No. 106/1999 Sb. The Constitutional Court can also conceive of an

interpretation according to which the Council should also decide in

conformity with § 9 para. 1, lit. h) in conjunction with § 12 para. 2 of

the Act, for ex., in matters under § 13 para. 1, lit. f), g), and h) of

the Act. Naturally, the Constitutional Court is not called upon to

adopt such interpretive conclusions without linkage to the Constitution.

The way in which this problem is resolved will depend on ordinary court

practice.
 

66. It is further

proposed to annul § 13 para. 1, lit. c), which lays down the competence

of the Archive to oversee the performance of the records service within

the Institute. In the petitioners’ view a curious situation results

thereby, where a subordinate component of a body oversees its superior.

This situation results from the existing statutory arrangement on

archival science and records services. According to it, the Ministry of

Interior directs the National Archive, and the National Archive oversees

the performance of the records services within the Ministry of

Interior.
 

67. According to

the petitioners, this is one of the provisions which, due to its lack of

clarity, contradictory nature, and lack of foreseeability, comes into

conflict with the principles of the democratic, law-based state.

However, these concerns more or less relativize the analogous existing

rules of the Act on Archival Science and the Records Service, according

to which the Ministry of Interior manages the National Archive and the

National Archive, a subordinate body, supervises the performance of

records services within the Ministry of Interior, the body managing it.

That legal arrangement and the administrative relations springing from

it has already been in effect for several years, and the Constitutional

Court is not aware that it has in practice caused complications in the

sense of its comprehensibility, certainty, or foreseeability. In essence

the petitioners are calling into doubt the conception of subordination

in the given case. The specific rules on the relations of superiority

and subordination, which make up one of the principles of the

organization of public administration, are dependent upon the discretion

of the legislature. It is up to it how it organizes individual subjects

into vertical subordination, provided of course that it does not

violate the basic constitutional principles, such as for ex. the

principle of the separation of powers. Nothing of the kind was

ascertained in this case. The Constitutional Court does not consider as

absurd, all the less so from the constitutional law perspective, a legal

framework in which is delegated to a body carrying out a certain

specialized public-law agenda the supervision of the performance of that

agenda by a subject which directs and manages that body in the case of

its other activities. The Constitutional Court considers the case of

police to be a very eloquent example - although they are subordinate to

the Police President, they supervise him as regards whether he observes

the rules of safety and the continuousness of highway traffic; thus it

is also a subordinate body which monitor a body superior to it. Finally

the Constitutional Court has doubts as to whether it is at all possible,

in connection with the supervision of the performance of records

services, to speak of a relation of superior and subordinate. It is led

to this doubt by the content of § 71 para. 1 of the Act on Archival

Science, according to which the supervision of the observation of duties

in the field of archival science and the performance of records

services are performed in according with a special legal act. That act

is Act No. 552/1991 Sb., on State Supervision, as subsequently amended.

However, according to § 3 para. 2 of that act, monitoring performed

within the context of relations of superior and subordinate are not

deemed to be state supervision in the sense of that act. It follows

therefrom that Act No. 552/1991 Sb. exempts the supervision of the

performance of records services from the regime of the relations of

superior and subordinate. Thus the essence of the petitioners’ objection

does not correspond to the reality of legal regulation.
 

68.

Insofar as the petition further proposes the annulment of the final

sentence of § 15 of the Act, according to which the Director of the

Archive shall decide appeals against decisions revoking the right to

examine the documents of the Archive, there are no grounds to do so. It

is a functional provisions governing the arrangements for examining

specific [in relation to § 13 para. 1 lit. g) of the Act] categories of

documents of the Archive, that is, those for which the level of

classification has been cancelled. The Constitutional Court has found no

defect of a constitutional character in the adopted legal scheme;

otherwise the petitioners have not cited any specific reservations.
 

69.

According to § 17, the Archive will become, as of 1 January 2030, a

part of the National Archive. The petitioners have proposed the

annulment of this provision as, in their view, it is incomplete and

uncertain, and its consequences cannot be foreseen. Namely, it is

missing rules governing the consequences of merging the Archive with the

National Archive. In their view, such statutory provisions are in

conflict with the principle of the democratic, law-based state on which,

according to Art. 1 para. 1 of the Constitution, the Czech Republic is

founded.
 

70. According to

the Assembly of Deputies’ statement, this provisions is of a solely

declaratory nature and expresses the will of the legislature to merge

the two archives by the given date. It was added to the Act when the

comprehensive proposed amendment was being drafted and was the outcome

of a discussion with the professional archivist community. While the

formulation of this provision does not correspond to the intention

merely to declare a merger, in the absence of detailed rules of the

conditions for merging, it cannot be interpreted in any other way. If it

can be interpreted in this way, then the objection, that it is an

incomplete and uncertain provisions the consequences of which cannot be

foreseen, falls out.
 

71. The

petition also proposes the annulment of § 19 para. 1, lit. a), which

lays down one of the criteria of reliability for election as a member of

the Institute’s Council, as well as for appointment as Director of the

Institute, as Director of the Archive and as principal employees of the

Institute and Archive working directly under the supervision of the

director of either the Institute or the Archive. According to § 19 para.

1, lit. a), persons are considered reliable, for the purposes of this

Act, if, in the period from 25 February 1948 until 15 February 1990,

they were neither members of, nor candidates for membership in, the

Communist Party of Czechoslovakia or the Communist Party of Slovakia.

Other employees of the Institute and Archive must fulfill the

prerequisites of Act No. 451/1991 Sb., which sets down some additional

preconditions for holding certain offices in governmental bodies and

organizations of the Czech and Slovak Federal Republic, the Czech

Republic and the Slovak Republic, as subsequently amended  (the

“Lustration Act”). The petitioners object that the grounds for

determining unreliability are formal membership in the given political

parties, which grounds in no way take into consideration these persons’

actual conduct. They further emphasize that membership in the Council is

a public office (§ 10 of the Act) and that, under Art. 21 para. 4 of

the Charter, each citizen has the right and opportunity to participate

in the conduct of public affairs.
 

72.

To begin with, the Constitutional Court must at this juncture once

again call to mind that, in its Judgment No. Pl. ÚS 9/01, it concluded,

also with consideration of the jurisprudence of the European Court for

Human Rights, that it is a legitimate aim of the legislation of each

democratic state, in whichever phase of its development, to promote the

idea of “a democracy capable of defending itself” . On the basis

thereof, it then reached the conclusion that a democratic state can tie

an individual’s entry into state administration and public service to

meeting certain prerequisites. But in the cited judgment the

Constitutional Court also unambiguously took a position to the effect

that “an individual’s attitudes to the democratic establishment are

determined primarily by his actual actions.” In this connection, it

calls to mind Act No. 198/1993 Sb. on the Lawlessness of the Communist

Regime and Resistance to It and to its judgment concerning this act

published as No. 14/1994 Sb. The cited act enumerates crimes and other

comparable events which occurred in the territory of the present-day

Czech Republic during 1948-1989 and, in the operative part of the text,

assigns full joint-responsibility for them to those “who supported the

communist regime as officials, organizers or agitators in the political

as well as in the ideological areas.” In the Preamble it states the

special responsibility of the pre-November Communist Party, including

its leadership and members. Thus, it is evident that an individual’s

close ties to the pre-November regime and its repressive components is a

circumstance capable of having an adverse effect on the degree of trust

accorded a public office which that individual holds in a democratic

state, as the Communist regime was identified by the Parliament of the

Czech democratic state as “criminal, illegitimate, and abominable.” Even

though this statute in its Preamble refers to the responsibility of

members of the pre-November KSČ, in the normative part of the statute

speaks about the threat for democracy posed by the „an individual‘s

close ties to the pre-November regime and its repressive components”
 

73.

The Constitutional Court observes that the cited Judgment No Pl. ÚS

9/01, the conclusions of which it now affirms, acknowledges the

possibility to tie the access of the individual to state administration

and public service to the satisfaction of certain prerequisites. It is

the role of the legislature to lay down the prerequisites in a manner

corresponding to the objective for which a particular office is

established. It is not out of the question that, in certain specific

conditions, it prescribe dissimilar criteria for different offices,

albeit ones that are quite similar to each other, while preserving the

elements they share in common. In this regard, various models can be

found, for ex., a judge in the context of the administrative judiciary

when reviewing the disciplinary decision against an attorney is not

obliged to be insured against liability for damage as an attorney-member

of the disciplinary senate is; in contrast to an attorney-member of the

disciplinary senate, a judge of the Supreme Administrative Court cannot

at the same time be an arbitrator, etc. In laying down the

prerequisites, the legislature must always see to it that, in the

relevant field, the due and constitutionally-conforming operation of

state service or public service is guaranteed. The Constitutional Court

is not entitled to direct the legislature to unify the prerequisites for

the holding of various offices that are close to each other, for ex.,

by unifying the age limits for judges and attorneys-members of

disciplinary senates or the education requirements of judges and

representatives of the Public Defender of Rights. Thus, the resolution

of the issue as to whether the stipulated criteria are suitable is also

in principle already assigned to the will of the legislature. It cannot

be overlooked in the matter under adjudication that the Institute and

the Archive are institutions whose task it is to process historical

sources and materials about a period which stands at the very “border of

history”, and, with the maximum degree of objectivity, to provide

information about this period, with the aim of scrutinizing, learning

about and assessing the practices of the totalitarian regime so that in

the future it would be possible to recognize in time the characteristics

of a totalitarian regime and, within the framework of the defense of

democracy, prevent a totalitarian regime from being formed. Just as with

other forms of close ties to the totalitarian regime enumerated in § 19

para. 1 of the Act, the Act does not lay down the issue of membership

in the Communist Party in the period from 25 February 1948 until 15

February 1990 as a ground for a general finding of unreliability, as the

wording of § 19 para. 1 merely negatively defines reliability for the

purposes of the given Act. It is thus quite obvious that this provision

does not disqualify or vilify, nor should it disqualify or vilify,

persons who are not eligible in the sense of § 19 para. 1 of the Act, in

any other sphere of activity, including the possibility of access to

other public offices. The Constitutional Court is of the view that, in

terms of content, this is more a form of bias sui generis than of

reliability or unreliability as viewed solely from the perspective of

linguistic interpretation. The Constitutional Court then gauged the

proportionality between the right of access to public office in the

sense of Art. 21 of the Charter, on the one hand, and the principle of

the protection of democracy, on the other. It came to the conclusion

that the public interest consisting in the protection of democracy is

preponderant. It inferred that the belonging to the totalitarian regime

and institutions defined in the Act on the part of persons listed in §

19 para. 1 of the Act remains a relevant circumstance which can cast

doubt upon the political loyalty and harm the credibility of

institutions such as the Institute and Archive. An analogy of sorts can

be found in the institute of the bias of judges (even here evidence is

marshaled - archival materials, evidence is evaluated - the ascertained

facts are analyzed, and a decision is made - substantiated with findings

made from the heuristics of obtained information). Just as from time

immemorial a person may not act as a judge in her own case, a person who

is active in the field of historiography (and especially in positions

which determine and create the conditions for the activities of the

Institute and Archive, which have the statutorily-defined status as an

impartial and objective institution) could himself, and figuratively

with him the entire institution as well, be impugned due to his ties to

the regime about which the Institute and Archive is meant to conduct

research. Otherwise, a person who belonged to the regime appears to be a

personal observer or a chronicler, rather than an historian. Moreover,

the Constitutional Court took into account, in the given case, the fact

that subject of such research is a regime, which by its propaganda and

ideology, with the aid of censorship and other undemocratic methods

under the leadership of the KSČ [Art. 4 of the Constitution of the

Czechoslovak Socialist Republic (Constitutional Act No. 100/1960 Sb., as

subsequently amended)], intentionally and artificially created its own

image and generated documents which were meant to become historical

sources, in such a manner that later generations would have an image of

this regime that is fictitious, for its glorification and to conceal its

totalitarian nature. If someone had been, for ex., a member of, or a

candidate for membership in, the KSČ or the KSS, even if only briefly,

then in relation to that person there are „grounds to doubt his

impartiality“ and, precisely due to the lack of historical analysis of

the given regime, evidence which would be adduced for and against this

doubt, could for the moment only be relativized. The Constitutional

Court is aware of the idea of American philosopher, George Santayana,

that „those who cannot remember the past are condemned to repeat it.“ In

the Constitutional Court‘s view, doubts about the Institute’s and the

Archive’s loyalty would call into question their activities alone due

the fact that they would not appear effective or rapid enough,

sufficiently financed, or amply ably managed. In gauging the intensity

of the interest in the protection of democracy and the interest in

knowledge of the past against the right of access to a very

narrowly-defined public office, which is an option for a decreasing

group of persons, the Constitutional Court has come to the conclusion

that the public interest in the protection of democracy is at this

moment, that is, at the time of its decision, more intensive. Last but

not least, one cannot overlook the fact that the contested § 19 of the

Act does not concern researchers working in the Institute, only members

of the Council and principal employees in the sense of § 18 of the Act.

The Constitutional Court took into account the fact that the freedom of

research is fully guaranteed for researchers in the Institute and that

even those who would not, on grounds of the impediments laid down in §

19 of the Act, succeed as an applicant for one of the

statutorily-defined group of offices, do have the opportunity to devote

themselves to the given themes as internal or external researchers.
 

74.

The cited interpretation can be concluded by the assertion that § 19

para. 1 lit. a) of the Act is not in conflict with the right guaranteed

in Art. 21 para. 4 in conjunction with Art. 4 para. 3 of the Charter.
 

75.

In the case of § 21 para. 1 of the Act, which resolves issues of the

exercise of rights and performance of duties resulting from employment

relations of employees of the Czech Republic affected by the creation of

the Archive, the petitioners have called into question its

constitutionality due to it incomprehensibility and partial

unenforceability. After all, the provision speaks solely of employment

relations, whereas the object of the merger are archives where service

is performed by members of the armed forces, who are in service

relations. In relation to state employees, the petitioners then express

their doubts as to whether the passage, ex lege and without their

consent, of rights and obligations arising from employment relations

conforms with Art. 26 para. 1 of the Charter. They refer to the fact

that the passage should occur from a number of diverse offices to an

entirely different office, which is organizationally classified under

the system of state administration entirely different from for ex. a

ministry, so that an employee, for ex., from a ministry could

justifiably view that as demeaning. Moreover, such passage ex lege

occurs only if the conditions of reliability and irreproachability, as

well as the conditions laid down in Act No. 451/1991 Sb., are met.
 

76.

The Constitutional Court conceives of the contested provision above all

as a provision for the protection of employees. There is no question of

it being a violation of Art. 26 para. 1 of the Charter, because the Act

was promulgated on 12 July 2007 and the rights and obligations arising

from employment relations pass to the Archive only as of the first day

of the seventh calendar month following its promulgation, that is, on 1

February 2008. Each employee had sufficient time in which, if he so

desired, to exercise his right to terminate employment relations, thus,

did not have to pass to the employer against his will. As far as the

issue of members of the armed forced is concerned, it is evident that,

if in the period from 12 July 2007 until 1 February 2008 they did not

become employees in employment relations, they remained thereafter in

service relations with their existing employers. As follows from the

Assembly of Deputies’ statement, they were given the opportunity to

switch from service to employment relations.
 

77.

In assessing the contested legal enactment, the Constitutional Court

further came to the conclusion that the bounds of constitutionality were

transgressed by the content of a portion of § 7 para. 9 of the Act,

according to which the Senate may remove a member of the Council, if she

fails to perform her duties in due fashion or for a period longer than

six month, in particular the words „in due fashion or“, with accent on

the due performance in office. The Constitutional Court here hastens to

point out that it did not neglect to consider whether the derogation of

the provision at issue would exceed the scope of review defined by the

petition, in other words, whether the given provision is even eligible

for review on the merits. It is true that the petitioner did not include

§ 7 para. 9 of the Act in the list of provisions which, as an

alternative to the annulment of the Act in its entirety, it proposed be

annulled. The provision at issue was thereby neither put forward nor

suggested as a separate argument for unconstitutionality. Nonetheless,

one of the supporting grounds for proposing that the Act be annulled in

its entirety is the institutional opportunity to politically influence

the work of the Institute, consequently also an intrusion upon the

freedom of research. On the grounds laid out below, it did not find that

the provision at issue presents the danger of such political intrusion

into the work of the Institute in the form of unwarranted interference

into the composition of its Council, that is, the body which directs the

methodological aspects of the research. In this respect, the

Constitutional Court is of the view that the petitioner has not met the

burden of proving the asserted unconstitutionality.
 

78.

The statutory regime for scholarly research in the Czech Republic

proceeds from the constitutional standards contained in Art. 15 para. 2

of the Charter and is found in particular in Act No. 111/1998 Sb., on

University-Level Schools and on Amendments and Supplements to Further

Acts (the Act on University-Level Schools), as subsequently amended, Act

No. 283/1992 Sb., on the Academy of Sciences of the Czech Republic, as

subsequently amended, and Act No. 130/2002 Sb., on the Support of

Research and Development from Public Funds and Amendments to Certain

Related Acts (Act on the Support of Research and Development), as

subsequently amended. As scholarly research is conceptually tied up with

the category of freedom (see Art. 15 para. 2 of the Charter), all

statutorily-established scholarly institutions are constructed on the

principle of self-administration, independence and separateness from

state power. Accordingly, the bodies of these institutions

(university-level schools, the Academy of Sciences of the Czech

Republic) are formed by the scholarly community (in the case of

university-level schools, for example, the academic community). In this

respect, the Institute’s scholarly objective comes into conflict with

the manner in which its highest organ, the Council, is composed.

Pursuant to § 7 para. 1 of the Act, its members are elected and removed

by the Senate of the Parliament of the Czech Republic. The

Constitutional Court still considers this method for electing the

Council‘s members as acceptable, since there is, in that case, at least a

diversity among those who will propose candidates, and they are

subjects external to the political milieu. The issue of the selection of

individual candidates is thus more or less an issue of political

culture and maturity, whether the electors are able to abstract from the

political aspects and give priority to criteria of expertise. What

must, however, be designated as unacceptable, in terms of the guarantee

of the freedom of research, is the method for removal of Council

members. Pursuant to Section 9 of the mentioned statutory provision, the

Senate “may remove a member of the Council, if she fails to perform her

duties in due fashion . . . ”, which creates unrestricted scope for

removal. It is the standard approach that, if a legal scheme provides

for the installation of officials of an independent institution (body),

not through some form of self-government, rather by the decision of

political body (as is the case in this matter), their independence is

thus provided by the guarantees of the non-removeability (if the

opposite applies, that is, where appointment and removal power are

aggregated, then a relationship of subordination is established). As was

stated above, membership in the Council is a public office. According

to Art. 21 para. 4 of the Charter, citizens are entitled to access, on

an equal basis, to any elective and other public office. The

Constitutional Court has already previously held (see Judgment No. II.

ÚS 53/06 of 12 September 2006, published at www.judikatura.cz) that Art.

21 para. 4 of the Charter does not relate solely to access to public

office in the sense of entry into office, rather it comprises also the

right to the undisturbed performance of the office, including the right

to protection from unlawful deprivation of the office, as participation

in the administration of public affairs, which is the sense of Article

21 in its entirety, is not exhausted merely by gaining office, but

logically it persists throughout the period an office is held. What

follows therefrom, in relation to the matter presently under

adjudication, is that membership in the Council must be protected from

arbitrary conduct by the state throughout the period that office is

held, thus also in the formulation of the grounds for removal therefrom.

However, the wording of the provision of the Act in question does not

comport therewith.
 

79. The

Constitutional Court has therefore annulled the words, „in due fashion

or“, in § 7 para. 9 of the Act, as the formulation of this ground, which

establishes the possibility for the Senate to recall a member of the

Council, is in conflict with Art. 15 para. 2 and Art. 21 para. 4 of the

Charter. The derogation of this provision will occur with effect from

the day this Judgment is published in the Collection of Laws.
Notice: The decision of the Constitutional Court cannot be appealed.

Brno, 13 March 2008





Pursuant

to § 14 of Act No. 182/1993 Sb., on the Constitutional Court, as

subsequently amended, Justices František Duchoň, Pavel Holländer,

Vladimír Kůrka, Jan Musil, Jiří Nykodým, Pavel Rychetský and Eliška

Wagnerová have filed dissenting opinions to the decision of the Plenum,

and Vojen Güttler has filed a separate opinion dissenting from the

reasoning.
 


1. Dissenting Opinion of Justice František Duchoň
The

grounds of my dissenting opinion derive from my disagreement with the

statement of judgment (better yet, with what was missing from it) and

with the portions of the reasoning of Judgment Pl ÚS 25/07 corresponding

thereto.
 

As concerns the

statement of the cited judgment, I am of the view that the

Constitutional Court Plenum should have, in its constitutional review of

Act No. 181/2007 Sb., on the Institute for the Study of Totalitarian

Regimes and on the Archive of Security Organs and on the Amendment of

Certain Statutes, annulled § 7 para.6, the final sentence, which reads,

“Membership in the Council is incompatible with membership in a

political party or political movement”, as well as § 19 para. 1, lit.

a), which reads, “Membership or candidate membership in the Communist

Party of Czechoslovakia or the Communist Party of Slovakia”.
 

If

we put to one side the petitioners‘ predominantly political,

polemical-historical, or general legal arguments, the only arguments of

constitutional relevance are, in my view, those faulting the mentioned

Act for its conflict with Article 15 para. 2 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter „Charter“),

guaranteeing the freedom of scholarly research and of artistic creation,

as well as with Article 3 para. 1 of the Charter (the prohibition of

discrimination), Art. 20 para. 2, Art. 21 para. 4, and Art. 44 of the

Charter.
 

As far as concerns

the assertion that the Act establishing the Institute for the Study of

Totalitarian Regimes conflicts with Art. 15 para. 2 of the Charter, I

share the view of the Plenum’s majority, according to which the mere

establishment of the Institute is not of constitutional law dimension.

Happily we live under democratic conditions, in which the possibilities

to abuse such an Institute, whether politically or otherwise, are

substantially restricted, if not excluded. The freedom of historical

research exists and is guaranteed. The establishment of the Institute

does not threaten the etatization of historical research or the

evaluation of the historical period of which the Act speaks. Thus,

nothing prevents other historians or institutes from freely devoting

themselves to the period at issue and, by the quality of their work,

being able to compete with the output of the Institute at issue. What

will prove decisive in the future will be the quality of their approach

and probably the sole danger can be seen in the possibility that the

Institute’s output will come out on glossy paper bound in leather,

whereas the output of others will only be in brochures made from

recycled paper.
 

It must be

pointed out that, in these regions, historical scholarship has not fared

particularly well in any sense, especially in the second half of the

20th Century (consider for ex., the more or less regularly repeating

“purge of historians”). Although the freedom of scholarly research was

ensured after 1989, historical research has in no sense been viewed as

attractive for the young generation, as the pay is dreadful. This

circumstance is evidenced even by the flight into politics of certain

historians (Bašta, Špidla) . Paradoxically, the Institute’s existence

could assist in reviving interest in history, which is currently

declining to an ever greater degree.
 

The

situation is different for § 7 para.6, the final sentence, of the

mentioned Act, which reads “Membership in the Council is incompatible

with membership in a political party or political movement”. In my view,

this provision is in conflict with Art. 3 para. 1, Art. 20 para. 2,

Art. 21 para. 4, and

 

Art. 44 of the Charter.
According

to Article 3 para. 1 of the Charter, everyone is guaranteed the

enjoyment of her fundamental rights and basic freedoms without regard to

gender, race, color of skin, language, faith and religion, political or

other conviction, national or social origin, membership in a national

or ethnic minority, property, birth, or other status.
 

Art.

20 para. 2 of the Charter introduces the right of citizens to form

political parties and political movements and to associate in them. This

right may be restricted by law, if such is necessary in a democratic

society for the security of the state, the protection of public security

and public order, the prevention of crime, or the protection of the

rights and freedoms of others.


Art.

21 para. 4 of the Charter provides that citizens shall have access, on

an equal basis, to any elective or other public office.
 

According

to Art. 44 of the Charter, restrictions may be placed upon the

exercise, by judges and prosecutors, of the right to engage in business

enterprises and other economic activities, as well as of the right

enumerated in Article 20 para. 2; upon the exercise of those rights by

employees in state administration and in local self-government, holding

the positions specified therein, as well as upon their exercise of the

right enumerated in Article 27 para. 4; and upon the exercise of those

rights by members of security corps and members of the armed forces, as

well as upon their exercise of the rights listed in Arts. 18, 19, and 27

paras. 1 to 3, insofar as such is related to the performance of their

duties. The exercise of the right to strike by persons who engage in

professions essential for the protection of human life and health can be

restricted by law.
The Council‘s powers are predominantly internal

to the Institute, and the majority of them do not even have the status

of the exercise of state administration. According to § 3 of the Act,

the Institute is a public-law institution; hence membership in its

Council is a public office. Thus, the exceptions to the general

prohibition on discrimination, enshrined in Art. 20 para. 3 in

conjunction with Art. 44 of the Charter, cannot be applied to membership

in the Council, since, due to its competences as laid down in § 9 of

the mentioned Act, membership in the Council cannot be subsumed under

any of the activities enumerated in Art. 44 of the Charter.
 

In

my view, the Court should also have annulled § 19 para. 1, lit. a) of

the mentioned Act, according to which persons who were members or

candidates for membership in the Communist Party of Czechoslovakia or

the Communist Party of Slovakia at any time between 25 February 1948 and

15 February 1990 are deemed to be unreliable for the purposes of the

Act under adjudication.
 

A

citizens whose unreliability is defined in this way cannot be elected a

member of the Institute‘s Council, cannot be appointed either the

Director of the Institute, or the Director of the Archive or a principal

employee of the Institute or Archive directly subordinate to either the

director of the Institute or the Archive. Other employees must meet the

prerequisites under Act No. 451/1991 Sb. (the „Lustration“ Act). This

means that, according to the mentioned Act, the mere membership in the

Communist Party during the decisive period, which might have lasted for

only a brief time, is such a grave circumstance that to place such

persons into any of the offices referred to it is capable of threatening

the „democratic operation“ of the Institute and Archive.
 

According

to Art. 4 para. 3 of the Charter, any statutory limitation upon the

fundamental rights and basic freedoms must apply in the same way to all

cases which meet the specified conditions. Under § 3 para. 2 of the Act,

the Institute is an organizational component of the state. According to

§ 12 para. 2 of the Act, the Archive is an administrative office which

is directly administered by the Institute. The employees and officials

of this institution are state employees. Thus, no reason is adduced as

to why the statutory restriction of their fundamental rights and basic

freedoms should essentially differ from the relations governing other

state employees. The requirement of “reliability” formulated in this way

is disproportionate even in comparison with the definition of

irreproachability as a formal requirement for holding other state

offices.
 

The specific level

of engagement of a given person is not even taken into account under §

19 para. 1, lit. a). Conditions set in this manner are not proportional,

especially in relation to the prerequisite qualifications for the

performance of other offices in the state, including those the

performance of which directly influence the character of the country.

The conditions prescribed for applicants for the principal offices in

the Institute and the Archive are much stricter than are those, for

example, for candidates for the office of President of the Republic, or

for other highly significant constitutional offices in the State. Such

prescribed conditions exclude from the given offices even such

individual historians from the ranks of former Communists who, by their

work and subsequent level of engagement have demonstrated their very

valuable service to the evolution of democracy in this country.
 

In

this connection I consider it suitable to note that not all of us were

given the gift of „the true faith“ already at birth. It is always

necessary to respect the right of each to the individual development of

his own personhood. In my view it is high time to abandon „the

revolutionary principle of collective responsibility“, which it has

often been customary to apply following each significant historical

turning point. Murder is statute-barred after 20 years; membership in

the Communist Party is in effect never statute-barred. Thus

paradoxically the Act once more ushers in, turned on its head, the old

Bolshevik approach whereby, especially after 1968, persons expelled or

struck out from the KSČ became, up until the end of their days (if they

did not live to see 1989), citizens of a lower rank. As such it was not

only they who permanently felt the effect of that status, but also their

families, for ex., their children, by being excluded from university

studies.
 

It is necessary

always to formulate the conditions of reliability and irreproachability

in a manner which will respect the requirements in a modern democratic

society for the staffing of given specific offices and the interest in

the protection of democratic values, expressed above all in the

constitutional order of the Czech Republic.
 



2. Dissenting Opinion of Justice Vladimír Kůrka

I

share with the other dissenting Justices the view that the Court should

have granted the petitioners also as respects that part of the petition

proposing the annulment of a) § 7 para. 6, second sentence, and b) § 19

para. 1, lit. a) of Act No. 181/2007 Sb., on the Institute for the

Study of Totalitarian Regimes and on the Archive of Security Organs and

on the Amendment of Certain Statutes.
 

Re

a): the incompatibility of membership in the Institute’s Council with

membership in a political party or a political movement, which is found

in § 7 para. 6 of the Act, conflicts with Art. 20 para. 2 of the Charter

of Fundamental Rights and Basic Freedoms, as the proper restriction

upon the right there enshrined to associate in political parties and

movements, anticipated in Art. 20 para. 3, alternatively Art. 44 of the

Charter, cannot - in view of the nature of the Institute and the status

of the Council within it - even be asserted in this case; the conditions

for the constitutionally possible restriction are not satisfied in

relation to membership in the Council, either in terms of facts or of

the proper subjects, which is entirely evident; alternatively, the

decisive characteristics of that membership cannot even be likened to

these conditions, much less could it be subsumed under them.
 

Re

b): the opinion on the unconstitutionality of the definition of

“reliability”, in the sense of § 19 para. 1, lit. a) of the Act, in the

form of membership or candidate membership in the Communist Party of

Czechoslovakia or the Communist Party of Slovakia in the period from 25

February 1948 until 15 February 1990, and thus the creation of an

impediment to such persons holding office as a member of the Council,

follows from its generality and its all-inclusive nature, which

completely gives up any attempt at individual evaluation, or assessment

of the circumstances of a specific person’s “involvement” in the regime,

his reasons therefore, as well as external socio-political

manifestations. In consequence of this alone, the statutory scheme lacks

the constitutional quality of a measure that is purposeful, suitable

(least intrusive), and proportional, which then appears in a

particularly illustrative manner in relation to the legal arrangements

of the so-called lustration acts (their objects and the reason

therefor). On the contrary, membership in the Communist Party during the

decisive period could, in relation to the conditions of membership in

the Council, be assessed solely individually, in the specific „story“ of

the individual (including his externally manifested reflexes), namely

in the setting of an individual moral assessment, which would allow for

its outcome to be subsumed, not under the category of „reliability“, but

of „irreproachability“; otherwise, such construction of this condition

is made possible, without more, by the negative definition in § 19 para.

2 of the Act.
 

The majority

opinion bases the existence (the contrary) of a relation of proportion

between “the public interest in the protection of democracy” and the

right of access to public office on a single argument, that is, of “bias

sui generis” (by which is understood the bias of a former member of the

Communist Party), which is not only an insufficient, but even an

inapposite, argument, as naturally not even the prospective fear of

“bias” by a member of the Council reaches the level of the protected

public interest, nor is it prima facie sufficient for that purpose. The

questionable effect of the asserted argument is then underlined by the

fact that, according to the very reasoning of the Judgment, it is as if

perceived in a positive light that the restriction under § 19 para. 1,

lit. a) of the Act does not affect the actual internal researchers of

the Institute, that is, this “bias” is not a cause for concern in

relation to them.
 



3. Dissenting Opinion of Justice Jan Musil

I

do not concur either with statement of judgment II or with the

reasoning of Judgment No. Pl. ÚS 25/07. Pursuant to § 14 of Act No.

182/1993 Sb., on the Constitutional Court, as subsequently amended, I

append a dissenting opinion to the Judgment.
 

I

consider Act No. 181/2007 Sb., on the Institute for the Study of

Totalitarian Regimes and on the Archive of Security Organs and on the

Amendment of Certain Statutes, to be unconstitutional in its entirety

due to its conflict with several provisions of the constitutional order:
I. Violation of the Freedom of Scholarly Research
 

1.

In the first place, I believe that the Act violates the freedom of

scholarly research, which is guaranteed by Article 15 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms (hereinafter

„Charter“). This provisions reads: “The freedom of scholarly research

and of artistic creation is guaranteed.“
 

The

obligation of states “to respect the freedom indispensable for

scientific research and creative activity” is enshrined also in Article

15 para. 3 of the International Covenant on Economic, Social and

Cultural Rights (published as No. 120/1976 Sb.), to which the Czech

Republic is a signatory state.
 

2. In terms of constitutional law, the freedom of scholarly research must be conceived of in a double sense:
a)

First and foremost it is an individual human right - each person who

engages in scholarly activity („scholar“) is protected from the state

intervening in any way into her scholarly work. The encroachment by

public authorities into the process of scholarly research is simply

ruled out. In the free „protected area“ of scholarship, the scholar acts

autonomously, solely on his own responsibility. This freedom is

absolute, is not subject to any exception and is entirely free from

regimentation, does not require for its enjoyment any empowerment or

implementing legal norm. The freedom of scholarly research accords to

each scholar the right to free, personal self-realization, unrestricted

by external intrusion from state power.
 

In

this first sense, the principle of the freedom of scholarly research

represents the prohibition of state intrusion into the content and

methods of scholarly research.
 

It

is obvious (as is the case for all human rights) that the freedom of

scholarly research also has it boundaries – it ends in the place where

it collides with other constitutional rights (for ex., with the right to

life, to human dignity). Ethical norms also constitute the natural

corrective of the freedom of scholarly research.
 

b)

In the modern cultural state, the freedom of scholarly research has

still another aspect, namely a social one. Scholarship and science are

considered as a public good which accrue to the benefit of mankind. The

evolution of contemporary scholarly and scientific knowledge is

inconceivable solely through individual effort, as it requires the

collective action of scholarly teams and the expenditure of immense

sums, which the individual cannot provide for solely through his slight

power. In consequence thereof, the state must take active steps for the

benefit of scholarship and science – that it support scholarship and

science by providing financial and other material resources toward its

development and by adopting suitable organizational and legal measure

for the cultivation of scholarship and science and pass on scholarly and

scientific knowledge to future generations.
 

The

state has a duty to ensure that it is possible for all citizens, if

they manifest the interest, to take part in scholarly and scientific

work. At the same time the state has to rule out any sort of monopoly on

scholarship and science; that would, after all, contravene peoples’

natural rights, as well as the progress and dissemination of education,

peaceful coexistence of citizens, and the idea of pluralism.
The

principle of the freedom of scholarly research, in this second sense,

represents a directive that the state protect and support scholarly

research. However, even this sense does not give the state authority to

use its power to intervene in any way into the content and method of

scholarly research.
 

3. A

discussion on the essence of scholarship and on the freedom of scholarly

research has been ongoing for centuries and presumably will never be

concluded. Nevertheless, it appears that this centuries-long evolution

has up till now yielded several invariable and unquestionable

conclusions, for ex.:
-    there is no scholarly authority superior

to others; any attempt to create just such an authority has often in

history been the source of scholarly stagnation, error and limitation; a

hierarchy, the relationship of superior and subordinate is anathema to

the essence of scholarly research;
-    it is impermissible to make an external selection of the issues into which scholarship should or should not inquire;
-  

 nobody has a monopoly on scholarship; the routes toward understanding

cannot be restricted, and one cannot impose his view so that it will be

binding on others as well; the consequence of such efforts is

homogenization, which leads to the stagnation of scholarly progress;
-  

 the evolution of scholarship and science lies in the discussion by

scholars and scientists both among themselves and with other members of

human society;
-    scholarship and science are open to new ideas and

methods; disputes about methods and theory are necessary - it is

important not to limit ourselves in the process of seeking paths and

means to acquire knowledge;
-    scholarship and science never yield,

once and for all, „the definitive truth“, rather it approaches possible

truths by means of various approaches; interpretations considered at

certain times as valid have been overturned many times in history;

Thomas Kuhn deems it beneficial for the evolution of science to include

also controversial problems into scholarly and scientific debates and

not to exclude a priori the possibility that knowledge exists which

exceeds the bounds of the standards recognized in a given period (Kuhn,

T., The Structure of Scientific Revolutions, Prague : OIKOYMENH, 1997)

[Translator’s note: The judgment references the Czech translation of the

original English version of this book.];
-    scholarship and

science subsists in the method, not in the issues dealt with; any issue

whatsoever can be analyzed either in a scholarly or scientific, or in a

non-scholarly or non-scientific, manner;
-    research in all fields

of human endeavor constantly brings with it new findings that are

beneficial to mankind, but it is also full of trials, errors, dead ends,

and surprising conclusions; if the permissible range of the

investigation of the world is administratively restricted, or if only

certain methods are “allowed”, that creates the danger that we will pass

by a great many desirable directions and resign ourselves to not coming

to know the full multifarious character of the world.
 

4.

History has recorded a large number of attempts at state-directed and

legally regulated scholarly research, as well as the creation of state

scholarly institutions or institutions subject to state supervision.

Certain of these state-subordinated scholarly institutions were brought

forth by absolutistic feudal lords, such as the French Minister,

Cardinal Richelieu, who in 1635 established the French Academy (Académie

française); also in 1666 King Louis XIV established the French Academy

of Sciences (Académie des sciences); in 1700 the Prussian Elector, and

later Prussian King Frederick I, established the Prussian Academy of

Science (Preußische Akademie der Wissenschaften). These historical

models, grounded on the conception of the „caretaker“ state, very soon

exhausted their developmental potential and later became rather a brake

upon scholarly and scientific discovery. It was demonstrated that the

guardianship of the state does not contribute to the advancement of

scientific knowledge and produces a whole host of negative societal

consequences.
 

5. It was

recognized, already at the beginning of the 19th Century, that the

genuine advancement of scholarship and science is possible only where

the scholars and scholarly institutions, above all the universities,

enjoy far-reaching autonomy and independence from the state. The idea of

far-reaching academic autonomy was advanced, for ex., by the founder of

the University of Berlin, Wilhelm von Humboldt (1810). In Central

Europe the liberal principle of the freedom of scholarly research was

first successfully enshrined in the German Imperial Constitution,

adopted by the Frankfurt Assembly in 1849.
 

In

the Twentieth Century the freedom of scholarly research found its way

into the constitutional documents of nearly all democratic states. A

provision to the effect that “scholarly research and the inculcation of

its findings . . . shall be free, to the extent they do not violate the

Criminal Code”, was contained in § 118 of the Constitutional Charter of

the Czechoslovak Republic of 1920 (introduced by Act No. 121/1920 Sb.)
Furthermore

§ 19 of the 1948 Constitution of the Czechoslovak Republic (No.

150/1948 Sb.) contained the following provision: „The freedom of

creative spiritual activity is guaranteed. Scholarly research and the

inculcation of its findings, as well as art and its expression, shall be

free, to the extent they do not violate the Criminal Code“.
 

6.

The tragic historical turning point occurred in countries ruled by

regimes which are designated as totalitarian. The encroachment into

scholarly research assumed monstrous forms during the Nazi Regime in

Germany, where a whole host of state pseudo-scientific institutions were

established, producing mendacious arguments in support of racist

theories [for ex., the Research Community of Ancestral Heritage

(Forschungsgemeinschaft Deutsches Ahnenerbe) established by Himmler in

1935 or the Institute for Protected Scholarly Research (Institut für

wehrwissenschaftliche Forschung) founded in 1941] and engaging in

heinous “medical experiments” on humans.
The tendencies to establish

state-directed scholarship and ideological indoctrination through

scholarship and the educational system was also characteristic of the

Communist state regimes, which strived especially to subjugate the

social sciences.
 

7. After

all the mentioned woeful historical experiences, unambiguously

demonstrating that state and political influence is capable of retarding

and distorting the direction and findings of scholarly knowledge and of

misusing it for the establishment of utilitarian political, or even

inhuman, objectives, the democratic states once again, after the fall of

totalitarian regimes, unequivocally recognized the freedom of scholarly

research as a constitutional principle. In Germany, the freedom of

scholarly research was enshrined in Article 5 para. 3 of the Basic Law

(Grundgesetz) from 1949; in 1991 the Czechoslovak (Federal) Constituent

Assembly did the same in Article 15 para. 2 of the Charter.
 

8.

It is generally acknowledged that political and ideological

manipulation of scholarship or science is extraordinarily dangerous,

above all due to the fact that scholarship and science commands great

authority in the eyes of the public (especially for the young

generation); scholarly or scientific knowledge, or anything presented as

such, is often accepted uncritically and with trust. If the governing

political force succeeds in harnessing scholarship and science to its

service, it gains a powerful ally in pushing through its political

objectives, which deforms the normal democratic milieu.
 

9.

To the extent that foreign modern democratic states establish or

finance from public funds scholarly institutions, they strive to create

for them such a legal and organizational framework as would provide a

high level of autonomy and free them from the direct influence of state

bodies. In contemporary democratic states, scholarly institutions are

decidedly not considered a component of the state. Although certain

foreign scholarly societies are, in terms of their legal personality,

considered as public-law bodies, the state‘s influence on the content of

their work is either entirely excluded or is minimalized. For ex., the

contemporary Germany scholarly institutions, of which there are a large

number (Max-Planck-Gesellschaft zur Förderung der Wissenschaften,

Berlin-Brandenburgische Akademie der Wissenschaften, Bayerische Akademie

der Wissenschaften, Sächsische Akademie der Wissenschaften [the Max

Planck Society for the Advancement of Science, the Berlin-Brandenburg

Academy of Sciences and Humanities, Saxon Academy of Sciences and

Humanities, and the Bavarian Academy of Sciences and Humanities] and

others) or the Austrian Österreichische Akademie der Wissenschaften [the

Austrian Academy of Sciences] enjoy legal status as „public-law“

corporations detached from the state (Staatsferne Körperschaften

öffentlichen Rechts).
 

10.

All modern states take it for granted that, while scholarly research is

to enjoy financial support from public resources (often much more

generous than is the case in the Czech Republic), still in the majority

of countries the democratic law-based state meticulously restrains

itself from in any way intermeddling into the methods or content of

scholarly research or into the internal affairs of scholarly

institutions. Scholarly institutions enjoy far-reaching autonomy in the

establishment of their top bodies, in the selection and governance of

their members and employees, and in the assessment of findings resulting

from their scholarly work.
 

11.

The above-mentioned principles of free scholarly research, which in

developed European countries today are considered as the prevailing

constitutional standard, can be well substantiated from the

groundbreaking judgment of the German Federal Constitutional Court of 29

May 1973 (the „Hochschul-Urteil“, BVerfGE 35, 79, Nos. 1 BvR 424/71 and

325/72). I take the liberty of citing several ideas from this judgment,

which has made its way into all renowned European constitutional law

textbooks:
-    “To the extent that scholarship or science are

pursued in institutions which are established by, or maintained from,

public funds, the state must, through suitable organizational measures,

take heed that the fundamental right to free scholarly activity not be

disrupted by anybody, but only to the extent that such is possible with

regard to other legitimate tasks of scholarly facilities and with regard

to the fundamental rights of various participating persons. [Headnote

to the Judgment].”
-    “As follows from Article 5 para. 3 of the

Basic Law, the bearers of the fundamental right to free scholarly

activity enjoy the right to such state measures as are essential for the

protection of the constitutionally-guaranteed free area, allowing for

free scholarly activity . . . within this compass absolute freedom

reigns, and any intrusion by state authorities is ruled out.“ [Headnote

to the Judgment].
-    „The freedom of scholarly research does not

relate solely to one certain conception of science or scholarship or to

one certain scientific or scholarly theory. The guarantee of this

freedom is accorded more or less to any scholarly activity, that is, to

anything which can, in its content and form, be considered as a serious

and well thought out attempt to ascertain the truth.” [Point 128 of the

reasoning of the Judgment].
-    „The freedom of scholarly research

includes especially the freedom to decide on the questions to be

researched (Fragestellung), the methodological principles, the

assessment of the research findings and their dissemination.“ [Point 130

of the reasoning of the Judgment]
-    „The freedom of scholarly

research benefits both the self-realization of the individual and to the

development of society as a whole . . . this entails not only the

rejection of state intrusion into the field of scholarship, but also the

state’s engagement to protect and support scholarship and to prevent

that the guarantee of this freedom be liquidated.“ [Point 131 of the

reasoning of the Judgment]
-    „The state should, through suitable

organizational measures, take heed that the fundamental right to free

scholarly activity remain inviolate . . . The crux of scholarly activity

(Kernbereich) must in principle be reserved to the autonomy of

individual scholars.“ [Point 133 of the reasoning of the Judgment]
-  

 „As far as its content and methods are concerned, scholarly research

must be freed from the influence of state power. The state should limit

itself solely to the governance of the external affairs of scholarship

and university-level schools, namely to their financing within the

bounds of the state budget and to indispensable administrative

supervision.“ [Point 138 of the reasoning of the Judgment]
 

12.

According to § 4 of the cited Act, the statutorily-established

Institute for the Study of Totalitarian Regimes should carry out tasks

which, by their nature, are typical scholarly work: it should conduct

historical research, analyze and document the causes of historical

events, cooperate with other scholarly and educational institutions,

publish the results of its work, issue and disseminate publications,

organize seminars, expert conferences and discussions, etc.
 

13. Act No. 181/2007 Sb. violates, in many respects, the freedom of scholarly research:
-  

 the legislature employs a legal norm to prescribe with binding effect

the subject of scholarly research, which in the given case is defined by

a firmly-circumscribed time period; some justified doubts can be raised

concerning the precision of this temporal designation, certain of which

have been legitimately cited by the petitioner (for ex., whether, in

terms of historical periodization, the blending together of the period

of the Second Republic with the period of the Protectorate passes

muster; whether all periods of the Communist Regime, for ex., the time

of the „Prague Spring“ can be designated as a part of the totalitarian

period). In place of diffusing or confirming these doubts through expert

discussion, which should itself be a part of scholarly research, the

legislature selected the route of normative decree - that is, an

approach which scarcely has anything in common with scholarship;
-  

 the legislature designated in advance the entire time period under

investigation by the evaluative label, „totalitarian“, which brims with

an a priori pejorative connotation; it thereby intimated in advance what

the research findings should be; moreover, such a designation is not

clearly and uniformly defined in political science, so that, to the

extent it is transplanted into a legal norm, it fails to satisfy the

constitutional requirement of certainty;
-    the installation and

removal from the highest bodies of the Institute for the Study of

Totalitarian Regimes, that is, the Institute’s Council, is exclusively

in the hands of state and political bodies; this Council’s members are

elected and removed by the Senate of the Parliament of the Czech

Republic, and not even its further operation is in any sense influenced

by any elements of self-government, that is, by representatives of the

scholarly community itself; and such self-governing bodies are a natural

part of the life of scholarly and university institutions in a

democratic state (see, for ex., the Assembly of the Academy of Sciences

of the Czech Republic, and university senates and academic councils) and

are regarded as an important guarantee of the freedom of scholarly

research;
-    According to § 9 para. 1, lit. a) of the Act, the

Institute‘s Council even „lays down the methods for fulfilling the

Institute‘s tasks“; in my view, such directive prescription of the

methods of scholarly work is utterly incompatible with the freedom of

scholarly research.
 

14. I

have reached the conviction that the Institute for the Study of

Totalitarian Regimes, such as it has been conceived in the Act,

definitely came into being by political command and its proclaimed

scholarly mission is merely feigned - in actuality it activities do not

afford any guarantee of objective scholarly endeavor. The directive

which § 4 lit. a) of the Act gives to the Institute, namely to

investigate and assess the circumscribed period „impartially“, is a mere

empty proclamation, if there is no guarantee that it will be satisfied.
 

15.

The considerations expressed in point 54 of the Judgment’s reasoning,

that supposedly “such abuse cannot occur” in the conditions “of a

functioning democracy” and that the apprehension of abuse expressed by

the petitioners is supposedly “the expression of their mistrust in

democracy”, are gross oversimplifications, to say the least. Human

history has been witness to thousands of cases of the abuse of political

power, even in democratic systems. Were democratic systems‘ “immunity”

from the abuse of power to function so automatically as the Judgment

presupposes, then evidently all supervisory and corrective mechanisms

would be superfluous, including the constitutional review performed by

the Constitutional Court. The argument also made there, that for that

matter even “the era which is meant to be the subject of the Institute‘s

research . . . [was] strewn with cases of such abuse”, rather calls to

mind the proverbial “the devil exorcised by Beelzebub”
 

16.

I would like to add that I in no way call into doubt the need and

utility of the historical investigation of the given period. However,

institutions suitable for such research have been created in the Czech

Republic, in the form of an extensive network of universities and

offices of the Academy of Sciences of the Czech Republic, affording

sufficient guarantee of unbiased and respectable scholarly work

excluding the influence of power and politics. If the Government or the

Parliament gained the impression that these institutions have

insufficient personnel or material capacity to manage the job, there was

nothing preventing them from increasing the financing of these

institutions. In order to fulfill this task, it was in no way necessary

to adopt special legislation, contributing to the hypertrophic

proliferation of more and more new legal enactments and new state

institutions. For me it is strange that the Government and that part of

the Czech political representation which proclaim de-etatization, the

notion of the “slimmed-down state”, and austerity budget measures,

create a new institution which decidedly does not correspond to these

proclamations.
 

17. It is

certainly also necessary to recognize that historical scholarly research

of the given periods requires service and technical support for the

processing of the large amount of documentary material. Even for this

purpose, however, there exists in the Czech Republic, similarly to other

democratic countries, a cadre of state and other archives with highly

qualified expert personnel, and without doubt it was possible to improve

their performance through suitable financial, organizational and legal

measures. The Archive of Security Organs, created by the Act, is

duplicative and superfluous.
 

18.

If arguments in favor of pushing through this legislative enterprise

were made from certain similar legal schemes and institutions from other

„post-socialist“ countries, it is proper to note that not everything

which is put forward as a foreign model is indeed worthy of being

emulated. Moreover, far more suitable models can be found abroad.
 

As

an example of foreign legal arrangements which acquitted themselves

well, without at the same time raising constitutional objections, can be

given the German statute on the documents of the state security

services of the former German Democratic Republic

(Stasi-Unterlagen-Gesetz of 20 December 1991- BGBl. I, 1991, p. 2272)

establishing the Authority of the Special Trustee for the Documents of

the Former Stasi (the „Gauck“ Authority). This statute precisely defined

the subject of the Authority‘s activities, the processing of

documentary material of the Ministry of State Security of the former

GDR, as well as of the services created by it, and lays down precise and

constitutionally-conforming rules for the handling of citizens‘

personal data. This institution did not work with a previously defined

ideological or political assignment and did not perform any separate

scholarly task; at the same time, however, it provided scholars

(historians from universities and other independent institutions) with

perfect documentation services. This Authority gained general respect in

Germany, and no serious excesses in its actions have been recorded.

Accordingly, the constitutionality of this institution was in no way

called into doubt in Germany.
 

19.

As the conclusion to this part, I would, in passing, append the thought

of one of the most significant Czech non-Marxist sociologists, Arnošt

I. Bláha, who wrote that scholarship should represent an island of

deliberation, against whose shores the waves of malevolent

aggrandizement of political life do not crash (Bláha, A. I.: Sociology,

Prague: Academia, 1968, p. 173). If only such a wish would come true in

the Czech Republic!
 


II. The Violation of the Right to Associate in Political Parties and Movements
 

20.

In my view, the last sentence of § 7 para. 6, to the effect that

“membership in the Council is incompatible with membership in a

political party or a political movement”, violates the fundamental right

of citizens to associate in political parties or political movements,

enshrined in Article 20 para. 2 of the Charter. I consider it out of the

question for a restriction placed upon this fundamental right to be

justified by reference to Article 20 para. 3 of the Charter, according

to which this right can be limited “only in cases specified by law, if

it involves measures that are necessary in a democratic society for the

security of the state, the protection of public security and public

order, the prevention of crime, or the protection of the rights and

freedoms of others.” Membership in the Institute’s Council decidedly

does not have the character of such activities from which the necessity

to restrict the right of association would follow.
In my view, the

arguments made in point 61 of the Judgment’s reasoning for the purpose

of refuting the petitioners’ objections is inapposite.
 


III.

The Violation of the Prohibition of Discrimination and of the Right to

Take Part in the Administration of Public Affairs through Holding Public

Office
 

21. In my view, §

19 para. 1 of the contested Act, which lays down the conditions of

reliability for the holding of office as a member of the Institute’s

Council (§ 7 para. 5 of the Act), the Director of the Institute (§ 11

para. 2 of the Act), the Director of the Archive (§ 12 para. 4 of the

Act), leading employees of the Institute directly subordinate to its

Director and leading employees of the Archive directly subordinate to

the Director of the Archive (§ 18 of the Act), results in a violation of

the prohibition of discrimination in the sense of Article 3 para. 1 of

the Charter and in the violation of the right to take part in the

administration of public affairs through holding public office (Article

21 paras. 1 and 4 of the Charter).
 

22.

I consider § 19 para. 1, lit. a) of the Act to be an especially

flagrant case of the violation of the mentioned constitutional rights,

in that membership in the Communist Party of Czechoslovakia or the

Communist Party of Slovakia in the period from 25 February 1948 until 15

February 1990, are introduced as grounds for finding unreliability.
In

my opinion, the arguments contained in point 73 of the Judgment‘s

reasoning, proceeding from some sort of model of „bias or non-bias of

judges“, is entirely inapposite and lacking in constitutional relevance.

If the likening to a judge of he „who is active in the field of

historiography“, is meant to be taken as a serious argument, then a

question naturally arises: is the conception of the historiographer as

judge really that conception which should provide a guarantee of

objective scholarly knowledge, toward which the Institute should strive?
 

23.

I also concur with the reasoning given by the Chief Justice of the

Constitutional Court, Pavel Rychetský, in his dissenting opinion, and on

the grounds of brevity I merely refer to it.
 

For

all of the given reasons, I believe that entire Act No. 181/2007 Sb.,

on the Institute for the Study of Totalitarian Regimes and on the

Archive of Security Organs and on the Amendment of Certain Statutes,

should be annulled as unconstitutional.
 


 


4. Dissenting Opinion of Justice Jiří Nykodým and Pavel Holländer
 

It

is entirely legitimate, on the academic plane, to hold a discussion on

the issue of the expedience of establishing by law a state institution

that should concern itself with historical developments in certain

statutorily-defined periods in the situation where there are other

state-established institutions which concern themselves with the study

of the same periods. Within the framework of its abstract review of the

constitutionality of an act, the Constitutional Court is not competent

to assess its expedience, unless the lack of expedience itself

represents an intrusion into a constitutionally-guaranteed right. The

Act espouses the freedom of scholarly research, and one cannot, without

more, deduce from its content that this constitutional principle will be

violated in the Act‘s implementation. There are, however, provisions in

the Act which have an obviously discriminatory content and which should

have been annulled.
 

The

petitioners proposed the annulment of § 7 para. 6 of the Act, according

to which Membership in the Council is incompatible with membership in a

political party or political movement. In their argument they refer to

the fact that Art. 20 para. 2 of the Charter, according to which all

citizens have the right to associate in political parties and political

movements and restrictions on that right are permitted only in

connection with the performance of certain offices, employment positions

and activities exhaustively enumerated in Art. 44 of the Charter.

According to them, the Institute’s Council does not qualify as such a

case nor is it one of the cases where the Charter permits the

restriction of this fundamental right. They draw from this the

conclusion that the contested provisions result in a violation of the

prohibition of discrimination (Art. 3 para. 1 of the Charter) and in a

violation of the right to take part in the administration of public

affairs through holding public office (Art. 21 para. 1 and 4 Charter).
The

status of the Institute is decisive for the assessment of these

reservations. According to § 3 para. 2 of the Act, it is an

organizational component of the state, and encroachment upon its

activities are allowed only on the basis of law; pursuant to paragraph

3, it is an accounting unit and its operation is paid for from a

separate chapter of the state budget. Thus, it is a state organization.

As follows from § 9 para. 1 of the Act, the Institute‘s Council has

basic influence on this institution‘s operation. According to § 4 para. 1

of the Act, the Institute‘s commission is to investigate and

impartially evaluate the period of non-freedom and the era of Communist

totalitarian power; to investigate anti-democratic and criminal

activities by state bodies, including the state’s security components,

and the criminal activities of the Communist Party of Czechoslovakia, as

well as further organizations founded on its ideology; to analyze the

causes and manner of liquidating the democratic regime in the era of

Communist totalitarian power; to document the participation of domestic

and foreign persons in supporting the Communist regime and resistance to

it; to obtain and make available to the public documents bearing

witness to the period of non-freedom and the era of Communist

totalitarian power, especially on the actions of the security units and

the forms of persecution and resistance; without unnecessary delay, to

convert into electronic form the documents it has assembled; to document

Nazi and Communist crimes; to make the results of its work available to

the public, especially to make public information on the period of

non-freedom, on the era of Communist totalitarian power, on actions by,

and fates of, individuals; to issue and disseminate publications; to

organize exhibitions, seminars, expert conferences and discussions; to

cooperate with scholarly, cultural, educational, and other institutions

for the purpose of exchanging information and experiences on expert

issues; and to cooperate with foreign institutions or persons with

relevant expertise.
 

According

to Art. 20 para. 2 of the Charter, citizens have the right to form

political parties and political movements and to associate in them. This

right may be limited by law, if such is necessary in a democratic

society for the security of the state, the protection of public security

and public order, the prevention of crime, or the protection of the

rights and freedoms of others. According to Art. 44 of the Charter,

restrictions may be placed upon the exercise, by judges and prosecutors,

of the right to engage in business enterprises and other economic

activities, as well as of the right enumerated in Art. 20 para. 2; upon

the exercise of those rights by employees in state administration and in

local self-government, holding the positions specified therein, as well

as upon their exercise of the right enumerated in Art. 27 para. 4; and

upon the exercise of those rights by members of security corps and

members of the armed forces, as well as upon their exercise of the

rights listed in Arts. 18, 19, and 27 paras. 1 to 3, insofar as such is

related to the performance of their duties. The exercise of the right to

strike by persons who engage in professions essential for the

protection of human life and health can be restricted by law.
 

Membership

in the Council cannot be subsumed under any of the activities listed in

Art. 44 of the Charter. According to § 9 of the Act the Council has the

competence to lay down the methods for the fulfillment of the

Institute‘s tasks; to appoint and remove the Director and to supervise

his activities; to approve the Institute‘s organizational rules, as well

as its other internal regulations; to approve the annual plan of the

Institute‘s activities; to establish a scholarly council as the

Director‘s expert advisory body for the Institute‘s research activities;

to appoint, on the Director‘s proposal, that body‘s members and to

approve its standing orders, as well as the groundwork for the

Institute‘s proposed budget and final accounting; to approve the annual

report on the Institute‘s activities and submit it for the Senate‘s

consideration; to decide on appeals against decisions of the Institute;

to keep abreast of and evaluate whether access to documents and archival

materials kept at the Archive is being properly ensured, and once

annually to submit its findings for the Senate‘s consideration; it is

further authorized, in exceptional cases, to request the Government‘s

diplomatic support in acquiring access to important documents relating

to the Archive‘s work which are stored in the archives of foreign

states. The Council‘s powers are directly primarily to matters internal

to the Institute and, in the majority of cases, do not have the

character of the performance of state administration, for which is

decisive the authorization to issue administrative acts, which

establish, modify or extinguish rights and obligations of natural and

legal persons. It is only the management of the Archive which is an

exception, as it is an administrative office and carries out tasks of a

state body, as is the Council‘s competence, based on § 9 para. 1, lit.

h) of the Act, to decide on appeals against Institute decisions. As

follows from to § 3 of the Act, the Institute is a public-law

institution, and membership in its Council therefore constitutes a

public office.
 

According to

Art. 3 para. 1 of the Charter, everyone is guaranteed the enjoyment of

her fundamental rights and basic freedoms without regard to gender,

race, color of skin, language, faith and religion, political or other

conviction, national or social origin, membership in a national or

ethnic minority, property, birth, or other status. The restriction

arising from the final sentence of § 7 para. 6 of the Act, which reads

„membership in the Council is incompatible with membership in a

political party or political movement“, is a violation of the

prohibition of discrimination laid down in the above-cited article of

the Charter. Such is the case because the exceptions to the general

prohibition of discrimination enshrined in Article 20 para. 3, in

conjunction with Art. 44, of the Charter cannot be tied to membership in

the Council. It can thus be concluded that the final sentence of

 

§

7 para. 6 of the Act is in conflict with Art. 20 para. 2, in

conjunction with Art. 44, Art. 21 para. 4, and Art. 3 para. 1 of the

Charter.
Sec. 19 of the Act lays down the conditions of reliability

and irreproachability. The petitioners‘ proposed the annulment of § 19

para. 1, lit a), which deems unreliable persons who at any time in the

period from 25 February 1948 until 15 February 1990 were members or

candidates for membership in the Communist Party of Czechoslovakia or

the Communist Party of Slovakia. Citizens who, according to the Act, are

not reliable can neither be elected a member of the Institute’s

Council, nor appointed Director of the Institute, Director of the

Archive, or a principal employee of either the Institute or the Archive

who is directly subordinate to the Director of the Institute or the

Archive. Other employees must fulfill the prerequisites under Act No.

451/1991 Sb. (the „Lustration“ Act). The grounds for finding

unreliability is thus merely the formal membership in the mentioned

political parties and does not in any way take into account the actual

conduct of those persons. Membership in the Council is a public office

(§ 10 of the Act) and, according to Art. 21 para. 4 of the Charter, each

citizens has the right and opportunity to take part in the conduct of

public affairs
 

In its

Judgment No. Pl. ÚS 9/01, the Constitutional Court deduced, also with

consideration of the jurisprudence of the European Court for Human

Rights, that the promotion the idea of “a democracy capable of defending

itself” is a legitimate aim of the legislation of each democratic

state, in whichever phase of its development. On the basis thereof, it

then reached the conclusion that a democratic state can make an

individual’s entry into state administration and public services

dependent on her meeting certain prerequisites. But in the cited

judgment it also unambiguously declared itself in the sense that it is

aware that “an individual’s attitudes to the democratic establishment

are determined primarily by his actual actions.” In this connection it

calls to mind Act no. 198/1993 Sb., on the Lawlessness of the Communist

Regime and Resistance to It, and to its judgment concerning this Act

published as No. 14/1994 Coll.. The cited act enumerates crimes and

other comparable events which occurred in the territory of the

present-day Czech Republic during 1948-1989, and in the operative part

of the text assigns full joint-responsibility for them to those “who

supported the Communist regime as officials, organizers or agitators in

the political as well as in the ideological areas.” In the Preamble it

states the special responsibility of the pre-November Communist Party,

including its leadership and members. Thus, it is evident that, as the

Communist regime was identified by the Parliament of the Czech

democratic state as “criminal, illegitimate, and abominable”, an

individual’s close connection to the pre-November regime and its

repressive components is a circumstance capable of having an adverse

effect on the trustworthiness of a public position which that individual

holds in a democratic state. Even though this statute in its Preamble

refers to the responsibility of members of the pre-November KSČ, the

normative part of the statute speaks about the threat for democracy in

„individuals being closely bound to the pre-November regime and its

repressive components“.
 

One

cannot deduce, from the purpose and essence of the Act under

adjudication, why mere membership in the Communist Party in the decisive

period, which might, for ex., have lasted only a few months, should

constitute such a serious circumstance that it might threaten the

democratic functioning of the Institute and Archive in the case that a

person with such a past were to be placed into certain of the offices

for which reliability and irreproachability, according to § 18 para. 1

of the Act, are required. According to Art. 4 para. 3 of the Charter,

any statutory limitation upon the fundamental rights and basic freedoms

must apply in the same way to all cases which meet the specified

conditions. According to § 3 para. 2 of the Act, the Institute is an

organizational component of the state. According to § 12 para. 2 of the

Act, the Archive is an administrative office which is directly managed

by the Institute. Employees and officeholders of these institutions are

state employees; there is, therefore, no reason why the statutory

limitation upon the fundamental rights and basic freedoms in relation to

them should be fundamentally different than in relation to other state

employees.
 

A requirement of a

“clean past“ formulated in this manner is disproportionate also in

comparison with the definition of irreproachability as a formal

requirement for holding other offices. In the above-cited Judgment No.

Pl. ÚS 9/01, the Constitutional Court designated the Lustration Acts,

with which it was dealing, as a legitimate instrument for the protection

of the democratic state from the danger which could be brought on by an

insufficiently loyal public service, or even a public service that had

little credibility, as such a perception by the public would undermine

confidence in the law-based state itself. In scrutinizing the contested

Act, we proceed from the conviction that it is both the right and duty

of a democratic, law-based state actively to protect its constitutional

regime, even by means of restricting access to state and public service

through the formulation of conditions of loyalty for applicants. Among

the conditions thus laid down, there must be concord, at least on

essentials, even if it is evident that, in view of the various weights

of individual offices, they cannot be formulated identically. The

Lustration Acts, which in terms of substance are the closest to the

contested provisions of the Act, lay down certain prerequisites for

holding certain offices in the state. These prerequisites reflect the

status which individual applicants had in the period from 1948 until

1989, thus whether this status meets the characteristics laid down in

the Lustration Acts, restricting access to public office. In relation to

the pre-November regime, they draw consequences only from a certain

degree, certain qualified forms, of engagement. In contrast thereto, the

contested provision of the Act lays down, as an impediment to holding

office, the mere membership or candidacy for membership in the Communist

Party of Czechoslovakia or the Communist Party of Slovakia. The

specific level of engagement of actual candidates is not taken into

consideration. We consider conditions set in this manner to be

disproportionate, especially in relation to eligibility requirements for

holding other offices in the state, namely those, the performance of

which directly influences the democratic character of the country. After

all the Act lays down, in this respect, more stringent conditions for

applications to lead offices in the Institute and Archive than, for

example, for candidates for the office of President of the Republic, the

most significant constitutional function in the state.
 

A

further fact should not be overlooked. The Institute, which „directly

manages the Archive“, which is an „administrative office“ (§ 12 para. 2

of the Act), fulfills the function of a state body in the field of

archival science [see, for ex., § 13 para. 1, lit. f), g), and h) of the

Act]. At the same time, the Council is competent pursuant to § 9 para.

1, lit. h) of the Act to decide on appeals from the Institute‘s

decisions. Thus, Council decisions pursuant to § 9 para. 1, lit. h) of

the Act [that is, concerning on the merits, for ex., the refusal to

provide information pursuant to Act No. 106/1999 Sb. (see Judgment No.

III. ÚS 686/02, published in The Collection of Judgments and Rulings of

the Constitutional Court, Vol. 29, Judgment No. 30), alternatively

matters under § 13 para. 1, lit. f), g), h) of the Act (see above in

point 67 of the Judgment)] are subject to administrative review in

administrative court proceedings, in the sense of § 4 para. 1 of the

Code of Administrative Justice, and possibly even by the Constitutional

Court. The situation thereby arises in which, divergent conditions are

laid down for the composition of state bodies deciding, one instance

after the other, on the same legal issue since, for review bodies

deciding in the same matter, the conditions under § 19 para. 1, lit. a)

of the Act do not apply. For the creation of state bodies endowed with

the same subject-matter jurisdiction, the maxim applies that the same or

more stringent conditions must apply for holding office in a state body

of a higher instance than for holding office in a state body of lower

instance; in the given matter the opposite applies - which leads to

absurd consequences. In terms of constitutional review methodology, this

concerns the application of the first criterion of the principle of

proportionality, the criterion of suitability, which requires the

assessment of the chosen normative instrument from the perspective of

possible fulfillment of the objective pursued (the protection of other

fundamental rights or public goods), and that if the given normative

instrument is not capable of attaining the objective pursued, then it

constitutes an instance of arbitrary action on the part of the

legislature, which is considered to be in conflict with the principle of

the law-based state. In the given matter, the value of the protection

of democracy must be weighed against the fundamental right of access to

public office on an equal basis. To the extent that, in this case (as

lex specialis in relation to Act No. 451/1991 Sb.), priority was given

to the protection of democracy over access to the holding of a public

office on an equal basis, then the conditions under § 19 para. 1, lit.

a) of the Act would have to apply as well for all review bodies, that is

for the panels of the regional courts deciding in these matters in

administrative judicial review, for the Supreme Administrative Court, as

well as for the Constitutional Court.
 

Thus

it can be concluded that § 19 para. 1, lit. a) of the Act is in

conflict with the right guaranteed in Art. 21 para. 4, in conjunction

with Art. 4 para. 3, of the Charter.
 

According

to Art. 83 of the Constitutional of the Czech Republic, the

Constitutional Court is the judicial body responsible for the protection

of constitutionalism. It did not perform its function in this case

since, within the confines of abstract norm control of the

constitutionality of the Act at issue, it did not annul those of its

provisions which are in evident conflict with the constitutional order

of the Czech Republic, moreover by employing arguments that are more

political than legal.

 


5. The Dissenting Opinion of Justice Pavel Rychetský
 

The

dissenting opinion which I am filing pursuant § 14 of Act No. 182/1993

Sb., on the Constitutional Court, as amended, is directed both against

the statement of judgment II, by which the petition proposing the

annulment of the Act was, except for the annulment of some words from § 7

para. 9 of the contested Act, rejected on the merits, and also against

the reasoning of the judgment itself.
 

1)

I am of the view that, in adjudging the petition proposing the

annulment of the Act in its entirety, the Constitutional Court should

have concerned itself not merely with the petitioners’ arguments, but in

particular with the constitutional plane of the Act, which establishes

an institute with the mission of scholarly research as a state

organization sui generis under the political auspices of one chamber of

Parliament - thus an entirely political body, resulting from the

competition of political forces in general elections and

constitutionally commissioned to perform legislative activity. I do not

consider, as grounds for finding the adopted Act unconstitutional, the

fact, in and of itself, that the contested Act, by the use of value

judgments (for ex. “the era of Communist totalitarian power”),

preordains the mission of a scholarly institution which should be

entirely independent of political influence. In the main, I even agree

with the evaluative terms employed; but I am of the opinion that the

legislature is not competent, in the normative part of statutes, as

opposed to their preamble, to evaluate history and thereby de facto

“fill in” for the historical research institution to which this

commission is entrusted. And to the extent that the political bodies of

state power - that is, the legislative and executive powers - think that

the results of scholarly research in a certain specifically designated

area are unsatisfactory, it is their undoubted obligation to increase

the forms of support for science and research, which has traditionally

been inadequate in our country and, for example, ranks almost at the low

end in comparison with other Member States of the European Union. A

genuine democratic, law-based state does not need to adopt statutes

which evaluate its own past; with regret I am compelled at this juncture

to state my position that, as a general rule, it is precisely

autocratic regimes which resort to such legislative practices. I base my

arguments for the unconstitutionality of the contested Act on an

entirely different criterion - which, in my view, is the violation, in

the give case, of Art. 1, Art. 2 paras. 1 and 2, and Art. 15 para. 2 of

the Charter of Fundamental Rights and Basic Freedoms, and Art. 1 para. 1

of the Constitution of the Czech Republic . According to the

constitutional standards contained in these provisions, the Czech

Republic is a democratic law-based state founded on democratic values

and on respect for human rights and fundamental freedoms, which in view

of the absolute freedom of thought and conscience, founded on plurality

and on the contention of views, may not be bound either by an exclusive

ideology or by a particular religious faith. The basic constitutional

directive is laid down in the Charter with the words: “All people are

free, have equal dignity, and enjoy equality of rights”. In the field,

into which the contested law intervenes, the mentioned constitutional

standards must then be interpreted in conformity with Art. 15 para. 2 of

the Charter, guaranteeing the freedom of scholarly research, in the

posture of an absolute freedom which cannot be restricted. For the field

of scholarly research, the Czech Republic has so far succeeded in

fulfilling the imperative flowing from the requirement of freedom of

scholarship due to the fact that both university-level schools and the

Czech Academy of Sciences, the societal mission of which is to expand

knowledge through independent scholarly research, have

statutorily-guaranteed and institutionalized autonomy, academic freedom

and independence of scholarly research. Thus university-level schools

and the Czech Academy of Sciences were entirely separated from the state

and were given by law the form of public law corporations; they

themselves form their own bodies (in secret elections) and the state is

not authorized to intervene into their scholarly and research

activities, likewise not into personnel issues. In the case of the

contested Act, an institution with the mission of performing scholarly

investigation of our contemporary history was established as an

organizational unit of the state, in which the upper chamber of the

Parliament has, on the contrary, reserved to itself, in § 7, the

exclusive power to elect and remove the Institute’s leadership. It is my

view that by adopting the contested Act, which failed to respect the

mentioned principles of the organization and activities of a scholarly

institution, not only did the Parliament manifest its lack of trust in

the existing system of institutional set-up of scholarly and research

institutions and university-level schools, but also its lack of trust in

the democratic, law-based state and its existing institutions. In

summary: without reservation I share the objective of making the most

far-reaching and most scientific study and research of the tragic

periods of our modern history, whether it be effected with increased

funds for scholarship and research, through grant support, or even by

the establishment of further scholarly institutions. However, to the

extent that the legislature establishes such institutions by means of

legislation in which it also lays down who may (or, on the other hand,

may not) work in it, and the decision-making on this selection is

reserved exclusively for political bodies, this legislative step can be

evaluated in only one of two ways. In the first case, that it thus

expressed lack of trust in (if not contempt for) the existing scholarly

and pedagogical institutions and decided to entrust only to that

institution which it is newly creating a privileged monopoly on

historical truth. In the second case, it decided to create an exclusive

workplace for the “chosen” who would not pass muster in a standard

selection process for a scholarly and academic institution (selection

procedure, competition). These of the Act’s effects naturally violate

the constitutional principle of the prohibition of discrimination, the

freedom of scholarly research, and the ideological neutrality of the

state. In my view, then, the contested Act does not pass the test of

proportionality, suitability or reasonableness, and should be annulled.
 

2)

In view of the above-stated conclusion that, in the given case, the

contested Act should have been annulled in its entirety as

unconstitutional, I will devote the remainder of my dissenting opinion

solely to two provisions, which the Justice Rapporteur correctly

proposed to annul as in conflict with the constitutional order but whose

proposal the majority of the Constitutional Court Plenum did not

approve (even if by the smallest possible margin). The last sentence of §

7 para. 6 reads as follows: “Membership in the Institute’s Council is

incompatible with membership in a political party or political

movement.” Chapter Two of the Charter governs fundamental human rights

and freedoms, among which is included, in Art. 20 para. 2, the right of

citizens to form political parties and political movements and to

associate in them. According to para. 3 of the cited article of the

Charter, this right can be restricted only by law, while Art. 44 of the

Charter explicitly lays down that the given right can be restricted only

in relation to judges, prosecutors, employees of state administration

and territorial autonomous units, and members of the security corps or

the armed forces. In my opinion membership in the Council cannot be

classified under any of the given professions, so that the final

sentence of § 7 para. 6 is obviously unconstitutional. The original

Justice Rapporteur, my colleague Nykodým, also proposed the annulment of

§ 19 para. 1, lit. a) of the contested Act, according to which everyone

who was at any time in the period from 25 February 1948 until 15

February 1990 a member or a candidate for membership in the Communist

Party of Czechoslovakia or the Communist Party of Slovakia is deemed to

be unreliable. The Act ties to the conception of reliability introduced

in this way a prohibition on serving as a member of the Institute’s

Council, the Director of the Institute, the Director of the Archive or a

principal employee of either the Institute or the Archive. The

Constitutional Court has, in a host of its judgments, repeatedly

declared its position on the constitutionality of the prohibition of

performing a profession, or on restricted access to selected state

public offices, for ex. in relation to Act No. 451/1991 Sb., entitled

lustration. The cited act introduces a prohibition on access to leading

offices in state bodies, and this prohibition on performing a profession

is tied to a minimal engagement with the repressive bodies of the

Communist regime (StB, LM [Translator‘s Note: “StB” stands for “Státní

bezpečnosti” which means State Security, and “LM” stands for “Lidové

malice” which means People’s Militia, the military organization of the

Communist Party]) or with holding a high office in the KSČ. In its

Judgment No. Pl. ÚS 1/92 of 26 November 1992 , the Constitutional Court

of the ČSFR found to be constitutionally legitimate the insertion of

such a prohibition into a statute, as the act then under consideration

affected only a very limited group of employees, exclusively in the

power, administrative, and economic apparatus, and it affects licensed

trades which are or could be the source of certain risks, be it merely

from the perspective of protecting the democratic establishment and its

principles, the security of the state, or the protection of state

secrets or of those positions from which it is possible, either overtly

or covertly, to influence the development of society. At the same time

the Constitutional Court of the ČSFR added that “the conditions

prescribed by the statute for holding certain positions shall apply only

during a relatively short time period by the end of which it is

foreseen that the process of democratization will have been

accomplished.” Then in its Judgment No. Pl. ÚS 9/01, the Czech

Constitutional Court deduced that it is a legitimate aim of the

legislation of a democratic state to promote the idea of “a democracy

capable of defending itself”; it also declared that “an individual’s

attitudes to the democratic establishment are determined primarily by

his actual actions”. The Act currently under adjudication entirely

disregards these conclusions of the Constitutional Court. On the one

hand it expands the prohibition of access to enumerated offices due to

“mere” membership or candidate membership in the KSČ or the KSS (at any

time during the newly defined decisive period) and further applies this

prohibition not to public offices in state bodies, but to a scholarly

institutions. If on the contrary the basic mission of the Institute and

the Archive is the development of free research, which must be based on

pluralism and the contention of views, then the argument of the

requirement to protect democracy cannot hold water. It was

characteristic precisely of totalitarian regimes, which the Institute is

meant to investigate, that they a priori excluded an entire group of

citizens according to race, class or some other characteristics (for

ex., the Jews in the case of Nazism) from, for ex., participation in

scholarly (subsequently also any other type of) activity. The argument

of the majority of my colleagues, that the conception of unreliability

employed in the Act as a criterion for prohibiting access to the given

functions in the Institute and the Archive, must be interpreted as a

type of bias sui generis, thus seems to me to be nothing less than

comical. In the spirit of the principle asserted in this way, access to

scholarly work by an historian of, for ex., the period of the religious

wars, the Inquisition, the Reformation and the Counter-Reformation,

could be restricted for anybody who is a practicing member or believer

of any of the churches or religious movement, or had been in the past

even if only for a short period of time. At this juncture of my

dissenting opinion I have decided to depart from the settled

constitutional law limits of argumentation and state my own belief: The

fall-out of § 19 para. 1 will be the exclusion from access to select

offices in the Institute and Archive of a number of significant

historians who have without doubt accomplished the most so far for the

elucidation of the crimes of the authoritarian regimes in our country.

From among them can be named Bartošek, Kaplan, Křen, Mlynárik, Otáhal,

Pichlík, Prečan, Reiman, Tesař and others, from among which, in

addition, a number were imprisoned or forced into emigration, as it was

they who belonged among the courageous persons who offered resistance to

the Communist despotism, which cannot be said either of the majority of

legislators who voted for this discriminatory provision or of the

Justices of the Constitutional Court who approved of this provision. In

summary, in the context of constitutional review, § 7 para. 6 of the Act

should be annulled for its direct conflict with Art. 20 para. 2 and

Art. 44 of the Charter. If the criterion of proportionality is applied, §

19 para. 1, lit. a) of the Act is in conflict with the right guaranteed

in Art. 21 para. 4, in conjunction with Art. 1 and Art. 4 para. 3 of

the Charter.
 



6. The Dissenting Opinion of Justice Eliška Wagnerová
 

My

dissenting opinion is directed against the statement of judgment,

insofar as it rejected on the merits also that part of the petition

proposing the annulment of § 19 para. 1, lit. a) and the last sentence

of § 7 para. 6 of the contested Act, and I disavow the Judgment‘s

reasoning, on the following grounds:

Pride or Self-Lulling?
 

1.

Sec. 19 para. 1, lit. a) construes the concept of “reliability” for the

purposes of the contested statute such that a person is deemed to have

been reliable if, in the period from 25 February 1948 until 15 February

1990, he or she was neither a member nor a candidate for membership in

either the KSČ or the KSS. This provision thus creates two categories of

persons, the reliable and the unreliable, while the sole dividing line

between them is mere membership in the KSČ or the KSS. Only the first

category of persons is eligible to compete, even if only for inclusion

in the list of persons from which the Senate of the Czech Parliament

elects the Institute’s Council, as well as for leading positions in the

Institute (§ 18, first sentence).
 

2.

Before we begin to analyze the provisions, let us consider in more

detail two foreign statutory schemes relating to the eligibility to hold

certain offices in similar institutions. On the one hand, there is the

Gauck Authority in the Federal Republic of Germany (FRG) established by

the Act on the Stasi Materials (Stasi-Unterlagen-Gesetz- StUG). Its

chief, the Federal Trustee, elected by the Bundestag, must fulfill the

conditions laid down for all state employees. According to § 4 para. 1,

point 2 of the Framework Act on the Rights of State Employees (BRRG)

[Translator‘s note : „BRRG“ is the abbreviation for the title of the Act

in German, „Beamtenrechtsrahmengesetz“], which is the implementing act

for the constitutional directive contained in Art. 33 para. 5 of the

Basic Law, it is a prerequisite for acceptance into German public

service that the applicant espouse the free, democratic basic order in

the sense of the Basic Law. The Unification Treaty (Einigungsvertrag)

provides, among other things, that mere membership in the SED

[Translator‘s note: this abbreviation stands for „Sozialistische

Einheitspartei Deutschlands“, which in English means “the Socialist

Unity Party of Germany“] does not constitute an impediment to being

active in public service, as opposed to engagement on behalf of the SED

in high positions of the nomenklatura. On the other hand, there is the

Slovak Institute of National Memory, established by the Act on National

Memory, No. 553/2002 Z. z. For the purposes of this Act, a person is

considered as irreproachable (§ 11) if he or she was not a member of the

KSČ, the KSS or any other political party associated in the National

Front.
 

3. It is evident that

both these legal arrangements pursue the objective of staffing for

activities consisting in such treatment of the materials of the former

secret police (including their interpretation in cases where the

institution is permitted to do so) and in such processing of them as

would guarantee elementary harmony with the “new” value order embodied

in the constitutional order (that is, to the extent possible, a fair

interpretation of the materials in the sense of taking into account all

relevant facets of the problem, as well as taking into account all

democratic and liberally-oriented points of view, i.e., value judgments

manifesting themselves perhaps only in the selection of the methods for

scrutinizing the materials being processed, but certainly also, for ex.,

in the non-use of materials for the purpose of causing a scandal or to

blackmail, and so forth, through “leaks”). There is no question that

such an objective can be considered as legitimate. The second question

concerns the means which the legislature selected to attain this

objective.
 

4. At first

glance it is evident that, with their general statutory scheme, the

Germans selected a means having impact on all persons who either were

not capable or did not wish to internalize the values of the new

constitutional order, that is, are tied up with various ideologies

inimical to the constitutional order. It is a general regulation,

affecting all “extra-constitutional positions” regardless of whether the

democratic, law-based state, that is the democratic, law-based state

understood in terms of values, is assailed in the opinions of persons

endeavoring to enter into state or public service “from the right or

from the left”. Such a statutory scheme is certainly a manifestation of

the recognition of the highest normative and active operation of the

constitution which, through the values contained therein, lays down the

limits of the acts and activities of all public authorities; in the

given context carried over to their personal substratum, who participate

in the exercise of public power by carrying out the tasks reserved to

them. This statutory scheme decidedly cannot be designated as deviating

from the requirement of equality before the law, which results both from

the principle of the substantive law-based state and from democracy

conceived in terms of values, in which equal access to public office

must be ensured. Considered from another perspective - this statutory

scheme cannot even be considered as an impermissible restriction on the

fundamental right of those persons whom the statutory scheme affects, as

these persons have voluntarily placed themselves outside the sphere

defined by the constitutional order; at the same time, however, they

intend to participate in the exercise of public power which can be

accomplished solely „within“ the confines defined by this order.
 

5.

It is a different case with the means selected in the Czech and the

Slovak statutory scheme. It is evident at first glance that, first and

foremost, they are not well-adapted, without qualification, to the task

of protecting the value area created by the constitutional order when,

instead of a general formulation of requirements for the moral profile

of persons (covert in the concept of reliability) competing for certain

positions in the Institute, they selected the temporally-conditioned

membership in certain political parties, although the breadth of the

enumeration differs in each scheme. The Czech scheme can be identified

as the least general, thus also as the least capable of attaining,

through the means chosen, the yearned-for objective - namely, to staff

the statutorily-prescribed places in the Institute with persons devoted

to the democratic, law-based state, so that they would be effective at

fulfilling the Institute’s duties in the manner defined above.
 

6.

In addition, one cannot not know that the contested legal rules

literally strike at the genuine human rights of those persons who, by

means of an entirely unacceptable definition of reliability, somehow

automatically fell into the second category, that of persons in no

respect reliable (or, pointedly stated, unreliable persons), that is,

persons who did not identify themselves with the values of the new

constitutional order and who are still, according to the evident opinion

of the legislature, in some way bound to the pre-November, totalitarian

regime, since, according to its own words, participation in the

Institute‘s Council could be used as a means to „condone“ their own

past. At the oral proceeding, the representative of the Senate of the

Czech Parliament was above-board in communicating to the Constitutional

Court this „concern“ of the legislature. Naturally, circumscribed in

this fashion, the aim of the statutory restriction on access to public

office grossly affects the honor and reputation of all persons who have

managed to break away from their own past. To demur that there are only a

small number of such persons is lame. Since it is brazen and cavalier,

this assessment rings entirely inappropriate in relation to those who

left the KSČ or the KSS already prior to November, 1989 and began

actively to stand up to the then political system, for which they were

to varying degrees persecuted - from the loss of employment connected

with the transfer to working class jobs (as was the case, for ex., with

P. Pithart) to imprisonment imposed upon critics of the regime (as

evidenced by the case of J. Mlynárik), to give examples of persons who

would, in terms of their professional capacity, legitimately be able to

compete for an office in the Institute. At the same time, both of the

named persons through their life‘s work over the past forty years have

demonstrated how profoundly their thinking has moved away from the

ideological conceptions to which the legislature has across the board,

formalistically and, in consequence, brazenly yoked them.
 

7.

The assertion made in point 73 of the judgment to the effect that

“belonging” to the totalitarian regime of persons listed in § 19 para. 1

of the Act reputedly continues to be such a circumstance as could call

into doubt political loyalty, evoking the notion that such belonging to

the totalitarian regime was based solely on membership in the KSČ or the

KSS, even though it is evident that all of us who were (adult)

participants in this recent history embody such belonging and that, in

actuality it really is a matter of the extent of belonging, or better

yet of personal failings. This acknowledgement clearly continues to be

painful . . .
 

8. A year

after the Second World War, Karl Jaspers wrote (The Question of German

Guilt, Praha Academia 2006 [Translator’s note: this is a reference to

the Czech translation of that work.]): “Each of us bears guilt to the

extent that we remained inactive. Passivity knows that it is morally

guilty for each failing which neglects the obligation to embrace any

sort of action possible for the protection of the threatened, for the

alleviation of injustice, for the rejection of evil.“ And as the author

of the foreword to the Czech edition, the Christian philosopher and

signatory of Charter 77, Ladislav Hejdánek, correctly pointed out: “ . .

. [T]he German word, Schuld, does not mean merely guilt, but also a

debt; the Czech word, ‘guilt‘, somewhat lacks that forward-looking

dimension, calling for ‘atonement‘, for the ‘payment‘ of a debt and the

‘expiation’ of evil . . .“ He continued as follows: “Often in our

country voices are heard that we have not as yet come to terms with our

past . . . . Do we want to simplify the entire problem and limit it only

to fact that we did not criminally prosecute the majority of criminal

acts . . . ? Or perhaps even to expand it to political and certain

property consequences as redress for what took place? Who could think

that some such thing would suffice . . . ? . . . [T]he fundamental

problem does not even consist in something that can be resolved

judicially or by some sort of legal or organizational measures.“ And he

supplements this answer by a quotation from Jaspers: “. . . [W]e want to

ask ourselves, inexorably to clarify for ourselves - when have I felt

false, thought falsely, acted falsely - we want to look for guilt as far

away as possible - in ourselves - and not in things or in others . .

.“.  Evidently neither the makers of this statute nor my esteemed

colleagues who voted for this judgment have posed this designated

question for themselves. Each person much answer for themselves the

question as to why, for according to Jaspers the sole instance in the

resolution of moral guilt is one‘s own conscience . . .
 

9.

There is one more reason why I cannot agree with the judgment upon

which I am taking a position. It is the requirement of minimal fairness

generally placed on the content of a statute. In other words, it is the

minimal requirement of justice which results from the

civilization-influenced concept of fairness or justice, which can be

evidenced by a moral commandment in effect for thousands of years: „Why

do you see the speck in your brother's eye, but do not notice the log in

your own eye?” (Matthew, Chapter 7). Phrased in contemporary language -

it is not compatible with the basic conceptions of justice to place on

others moral demands more stringent than those you place on yourself. In

the given case, higher moral demands are placed upon persons carrying

out tasks of an administrative office than are placed upon judges, who

will review the decisions of the office. The same applies for the

members of the Constitutional Court, which, on a general plane I

consider, to be an absolutely unacceptable and untenable arrangement. Is

the office of ordinary court judge perchance less exacting in terms of

being coupled with the constitutional order? After all the members of

the Constitutional Court are bound by nothing other than that very

constitutional order (if we leave aside the Act on the Constitutional

Court). Nonetheless, should they be perceived as having a lesser

devotion to the constitutional order than that demanded of a member of

the Institute? These questions are posed because even the uttered word

is a fact, and even the words of the legislature are also facts. Such

facts influence reality alone by their very existence, which also comes

across in the case of the above-mentioned implicit evaluation of courts,

and especially of the Constitutional Court. Naturally I make this

reservation solely on the general plane of moral requirements placed on

the holding of various public offices, while, for the reasons explained

in the preceding paragraphs, I consider that the definition of

“reliability”, as formulated in the contested Act, is entirely false,

even immoral, and should not be invoked in relation to any person

regardless of the public office which they are holding.
 

10.

Otherwise I am of the view that it is not possible in any way to come

to terms with the past by means of statutory norms. Coming to terms with

the past can only be accomplished through an open dialogue lead by the

civil society itself, as well as by its individual member concerning

their actions in the past.

Unbelievably Facile Abridgment of Political Rights in the Name of Democracy . . .
Point

61 of the judgment contains very brief reasoning as to why the petition

proposing the annulment of §7 para. 6 was rejected on the merits. In

part the judgment refers to the need to ensure the Institute’s

independence, and therefore it finds as legitimate “the condition of

non-partisanship”; in actuality the Judgment found as legitimate the

actual prohibition of membership in a political party for members of the

Institute’s Council. And it did so despite the fact that, under Art. 44

of the Charter, the right guaranteed in Art. 20 para. 2 of the Charter

can be restricted (!) by statute only in the case of judges and

procurators; nevertheless, the reality is such that the legislature did

not even make use of the latitude which the Charter leaves to it in

relation to those cases. With reference (which is inapposite, thus

misinterpretive) to the Constitutional Court’s judgment No. Pl. ÚS 9/01,

eight of the Constitutional Court’s members were persuaded that the

conclusion of the cited judgment that entry into public service can be

tied to meeting “certain prerequisites”, “is significant for the matter

under adjudication in the sense that the Court recognized the setting of

certain limits on the exercise of fundamental rights, namely in cases

where the protection of democracy is concerned.”. It was evident that

the “words” were taken from the cited judgment, but not the context in

which they were used. To be sure, this blanket “method” of restricting

the fundamental rights seems to me to be rather irresponsible. . . As to

further arguments substantiating the need to annul the contested

provisions, I join in the joint dissenting opinion of Justices J.

Nykodým and P. Holländer, and do so with their gracious consent.

 


The Separate Opinion of Justice Vojen Güttler Dissenting from the Reasoning of the judgment Pl. ÚS ÚS 25/07
 

The

dissenting Justice is of the view that, in relation to § 19 para. 1,

lit. a) of the contested Act, the reasoning of the above-mentioned

judgment should be supplemented as follows.
 

In

the Constitutional Court’s opinion, the Parliament should however - de

lege ferenda - carefully consider such legislative provision as would

make eligible to work in the Institute’s Council and in its leading

functions (§ 7 para. 5, § 18) those former members or candidate members

of the KSČ or KSS who in their entire subsequent life have demonstrated,

and continue to demonstrate, that they have and do stand for the

protection of democracy, freedom and human rights.