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HEADNOTES
1)
Clearance of defense counsel in criminal proceedings for purposes of
access to classified information through a security clearance by the
National Security Office is inconsistent with Art. 37 par. 3, Art. 38
par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and
Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection
of Human Rights and Fundamental Freedoms.
2)
Access to classified information by an attorney acting as defense
counsel in criminal proceedings is governed by the Criminal Code, and
not by the Act on Classified Information, and thus under the existing
valid legal framework, the Czech legal order does not require a
clearance by the National Security Office for that purpose, i.e. for
access to classified information by defense counsel in criminal
proceedings.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court, consisting of JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Pavel Varvařovský, JUDr. Miloslav Výborný, and JUDr. Eliška Wagnerová, after oral proceedings on 28 January 2004, ruled in the matter of a petition from the District Court in Přerov seeking the annulment of § 42 par. 1 of Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, as amended by later regulations, as follows:
I. The petition is denied.
II.
Clearance of defense counsel in criminal proceedings for purposes of
access to classified information through a security clearance by the
National Security Office is inconsistent with Art. 37 par. 3, Art. 38
par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and
Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection
of Human Rights and Fundamental Freedoms.
REASONING
I.
I.
Description
of the Matter and Recapitulation of Petition The District Court in
Přerov, under Art. 95 par. 2 of the Constitution and § 64 par. 3 of Act
no. 182/1993 Coll., on the Constitutional Court, as amended by later
regulations, submitted to the Constitutional Court a petition to annul §
42 par. 1 of Act no. 148/1998 Coll., on Protection of Classified
Information and Amending Certain Acts, as amended by later regulations.
The petitioner bases the petition to annul these parts of that Act on
the following grounds:
Act
no. 310/2002 Coll. amended Act no. no. 148/1998 Coll. as of 12 July
2002. Art. I point 4 amended § 42 par. 1 of Act no. 148/1998 Coll. so
that the word “attorneys” was deleted, as a result of which, in the
petitioner’s opinion, attorneys were removed from the list of persons
not subject to security clearance. However, Act no. 310/2002 Coll. did
not amend the Criminal Procedure Code, and thus § 35 par. 4 of the
Criminal Procedure Code remains in effect, unchanged, as established by
Act no. 265/2001 Coll.
Under
§ 35 par. 1 of the Criminal Procedure Code, only an attorney can act as
defense counsel in criminal proceedings. However, in the petitioner’s
opinion, the result of the amended wording of § 42 par. 1 of Act no.
148/1998 Coll. is that in criminal proceedings in which classified
information protected by a special act is discussed, a mere instruction
under § 35 par. 4 of the Criminal Procedure Code is no longer sufficient
for counsel (attorneys), but the attorneys must undergo the appropriate
clearance under Act no. 148/1998 Coll. This is also supported by the
fact that an instruction to attorneys under § 35 par. 4 of the Criminal
Procedure Code was already necessary under the previous legal framework,
when attorneys were still exempt from clearance. Thus, this indicates
that if attorneys who are to be given access to classified information
must now undergo clearance under Act no. 148/1998 Coll., then in
criminal proceedings in which classified information protected by a
special act is discussed, an instruction to them under § 35 par. 4 of
the Criminal Procedure Code is no longer sufficient. The opinion of the
National Security Office (the “NSO”, on p. 2275 of file no. 1 T 312/2001
of the District Court in Přerov) fully agrees with the petitioner’s
legal opinion in this.
The
petitioner concludes that the present § 42 par. 1 of Act no. 148/1998
Coll., as amended by Act no. 310/2002 Coll., is inconsistent with Art.
37 par. 2 and Art. 40 par. 3 of the Charter of Fundamental Rights and
Freedoms (the “Charter”), which guarantee the accused’s right to free
choice of defense counsel. One must also keep in mind Art. 6 par. 3 let.
c) of the Convention on Protection of Human Rights and Fundamental
Freedoms (the “Convention”), under which everyone charged with a crime
has the minimum right to defend himself in person or through legal
assistance of his own choosing. The petitioner also pointed to the
legislative process concerning the amendment of Act no. 148/1998 Coll.;
the Senate of the Parliament of the Czech Republic(the “Senate”),
particularly in view of the removal of attorneys from the group of
persons not subject to clearance, returned the amendment to the Chamber
of Deputies of the Parliament of the Czech Republic (the “Chamber of
Deputies”) with amending proposals, which, however, the Chamber of
Deputies subsequently did not accept.
As
regards the grounds for filing the present petition, the petitioner
also stated that in the criminal matter under file no. 1 T 312/2001 the
defendants, (V. Hučín and MUDr. Chmelař) exercised their right and chose
their own defense counsel, insist on their choice, and do not intend to
choose other counsel. However, none of the selected defense counsel
received the appropriate security clearance. In the court’s opinion,
these circumstances, in view of the legal framework in effect, indicate
that none of the chosen attorneys can continue to act as defense counsel
in these criminal proceedings. However, the District Court pointed to §
2 par. 4 of the Criminal Procedure Code, under which criminal matters
must be handled as quickly as possible, and must fully preserve the
rights and freedoms guaranteed by the Charter and by international
treaties on human rights and fundamental freedoms. Under Art. 95 par. 1
of the Constitution, the judge is bound in his decision making by
statutes and international treaties which are part of the legal order.
Under Art. 95 par. 2 of the Constitution, if the court concludes that a
statute which is to be applied in the matter is inconsistent with the
constitutional order, it shall present the matter to the Constitutional
Court. Article 95 par. 2 of the Constitution is further elaborated for
criminal proceedings in § 224 par. 5 of the Criminal Procedure Code,
under which a court shall interrupt criminal prosecution if it believes
that a statute, the application of which is decisive for deciding on
guilt and punishment in a given criminal matter, is inconsistent with a
constitutional act or an international treaty which takes precedence
before a statute; in that case it shall submit the matter to the
Constitutional Court. The petitioner also added that in such cases it
does not matter whether the court’s questions concern a substantive or
procedural statutory norm, or whether it is a norm or criminal law or a
statute from another branch of law. In the petitioner’s opinion, in the
present matter it is quite indisputable that the court must apply Act
no. 148/1998 Coll., as amended by Act no. 310/2002 Coll., to its
procedure, as this legal framework directly affects the defendants’
right to a defense, which is guaranteed to them by, in particular, Art.
37 par. 2 a Art. 40 par. 3 of the Charter, Art. 6 par. 3 let. c) of the
Convention, and by § 2 par. 13 of the Criminal Procedure Code. The
defendants have a right to have their chosen defense counsel participate
in actions taken within criminal proceedings, in particular during
presentation of evidence in the main trial. However, the Act de facto
makes it impossible to implement this constitutional right of the
defendants. For the sake of completeness, the petitioner added that with
one of the defendants (V. Hučín) there are also grounds for compulsory
defense under § 36 par. 3 of the Criminal Procedure Code, and in that
case it is quite impossible to conduct main trial proceedings without
the presence of defense counsel (§ 202 par. 4 of the Criminal Procedure
Code).
The petitioner also
pointed to certain wider connections and aspects of the legal issues at
hand. First, it cited the fact that out of all the attorneys now in
practice, apparently no one has received clearance, because thus far no
one has been required to do so. In addition, one can not overlook the
fact that there is no legal regulation under which attorneys can be
forced to undergo clearance; this can lead to the situation that if
attorneys refuse to undergo clearance voluntarily, there will be no
attorney with clearance available who could provide legal assistance in
matters concerning classified information. The Czech bar association
also does not maintain, nor is it required to maintain, a special list
of attorneys who can have access to classified information, as no legal
regulation imposes any such obligation. This allegedly means, among
other things, that at the present time not only can the defendant in
such matters not choose defense counsel, but neither can the court
appoint one in cases of so-called “compulsory defense”, even though it
is obligated to by law. The petitioner also pointed out that an attorney
also provides legal assistance beyond the are of criminal or civil law
proceedings, not only in the Czech Republic but also abroad. In all
these cases he may be given access to classified information by a
client.
The petitioner added
that in the Czech republic all attorneys are authorized to provide
legal assistance without limitation. In that regard, all available
European legal frameworks are comparable. The petitioner is not aware of
any foreign legal framework which would provide an obligation for
attorneys to undergo clearance in order to provide representation in
matters involving classified information. Introducing some sort of
special lists of attorneys in a way suggests a return to the time when
the country wasn’t free, when, during World War II, there was a list of
attorneys authorized to provide representation before the Reich courts,
or the period before 1990, when there was also a special list of
attorneys authorized to have access to classified information, which is
surely undesirable and incompatible with the principles of a democratic
state governed by the rule of law. Providing an exception to attorneys,
who, along with parliamentary deputies and senators, did not have to
undergo clearance, was a de facto expression of the fundamental
principles for the practice of law. Yet, disclosure of classified
information is basically no longer a danger, in view of the absolute
confidentiality obligation imposed on attorneys by law, which can not be
canceled at the instruction of any third party with the exception of
the client himself. In this regard, one of the fundamental principles
for the practice of law must also be respected, i.e. the attorney’s
independence from the state such that the attorney can practice law
freely, that is, provide legal representation, including cases against
the state, without fear of state sanctions against him. If classified
information were discussed in these cases, at attorney could be
prevented by the state from providing legal services precisely because
he would not be given the appropriate security clearance. The state
would thus de facto be able to decide who would appear against it in a
dispute. Thus, the now-annulled exception from security clearances was
not an unjustified prerogative or some sort of groundless privilege for
an attorney, but served to the benefit of the consumer of legal
services.
Finally, the
petitioner stated that it is fully aware of the fact that Act no.
148/1998 Coll. ceases to be in effect on 31 December 2003, and that
therefore the Parliament of the CR will pass a new, comprehensive legal
framework for this area. It added that it is aware that the
Constitutional Court, as a “negative legislature,” within its
jurisdiction can decide only to annul statutes or individual provisions
of statutes if they are inconsistent with the constitutional order, and
that it therefore can not decide to re-include attorneys in the group of
persons not subject to clearance. Thus, if the Constitutional Court,
after conducting proceedings, concluded that there are no grounds to
annul § 42 par. 1 of Act no. 148/1998 Coll. and denied the petition, it
is appropriate that it at least, in the reasoning of the decision, state
its legal opinion on the legal issue concerning clearance of attorneys.
In conclusion, it proposed that the Constitutional Court rule that § 42
par. 1 of Act no. 148/1998 Coll., on Protection of Classified
Information and Amending Certain Acts, as amended by later regulations,
be annulled as of the day this judgment is promulgated in the Collection
of Laws.
II.
Recapitulation of the Main Points of the Opinion of the Party to the Proceedings
At
the request of the Constitutional Court, under § 69 of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations
(the “Act on the Constitutional Court”) the Chamber of Deputies and the
Senate filed opinions.
...
...
III.
Recapitulation of the Main Points of the Opinion under § 49 of Act no. 182/1993 Coll.
At
the request of the Constitutional Court, an opinion was also filed by
the Czech Bar Association (the “CBA”), under § 49 of Act no. 182/1993
Coll., on the Constitutional Court. It stated that it fully agrees with
the petition from the District Court in Přerov, and added the following:
The
denial of the free choice of an attorney (which follows from the
contested provision of the Act) must be considered a fundamental issue.
Free choice of an attorney is one of the fundamental principles of a
state governed by the rule of law, and is reflected in the
constitutional order of the Czech Republic. Denial of this opportunity
because there will be no attorney whom a party (the accused or an
injured party) can choose, having confidence in him, or because there
will be (perhaps under the best scenario) a choice of several individual
attorneys who will be able to provide representation in matters
involving protection of classified information, is, in the opinion of
the CBA, flagrantly inconsistent with the principles of a state governed
by the rule of law.
The CBA
pointed out that, although the petition from the District Court in
Přerov logically concerns primarily criminal proceedings, one also can
not overlook another legal area in which “the deficiency of the legal
framework is also quite marked, particularly in those areas which
concern so-called “compulsory representation” before the general courts
(an appeal on a point of law [“dovolání”], or proceedings on a cassation
complaint in the administrative courts). In these cases not only is the
party’s choice of attorney as representative more difficult, if not
completely impossible; the court also finds itself in the same
situation, if it is to appoint an attorney as the party’s
representative.
The CBA also
relied on Art. 38 par. 2 of the Charter, under which everyone has the
right to have his case considered without unnecessary delay. It pointed
to the similar provision of Art. 6 par. 1 of the Convention. In this
regard it states that – as is evident from the specific matter of the
District Court in Přerov, and as logically be concluded from other
matters handled in criminal and civil court proceedings, and in
administrative court proceedings – “unnecessary delay” or the failure to
make a decision “in an appropriate time” must, in these cases,
paradoxically be ascribed to the legislature.
At
the request of the Constitutional Court the CBA added to its statement
an expert report prepared by Christian Wisskioschen, director of
international relations at The Law Society in London, concerning the
issue of application of § 42 par. 1 of Act no. 148/1998 Coll., as
amended by Act no. 310/2002 Coll., to defense counsel, compared to the
handling of this issue in England and Wales, and a brief description of
the handling of similar situations in France and Austria.
At the request of the Constitutional Court the National Security Office (the “NSO”) also filed an opinion, in which it said:
We
must agree with the opinion of the District Court in Přerov, that after
the amendment of Act no. 148/1998 Coll., by Act no. 310/2002 Coll., a
mere instruction under § 35 par. 4 of the Criminal Procedure Code is no
longer sufficient, even for attorneys who act as defense counsel in
criminal proceedings. This provision refers to an instruction given
under a special act, which governs the protection of classified
information, Act no. 148/1998 Coll. It must be emphasized here that Act
no. 148/1998 Coll. understands an instruction to be an institution of
evidentiary character. Its purpose is primarily to instruct persons who
will have access to classified information, but are not designated
persons, on all their obligations, primarily the obligation to maintain
confidentiality. Therefore, an instruction can not replace the
fulfillment of conditions for providing access to classified information
under § 17 par. 1 of Act no. 148/1998 Coll. To fulfill the purpose of
Act no. 148/1998 Coll. it is desirable that activities where it is
necessary to have access to classified information be conducted by
persons who meet the conditions in § 17 par. 1 of that Act, that is,
primarily, they must hold a valid clearance which designates them to
have access to classified information. The interest of the state in
protecting classified information must also be respected in the practice
of law. In case of a conflict between the principle of protection of
human rights and freedoms and the principle of protection of state
interests and international interests in the area of security, the state
has, in particular, the statutory right, and also, the obligation,
imposed primarily by international treaties, to give certain
information, i.e. classified information, special protection, i.e. it is
obliged to handle that information in a special manner, and is required
to prevent it from being made public or otherwise disclosed. This
protection is implemented in a number of ways, primarily, however,
through personnel security, i.e. by the state itself selecting persons
who are authorized to have access to such classified information.
The
NSO also stated that it is in accordance with the principle of free
choice of profession for every individual to decide for himself whether
he is willing to seek to be considered a suitable candidate and whether
he is willing to allow the state to decide on his suitability or
unsuitability as regards access to classified information. Thus, every
attorney also has free choice of whether to accede to a certain
professional “elevation” of his qualifications and to thus be able to
accept representation in which he will have access to classified
information discussed in a given matter. Persons who ask the state to
allow them access to classified information – because they voluntarily
chose to practice a profession or assume an office to which the state
connects the possibility of access to classified information – must
necessarily submit to those restrictions which the state sets forth for
access to classified information; it is not only the right of the state,
but above all an obligation, arising from international treaties.
In
the opinion of the NSO, if attorneys who act as defense counsel in
criminal proceedings were to have a special position in access to
classified information, this would also be a certain disproportion in
view of the requirements imposed on bodies acting in criminal
proceedings, include state prosecutors, who are required to meet the
conditions for access to classified information under Act no. 148/1998
Coll.. Concerning attorneys providing legal assistance in civil law and
administrative proceedings, one must also point to the fundamental
principle of protecting classified information, i.e. that access by
person who do not hold a valid clearance may be only exceptional and
justified. However, attorneys do not automatically meet this condition
of “exceptional and justified.”
As
regards the objection that the current wording of Act no. 148/1998
Coll. makes it impossible to continue in criminal proceedings, the NSO
state that if neither of the attorneys who are in the position of
defense counsel to the accused (Hučín) meets the conditions under which
he may have access to classified information, the District Court in
Přerov should, by its official authority, provide an attorney ad hoc who
has the necessary qualifications for the performance of those actions
when classified information will be discussed. Of course, both of the
chosen attorneys can continue to act as defense counsel, they will
simply not participate in that part of the proceedings where classified
information will have to be discussed. Proceeding in this way can not
result in violation of the accused’s rights, nor to inconsistency with
the constitutional order of the Czech Republic.
The
NSO added that the fact that the Czech Bar Association does not
maintain a special list of attorneys who hold valid clearance does not
rule out the possibility that such persons exist, and can thus be
appropriately appointed to provide representation. It states that the
District Court in Přerov should have inquired at the NSO whether it is
possible to appoint defense counsel, and not merely stated the
assumption that “apparently no attorney has received security
clearance.”
In addition,
according to the NSO, one can assume that, even if the Constitutional
Court granted the petition of the District Court in Přerov and annulled §
42 par. 1 of Act no. 148/1998 Coll., this would not achieve the
obviously intended aim – i.e. to return to the legislative situation as
before the amendment made by Act no. 310/2002 Coll.. Annulling this
provision will have no effect on the position of attorneys generally,
and thus also not on attorneys who act as defense counsel in criminal
proceedings.
The NSO is
aware that the present legal framework for access to classified
information in individual types of court and administrative proceedings
is inadequate in terms of protecting classified information and that it
does not adequately observe the special characteristics of that area.
Therefore, the future legal framework should provide that in proceedings
where classified information will be discussed all person who will have
any sort of access to such classified information, with the exception
of the party to the proceedings, will need to hold clearances for the
appropriate level of secrecy. In these cases the procedural regulations
should also provided stricter rules than in proceedings where classified
information is not discussed. It is not desirable for the legal
framework, in the interest of protecting fundamental human rights, to
establish – on the basis of only an instruction – practically unlimited
access to classified information which will be discussed in the
proceedings, e.g. to the results of investigations by the intelligence
services.
In conclusion, the
NSO stated that even the draft of the new legal framework for
protecting classified information does not expect that attorneys would
be included among persons who are not required to meet statutory
conditions for access to classified information. On the contrary, the
draft proposes to narrow the group of persons who will have access to
classified information without further requirements, merely by reason of
the position they hold, which is also fully in accordance with NATO
requirements. In this regard, the NSO also referred to the
Constitutional Court judgment published as no. 322/2001 Coll., under
which the area of protection of classified information is sufficiently
unique that it is legitimate to have a certain limitation on the
standard procedural rights of persons with respect to whom the state is
investigating whether they meet the conditions for access to classified
information.
At the request
of the Constitutional Court the National Security Office added to its
statement, and identified and submitted regulations which govern the
issue of protection of classified information in the framework of the
European Communities. These are:
- EU Council Decision no. 2001/264/EC of 19 March 2001, adopting the Council’s security regulations. Under to this regulation, the condition for access to information classified as CONFIDENTIEL UE is clearance of the person requesting access to information. The general rules are not weakened by any exceptions for person who were allowed access to classified information only by reason of the office they hold. Part I Art. 9 of the Security Directive provides that “All persons who require access to information classified CONFIDENTIEL UE or above shall be appropriately cleared before such access is authorised. Part II, section V., point 1 provides that “Access to EU classified information will be authorised only for persons having a "need-to-know" for carrying out their duties or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET UE and CONFIDENTIEL UE information will be authorised only for persons in possession of the appropriate security clearance”;
- EU Commission Decision no. 2001/844/EC of 29 November 2001, amending its Internal Rules of Procedure. Under this regulation too, persons who request access to information classified as CONFIDENTIEL UE and higher must be appropriately cleared before access is permitted. Here too rules for access to information are not weakened by any exceptions. Part II, Art. 19 point 1 provides that “Access to EU classified information will be authorised only for persons having a "need-to-know" for carrying out their duties or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET UE and CONFIDENTIEL UE information will be authorised only for persons in possession of the appropriate security clearance.”
- EU Council Decision no. 2001/264/EC of 19 March 2001, adopting the Council’s security regulations. Under to this regulation, the condition for access to information classified as CONFIDENTIEL UE is clearance of the person requesting access to information. The general rules are not weakened by any exceptions for person who were allowed access to classified information only by reason of the office they hold. Part I Art. 9 of the Security Directive provides that “All persons who require access to information classified CONFIDENTIEL UE or above shall be appropriately cleared before such access is authorised. Part II, section V., point 1 provides that “Access to EU classified information will be authorised only for persons having a "need-to-know" for carrying out their duties or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET UE and CONFIDENTIEL UE information will be authorised only for persons in possession of the appropriate security clearance”;
- EU Commission Decision no. 2001/844/EC of 29 November 2001, amending its Internal Rules of Procedure. Under this regulation too, persons who request access to information classified as CONFIDENTIEL UE and higher must be appropriately cleared before access is permitted. Here too rules for access to information are not weakened by any exceptions. Part II, Art. 19 point 1 provides that “Access to EU classified information will be authorised only for persons having a "need-to-know" for carrying out their duties or missions. Access to TRÈS SECRET UE/EU TOP SECRET, SECRET UE and CONFIDENTIEL UE information will be authorised only for persons in possession of the appropriate security clearance.”
The
NSO added that the obligation to observe international undertakings
also arises from the CR’s membership in the North Atlantic Treaty
Organization. Standards for protection of classified information are
contained in the presented document, C-M (2002) 49 – Security within the
North Atlantic Treaty Organization. Under the rules provided in this
document, all persons who request access to information classified as
“Confidential” or higher, or persons who may have access to such
information by reason of their job or position, must be appropriately
cleared and instructed in advance.
IV.
Wording of the Contested Statutory Provision
The
Constitutional Court states that the wording of § 42 par. 1 of Act no.
148/1998 Coll., which was valid and in effect until 11 July 2002, was
the following:
Ҥ 42
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) and attorneys shall not be subject to security clearance.”
12) § 18 of Act no. 154/1994 Coll.
This provision was affected by Act no. 310/2002 Coll., which Amends Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, as amended by later regulations, of Act no. 101/2000 Coll., on Protection of Personal Data and Amending Certain Acts , as amended by later regulations, by Act no. 18/1997 Coll., on Peaceful Use of Nuclear Energy and Ionizing Radiation (the Atomic Energy Act) and Amending and Supplementing Certain Acts, as amended by later regulations, by Act no. 38/1994 Coll., on Foreign Trade with Military Materials and Supplementing Act no. 455/1991 Coll., on Trade Licensing (the Trade Licensing Act), as amended by later regulations, and by Act no. 140/1961 Coll., the Criminal Code, as amended by later regulations, by Act no. 283/1993 Coll., on the State Prosecution Office, as amended by later regulations, and by Act no. 42/1992 Coll., on Regulation of Property Relationships and Settling Property Claims in Co-operatives, as amended by later regulations (“Act no. 310/2002 Coll.”). Act no. 310/2002 Coll. in Part One, Art. I, point 4, set forth a new wording of § 42 par. 1, with effect as of 12 July 2002, as follows:
“4. § 42 par. 1 including footnote no. 12) reads:
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) shall not be subject to security clearance.
12) § 18 of Act no. 154/1994 Coll.
§ 23a of Act no. 67/1992 Coll.’.”
Thus, as a result of this amendment of Act no. 310/2002 Coll., the text of the contested § 42 par. 1 of Act no. 148/1998 Coll., in the wording in effect, is as follows:
Ҥ 42
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) shall not be subject to security clearance
12) § 18 of Act no. 154/1994 Coll.
§ 23a of Act no. 67/1992 Coll.“
Under Art. IX of Act no. 310/2002 Coll., Act no. 148/1998 Coll., on Classified Information and Amending Certain Acts ceases to be in effect on 31 December 2003.
Act no. 436/2003 Coll., which Amends Act no. 555/1992 Coll., on the Prison Service and the Justice Guard of the Czech Republic, as amended by later regulations, and Certain Other Acts, states in Art. VI: “In § 89 of Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, the existing text is marked as paragraph 1, and paragraph 2 is added, which reads:
(2) This Act ceases to be in effect on 30 June 2004.”
Thus, the amendment of the Act on Classified Information, implemented by Art. VI of Act no. 426/2003 Coll., extended its validity until 30 June 2004.
Ҥ 42
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) and attorneys shall not be subject to security clearance.”
12) § 18 of Act no. 154/1994 Coll.
This provision was affected by Act no. 310/2002 Coll., which Amends Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, as amended by later regulations, of Act no. 101/2000 Coll., on Protection of Personal Data and Amending Certain Acts , as amended by later regulations, by Act no. 18/1997 Coll., on Peaceful Use of Nuclear Energy and Ionizing Radiation (the Atomic Energy Act) and Amending and Supplementing Certain Acts, as amended by later regulations, by Act no. 38/1994 Coll., on Foreign Trade with Military Materials and Supplementing Act no. 455/1991 Coll., on Trade Licensing (the Trade Licensing Act), as amended by later regulations, and by Act no. 140/1961 Coll., the Criminal Code, as amended by later regulations, by Act no. 283/1993 Coll., on the State Prosecution Office, as amended by later regulations, and by Act no. 42/1992 Coll., on Regulation of Property Relationships and Settling Property Claims in Co-operatives, as amended by later regulations (“Act no. 310/2002 Coll.”). Act no. 310/2002 Coll. in Part One, Art. I, point 4, set forth a new wording of § 42 par. 1, with effect as of 12 July 2002, as follows:
“4. § 42 par. 1 including footnote no. 12) reads:
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) shall not be subject to security clearance.
12) § 18 of Act no. 154/1994 Coll.
§ 23a of Act no. 67/1992 Coll.’.”
Thus, as a result of this amendment of Act no. 310/2002 Coll., the text of the contested § 42 par. 1 of Act no. 148/1998 Coll., in the wording in effect, is as follows:
Ҥ 42
(1) Deputies and senators, with the exception of members of inspection bodies under special statutes,12) shall not be subject to security clearance
12) § 18 of Act no. 154/1994 Coll.
§ 23a of Act no. 67/1992 Coll.“
Under Art. IX of Act no. 310/2002 Coll., Act no. 148/1998 Coll., on Classified Information and Amending Certain Acts ceases to be in effect on 31 December 2003.
Act no. 436/2003 Coll., which Amends Act no. 555/1992 Coll., on the Prison Service and the Justice Guard of the Czech Republic, as amended by later regulations, and Certain Other Acts, states in Art. VI: “In § 89 of Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, the existing text is marked as paragraph 1, and paragraph 2 is added, which reads:
(2) This Act ceases to be in effect on 30 June 2004.”
Thus, the amendment of the Act on Classified Information, implemented by Art. VI of Act no. 426/2003 Coll., extended its validity until 30 June 2004.
V.
Conditions for the Petitioner’s Active Standing
The
Constitutional Court first considered the question of whether the
petitioner – a general court – is authorized to file a petition to annul
the contested provision. It concluded that it was. It is evident, as
the petitioner correctly stated, that a general court must apply the
contested provision to its actions in particular criminal proceedings,
and that the current legal framework directly affects the rights of
accused persons to a defense. The petition, although it basically
concerns procedural law, is related to the decision-making activity of
the general court, which is thus an authorized petitioner (§ 64 par. 3
of Act no. 182/1993 Coll., as amended by later regulations).
VI.
Constitutional Conformity of the Legislative Process
The
Constitutional Court, in accordance with § 68 par. 2 of the Act on the
Constitutional Court, then considered whether the contested provision of
Act no. 148/1998 Coll., as amended by Act no. 310/2002 Coll., was
passed and issued within the bounds of Constitutionally provided
jurisdiction and in a constitutionally prescribed manner. The Court
concluded that it was.
The
Constitutional Court determined from the relevant stenographic records
of the Chamber of Deputies and the Senate that the bill amending Act no.
148/1998 Coll., was passed at the 47th session of the Chamber of
Deputies on 27 March 2002, in the 3rd term of office, by resolution no.
2201. When voting on the draft, 170 deputies were present, 152 deputies
voted in favor of passing the bill, 18 deputies voted against passing
the bill, and no one abstained. The bill was properly passed.
The
bill was then discussed in the Senate, at its 17the session in the 3rd
term of office on 3 May 2002. After substantive discussion, the Senate,
by resolution no. 372, decided to return the draft act to the Chamber of
Deputies, as amended by amending proposals. Sixty senators voted in
favor of this proposal, and none against. The proposal to return the
draft act to the Chamber of Deputies with amending proposals was duly
passed.
The Chamber of
Deputies again discussed the draft act, which amends Act no. 148/1998
Coll., at its 51st session on 13 June 2002 in the 3rd term of office.
When voting whether to pass the draft act with the Senate’s amending
proposals there were 182 deputies present; 76 deputies voted in favor,
and 98 deputies voted against. The draft act, as amended by the Senate’s
amending proposals was not passed, and the Chamber of Deputies thus
confirmed the draft act in the original wording, passed at the 47th
session on 27 March 2002 (resolution no. 2319).
The
bill was signed by the president of the Czech Republic on 28 June 2002,
and delivered to the prime minister for signature on 2 July 2002. The
Act was promulgated on 12 July 2002 in the Collection of Laws, in Part
114 as number 310/2002.
The
abovementioned Act no. 436/2003 Coll. was discussed in the Chamber of
Deputies on 4 November 2003 and passed by resolution no. 750. There were
168 deputies present; 149 voted in favor, and 5 deputies voted against.
The Act was discussed in the Senate on 3 December 2003, with 58
senators present; 49 senators voted in favor, and one senator voted
against. The president signed the Act on 9 December 2003. The Act was
promulgated in the Collection of Laws on 16 December 2003.
VII.
Definition of the Subject Matter of the Proceedings According to the Proposed Verdict in the Petition
The
wording of the contested § 42 par. 1 of Act no. 148/1998 Coll., on
Classified Information, as amended by later regulations, as already
stated, is the following: “Deputies and senators, with the exception of
members of inspection bodies under special statutes, shall not be
subject to security clearance.” This wording of the provision was
inserted into the Act on Classified Information by the amendment made by
Act no. 310/2002 Coll., with effect as of 12 July 2002, when the
previous wording of the provision, set forth by the amendment of the Act
on Classified information, made by Art. IX of Act no. 30/2000 Coll.,
was the following: “Deputies and senators, with the exception of members
of inspection bodies under special statutes, and attorneys shall not be
subject to security clearance.” The original wording of § 42 par. 1 of
Act no. 148/1998 Coll. was passed by the Parliament of the Czech
Republic in this wording: “Deputies and senators, with the exception of
members of inspection bodies under special statutes, and defense counsel
shall not be subject to security clearance.”
The
text of the Act on Classified Information reviewed by the
Constitutional Court was passed as amended by the amending proposal by
deputy Jan Klas at the motion of deputies František Ondruš, Petr Nečas
and Ivan Langer to issue an Act which amends Act no. 148/1998 Coll., on
Classified Information, and Amending Certain Acts, as amended by Act no.
164/1999 Coll., Act no. 18/2000 Coll., Act no. 29/2000 Coll., Act no.
30/2000 Coll., Act no. 363/2000 Coll. and Act no. 60/2001 Coll. This
amending proposal was presented in the second reading at the 47th
session of the Chamber of Deputies of the Parliament of the Czech
Republic on 22 March 2003, and its aim was not explicitly made clear by
the sponsor. The issue was adding to the amending proposal from the
guaranteeing Committee for Defense and Security of 15 March 2002, passed
by resolution no. 206, which presented to the Chamber of Deputies the
following wording of § 42 par. 1 of the Act: “Deputies and senators
shall not be subject to security clearance.” In the subsequent
discussion, none of the deputies spoke concerning the issue, and the
same occurred in the third reading, conducted in the continuation of the
47th session of the Chamber of Deputies on 27 March 2002.
After
substantive discussion, the Senate, by resolution no. 372 of 3 May
2002, returned the bill to the Chamber of Deputies as amended by its
amending proposals, in which it also included a new wording of § 38 par.
7 of the Act on Classified information: “The manner of designating a
person in the scope necessary for access to classified information in
civil law court proceedings, criminal proceedings, and in administrative
court proceedings shall be provided by special regulations.” The senate
also identified these regulations in note no. 11a) to that provision:
“11a) § 40a of the Civil Procedure Code, as amended by Act no.30/2000
Coll. § 35 par. 4, § 50 par. 3, §198a and § 201 par. 3 of the Criminal
Procedure Code, as amended by Act no. /2002 Coll.” As the discussion
from the 17th session of the Senate on 3 May 2002 shows, the Senate
considered conditioning the access of an attorney acting as defense
counsel in criminal proceedings on security clearance to be a limitation
on the right of the accused to a defense, in the sense of his right to
choose an attorney.
The
Chamber of Deputies, at its 51st session on 13 June 2002, by resolution
no. 2319 reject the draft act as amended by the Senate’s amending
proposals, and approved it in the wording passed at the 47th session on
27 March 2002.
VIII.
Ratio Decidendi
VIII/a Review of the Matter on the Level of Simple Law
VIII/a Review of the Matter on the Level of Simple Law
The
arguments contained in the petition from the District Court in Přerov
to annul § 42 par. 1 of the Act on Classified Information implicitly
contain a balancing of the public interest in ensuring protection of
information (classified information) on the one hand, and, on the other
hand, the public interest in ensuring the right to a defense in criminal
proceedings, which includes the right of the accused to freely choose
an attorney. The arguments are based on giving priority to protecting
the right to a defense and on emphasizing the principle of an attorney’s
independence from the state, which are undermined by state approval of
fitness for access to classified information, and also by unacceptable
inequality, i.e. the unacceptability of categorizing attorneys into a
group authorized to have access to classified information and a group
which does not have that right. On that basis, the contested statutory
provision is seen to have a gap, and the democratic legislature’s
filling in of that gap (i.e. the wording of the Act before the amendment
made by Act no. 310/2002 Coll.) is seen to fulfill the cited
constitutional principles.
Review
of these arguments by the Constitutional Court requires reconstruction
of the purpose and wording of those provisions of simple law which
affect the issue of access to classified information by attorneys acting
as defense counsel in criminal proceedings.
Under
§ 1 of the Act on Classified Information, the subject matter of the Act
is defining information which must be classified in the interests of
the Czech Republic, how the information is to be protected, the
jurisdiction and authority of state bodies in conducting state
administration in the area of classified information, the obligations of
state bodies, the rights and obligations of natural persons and legal
entities, liability for violation of obligations imposed by the Act, and
establishing the position of the National Security Office. In other
words, the subject matter of the Act is the normative definition of the
concept of classified information, procedural regulation for setting
classification levels, conditions for access to classified information,
protection of classified information, and the authority of state bodies
in conducting state administration in that area.
Under
§ 1 par. 1 of the Criminal Procedure Code, the purpose of criminal
proceedings is to govern the actions of bodies acting in criminal
proceedings so that crimes will be duly discovered and their
perpetrators justly punished under the law. The principles of criminal
proceedings include the principle of the accused’s right to a defense,
including the right to choose defense counsel (§ 2 par. 13 of the
Criminal Procedure Code). In a number of provisions, the Criminal
Procedure Code responds to possible conflict of the public interest in
protecting classified information with the constitutional order and the
legally guaranteed right of the accused to a defense, including the
right to respond to all evidence presented in criminal proceedings and
the right to freely choose defense counsel. These provisions include §
35 par. 4, § 50 par. 3 and § 198a of the Criminal Procedure Code,
governing the instruction and notification obligation of bodies acting
in criminal proceedings, relating to issues of protection of classified
information, as well as special conditions for access to classified
information on the part of a representatives of a party and an injured
person, as well as § 200 of the Criminal Procedure Code, on excluding
the public from the main trial proceedings if discussion of the matter
in public would endanger classified information protected by a special
act, and § 8 and § 99 of the Criminal Procedure Code on questioning
witnesses about circumstances concerning classified information. Also
connected to these provisions of the Criminal Procedure Code for
ensuring protection of classified information in criminal proceedings
are § 5 and § 21 of Act no. 85/1996 Coll., on Advocacy, as amended by
later regulations, and § 6 of Act no. 36/1967 Coll., on Experts and
Interpreters, governing the obligation of confidentiality of attorneys,
experts and interpreters, § 105, § 106, and, in particular, § 107 of the
Criminal Code, enshrining the criminal law treatment of protection of
classified information, and finally § 21, § 24, § 39, § 44, § 51, § 86, §
132, § 139, § 162, § 166, § 183, § 188, and § 192 of Ministry of
Justice instruction no. 1/2002 of 3 December 2001, file no.
505/2001-Org, which issues the internal and office rules of procedure
for district, regional, and high courts, which provide measures to
ensure the protection of classified information in managing court
agendas.
The present issue
is governed only indirectly, for purposes of systematic analysis, by §
38 par. 7 of the Act on Classified Information. Under it, the manner of
designating a person, in the scope necessary, to have access to
classified information in civil law court proceedings and in
administrative court proceedings shall be provided by a special
regulation. In civil law court proceedings that regulation is § 40a par.
1 of the Civil Procedure Code, under which, in proceedings in which
classified information protected by a special act is discussed, the
panel chairman is required to instruct in advance, under this special
act, lay judges, the parties, persons authorized to act on their behalf
(§ 21 to 21b of the Civil Procedure Code), the parties’ representatives,
i.e. including attorneys, interpreters, persons named in § 116 par. 3,
and other persons who must take part in the proceedings by law, on the
criminal consequences of violating the secrecy of classified
information; this instruction is recorded in a protocol, and by signing
the protocol the instructed persons become persons designated in the
scope necessary to have access to classified information. In
administrative court proceedings that regulation is § 45 of the
Administrative Procedure Code, which governs the authorization of a
party to the proceedings and his representative to view parts of the
record which contain classified information and which were or will be
presented as evidence by the court. Another such regulation is § 64 of
the Administrative Procedure Code, which establishes the appropriate use
of § 40a par. 1 of the Civil Procedure Code in the administrative
courts.
At the level of
simple law, we must answer the question of whether the issue of defense
counsel’s access to classified information in criminal proceedings is
governed by the Act on classified Information or the Criminal Procedure
Code, i.e. in comparing these statutes, which of them is lex generalis
and which is lex specialis.
This complex of simple law norms permits two interpretations:
In the first interpretation, the issue of access to classified information by attorneys acting as defense counsel in criminal proceedings is governed by § 38 par. 7 and § 42 par. 1 of Act no. 148/1998 Coll., as amended by later regulations, under which, although the Act did not establish the same reference for criminal proceedings as it did for civil law court proceedings and administrative court proceedings and so on a contrario, as attorneys are not included in the list of persons not subject to security clearance, it is a condition for attorneys acting as defense counsel in criminal proceedings to have access to classified information that they pass a security clearance. This interpretation comes from linguistic analysis, i.e. from the literal wording of these provisions.
In the first interpretation, the issue of access to classified information by attorneys acting as defense counsel in criminal proceedings is governed by § 38 par. 7 and § 42 par. 1 of Act no. 148/1998 Coll., as amended by later regulations, under which, although the Act did not establish the same reference for criminal proceedings as it did for civil law court proceedings and administrative court proceedings and so on a contrario, as attorneys are not included in the list of persons not subject to security clearance, it is a condition for attorneys acting as defense counsel in criminal proceedings to have access to classified information that they pass a security clearance. This interpretation comes from linguistic analysis, i.e. from the literal wording of these provisions.
Whether it also
flows from the presupposed subjective teleological analysis, i.e. from
reconstruction of the original legislative intent, can not be claimed
with certainty.
The original
intent of the Chamber of Deputies can not be concluded simply from its
rejection of the Senate’s explicit arguments, which opposed making
passing a security CLEARANCE a condition for access to CLASSIFIED
information by attorneys in criminal court proceedings and which
proposed, in that regard, supplementing the referring norm, contained in
§ 38 par. 7 of Act no. 148/1998 Coll., as amended by later regulations,
as the Chamber of Deputies voted on whether to pass the Act, as amended
by changes proposed by the Senate, as a whole (Art. 47 par. 2, 3 of the
Constitution).
Finally, the
original intention also can not be concluded a contrario based on the
deletion of a category of persons – attorneys – from the wording of § 42
par. 1 of Act no. 148/1998 Coll., implemented by Act no. 310/2002 Coll.
This is because replacing the term “defense counsel” with the term
“attorneys” in § 42 par. 1 of the Act on Classified Information, which
the legislature did in Art. IX of Act no. 30/2000 Coll., was tied to the
simultaneous establishment of a new provision, § 40a of the Civil
Procedure Code (Art. I point 53. of Act no. 30/2000 Coll.), governing
access to classified information by parties to civil law court
proceedings and their representatives, as well as other persons, and
thus also the establishment of a special framework for access to
classified information by attorneys not only in the role of defense
counsel in criminal court proceedings, but also as representatives in
civil court proceedings. If the exception to the obligation for defense
counsel to undergo a security clearance, before the amendment of the Act
on Classified Information implemented by Act no. 30/2000 Coll., both
from the Act on Classified Information, and from the Criminal Procedure
Code, we can only consider that fact superfluous, and directly apply the
interpretational maxim superfluum noc nocet (cf. judgment file no. Pl.
ÚS 6/02).
If the
hypothetical original intent of the Chamber of Deputies was to introduce
security clearances of defense counsel in criminal proceedings by
amendment of the Act on Classified Information, implemented by Act no.
310/2002 Coll., under the second possible interpretation of the complex
of relevant simple law the intent of the legislature was not expressed
adequately, i.e. there was inconsistency between the legislature’s
intent and the wording of the statutory provision.
Under
the second interpretation, protection of classified information in
criminal proceedings is a special area in protection of classified
information, and therefore the regime for it is governed by the Criminal
Procedure Code, and not by the Act on Classified Information, ergo in
that context the Criminal Procedure Code is a lex specialis, and its
framework takes precedence of the Act on Classified Information, which
is a general law – lex generalis. This conclusion results not only from
comparing the subject matter of both statutes, but also from other
arguments:
Applying the Act
on Classified Information to the present issue then by the argument
reductionis ad absurdum leads to consequences which can hardly be
supported.
The position of
defense counsel in criminal proceedings, i.e. in particular his
procedural authorization, is based on the position (rights) of the
accused person. Establishing an exception for attorneys leaves open a
fundamental question, that of the accused’s access to classified
information which is part of the evidence in criminal proceedings. From
the viewpoint of Art. 37 par. 3 and Art. 38 par. 2 of the Charter, as
well as Art. 6 par. 3 let. c) of the Convention, it is hard to imagine
restricting such access. Similarly, it is hard to imagine the National
Security Office “clearing” the accused person in order to permit his
access to classified information (a hyperbolic example taking these
consequences ad absurdum would be the idea of security clearances on a
person accused of crimes under § 105 and § 106 of the Criminal Code).
This interpretation would then lead to another absurd consequence: It
could create a situation where it would be necessary to require an
attorney in criminal proceedings to pass a security clearance in order
to have access to evidentiary material containing classified
information, but in civil law court proceedings, or in administrative
court proceedings, the same attorney, acting as representative of a
party to those proceedings, would not be required to pass this security
clearance for access to the identical evidentiary material, containing
the identical classified information.
Here
we must point to the fact that, in a number of its decisions (II. ÚS
315/2001, II. ÚS 326/98, Pl. ÚS 2/99, II. ÚS 221/98), the Constitutional
Court applied analysis per reductione ad absurdum, which is a form of
teleological analysis (teleological reduction): in that analysis, in the
event of several alternative interpretations, any which leads to
unacceptable results relative to the purpose and aim of a norm is ruled
out.
Another argument is the
conclusion arising from objective teleological analysis, i.e. from the
principal difference in the roles which an attorney fulfils under the
Act on Advocacy and under the codes of procedure: if, on the one hand,
that role can mean that an attorney is authorized to manage another’s
property, including acting as bankruptcy trustee, on the other hand it
can mean legal representation of parties, generally in civil law
proceedings, criminal proceedings, or administrative court proceedings.
In this regard, we must point to the amendment of the Act which amends
Act no. 85/1996 Coll., on Advocacy, as amended by later regulations, and
Act no. 6/2002 Coll., on Courts and Judges (which was passed on 9 May
2002 and published as no. 228/2002 Coll.). The provision of § 56 of the
Act on Advocacy, as amended by this Act, established the authorization
of an attorney to manage another’s property, including acting as
bankruptcy trustee; it provided for an attorney an exception from the
obligation of confidentiality under § 21 of the Act on Advocacy, for
information which he learns in connection with acting as bankruptcy
trustee, and it preserved a bankruptcy trustee’s obligation of
confidentiality under the provisions of special legal regulations. The
authorization to manage another’s property, including the authorization
to act as bankruptcy trustee, is, depending on the nature of the managed
property, also tied to the potential need for access to classified
information.
Based on this
teleological differentiation, one can conclude that, precisely in view
of § 56 of the Act on Advocacy, as amended by Act no. 228/2002 Coll., an
attorney, under § 42 par. 1 of Act no. 148/1998 Coll., as amended by
later regulations, is subject to a security clearance for access to
classified information, unless a special act provides otherwise. Such
special acts, according to the referring norm contained in § 38 par. 7
of the Act on Classified information are the Civil Procedure Code and
the Administrative Procedure Code. In addition, special conditions, for
access to classified information by an attorney acting as defense
counsel in criminal court proceedings, different from those of the Act
on Classified information, are also established in the Criminal
Procedure Code (in particular § 35 par. 4 and § 198a of the Criminal
Procedure Code): “If there is a conflict between a general and special
rule, one can assume that the legislature wished to deviate from the
general rule through the special statute.” (Ch. Perelman, Logique
Juridique. Paris 1976; citation from German translation: Juristische
Logik als Argumentationslehre. Freiburg-München 1979, p. 65). However,
the referring norm itself does not establish the precedence of the
special over the general, it only plays an informative role (in this
regard, it is also appropriate to point out that, despite the
formulations chosen by the legislature, § 38 par. 7 of Act no. 148/1998
Coll., as amended by later regulations, is not a delegation, but a
reference – delegation is conceptually tied to the hierarchy of legal
force of an authorizing norm and a delegated norm). Thus, a contrario,
one can not conclude from the absence of a norm in § 38 par. 7 of Act
no. 148/1998 Coll., as amended by later regulations, referring to a
special regulation governing criminal proceedings, that the general
framework in the Act on Classified information takes precedence over the
special framework for access to classified information by an attorney
acting as defense counsel in criminal proceedings, contained in the
Criminal Procedure Code.
The
conclusion reached by objective teleological analysis, as well as by
analysis per reductionem ad absurdum, is also supported by an argument
based on the maxim of internal lack of conflict and consistency of the
legal order (in other words, it is based on the axiom of a rational
legislature – e.g., when applying the current teleological analysis the
Constitutional Court of the Republic of Poland relies on the theoretical
concept of a “rational legislature” – see A. Kozak, Rodzaje wykladni
prawa w uchwalach Trybunalu Konstytucyjnego. In: Z zagadnień wykladni
prawa. Red. S. Kaźmierczyk, Wroclaw 1997, p. 57-60). If the legislature,
in the Act on Classified information, were to regulate the obligation
of attorneys acting as defense counsel in criminal proceedings to
undergo security clearance when having access to classified information
it would consequently have to reflect the results of that framework in a
special definition establishing grounds for excluding chosen defense
counsel under § 37a of the Criminal Procedure Code and removing
appointed defense counsel from the defense under § 40a of the Criminal
Procedure Code. If it did not do so, one can only conclude that the
assumed premise was not met.
On
the level of methodological analysis of simple law, in particular
relying on the argument reductionis ad absurdum and the maxim of
internal lack of conflict and consistency of the legal order, one can
conclude that the second alternative analysis of § 38 par. 7 a § 42 par.
1 of Act no. 148/1998 Coll., as amended by later regulations is
justified. This conclusion is based on a doctrinaire opinion, under
which in the event of conflicting analyses, the decisive viewpoint,
tertium comparationis, is teleological reduction (in other words,
analysis per reductione ad absurdum): “Argumentum reductione ad absurdum
is applied either independently, or if analysis under several different
arguments leads to inconsistent (incompatible) conclusions.” (V. Knapp,
Teorie práva. Prague 1995, p. 173. Neil MacCormick calls Argumentum ad
absurdum, or teleological reduction, the “golden rule” of analysis: N.
MacCormick, Argumentation and Interpretation in Law. Ratio Juris, No. 1,
1993, p. 26).
Just this
reconstruction of the relevant, valid simple law leads to the conclusion
that access to classified information by an attorney acting as defense
counsel in criminal proceedings is governed by the Criminal Code, and
not by the Act on Classified information, and thus under the existing
valid legal framework, the Czech legal order does not require a security
clearance by the National Security Office for that purpose, i.e. for
access to classified information by defense counsel in criminal
proceedings.
VIII./b
Constitutional Law Review
Constitutional
law review of the conflicting alternative interpretations of the
relevant simple law is based on the principle of proportionality and on
the principle of giving priority to a constitutionally consistent
analysis over derogation of a law.
Based
on the fact that the position of defense counsel in criminal
proceedings is derived from the position of the accused, at the
constitutional level the nucleus of the matter being adjudicated is
conflict between the public value (on the concept of a public value see
judgment file no. Pl. ÚS 15/96) of security of the state as an element
of its sovereignty (Art. 1 of the Constitution), one component of which
is ensuring protection of classified information, and the accused
person’s fundamental right to a defense under Art. 40 par. 3 of the
Charter and Art. 6 par. 3 let. c) of the Convention, his fundamental
right to express his views on all evidence admitted in the proceedings
under Art. 38 par. 2 of the Charter, as well the fundamental right
arising from the principle of equal “weapons” under Art. 37 par. 3 of
the Charter.
Similarly as all
democratic constitutional courts, so too the Constitutional Court of
the Czech Republic applies the principle of proportionality to resolve
conflicts between fundamental rights, or public values protected by the
constitutional order, in proceedings on review of norms and in
proceedings on constitutional complaints, (the Court first
comprehensively analyzed the principle of proportionality when
evaluating the constitutional institution of keeping secret the personal
data of witnesses in criminal trials - Pl. ÚS 4/94).
The principle pf proportionality is methodologically based on three steps:
The first is review of simple law from the viewpoint of suitability; this involves reviewing the chosen normative means in terms of whether they will fulfill the aim pursued. If given normative means are not capable of attaining the aim pursued, this is a manifestation of arbitrariness by the legislature, which is considered inconsistent with the principles of a state governed by the rule of law.
The first is review of simple law from the viewpoint of suitability; this involves reviewing the chosen normative means in terms of whether they will fulfill the aim pursued. If given normative means are not capable of attaining the aim pursued, this is a manifestation of arbitrariness by the legislature, which is considered inconsistent with the principles of a state governed by the rule of law.
The
second step in applying the principle of proportionality is reviewing
simple law from the point of view of necessity, which analyzes a number
of possible normative means in relation to the intended aim and their
subsidiariness in terms of restricting constitutionally protected values
– a fundamental right or a public good. If the aim pursued by the
legislature can be achieved by alternative normative means, then the one
which restricts the given constitutionally protected value in the
smallest degree is the one which is constitutional.
If
the reviewed simple right aims to protect a certain constitutionally
protected value, but also restricts another, the third viewpoint of the
principle of proportionality, balancing, is a methodology of weighing
these conflicting constitutional values.
To
arrive at a conclusion in the case of conflict of fundamental rights,
or the public good, as principles, unlike the case of conflict of norms
of simple law, the Constitutional Court is guided by the requirement to
optimize, i.e. the postulate of minimizing the limitation of a
fundamental right or freedom, or a public good. This involves the maxim
that, if it is concluded that one of two conflicting fundamental rights
or public estates has justified priority, a necessary condition of the
final decision is to use all possibilities to minimize interference in
one of them. The requirement to optimize can be normatively derived from
Art. 4 par. 4 of the Charter, under which fundamental rights and
freedoms must be preserved when applying provisions on the bounds of
fundamental rights and freedoms, and thus, analogously, they must be
preserved if they are limited as a result of being in conflict.
Based
on these viewpoints for constitutional review of the issue, it must be
said that in terms of the postulate of suitability, i.e. the
relationship between the legal means used and the legislature’s aims,
having an attorney pass a security clearance is an effective means for
achieving the pursued aim, a public value. However, in terms of the
subsidiariness of possible alternative instruments which would ensure
the given aim, i.e. in terms of the criterion of necessity, one can
conclude that security clearances are not a proportional means to
achieving the desired aim, because in criminal proceedings that can be
achieved through a combination of other instruments (instruction by the
court about obligations arising from the Act on Classified information
and about criminal penalties, the obligation of confidentiality under
the Act on Advocacy, etc.), which, in this context, do not affect, and
in no way limit the fundamental rights which are in conflict with the
public value (security of the state) – the fundamental right to a
defense, to equal “weapons,” or the right to express one’s views on all
evidence. The framework contained in the Criminal Procedure Code not
only guarantees protection of fundamental rights under Art. 37 par. 3,
Art. 38 par. 2, and Art. 40 par. 3 of the Charter and Art. 6 par. 3 let.
c) of the Convention, but also, through a number of its norms, as well
as a number of other related norms of simple law, meets the requirement
of minimizing limitation of protection of a public good (ensuring
security of the state by protecting classified information) that is in
conflict in a given matter, and thus also follows the constitutional
requirement of optimization.
In
this regard, the framework contained in the Criminal Procedure Code can
also be considered consistent with the results of interpretation of
Art. 6 par. 3 let. c) of the Convention by the European Court of Human
Rights. In the Court’s judgment in the case of Meftah and others v.
France, 2002: “The Court reiterates that the right for everyone charged
with a criminal offence to be defended by counsel of his own choosing
(see Pakelli v. Germany, judgment of 25 April 1983, Series A no. 64, p.
15, § 31) cannot be considered to be absolute and, consequently the
national courts may override that person's choice when there are
relevant and sufficient grounds for holding that this is necessary in
the interests of justice (see Croissant, cited above, p. 33, § 29).” The
European Court of Human Rights came closest to expressing a view
regarding analysis of the concept “relevant and sufficient grounds
required by the interests of justice, which limit the absolute nature of
the right to choose an attorney,” in the context of the matter being
decided by the Constitutional Court, in the case Chazal v. United
Kingdom, 1996, and Tunelky and others v. United Kingdom, 1998. Insofar
as English law allows the appointment of a special attorney in certain
types of proceedings, one who has access to classified information
concerning national security, but who is bound by an obligation of
confidentiality in relation to the client, the European Court of Human
Rights found this circumstance to be a limitation in terms of Art. 6
par. 1 of the Convention. Under a doctrinaire interpretation of these
decisions, “it does not appear, however, that only an attorney
registered on a special list, or an attorney specially cleared from a
state security viewpoint could be appointed as a special attorney” (B.
Repík, Advokát ve světle judikatury Evropského soudu pro lidská práva
[The Attorney in Light of the Case Law of the European Court of Human
Rights]. part I, Bulletin advokacie, no. 10, 2002, p. 19).
If
the requirement to optimize two conflicting values guaranteed by the
constitutional order leads one to conclude that security clearances on
attorneys acting as defense counsel in criminal proceedings for purposes
of permitting access to classified information are constitutionally
unacceptable, but that the conditions for defense counsel’s access to
classified information which are established in the Criminal Procedure
Code and do not limit the fundamental rights to a defense, equality of
“weapons” and the right to express one’s views on all evidence are
acceptable, it becomes necessary to apply the principle of giving
priority to a constitutional interpretation over derogation, when
evaluating the constitutionality of § 42 par. 1 of Act no. 148/1998
Coll.. The Constitutional Court applied this principle in a number of
its decisions. It first did so in judgment Pl. ÚS 48/95, in which it
said that, in a situation where a certain provision of a legal
regulation allows two different interpretations, one being in accordance
with the constitutional order and the other is inconsistent with it,
grounds for annulling that provision do not exist; when applying the
provision, courts must interpret it in the constitutionally consistent
manner. The Constitutional Court then applied the principle of
preferring constitutionally consistent interpretation over annulment in a
number of other decisions in proceedings to review norms (e.g. Pl. ÚS
5/96; Pl. ÚS 19/98; Pl. ÚS 15/98; Pl. ÚS 4/99; Pl. ÚS 10/99; Pl. ÚS
17/99).
These conclusions
concerning optimization when resolving conflict between constitutionally
guaranteed values, based on the content and purposes of the simple law
reviewed, together with the method of giving priority to a
constitutional interpretation over annulling a statute, are
constitutional arguments for reviewing the constitutionality of § 42
par. 1 of Act no. 148/1998 Coll., as amended by later regulations, which
fully correspond to the conclusions reached by applying the methodology
of analyzing simple law, based on teleological reduction, objectively
teleological analysis, and systematic analysis, which includes the rule
lex specialis derogat legi generali. For this reason the Constitutional
Court denied the petition of the District Court in Přerov to annul § 42
par. 1 of Act no. 148/1998 Coll., on Protection of Classified
information and Amending Certain Acts, as amended by later regulations.
In
a number of its decisions the Constitutional Court addressed the
interpretation of Art. 89 par. 2 of the Constitution, in particular, in
its most recent case law, in the judgment Pl. ÚS 2/03, under which, “it
is not only the verdict of the judgment which is binding, but also the
reasoning, or those parts of it which contain ‘significant’ grounds “
(similarly, judgment file no. III. ÚS 200/2000). The Constitutional
Court continues to hold these opinions.
A
special situation arises in this regard with proceedings on the review
of norms where the Constitutional Court denies a petition to annul a
statute, other legal regulation, or their individual provisions, and
bases its decision on the principle of giving priority to constitutional
interpretation over annulment of a statute, other legal regulation, or
their provisions, under which principle, in a situation where a certain
provision of a legal regulation permits two different interpretations,
one being consistent with the constitutional order and the other
inconsistent, there are no grounds to annul that provision; when
applying the statute, other legal regulation, or their provisions, the
bodies of public power, in particular courts, must interpret that
provision in a constitutional manner (Pl. ÚS 48/95 and other decisions).
A different interpretation of Art. 89 par. 2 of the Constitution, in
judgments which deny petitions to annul legal regulations on the grounds
of giving priority to constitutional interpretation, would make the
Constitutional Court’s decisions legally meaningless, or confusing, and
at the same time would force the Constitutional Court to steps which
lead to absurd and unsustainable results: to not rely on the possibility
of constitutionally consistent interpretation, abandon the principle of
judicial self restraint, and if there is the slightest chance of
constitutionally inconsistent interpretation of a contested regulation,
to annul it. For these reasons, in these proceedings on review of norms,
given a negative verdict with interpretative arguments, the
Constitutional Court placed the fundamental constitutional principle,
arising from a number of significant grounds, in the verdict section of
the judgment.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 28 January 2004
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 28 January 2004
Dissenting Opinion
of Constitutional Court judge JUDr. Vojen Güttler to the decision of the Plenum of the Constitutional Court of 28 January 2004 in the matter of a petition from the District Court in Přerov seeking the annulment of § 42 par. 1 of Act no. 148/1998 Coll., on Protection of Classified Information and Amending Certain Acts, as amended by later regulation
I.
1) The Plenum of the Constitutional Court decided in part I. of its verdict that the petition is denied.
The nucleus of this verdict in the judgment of the Plenum of the Constitutional Court is the idea that protection of classified information is a special area in criminal proceedings, so that the regime for it is governed by the Criminal Procedure Code, and not by the Act on Classified information, which does not apply at all to this area (i.e. also not to the issue of access to classified information by attorneys acting as defense counsel).
The nucleus of this verdict in the judgment of the Plenum of the Constitutional Court is the idea that protection of classified information is a special area in criminal proceedings, so that the regime for it is governed by the Criminal Procedure Code, and not by the Act on Classified information, which does not apply at all to this area (i.e. also not to the issue of access to classified information by attorneys acting as defense counsel).
I do not accept this thinking.
First of all, I point out – as was also said during the Plenum’s discussions – that the wording of the contested provision of the statute – read outside of any particular context – does not in itself actually create unconstitutionality. Of course, the contested provision can not be read so narrowly. It is evident that the amended § 42 par. 1 of the Act deleted attorneys – to which it previously expressly applied – from the original text precisely because the amendment wished, in contrast to the previous legal framework, to include attorneys in the group of person who are generally subject to the regime of security clearances by the National Security Office (the “NSO”), including in criminal proceedings. If the Constitutional Court denied the petition to annul the contested provision, and in the reasoning of its judgment merely expressed the opinion that Act no. 148/1998 Coll. does not apply at all to the area of criminal proceedings (and thus also not to attorneys acting as defense counsel), in my opinion it created the risk that in practice, some (and not only in the courts) will not accept this, it being merely the reasoning section of the judgment. In this regard, it is appropriate to point out that the contested (amended) provision of the Act is a lex posterior in relation to the Criminal Procedure Code, on which the Plenum’s judgment relies. For this reason as well, it is not indisputable whether the Criminal Procedure Code really is a lex specialis, as regards protection of classified information, in relation to Act no. 148/1998 Coll., or whether the opposite is the case. In my opinion, in this overall context, it is necessary to review the constitutionality of the contested provision, insofar as it deleted attorneys from the group of people who are not subject to security clearances by the NSO. I believe that there is an unconstitutional gap in the statute, which I discuss more closely elsewhere.
First of all, I point out – as was also said during the Plenum’s discussions – that the wording of the contested provision of the statute – read outside of any particular context – does not in itself actually create unconstitutionality. Of course, the contested provision can not be read so narrowly. It is evident that the amended § 42 par. 1 of the Act deleted attorneys – to which it previously expressly applied – from the original text precisely because the amendment wished, in contrast to the previous legal framework, to include attorneys in the group of person who are generally subject to the regime of security clearances by the National Security Office (the “NSO”), including in criminal proceedings. If the Constitutional Court denied the petition to annul the contested provision, and in the reasoning of its judgment merely expressed the opinion that Act no. 148/1998 Coll. does not apply at all to the area of criminal proceedings (and thus also not to attorneys acting as defense counsel), in my opinion it created the risk that in practice, some (and not only in the courts) will not accept this, it being merely the reasoning section of the judgment. In this regard, it is appropriate to point out that the contested (amended) provision of the Act is a lex posterior in relation to the Criminal Procedure Code, on which the Plenum’s judgment relies. For this reason as well, it is not indisputable whether the Criminal Procedure Code really is a lex specialis, as regards protection of classified information, in relation to Act no. 148/1998 Coll., or whether the opposite is the case. In my opinion, in this overall context, it is necessary to review the constitutionality of the contested provision, insofar as it deleted attorneys from the group of people who are not subject to security clearances by the NSO. I believe that there is an unconstitutional gap in the statute, which I discuss more closely elsewhere.
Therefore,
I believe that the cited opinion should outweigh the arguments (though
they are well worked out) in the Plenum’s judgment, which are based
particularly on comparison with the new § 40a of the Civil Procedure
Code (which establishes a special framework for this area) and conclude
that if, before the amendment of the Act on Classified information,
there was an exception for defense counsel from the obligation to
undergo a security clearance, arising both from the Act on Classified
information, and from the Criminal Procedure Code, this can only be seen
as superfluous.
The Plenum’s
judgment argues – among other things – that the possible establishment
of an exception (from NSO security clearances) for defense counsel does
not address the fundamental issue, i.e. the access of the accused person
to classified information. However, as far as we know, no relevant body
of the Czech Republic has posed this question. In any case, the
accused’s right to have access to classified information in his own case
is not questioned in the opinion from the NSO, which, on the
substantive side, is most affected by this issue.
I
emphasize that in relation to part I of the verdict this dissenting
opinion is mainly guided by the attempt to ensure the highest possible
degree of legal certainty in this exceptionally sensitive area.
2) In part II. of its verdict the Plenum of the Constitutional Court said that clearance of defense counsel in criminal proceedings for purposes of access to classified information through a security clearance by the National Security Office is inconsistent with Art. 37 par. 3, Art. 38 par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection of Human Rights and Fundamental Freedoms.
2) In part II. of its verdict the Plenum of the Constitutional Court said that clearance of defense counsel in criminal proceedings for purposes of access to classified information through a security clearance by the National Security Office is inconsistent with Art. 37 par. 3, Art. 38 par. 2, and Art. 40 par. 3 of the Charter of Fundamental Rights and Freedoms and with Art. 6 par. 3 let. c) of the Convention on Protection of Human Rights and Fundamental Freedoms.
On
the substantive side I naturally agree with this verdict. It
corresponds to my opinion, discussed in more detail in the next part of
this dissenting opinion. Therefore, I went on to say that the
Constitutional Court should have annulled the contested provision.
However,
on the formal side I do not agree with that verdict. This is because
the statement of law given there is part of the verdict of the
Constitutional Court’s judgment, although it is undoubtedly a
significant statement, which belongs in the reasoning of the
Constitutional Court’s judgment. Although I am basically against
excessive formalism, I state that under Article 88 par. 2 of the
Constitution judges of the Constitutional Court are (also) bound in
their decision making … by the Act in paragraph 1, i.e. Act no. 182/1993
Coll., on the Constitutional Court. That Act provides, in § 70 par. 1
and 2, that the Constitutional Court – depending on the conclusion it
reaches – shall decide either that a statute or other legal regulation
or their individual provisions are annulled, or shall deny the petition.
The Act on the Constitutional Court does not recognize any other type
of verdict in proceedings to annul a statute or other legal regulation.
So, if the Constitutional Court overlooked these provisions, it acted –
in my opinion – in too activist a manner, and thus exceeded the bounds
given to it by the Constitution and by the Act on the Constitutional
Court. In this regard one can only add that this is a ground-breaking
verdict, which has never yet been heard in the history of the
Constitutional Court of the Czech Republic.
II.
I
am of the opinion that the Constitutional Court should have granted the
petition, annulled the contested § 42 par. 1 of Act no. 148/1998 Coll.,
as amended by later regulations, and postponed the enforceability of
this judgment for an appropriate time so that the legislature would have
the opportunity to pass a legal framework which would proportionately
guarantee the constitutional right to a defense, but also reflect the
public interest in protection of classified information.
On the substantive side, this opinion can be justified as follows:
A) The right to a defense is considered a fundamental right of the individual, which is provided in all the basic international documents concerning fundamental human rights and freedoms.
A) The right to a defense is considered a fundamental right of the individual, which is provided in all the basic international documents concerning fundamental human rights and freedoms.
The
International Covenant on Civil and Political Rights, in Art. 14 par. 3
let. d) provides the right of everyone who is accused of a crime “to be
tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned
to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient
means to pay for it.”
The
right to a defense is also enshrined in the Convention for the
Protection of Human Rights and Fundamental Freedoms, in Art. 6 par. 3
let. c), under which everyone who is accused of a crime has the
following minimum rights: “to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay
for legal assistance, to be given it free when the interests of justice
so require.”
The extent of
the right to a defense is also emphasized in decisions of the European
Court of Human Rights, which concluded that the aim and subject matter
of Art. 6 par. 3 let. c) is to ensure effective protection of the right
to a defense, and therefore a person charged with a criminal offense who
does not wish to defend himself in person must be able to have recourse
to legal assistance of his own choosing [Pakelli v. Germany, decision
of 25 April 1983, series A no. 64, cited in Berger V., Judikatura
Evropského soudu pro lidská práva, {Case Law of the European Court of
Human Rights} IFEC, 2003 (Czech edition ), p. 313]. the European Court
of Human Rights also stated that Although not absolute, the right of
everyone charged with a criminal offence to be effectively defended by a
lawyer,
assigned officially if need be, is one of the fundamental features of a fair trial [Poitrimol v. France, decision of 23 November 1993, series A no. 277-A, id., p. 307].
assigned officially if need be, is one of the fundamental features of a fair trial [Poitrimol v. France, decision of 23 November 1993, series A no. 277-A, id., p. 307].
The
Constitutional Court of the CR also addressed the right to a defense;
in its decisions it stated certain attributes of this fundamental right
based on the Czech legal order, specifically the Charter of Fundamental
Rights and Freedoms (see, e.g. Constitutional Court judgment file no. I.
ÚS 592/2000, volume 25, p. 118 et seq.). Under Art. 37 par. 2 of the
Charter of Fundamental Rights and Freedoms, in proceedings before
courts, other state bodies, or public administrative authoritieseveryone
shall have the right to assistance of counsel from the very beginning
of such proceedings.Under Art. 40 par. 3 of the Charter an accused has
the right to be given the time and opportunity to prepare a defense and
to be able to defend himself, either pro se or with the assistance of
counsel. The judgment also refers to the Convention for the Protection
of Human Rights and Fundamental Freedoms, which provides in Art. 6 par. 3
let. b) and c), that everyone charged with a criminal offence has,
among other things, the right to have adequate time and facilities for
the preparation of his defence and the right to defend himself in person
or through legal assistance of his own choosing. These provisions
enshrine certain fundamental procedural guarantees of the right to a
fair trial which are an indispensable part of the concept of a state
governed by the rule of law. The right to a defense is one of the most
important fundamental rights of persons prosecuted in criminal
proceedings and is aimed at achieving a just decision, issued not only
in the interest of the prosecuted person, but undoubtedly also in the
interests of a democratic state governed by the rule of law, founded on
respect for the rights and freedoms of man and of citizens (Art. 1 of
the Constitution of the CR). Therefore, the state must ensure conditions
so that these principle can be realized through appropriate procedural
guarantees of the position of the defense counsel and of the accused.
It
must be emphasized that the constitutionally guaranteed right to a
defense (Art. 37 par. 2, Art. 40 par. 3 of the Charter of Fundamental
Rights and Freedoms – the “Charter”) together with the presumption of
innocence (Art. 40 par. 2 of the Charter) are fundamental conditions for
a fair criminal trial (Art. 36 par. 1 of the Charter); these
constitutional guarantees are also reflected in the applicable
procedural regulation, the Criminal Procedure Code (§ 33 par. 1 of the
Criminal Procedure Code), which, in accordance with the Constitution, is
quite clearly built on the principle of giving priority to the choice
of defense counsel (§§ 33 par. 1, 37 par. 2 of the Criminal Procedure
Code), which the accused (defendant) is entitled to apply at any stage
of proceedings in progress (§ 37 par. 2 of the Criminal Procedure Code);
therefore, it is fundamentally up to the accused (defendant), when and
whom of the persons authorized to provide legal assistance through
defense in criminal proceedings (§ 37 of the Criminal Procedure Code) he
will entrust with his defense, or whether he will make use of his right
to choose. Of course, the accused (defendant) bears responsibility
himself for his choice, once made, and therefore a general court is not
authorized to evaluate the “quality” of the defense or the “inactivity”
of defense counsel, as he (the defendant) may not be denied the right to
choose the trial tactics which he intends to use to present his case in
proceedings before the court; the contrary situation would be obvious
interference by the state power in the constitutionally guaranteed
fundamental right to a defense, and perhaps also a certain – clearly
undesirable and primarily constitutionally inadmissible – form of state
control over exercise of that right.
B) The Constitutional Court also relies on these principles in these proceedings, even though, naturally, it also weights arguments emphasizing the lawful need of the state to reflect its legitimate interests (public interests in the area of classified information). Therefore, one must evaluate whether the fundamental right to a defense may be limited by the public interest in protecting classified information (the public disclosure of which could damage the security interest of the state) and whether – if so – including attorneys (specifically defense counsel in criminal proceedings) in the group of persons subject to the regime of Act no. 148/1998 Coll. and therefore NSO clearance is a limitation which, in the matter being adjudicated, is sufficiently proportional that it still preserves the essence and significance of the fundamental right to a defense.
B) The Constitutional Court also relies on these principles in these proceedings, even though, naturally, it also weights arguments emphasizing the lawful need of the state to reflect its legitimate interests (public interests in the area of classified information). Therefore, one must evaluate whether the fundamental right to a defense may be limited by the public interest in protecting classified information (the public disclosure of which could damage the security interest of the state) and whether – if so – including attorneys (specifically defense counsel in criminal proceedings) in the group of persons subject to the regime of Act no. 148/1998 Coll. and therefore NSO clearance is a limitation which, in the matter being adjudicated, is sufficiently proportional that it still preserves the essence and significance of the fundamental right to a defense.
The Constitutional
Court concludes that protection of classified information can basically
be described as a legitimate public interest which can – in some aspects
– also affect the fundamental right to a defense. This can also be
concluded from a number of comparable articles of the Charter of
Fundamental Rights and Freedoms, which govern the possibility of
limiting one or another freedom by statute, if it is a measure which is
necessary in a democratic society for – among other things – the
security of the state (cf. Articles 14 par. 3, 17 par. 4, 19 par. 2, 20
par. 3, and 27 par. 3 of the Charter). However, the Constitutional Court
nevertheless believes that including attorneys – defense counsel – in
the group of persons subject to NSO clearance would be such a necessary
measure which is proportional to the essence and significance of the
fundamental right to a defense. It concludes this based on, in
particular, the following considerations:
a)
The primary essential point is that including attorneys (defense
counsel) in the group of persons subject to clearance means violating
one of the fundamental principles of advocacy, the principle of the
attorney’s independence from the state, so that he can practice advocacy
freely, that is, act as the legal representative of a natural person or
legal entity, including against the state, without fear of state
penalties against him. Imposing security clearance on an attorney as a
condition for providing legal services in a trial in which classified
information may appear could mean as a consequence that the state could
determine who is entitled to provide such legal services, and in
practice thereby eliminate those attorneys who are “uncomfortable”
persons. This would naturally be flagrant interference in the accused’s
right to a defense. It must be emphasized here that a client
fundamentally has a right to representation by an attorney of his
choosing. It is obvious that there is no legal regulation under which
attorneys can be forced to submit to security clearance. A contrary
legal regime could lead to a situation where a “cleared” attorney would
not be available at all, which would, as a consequence, also limit a
general court, where it is required by law to designate defense counsel
in cases of so-called “compulsory defense.” Here one can also rely on
the persuasive arguments of the petitioning general court and the
grounds used by the Senate in its opinion on the petition to annul the
contested provision.
b) Thus,
the Constitutional Court must weigh whether – in view of the reasons
presented – the contested § 42 par. 1 of Act no. 148/1998 Coll., as
amended by later regulations (note: in particular as amended by Act no.
310/2002 Coll.), is inconsistent with Art. 37 par. 2 and Art. 40 par. 3
of the Charter, with Art. 14 par. 3 let. d) of the International
Covenant on Civil and Political Rights, and with Art. 6 par. 3 let. c)
of the Convention on Protection of Human Rights and Fundamental
Freedoms, on which the petitioner relies. The Constitutional Court is
convinced that such conflict exists. However, it does not lie in the
actual text of the Act (in its wording) but in the gap which the Act
created. Thus, what is unconstitutional is the legislature’s silence –
undoubtedly intentional – which results in the constitutionally
unacceptable limitation of the right to a defense. (On a doctrinal
concept of the term “legislative omission” cf. Šimíček V., Legislative
Omission as violation of Fundamental Rights, in: Deset let Listiny
základních práv a svobod v právním řádu České republiky a Slovenské
republiky [Ten Years of the Charter of Fundamental Rights and Freedoms
in the Legal Order of the Czech Republic and the Slovak Republic],
Dančák, B., Šimíček, V., eds., Brno 2001 p. 144-159.) One can surely
conclude that if the legislature’s silence arising from simple omission
can be found unconstitutional, this applies all the more to cases where
the legislature – in a particular case – created a gap in the law
intentionally.
However, in
this particular case, the gap is not a false one, meaning
incompleteness (absence) of written law, in contrast to the explicit
regulation of similar cases, i.e. incompleteness in terms of the
principle of equality or from the viewpoint of general legal principles.
An illustration of how to address such a gap is the judgment file no.
Pl. ÚS 48/95 (see Collection of Decisions, vol. 5, judgment no. 21), in
which the Constitutional Court normatively filled in the gap created by
inequality in the statutory framework using a constitutionally
consistent interpretation of the statutory framework, and denied the
petition to annul it, as it was not inconsistent with the constitutional
order.
However, that method
can not be used in the present matter. The provision whose current text
removes attorneys from the list of persons not subject to NSO clearance
– whereby it establishes unacceptable limitation of the right to a
defense – should contain a legal framework under which a person who is
being criminally prosecuted is not restricted as regards choosing from
only a certain limited group of defense counsel. However, the wording of
the contested provision completely rules out the possibility of that
interpretation.
Finally, in
this regard one can also point to Constitutional Court judgment file no.
Pl. ÚS 36/01, vol. 26, p. 329, which specifically considered the
question of unconstitutional legislative omission.
c)
In its position statement, the NSO also stated that the unique position
of attorneys in relation to classified information would be “a certain
disproportion, in view of the requirements imposed on bodies acting in
criminal proceedings, including state prosecutors, who are required to
meet conditions for access to classified information under Act no.
148/1998 Coll.” However, the Constitutional Court can not accept this
argument either. This is because the NSO is comparing non-comparable
things: the position of a state prosecutor, who represents the state in
criminal proceedings, and the position of defense counsel, whom the
accused can freely chose and who will defend him against the state. It
is logical that the state can set rules for access to classified
information for persons who are its, that is “state employees” and
perform its tasks, which, in this context, applies to state prosecutors.
However, one can not take the same view of the role of defense counsel,
whose defense protects the client precisely against that state whom the
state prosecutor represents in criminal proceedings.
d) For completeness, the Constitutional Court also considered the legal framework of some other democratic European countries concerning the issues under review.
d) For completeness, the Constitutional Court also considered the legal framework of some other democratic European countries concerning the issues under review.
According
to the expert report from The Law Society in London, issuing of “state
license” to attorneys does not exist in England and Wales. Thus, there
is no privileged group of attorneys who would obtain information from
the state to which another group of attorneys would not have access.
Under common law the judge in a criminal matter orders information to be
made public which the state considers “sensitive” (i.e. which it tries
to keep secret) if such material can prove the innocence of an accused
person or otherwise prevent judicial error ?see Kean (1994) 99 CR.App.R 1
appendix 1?. In such case, the prosecution must either make the
material public or stop the proceedings. If, on the contrary, the judge
upholds the right to designate the material “sensitive,” then the
material is not made public; it is then edited so that key sensitive
passages are removed. As regards the statutory framework, dissemination
of certain information provided in the law is forbidden, so that the
judge’s options are limited thereby. The statutes which are cited in the
expert report from The Law Society basically concern the ban on
disseminating and making public sensitive or secret material (under
these statutes), however, they do not directly address the issue of a
state license for a certain group of attorneys. The Law Society says in
conclusion that the English system does not create a special category of
persons who are trustworthy for work with sensitive materials, but it
is “the material itself” which is protected against unauthorized
publication.
As regards
France, the Constitutional Court has at its disposal a written report
from the foreign department of the Czech Bar Association, reporting
information from Me. Laurin, secretary of the Paris Bar Association.
According to this information, France does not have a special list of
attorneys or clearances. If the relevant ministry does not de-classify a
matter – if it is part of a fact which is a state secret – the relevant
document can not be part of the file, so that such fact is not proved,
“doubts remain, and those act in favor of the accused.” Neither the
attorney, or the investigating judge, or the prosecutor are informed of
the state secret, and neither the judge deciding the matter nor any of
the others undergo any sort of clearance.
As
regards, Austria, it was determined from a report from the Czech Bar
Association (prepared according to information from Dr. Winternitz, an
attorney in Vienna, registered in with the Czech Bar Association with
authorization to practice in the Czech Republic), that there is no
statutory norm in Austria which would require attorneys to have passed a
special security exam if state secrets are to be discussed in
proceedings. Nor is any such exam known to be required in practice. In
such matters the attorney is, however, bound by the duty of
confidentiality. In addition, in these cases the public can be excluded
from proceedings; then neither the parties nor the attorney may disclose
the contents of proceedings in which state secrets were discussed,
subject to criminal penalties.
As
regards Germany, these issues are addressed by the Directive for
Criminal Proceedings and for Proceedings on Fines (RiStBv) of 1 January
1977, in the version in effect as of 1 June 1998 (Art. 213, Art. 214).
These provide, in particular, the following:
a) Facts and information which must be kept secret, especially state secrets, may be contained in case files only if it is necessary for the proceedings. When handling classified information, regulations concerning them must be observed, and when handling classified information of inter-state or international origin, special regulations on protecting secrets which apply to them must be observed. This also applies to disclosing classified information to defense counsel, experts, and other participants in proceedings (e.g. interpreters) unless mandatory legal principles prevent it.
a) Facts and information which must be kept secret, especially state secrets, may be contained in case files only if it is necessary for the proceedings. When handling classified information, regulations concerning them must be observed, and when handling classified information of inter-state or international origin, special regulations on protecting secrets which apply to them must be observed. This also applies to disclosing classified information to defense counsel, experts, and other participants in proceedings (e.g. interpreters) unless mandatory legal principles prevent it.
Likewise,
when disclosing classified information to attorneys, experts, or other
participants in proceedings, if there are mandatory legal principles
cutting through regulations on classified information or special
regulations on the protection of secrets, the recipients must be
emphatically reminded of their duty to keep the secret; they must be
advised, when handling classified information, to proceed according to
regulations concerning individual cases, which will be explained to
them. A note is entered in the file about these warnings and
recommendations, which is to be signed by the recipient.
b)
Disclosing classified information to defense counsel has the same
regime as viewing files concerning classified information. Files
containing classified information classified as confidential, secret,
and top secret, it must be especially carefully verified
- whether there are any serious reasons which prevent giving files to the attorney to view in his office or home,
- whether there are legal stipulations as regards attorneys making notes, transcripts, extracts or photocopies by attorneys.
- whether there are any serious reasons which prevent giving files to the attorney to view in his office or home,
- whether there are legal stipulations as regards attorneys making notes, transcripts, extracts or photocopies by attorneys.
c)
In appropriate cases the state prosecutor is to formally bind
attorneys, experts, and other participants of the proceedings to keep
secret information disclosed to them which requires secrecy, and to
point out that violating the secrecy is subject to criminal penalties.
It must be taken into account that this duty to preserve a secret is
possible only on the basis of a statute or with the consent of the
injured party.
d) In
investigations which concern the loss or “issuing” of classified
information (i.e., evidently, relevant materials) it is necessary to
review whether there is an obligation to take into account foreign
interests in preserving the secret. Therefore, it is recommended to
consult the federal minister of the interior, who maintains a list of
international treaties on protection of secrets.
Thus,
one can close by saying that in the compared European countries, there
are no special groups of attorneys who would be cleared for access to
so-called classified information by the appropriate state body. That too
can be considered one of the arguments in favor of the opinion
presented in this text.Brno, 28 January 2004