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HEADNOTES
Applying
the method of teleological interpretation leads to the unquestioned
conclusion that the purpose of the Act is to legally ensure that all
information is kept secret which, under the definition, (§ 2 par. 2)
conflict with the interests of the Czech Republic. This aim is projected
in the substantive condition of § 3 par. 1 of Act no. 148/1998 Coll. It
would be absurd to assume that the legislature, by including a second,
formal, condition in § 3 par. 1 of Act no. 148/1998 Coll., intended to
make it impossible to effectively fulfill the purpose of the Act. This
is the absurd conclusion which would be reached if one accepted the
thesis that the list of secret information, assembled by the government
as instructed by the Act is to contain only completely specific items,
and at the same time be a final, definitive list. The combination of
great specificity and definitiveness in assembling the list of secret
information would make it impossible to meet the purpose of the Act
without anything further, and would inherently carry the risk that a
piece of information which meets the substantive requisite for secrecy
would not be kept secret, as it did not fall under any of the specific
items on the list assembled by the government. The government did not
have a mandate for such a “risky” combination.
Of
course, legal certainty and the foreseeability of acts by the public
power are not absolute categories which could be set above other
components of the concept of “a democratic state governed by the rule of
law.” Protection of the interests of the Czech Republic as a sovereign
state is also a constitutionally protected value (Art. 1 par. 1 of the
Constitution). Thus, the task of the legislature, as well as of the
government, is to optimize the possible discordant effects of the
protective mechanisms for both values, in other words, to narrow as much
as possible the room for possible arbitrariness in acts by the public
power, and at the same time ensure the effective protection of state
interests. Proportional limitation of foreseeability (legal certainty)
is such necessary limitation as is still able to ensure effective
fulfillment of the aims of Act no. 148/1998 Coll.
Legal
certainty and the foreseeability of acts by the public power must also
be preserved in relation to other subjects of international law. Under
Art. 1 par. 2 of the Constitution “the Czech Republic shall observe its
obligations under international law”. The Czech Republic has accepted
international obligations vis-à-vis its allies regarding keeping secret
certain important and sensitive information. It is obligated to transmit
these international obligations into domestic law, and through it
ensure the secrecy of appropriate information. For these other states, a
“foreseeable” legal framework for the actions of bodies of public power
of the Czech Republic will be one which is capable of securing their
international obligations as regards secrecy. In contrast, an
“unforeseeable” framework will be one which is incapable of ensuring in
all cases the secrecy of information which the CR has undertaken to
protect under international law. Of course, the CR has an international
responsibility vis-à-vis its allies only for the “result”: it violates
its obligation at the point when it does not ensure the protection o a
particular piece of information which is subject to secrecy under an
international treaty. In order for the CR to be capable of meeting its
international obligations in this area, its bodies must have the
authorization to judge whether or not a particular piece of information
is to be secret under an international treaty. If the CR is not able,
due to the particular content of its domestic law, to fully ensure such
specific evaluation and subsequent secrecy, its conduct is
“unforeseeable” for its contractual partners, and violates legal
certainty in internal law relations. The contractual partners may then
not disclose certain sensitive information to the Czech Republic,
possibly to the detriment of its security or other of its fundamental
interests protected by Art. 1 par. 1 of the Constitution.
The
Constitutional Court believes that the contested provision in the wider
procedural context, as just defined, is also consistent with
conclusions which the European Court of Human Rights reached on the
required precision of a legal norm and the foreseeability of acts by the
public power. That court requires in cases, where a legal regulation
authorizes discretion by a body of public power, that the scope and
modalities of the exercise of that discretion be defined with sufficient
clarity in view of the particular legitimate aim, and that the provide
the individual the corresponding protection against arbitrariness
[Kruslin v. France (1990), §§ 27, 29, 30 and M. and R. Andersson v.
Sweden, (1992), § 75].
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court, consisting of JUDr. František Duchoň, JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří Nykodým, JUDr. Pavel Varvařovský, JUDr. Miloslav Výborný and JUDr. Eliška Wagnerová, ruled in the matter of a petition from the Ombudsman, JUDr. Otakar Motejl, seeking the annulment of point 18 of appendix no. 3 to government directive no. 246/1998 Coll., which provides lists of secret information, as amended by later regulations, as follows:
The petition is denied.
REASONING
I.
On
26 June 2003 the Constitutional Court received a petition from the
Ombudsman (also the “petitioner”), seeking the annulment of point 18 of
appendix no. 3 to government directive no. 246/1998 Coll., which
provides lists of secret information, as amended by government directive
no. 89/1999 Coll., government directive no. 152/1999 Coll., government
directive no. 17/2001 Coll., government directive no. 275/2001 Coll.,
government directive no. 403/2001 Coll. and government directive no.
549/2002 Coll. (“government directive no. 246/1998 Coll.”) due to
inconsistency with § 3 of Act no. 148/1998 Coll., on Protection of
Secret Information, as amended by later regulations (“Act no. 148/1998
Coll.”), and due to inconsistency with Art. 1 and Art. 78 of the
Constitution of the Czech Republic (the “Constitution”) and Art. 4 par. 2
and Art. 17 par. 1 and 5 of the Charter of Fundamental Rights and
Freedoms (the “Charter”). The petitioner states that he was consulted by
Petr Uhl, residing at Anglická 8, Prague 2, with an initiative aimed
against the Ministry of Foreign Affairs, which kept secret its plan for
human rights of 2000, and against certain provisions of appendix no. 3
to government directive no. 246/1998 Coll., on which the Ministry of
Foreign Affairs relied as a basis for keeping the plan for human rights
secret. After completing an investigation of the initiative, the
Ombudsman, under § 18 par. 2 of Act no. 349/1999 Coll., on the
Ombudsman, as amended by later regulations, took a position in which he
concluded, among other things, that point 18 of appendix no. 3 to
government directive no. 246/1998 Coll. (the “contested provision”) is
inconsistent with certain provisions of Act no. 148/1998 Coll., and
certain provisions of the Charter and the Constitution. On the basis of
that position, he is submitting the present petition.
The
petitioner states that Act no. 148/1998 Coll. is based on the premise
that only information can be kept secret which was designated as secret
information by an appropriate body and assigned a degree of secrecy.
Substantive law definition of secret information has two levels under
Act no. 148/1998 Coll. The starting point is the substantive definition
of secret information in § 3 of Act no. 148/1998 Coll., under which
secret information is information unauthorized handling of which could
damage the interests of the Czech Republic or interests which the Czech
Republic undertook to protect, or could be disadvantageous to these
interests, together with § 4 of Act no. 148/1998 Coll., which provides
an illustrative list of areas in which secret information may appear.
The Act expressly assumes that specifics will be provided by a
government decree that will provide in detail, for the individual
ministries, lists of information which may be subject to secrecy. Under
Art. 78 of the Constitution the government is authorized to issue a
directive only to implement a statute and only within its bounds.
Therefore, it can not by directive include in a list of secret
information other information that which meets, or may meet, the
statutory definition of secret information.
The
government is thus required to issue a list of secret information by
directive. Without a detailed list it would not be possible to apply the
Act at all. The legislature is allegedly aware that keeping information
secret interferes in the fundamental rights and freedoms (freedom of
expression and the right to information under Art. 17 of the Charter)
and that secrecy, given its nature, is relatively easily abused. In this
regard the petitioner refers to Constitutional Court Judgment file no.
Pl. ÚS 11/2000. The list must materially specify individual pieces of
information, because otherwise the instruction to the government would
be completely useless. It would therefore be circumvention of the Act,
or transgression of its bounds, if the government formulated the list of
secret information so vaguely and generally that its provisions would
practically not differ from the basic definition contained in the Act.
The requirement for a sub-statutory legal norm to provide material
specifics of information which may be subject to secrecy is also
consistent with the principle of legal certainty and foreseeability of
actions by the public power, which, under the settled case law of the
Constitutional Court, are one of the basic components of a democratic
state governed by the rule of law (Art. 1 of the Constitution). With the
list, the government makes known, in advance and in binding form, what
will be excluded from the scope of the fundamental right to freedom of
expression and to information, and under the threat of criminal penalty
(§ 10 and § 107 of Act no. 140/1961 Coll., the Criminal Code). Thus, in
terms of substantive law, one can only make secret information whose
characteristics meet the basic substantive definition under the Act and
which is included by government decree in the list of secret
information, assuming that the definition of secret information on the
list is substantive in content and more specific, in degree of
generality, than the statutory definition.
Under
the contested provision, it is within the jurisdiction of the Ministry
of Foreign Affairs to make secret “sensitive political, security and
economic information in the area of foreign relations.” The Ombudsman
considers the criterion of “sensitivity” of information to be
superfluous, given the provisions of Act no. 148/1998 Coll.
“Sensitivity” is only evaluated when deciding to make secret particular
information, as part of considering whether unauthorized handling of
such information can or can not damage the interests of the Czech
Republic, or what kind of damage it can cause. This procedure is
prescribed by the Act itself in § 5 in conjunction with § 2 par. 1 a 2
of Act no. 148/1998 Coll. As a result of such evaluation, a specific
level of secrecy is set according to the degree of “sensitivity” of the
secret information. Thus, from that point of view the modifier
“sensitive” is redundant. The definition of foreign relations in the
contested provision is also redundant, because in appendix no. 3 to
government directive no. 246/1998 Coll. that is self-explanatory.
Repeating the provisions of regulations of higher legal force in
regulations of lower legal force is generally not considered desirable.
Nonetheless, that alone can not lead to the conclusion that the
regulation of lower legal force is defective for that reason. However,
in the case of the contested provision, revealing the redundancy of the
modifiers “sensitive” and “in the area foreign relations” is important
for reasons of determining the true content of this norm. After
eliminating these duplicate modifiers, it is evident that the Ministry
of Foreign Affairs can make secret “political, security and economic
information.” However, that definition of secret information obviously
does not meet the requirements in the Act on Protection of Secret
Information imposed on the list issued by the government. The definition
is vague, and does not in any way materially specify information which
may be kept secret. Thus, it permits the Ministry of Foreign Affairs to
arbitrarily make secret anything at all. In addition to this item, the
other provisions of appendix no. 3 to government directive no. 246/1998
Coll. also appear unnecessary, because in all cases they concern
political, security or economic information. Thus, the government,
inconsistently with Art. 78 of the Constitution, by including “sensitive
political, security and economic information in international
relations” in the list of secret information, exceeded the bounds
provided by Act no. 148/1998 Coll. (§ 3), which can lead to
unconstitutional interference in the right to information under Art. 17
par. 5 of the Charter if that provision is applied in a particular case.
In addition, the contested provision, to the extent that it permits the
Ministry of Foreign Affairs to act arbitrarily in making information
secret, is inconsistent with the constitutional principles of legal
certainty and the foreseeability of acts by the public power, which are
indispensable attributes of a democratic state governed by the rule of
law in the meaning of Art. 1 of the Constitution.
II.
The
Constitutional Court, under § 69 par. 1 of Act no. 182/1993 Coll., on
the Constitutional Court, as amended by later regulations (the “Act on
the Constitutional Court”), requested an opinion on the petition from
the government of the Czech Republic, as a party to the proceedings. It
also requested opinions under § 48 par. 2 of the Act on the
Constitutional Court from the Ministry of Foreign Affairs and the
National Security Office.
The
prime minister, PhDr. Vladimír Špidla, in his official letter of 12
August 2003, informed the Constitutional Court that the government of
the Czech Republic approved its opinion on the present petition at a
meeting on 6 August 2003. The government believes that lists of secret
information contained in a government directive must be set forth to a
certain degree by more general formulations so that, in the meaning of §
3 par. 1 of Act no. 148/1998 Coll., they will be an essential legal
basis for the possibility of making certain information secret, and also
so that they will not be, as a result of a casuistic legal framework, a
barrier to such secrecy. Therefore, general information was also used
with the contested provision of the government decree. Particularly in
the situation of the Ministry of Foreign Affairs the accumulation of
conditions contained in § 3 par. 1 of Act no. 148/1998 Coll. “forces”
the inclusion of a more general provision on the list of secret
information. Otherwise, when obtaining certain information from abroad,
which can not be specified more precisely in advance, and which, if
revealed, could clearly damage the interests of the Czech Republic, it
would not be possible to designate such information as secret and keep
it secret, if it were not possible to classify it under some provision
of the list of secret information in the jurisdiction of the Ministry of
Foreign Affairs. Yet, the danger that the interests of the Czech
Republic will be damaged in the event of not making secret foreign
information which is uncertain in advance is considerable. The issue of
the possibility of making such information secret is related to the
issue of the Czech Republic’s trustworthiness vis-à-vis foreign partners
and with the issue of access to such foreign information in general.
According
to the government’s statement, the contested provision, when applied in
practice, helps to protect the key principle of the entire system of
protection of secret information, expressed in § 3 par. 1 of Act no.
148/1998 Coll., i.e. the protection of the interests of the Czech
Republic, yet one can not claim that it threatens the principle of
proportionality in the manner of providing information. The criterion of
“sensitivity” of information is an expression used in practice which is
meant to more closely indicate the substance and emphasize the specific
nature of secret information, and only after evaluating the
circumstances arising from § 3 par. 1 and § 2 par. 1 and 2 of Act no.
148/1998 Coll. will it become apparent whether that sensitive
information will be designated as secret information. Thus, the bounds
of administrative discretion in the contested provision can be
considered wider than is usual, but not unlimited.
In
its statement, the government acknowledges the redundancy, as regards
the definition of foreign relations, as the Ombudsman pointed out in his
petition. However, the redundancy is meaningless as regards possible
annulment of the contested provision, given that this is a duplicate
expression contained in the framework of appendix no. 3 to government
directive no. 246/1998 Coll. as such, because appendix no. 3 of that
directive is introduced by the heading “List of Secret Information in
the Jurisdiction of the Ministry of Foreign Affairs.” The redundancy
leads to the fact that even after deleting the words “in the area of
foreign relations” the Ministry of Foreign Affairs can not, under the
contested provision of the government directive, make secret just any
political, security, or economic information, but only such political,
security and economic information as arises within the jurisdiction of
the Ministry of Foreign Affairs, i.e. in the area foreign relations.
Thus, the framework of the appendix again makes more concrete the
content of secret sensitive information, as presupposed by § 3 par. 3 of
Act no. 148/1998 Coll.
The
government also states that the contested provision was added to
appendix no. 3 to government directive no. 246/1998 Coll. upon the
proposal of the Ministry of Foreign Affairs by government directive no.
403/2001 Coll., the draft of which was prepared by the National Security
Office. These steps correspond to the requirements of § 3 par. 2 and 3
of Act no. 148/1998 Coll. Thus, one can not agree that the contested
provision does not meet the requirements imposed by the Act on the list
issued by the government. The contested provision is not inconsistent
with § 3 of Act no. 148/1998 Coll., nor inconsistent with Art. 78 of the
Constitution, because it does not exceed the bounds of the Act. Under
Art. 17 par. 5 of the Charter, state bodies and territorial
self-governing bodies are obliged to provide, in an appropriate manner,
information with respect to their activities. Conditions therefor and
the implementation thereof shall be provided for by law. That law is Act
no. 106/1999 Coll., on freedom of access to information, which
recognizes limitation of the right to information in the case of secret
information. In view of the fact that the government, by including the
contested provision in the government directive, did not exceed the
bounds provided by the Act, making appropriate information secret under
the contested government directive also can not lead to interference
with the right to information. The government considers it open to
discussion whether setting designating sensitive political, security and
economic information in the area of international relations as secret
information, or the bounds of administrative discretion arising from
this provision, can, in this day and age, be interpreted with certainty
as failure to observe the constitutional principle of legal certainty
and the foreseeability of acts by the public power. Given the fact that
the Czech Republic has belonged to international democratic society for a
number of years now, one can assume that it is possible, in connection
with international events, at least at the general level to deduce and
predict of what nature secret information falling under the contested
provision can be and what intensity of information value it can have.
Thus, it also does not see the contested provision as inconsistent in
relation to the meaning of Art. 1 of the Constitution. It points out
that the principle of including secret information in a list issued as a
legal regulation is not applied in other countries. The only condition
for a particular piece of information to be designated secret is that if
it is revealed it may lead to endangering or damaging the interests of
the relevant country. Therefore, the substantive outline of a new legal
framework for secret information, approved by the government of the
Czech Republic, assumes that secret information will be classified by
the party processing it only on the basis of an expert evaluation of the
potential and scope to damage the interests of the Czech Republic, or
interests which the Czech Republic undertook to protect, in the event of
disclosure of information, its unauthorized acquisition or unauthorized
use, without a list of secret information being issued.
The
Ministry of Foreign Affairs (the “Ministry”) said in its statement that
the present petition is very one-sided. It emphasizes only making
possible the widest possible access to information and devotes
considerably less attention to the obligation to ensure protection of
secret information. It also focuses on one of the conditions for
assigning particular information an appropriate level of secrecy – per
the specific provision from the list of secret information in the area
of jurisdiction of the Ministry of Foreign Affairs, which the ministry
considers a supporting, basically formal, condition. It believes that
the petition does not take into account all the possibility that in a
particular case the primary and fundamental condition may not have been
met, that is, that there may have only been incorrect evaluation of
whether and how much unauthorized dealing with the information in
question can damage the interests of the Czech Republic. The problem at
hand allegedly lies not in the contested provision, but in § 3 of Act
no. 148/1998 Coll., under which both these conditions are cumulative. In
the ministry’s situation this statutory provision necessitates
including a more general provision in the list of secret information. If
certain information were obtained from abroad (which can not be
specified more closely in advance), the disclosure of which could damage
the interests of the Czech Republic, it would not be possible to
designate it as secret information unless it were simultaneously
possible to classify it under a provision from the list of secret
information in the area of jurisdiction of the Ministry of Foreign
Affairs. The danger that the interests of the Czech Republic would be
damaged in such cases is substantially greater than the risk that some
information, where the possible risk was assessed incorrectly, might not
be made public. The ministry also emphasizes the issue of
trustworthiness vis-à-vis foreign partners. If it were not possible to
guarantee in advance that information provided, of which nothing is
known at a given moment, can not be protected under the regime of secret
information, one can assume that such information will not be provided.
The ministry believes that if protection of secret information in the
jurisdiction of the Ministry of Foreign Affairs and the possibility of
obtaining information of a sensitive nature from foreign partners are
not to be endangered, it is necessary first to amend § 3 of Act no.
148/1998 Coll. If the formal condition requiring that information which
is to be assigned a level of secrecy must be listed in the list of
secret information were deleted from that provision, then it would be
possible to annul government directive no. 246/1998 Coll. completely.
The
National Security Office (the “NSO”) says in its statement that the
list of secret information is, to a certain extent, only a guideline. It
serves primarily as a general aid for designating individual pieces of
information as secret and for classifying individual kinds of secret
information at levels of secrecy. That is why lists of secret
information use general formulations in some cases, as in the contested
provision. The NSO does not agree that the contested provision is
inconsistent with § 3 of Act no. 148/1998 Coll. The Act itself does not
impose more detailed requirements on the contents of the list.
Therefore, the contested provision is also not inconsistent with Article
78 of the Constitution, as it does not exceed the bounds of the law and
is not formulated sufficiently vaguely and generally as to make its
wording not differ from the basic definition contained in the Act, as
the petition says. The wording of the contested provision is also not
inconsistent with Art. 17 par. 5 of the Charter, as that entrusts
conditions for and implementation of the right to information to a
statute, and it is clear that the right to information is restricted in
cases of secret information, as is also recognized by § 7 of Act no.
106/1999 Coll. The contested provision, just like other items on the
list of secret information, when applied in practice, help protect the
key principle of the system for protecting secret information –
protecting the interests of the Czech Republic. Apparently no great
problems occur in practice. The NSO also adds that the classification of
secret information depends on the particular cases, as the decision on
the correct setting and designation of the appropriate level of secrecy
is the obligation and responsibility of a statutory body [§ 12 par. 2
let. l) of Act no. 148/1998 Coll.]. However, secret information may only
be such information as is listed in the list of secret information.
Therefore, a level of secrecy can not be assigned to information whose
content meets the conditions for secret information, but it can not be
classified under any of the areas given in the list. In other countries
this principle is not applied, and the only condition for a particular
piece of information to be designated as secret is the possibility that
its disclosure can lead to endangering or damaging the interests of the
country. The substantive outline of the new legal framework, approved by
the government, and likewise the draft of the new Act on Protection of
Secret Information, therefore assume that the classification of secret
information will be done by the party processing it (its author), and
only on the basis of expert assessment of its potential for damaging the
interests (or disadvantages for the interests) of the Czech Republic,
or interests which the Czech Republic undertook to protect, in the event
of its disclosure, unauthorized acquisition or unauthorized use.
III.
The
Constitutional Court first, in accordance with § 68 par. 2 of the Act
on the Constitutional Court, reviewed whether the government directive
whose provision the petitioner claims to be unconstitutional, was passed
and issued within the bounds of constitutionally provided jurisdiction
and in a constitutionally prescribed manner. Constitutional
authorization to issue directives is given to the government by Art. 78
of the Constitution, under which the government is authorized to issue
directives to implements a statute and within its bounds. A directive is
signed by the prime minister and appropriate minister. One can conclude
from Act no. 148/1998 Coll. that the appropriate minister in the
present case is the prime minister himself. Under § 7 par. 1 of the Act
the central administrative office for the area of protection of secret
information, which also prepares lists of secret information (§ 3 par. 2
of the Act), is the National Security Office, which is supervised by
the prime minister (§ 7 par. 3 of the Act).
In
this case the Constitutional Court determined that the government, by
resolution no. 678 of 19 October 1998, approved the draft government
directive which provides lists of secret information. Out of 15 cabinet
members present, all 15 voted in favor. The directive was signed by
Prime Minister Miloš Zeman. The directive was published as required in
the Collection of Laws in part 86 as no. 246/1998 Coll. It went into
effect on 2 November 1998. The contested provision of point 18 of
appendix no. 3 was added to the contested government directive when it
was amended by directive no. 403/2001 Coll., which amends government
directive no. 246/1998 Coll., which provides lists of secret
information, as amended by later regulations. This amendment was passed
by government resolution no. 1048 of 15 October 2001. Out of 15 cabinet
members present, all 15 voted in favor. This government directive too
was signed by Prime Minister Miloš Zeman, and it was duly published in
the Collection of laws under the number cited above.
In
these circumstances, the Constitutional Court concludes that the
contested government directive was passed and issued within the bounds
of constitutionally provided jurisdiction and in a constitutionally
prescribed manner, within § 68 par. 2 of Act no. 182/1993 Coll., on the
Constitutional Court. Therefore, the Constitutional Court could consider
it on the merits.
IV.
In
the petition, the petitioner seeks the annulment of point 18 of
appendix no. 3 to government directive no. 246/1998 Coll. Appendix no. 3
of that directive is titled “List of Secret Information in the
Jurisdiction of the Ministry of Foreign Affairs“ and point 18 of the
appendix reads: “Sensitive political, security and economic information
in the area of international relations.” This directive was issued to
implement Act no. 148/1998 Coll. Under § 3 par. 1 secret information is
such information, the unauthorized handling of which could damage the
interests of the Czech Republic or interests which the Czech Republic
undertook to protect, or could be disadvantageous for these interests
and which is listed in the list of secret information. Under par. 2 and 3
of this provision, the lists of secret information are processed by the
National Security Office at the application of central offices and they
are issued by the government by directive.
The
petitioner claims first of all that the government acted inconsistently
with Article 78 of the Constitution by passing the contested provision.
Under the first sentence of the provision, the government is authorized
to issue directives in order to implement statutes, within the bounds
thereof. It must thus act secundum et intra legem, not outside the law
(praeter legem). A government directive merely expands on or updates the
disposition or hypothesis of the implemented statutory norm, and it is
not possible for this statutory norm to be substantively widened or
narrowed within in. It is required that a government directive be
general and apply to an uncertain group of addressees, as the
Constitution authorizes it to make a legal framework, not to issue an
individual administrative act. The barrier of things reserved to be
regulated exclusively by statute (the so-called “statutory reservation”)
guards against abuses of the executive power (cf. Constitutional Court
judgment Pl. ÚS 45/2000).
The
provision of § 3 par. 1 of Act no. 148/1998 Coll. defines the concept
“secret information” with the help of two conditions, a substantive
condition (unauthorized handling of such information may damage the
interests of the Czech Republic or interests which the Czech Republic
undertook to protect, or could be disadvantageous for these interests)
and a formal condition (it is listed in the list of secret information).
It is clear from the present petition that the petitioner, in
interpreting § 3 of Act no. 148/1998 Coll. relied primarily on
linguistic methods. He concluded that the Act foresees the existence of a
definitively and concretely defined list of secret information. He then
concludes from that that the government’s actions deviated from the
bounds of the law, because the list issued by the government does not
meet this requirement.
The
interpretation of a legal norm is nonetheless a complex, multi-layered
intellectual operation, which knits together a number of methods. In the
present circumstances the Constitutional Court considers e ratione
legis to be an indispensable interpretative method. In its prior case
law it accepted the principle of a looser relationship between a statute
and a directive, with the provision that it considered the directive’s
consistency with the meaning and purpose of a statute as a whole to be a
priority in assessing constitutionality (cf. judgment Pl. ÚS 45/2000).
One of the primary aims of Act no. 148/1998 Coll., on Protection of
Secret Information, is to protect the interests of the Czech Republic.
This is shown by the wording of § 1a of the Act, under which its subject
matter is primarily the definition of information which needs to be
kept secret in the interest of the Czech Republic. This purpose of the
Act is also to be fulfilled by its other provisions, not least § 3 par.
1. Applying the method of teleological interpretation leads to the
unquestioned conclusion that the purpose of the Act is to legally ensure
that all information is kept secret which, under the definition, (§ 2
par. 2) conflict with the interests of the Czech Republic. This aim is
projected in the substantive condition of § 3 par. 1 of Act no. 148/1998
Coll. It would be absurd to assume that the legislature, by including a
second, formal, condition in § 3 par. 1 of Act no. 148/1998 Coll.,
intended to make it impossible to effectively fulfill the purpose of the
Act. This is the absurd conclusion which would be reached if one
accepted the thesis that the list of secret information, assembled by
the government as instructed by the Act is to contain only completely
specific items, and at the same time be a final, definitive list. The
combination of great specificity and definitiveness in assembling the
list of secret information would make it impossible to meet the purpose
of the Act without anything further, and would inherently carry the risk
that a piece of information which meets the substantive requisite for
secrecy would not be kept secret, as it did not fall under any of the
specific items on the list assembled by the government. The government
did not have a mandate for such a “risky” combination. It is not
authorized to substantively narrow an implemented statutory norm (see
above). This procedure would be “implementation of the statute and
within its bounds,” but a procedure contra legem, which Art. 78 of the
Constitution does not permit.
The
petitioner also believes that the list in government directive no.
246/1998 Coll. does not meet the principles of legal certainty and
foreseeability of acts by the public power, which are required in a
democratic state governed by the rule of law (Art. 1 par. 1 of the
Constitution).
The
Constitutional Court naturally agrees that the foreseeability of the law
is one of the fundamental elements of the principle of legal certainty,
and one can not imagine a democratic state governed by the rule of law
without it. It also agrees with the petitioner’s opinion that
“foreseeability” is connected with a clear normative definition of
individual groups of secret information, and with the definitive nature
of the government-compiled list of such information.
Of
course, legal certainty and the foreseeability of acts by the public
power are not absolute categories which could be set above other
components of the concept of “a democratic state governed by the rule of
law.” Protection of the interests of the Czech Republic as a sovereign
state is also a constitutionally protected value (Art. 1 par. 1 of the
Constitution). The Act on Secret Information defines these interests as
“preserving constitutionality, sovereignty, territorial integrity,
ensuring the defense of the state, public safety, protection of
important economic and political interests, the rights and freedoms of
natural persons and legal entities and protection of life or health of
natural persons.” Thus, the task of the legislature, as well as of the
government, is to optimize the possible discordant effects of the
protective mechanisms for both values, in other words, to narrow as much
as possible the room for possible arbitrariness in acts by the public
power, and at the same time ensure the effective protection of state
interests. It would not be “optimization” if a government directive
ensured perfect legal certainty, as well as perfect foreseeability, at
the expense of protection of state interests, which would have to
unconditionally give way to the requirement of foreseeability, thus
conceived.
In this context,
the Constitutional Court points to the principle of proportionality,
which is a different expression of the concept of optimization. It too
must be used to evaluate the list in appendix no. 3 to government
directive no. 246/1998 Coll., which is the subject of the petition.
Proportional limitation of foreseeability (legal certainty) is such
necessary limitation as is still able to ensure effective fulfillment of
the aims of Act no. 148/1998 Coll. It is obvious that in the
“optimization” operation, the government was forced to optimize, in the
list of secret information, on the one hand, considerably opposing
requirements for accuracy and specificity of items, and, on the other
hand, the definitiveness of the entire group.
There
were hypothetically two possible approaches: to choose a completely
specific expression of the individual items in the list and define the
list as illustrative. The legislature itself obviously chose a similar
path, when in § 4 of Act no. 148/1998 Coll. it assembled a list of
“areas” in which secret information can occur. Despite its unusual size
(27 items), it did not neglect to introduce the list with the term “in
particular.”
In a similar
situation, the government could not choose this approach, as linguistic
interpretation of § 3 par. 1 of Act no. 148/1998 Coll., as regards the
formal condition (listing the information on the list), results in the
requirement of a definitive enumeration in the list. Therefore, it had
to proceed inversely, preserve the definitiveness of the list, and
“optimize” in the degree of generality (specificity) of individual items
in the list and the list as a whole.
The
Constitutional Court states that appendix no. 3 to government directive
no. 246/1998 Coll. (List of Secret Information in the Jurisdiction of
the Ministry of Foreign Affairs) contains 18 items. Of those, 17 are
relatively specific, whereas item no. 18 is relatively general. The list
as a whole thus gives the ministry, a body of public power, room for
broader substantive discretion only within item no. 18, which must be
understood as a “residual” area not covered by items nos. 1-17. Only in
this residual area (not in the entire area of international relations)
there is objective room for acts which could theoretically be described
as “unforeseeable.”
Of
course, the Constitutional Court points out that the petitioner extends
his idea of legal certainty and foreseeability to an impermissibly
narrowed concept of a democratic state governed by the rule of law.
Legal certainty and the foreseeability of acts by the public power must
also be preserved in relation to other subjects of international law.
Under Art. 1 par. 2 of the Constitution “the Czech Republic shall
observe its obligations under international law” The Czech Republic has
accepted international obligations vis-à-vis its allies regarding
keeping secret certain important and sensitive information. It is
obligated to transmit these international obligations into domestic law,
and through it ensure the secrecy of appropriate information. For these
other states, a “foreseeable” legal framework for the actions of bodies
of public power of the Czech Republic will be one which is capable of
securing their international obligations as regards secrecy. In
contrast, an “unforeseeable” framework will be one which is incapable of
ensuring in all cases the secrecy of information which the CR has
undertaken to protect under international law. Of course, the CR has an
international responsibility vis-à-vis its allies only for the “result”:
it violates its obligation at the point when it does not ensure the
protection of a particular piece of information which is subject to
secrecy under an international treaty. In order for the CR to be capable
of meeting its international obligations in this area, its bodies must
have the authorization to judge whether or not a particular piece of
information is to be secret under an international treaty. If the CR is
not able, due to the particular content of its domestic law, to fully
ensure such specific evaluation and subsequent secrecy, its conduct is
“unforeseeable” for its contractual partners, and violates legal
certainty in internal law relations. The contractual partners may then
not disclose certain sensitive information to the Czech Republic,
possibly to the detriment of its security or other of its fundamental
interests protected by Art. 1 par. 1 of the Constitution.
In
view of the foregoing considerations, the Constitutional Court believes
that the degree of legal uncertainty, non-foreseeability, that results
form the list of secret information in the jurisdiction of the Ministry
of Foreign Affairs as a whole is proportional in relation to the
statutorily required degree of protection of state interests and in view
of the constitutional principle of fulfilling obligations which arise
to the Czech Republic from international law.
The
petitioner also believes that government directive no. 246/1998 Coll.,
through the list, allows the Ministry of Foreign Affairs, when keeping
information secret, to act in a way that may lead to unconstitutional
interference in the right to information under Art. 17 par. 1 and 5 of
the Charter. The Constitutional Court does not share his belief. Act no.
148/1998 Coll. limits freedom of expression and the right to seek out
and disseminate information, on the grounds, among other things, of
ensuring defense of the state or public security, i.e. on grounds which
are expressly permitted by Art. 17 par. 4 of the Charter. In the
contested provision, the government, while implementing this statute,
did not exceed its bounds, and a certain, proportional degree of
administrative discretion in applying the government directive is
required by the purpose of the statute. Thus, applying the contested
provision in the list does not prevent the Ministry of Foreign Affairs
from appropriately providing information about its activities in
accordance with the law.
The
Constitutional Court also did not agree with the petitioner’s claim
regarding alleged violation of Art. 4 par. 2 of the Charter. The bounds
of fundamental rights and freedoms (in the present case the right to
information) in the present matter are indisputably defined by statute
(by Act no. 148/1998 Coll., which specifies what is secret information,
and by Act no. 106/1999 Coll., on Freedom of Access to Information,
which, in § 7, provides that an obligated subject shall not provide
secret information). As was discussed above, in the present case the
government did not exceed the bounds of the law, and thus did not limit
the constitutionally guaranteed right to information more than the law
allows.
The Constitutional
Court recognizes that application of government directive no. 246/1998
Coll. and its appendices in particular cases may cause certain problems
and doubts, as happened in the case which prompted the petitioner to
act. In individual situations, the statutory room for administrative
discretion can be abused to arbitrarily make secret a particular piece
of information which at the time does not meet the substantive condition
of § 3 par. 1 of Act no. 148/1998 Coll. In such a case, however, the
legal order permits one to seek protection of his right to information,
through means which are defined by Act no. 106/1999 Coll., on Freedom of
Access to Information. Under § 16 par. 1 of the Act an appeal
[“odvolání”] can be filed against a decision by the obligated entity
denying an application to provide information, or an administrative
appeal [“rozklad”] can be filed against a decision by a central state
administration body (par. 5 of that section). A decision denying an
application is also reviewable by a general court (§ 16 par. 6 of the
Act), and that court’s decision is then reviewable by the Constitutional
Court.
Thus, possible
arbitrariness in determining specific information which is to be kept
secret can be effectively countered. The Constitutional Court therefore
believes that the contested provision in the wider procedural context,
as just defined, is also consistent with conclusions which the European
Court of Human Rights reached on the required precision of a legal norm
and the foreseeability of acts by the public power. That court requires
in cases, where a legal regulation authorizes discretion by a body of
public power, that the scope and modalities of the exercise of that
discretion be defined with sufficient clarity in view of the particular
legitimate aim, and that they provide the individual the corresponding
protection against arbitrariness [Kruslin v. France (1990), §§ 27, 29,
30 and M. and R. Andersson v. Sweden, (1992), § 75].
In
view of all the foregoing, the Constitutional Court denied the petition
to annul point 18 of appendix no. 3 to government directive no.
246/1998 Coll., under § 70 par. 2 of Act no. 182/1993 Coll., on the
Constitutional Court.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 11 February 2004
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 11 February 2004
Dissenting Opinion
of JUDr. Eliška Wagnerová, Ph.D.
I was led to express this dissenting opinion on the following grounds:
I.
The
petition to annul point 18 of appendix no. 3 to government directive
no. 246/1998 Coll., which provides lists of secret information, as
amended, was filed by the Ombudsman, motivated by a request for
investigation presented to his office by Petr Uhl, who unsuccessfully
requested the Ministry of Foreign Affairs to provide information in the
form of a “plan for human rights.” The Ombudsman, in connection with
addressing this particular case, was faced with the application of the
above provision of the cited government directive, whose
constitutionality he then questioned before the Constitutional Court.
Therefore, his petition can be considered as grounds to open proceedings
on so-called “specific review of norms,” i.e. the norm which is to be,
or was, applied by the body of public power to the particular case.
From
a constitutional law viewpoint, the relationship between Petr Uhl and
the Ministry of Foreign Affairs involved resolving the question of
whether refusal of information on the plan for human rights meant
interference in Petr Uhl’s fundamental right to freely seek information,
as declared by Art. 17 par. 4 of the Charter of Fundamental Rights and
Freedoms (the “Charter”). The constitutional question at the level of
proceedings on specific review of norms at the instigation of the
Ombudsman, was then, viewed in a consistent manner, whether the
contested provision can be interpreted in a constitutionally consistent
way so that, in Petr Uhl’s case there was no interference in his
fundamental right, or whether the contested provision is incapable of
such interpretation, and therefore must be annulled as unconstitutional.
It is evident from the
genesis of the case as described and the unique nature of proceedings on
specific review of a norm, that the contested norm should have been
first (perhaps exclusively) reviewed in terms of Art. 17 par. 4 of the
Charter, i.e. in terms of that fundamental right, the violation of which
was the initial impetus to open proceedings before the Constitutional
Court.
I reached this
conclusion after deliberation motivated by questions connected with
applying the principle of minimalism in the approaches and procedures of
the Constitutional Court. This principle should be applied not only in
final decisions, which is the approach that the Constitutional Court
routinely practices when it gives priority to a constitutionally
consistent interpretation of a legal norm over annulling it (from recent
times, see the judgment in matter file no. Pl. ÚS 41/02), but also in
the scope of review of contested legal acts, particularly in the case of
proceedings on so-called “specific review of norms.” In this type of
proceedings it is practical life itself which formulates the
constitutional questions connected with the application of a particular
legal norm in specific, factually created situations, which the
Constitutional Court is to answer. In contrast, “gray” academic
consideration about what could (but need not) may have a future
influence on the interpretation of a legal norm, which clearly can never
comprise the entire “green tree of life,” should be answered in this
type of proceedings as little as possible, if at all.
The
practical effect of this minimalist approach is tied to the creation of
the obstacle res iudicata. The more minimal the approach which the
Constitutional Court takes, the smaller the obstacle it will create in
the form of an already adjudicated matter, and on the contrary – the
greater the room it will leave for the development of real life, with
its organically arising further questions.
II.
Article
17 of the Charter guarantees the right to information as a political
right whose purpose is to ensure the public’s ability to participate in
decision-making processes, and is thus one of the conditions making it
possible to connect citizens to the operation of power. Being informed
fundamentally affects one’s ability to express relevant opinions on
issues of public life. In contrast, the institution of secrecy is an
instrument which strengthens the power interests of the bureaucratic
apparatus of the executive power (government in the wider sense). In
modern society it is the bureaucracy which exercises power, and the
bureaucratic administration has a tendency to be an administration
without public participation. Controlling the provision of information,
however necessary it may be in certain areas, is also a significant risk
for the democratic principles of government. All these facts must be
taken into account when interpreting the constitutional right to
information.
Therefore, in
light of this importance of the right to information, this right, in the
form of a right to seek information (Art. 17 par. 4 of the Charter) can
not be interpreted solely as a status negativus. Much more in line with
its fundamental importance for democracy itself is an interpretation of
the right as a right expressing a status positivus, with the
corresponding obligations on the public power. Limitation of the
obligations of the public power to provide information can range only in
the limits set forth by Art. 17 par. 4 of the Charter. In my opinion,
this par. 5 Art. 17 of the Charter must be interpreted along these
lines. This restrictively interpreted purpose for limiting the right to
information also corresponds to the wording of Art. 19 par. 3 of the
International Covenant on Civil and Political Rights.
In
any case, as follows from the doctrine of European legal knowledge, it
is a question of the interpreter’s legal philosophy, which gives openly
formulated fundamental rights one or another status (see, e.g.,
Böckenförde, E. W.: Grundrechtstheorie und Grundrechtsinterpretation, in
Neue juristische Wochenschrift – NJW 35/1974, p. 1529 et seq.) And, of
course, the specific circumstances of the case, viewed in terms of
significance or the overlaps of an applied personal fundamental right
into the public sphere, will play a role in determining the nature of
the right applied. And it is precisely in proceedings on the specific
review of norms that these specific circumstances can be taken into
account.
III.
I
can not agree with the method for reviewing the contested provision as
expressed in the judgment’s reasoning. Primarily, I object that, insofar
as the contested provision was interpreted teleologically, and only in
relation to the purpose of Act no. 148/1998 Coll., on Protection of
Secret Information, as amended (the “Act”), without the purpose of that
Act being tested by the purpose for which the right to seek information
can be limited from the viewpoint of Art. 17 par. 4, that test was
incomplete. The Act can undoubtedly be considered a statute limiting the
right to seek information, the passage of which is presupposed and
permitted by that provision of the Charter, but, of course, only for the
purpose stated therein. This test must be applied even though the
relevant provisions of the Act were not, and could not be, contested by
the petitioner. the Constitutional Court would address this issue as a
“preliminary” issue, with effect on the decision on the merits .
I
believe that there can be serious doubts as to whether the purpose of
the Act (i.e. protection of the interests of the CR, as indicated by §
1a of the Act, and which is elaborated by § 3 par. 1 of the Act, which
sets substantive conditions for designating secret information such that
the information in question must be information, the unauthorized
handling of which could damage the interests of the CR or interests
which the CR undertook to protect, or could be disadvantageous for these
interests) ranges within the limits of the purpose of the cited
provision of the Charter, expressed there as “protecting the rights and
freedoms of others, the security of the state, public security, public
health, or morals.” If, from this point of view, the purpose of the Act
itself were cast in doubt, then of course, the contested provision,
which is actually merely a formal condition supplementing § 3 par. 1 of
the Act, also could not stand.
IV.
Only
if the test of whether the purpose of the Act matches the purpose
arising from Art. 17 par. 4 of the Charter were answered in the
affirmative, would it be possible to further test the contested
provision in terms of the principle of a democratic state governed by
the rule of law (Art. 1 par. 1 of the Constitution of the CR), where the
principle of foreseeability of law and the ban on arbitrariness by
bodies of public power are immanent, both closely related to the issue
of certainty in the terms used in the hypothesis and disposition of a
legal norm, or their deontological expression.
The
majority’s starting point is the opinion that the contested provision
creates room for wider substantive administrative discretion. I can not
agree with this opinion, because both the construction of the
Administrative Procedure Code (under § 78 of the Administrative
Procedure Code a court reviews only the bounds of administrative
discretion, perhaps abuse of administrative discretion), and the case
law of the administrative courts indicate that the content of
administrative discretion is outside judicial review. In this situation,
one must insist that the norms or public law (including the contested
norm) that are directly tied to a fundamental right be formulated
deontologically so that they do not provide room for administrative
discretion, even if they use relatively abstract concepts. Unlike
administrative discretion, interpretation of abstract or uncertain terms
is not removed from judicial review.
V.
In
the reasoning of the judgment the majority expressed an opinion which
is difficult for me to accept, that the foreseeability of the contested
provision must also be evaluated “in relation to other subjects of
international law,” with reference to the declaration contained in Art. 1
par. 2 of the Constitution of the CR, which states that “the Czech
Republic shall observe obligations which arise to it from international
law.” The majority apparently takes this provision of the Constitution
of the CR to be general grounds for limiting any fundamental right,
including the fundamental right to seek information. I can not accept
the majority’s optics. I am of the opinion that the state may undertake
only such international obligations as will respect the constitutional
order of the Czech Republic, and in the event of conflict, the
constitutional order of the CR should take precedence. In any case, the
so-called “Euro-amendment” of the Constitution of the CR (constitutional
Act no. 395/2001 Coll.), as well as the related opening of proceedings
on preventive review of the constitutionality of international treaties
before the Constitutional Court, were evidently based on this concept.
However, this does not rule out a posteriori review of the
constitutionality of international treaties, or their effects at the
level of domestic law, as one must insist that the fulfillment of
international law obligations (whether in the domestic or international
sphere) must always be consistent with the constitutional order of the
CR. This conclusion must also be applied in view of the text of Art. 10
of the Constitution of the CR, under which an international treaty takes
precedence in application over a statute (and by argument a maiori ad
minus also over a sub-statutory legal regulation). Therefore the
argument applied by the majority is unacceptable to the extent that it
quite sweepingly sets international law obligations over the content of
domestic law, without, however, taking into account the effect of norms
of the constitutional order of the CR (in this case Art. 17 par. 4 of
the Charter).
For that
reason too I consider the majority’s position unacceptable, and in view
of this it was also necessary to evaluate the contested provision
through the lens of Art. 17 par. 4 of the Charter, and not through the
lens of the Act on Protection of Secret Information and international
treaties, or the international obligations of the CR. In my opinion, the
priority of the constitutional order of the CR over international
treaties must be insisted on at least in a scope which corresponds to
the “essential requirements of a democratic state governed by the rule
of law,” which may not be changed (Art. 9 par. 2 of the Constitution of
the CR) by any legal act, whether international or domestic, regardless
of its legal force. The essential requirements of a democratic state
governed by the rule of law also include, at a minimum, respect for
fundamental rights by bodies of public power when exercising their
jurisdiction (in certain cases one can also require bodies of public
power to protect fundamental rights), according to the standard provided
by the domestic constitutional order. Only in cases where an
international treaty on fundamental rights (whether designated as a
treaty on human rights or a treaty on civil and political rights) by
which the Czech Republic is bound provides a higher standard of
fundamental rights than the domestic constitutional order is it
possible, because of the content of treaties, or the nature of the
rights contained in them, for the domestic framework to give way to the
international framework, which would be respected by bodies of public
power when exercising their jurisdiction. This approach corresponds to
the interpretation of Art. 1 par. 1 of the Constitution of the CR which
indicates that in a democratic state governed by the rule of law the
individual is pre-eminent before the state, and the state, in contrast,
is bound by respect for the fundamental rights of the individual. Brno, 23 February 2004