Pl. US 1/92




       The Czech and Slovak Federal Republic


                   JUDGMENT

of  the  Constitutional Court of  the  Czech  and  Slovak
Federal Republic

     In the Name of the Czech and Slovak Federal Republic

     The  Plenum of the Constitutional Court of the Czech
and  Slovak  Federal Republic, composed of its  Chairman,
JUDr.  Ernest  Valka,  and of Justices,  JUDr.  Vlastimil
Sevcik, JUDr. Zdenek Kessler, JUDr. Vojen Güttler,  JUDr.
Peter  Dresak, JUDr. Jiri Malenovsky, JUDr. Pavel  Mates,
JUDr.  Mariana  Poslucha, JUDr. Antonin Prochazka,  JUDr.
Viera Straznicka, JUDr. Ivan Trimaj and JUDr. Jan Voscek

in the matter of the petitioner, a group of 99 members of
the  Federal  Assembly of the Czech  and  Slovak  Federal
Republic  ,  represented by Ing. Petr  Uhl,  against  the
Federal   Assembly  of  the  Czech  and  Slovak   Federal
Republic, represented by its Deputy Chairman, JUDr. Filip
Sedivy  seeking  a  decision that Act No.  451/1991  Sb.,
which sets down some additional preconditions for holding
certain  offices in governmental bodies and organizations
of  the  Czech  and  Slovak Federal Republic,  the  Czech
Republic  and  the Slovak Republic, is not in  conformity
with   the  Charter  of  Fundamental  Rights  and   Basic
Freedoms, with the International Convention on Civil  and
Political  Rights, with the International  Convention  on
Economic,   Social,  and  Political  Rights,   with   the
Discrimination  (Employment  and  Occupation)  Convention
1958  (No.  111), with the Vienna Convention on Treaties,
with  the  Constitution of the Czech and  Slovak  Federal
Republic,  and  with  the  Constitutional  Act   on   the
Czechoslovak Federation, on 26 November 1992, decided

                    THUSLY:

     §  2 para. 1, letter c), § 2 para. 2, and § 4 paras.
2  and  4  of  Act No. 451/1991 Sb. are not in conformity
with  Article 2 para. 3 and Article 4 paras. 1 and  3  of
the Charter of Fundamental Rights and Basic Freedoms, and
Article  4  of the International Convention on  Economic,
Social   and  Cultural  Rights,  promulgated  under   No.
120/1976 Sb.

     § 2 para. 3, § 3 para. 2 and § 13 para. 3 of Act No.
451/1991 Sb., are not in conformity with Article 1 of the
Charter.

     §§  11, 12, § 13 paras. 1, 2, 4 and 5, § 18 para.  1
and  §  20 of Act No. 451/1991 Sb., are not in conformity
with Article 37 para. 1 and Article 38 of the Charter and
with  Article 98 para. 1 of the Constitution of the CSFR,
No.  100/1960  Sb, as amended by constitutional  act  No.
326/1991 Sb.

     The  remainder  of the petition is rejected  on  the
merits.


                    REASONING:

     On  10  March  1992, a group of 99 Deputies  of  the
Federal Assembly of the Czech and Slovak Federal Republic
(hereinafter   "Federal  Assembly")  submitted   to   the
Constitutional  Court  of the Czech  and  Slovak  Federal
Republic (hereinafter "Court") a petition requesting that
the  Court  declare that, pursuant to  §  6  para.  1  of
Constitutional Act No. 23/1991 Sb., which Introduced  the
Charter  of  Fundamental Rights and Basic Freedoms  as  a
Constitutional  Act  of the Federal Assembly,  the  Court
declare  that Act No. 451/1991 Sb., which Sets Down  Some
Additional  Preconditions to Holding Certain  Offices  in
Governmental  Bodies and Organizations of the  Czech  and
Slovak  Federal  Republic, the Czech  Republic,  and  the
Slovak  Republic, lost force and effect as of 31 December
1991  due  to  its  non-conformity with  the  Charter  of
Fundamental Rights and Basic Freedoms.
     In  the case that in its interpretation of § 6 para.
1  of Constitutional Act No. 23/1991 Sb., under Article 3
para.  1 of Constitutional Act No. 91/1991 Sb., the Court
comes   to   the  conclusion  that  §  6   para.   1   of
Constitutional Act No. 23/1991 Sb., does not apply to Act
No.  451/1991  Sb.,  then the group of  Deputies  further
petitioned  the Court to issue a judgment declaring  that
Act  No. 451/1991 Sb., is not in conformity with §§ 1 and
3 of Constitutional Act No. 23/1991 Sb., which Introduced
the  Charter  of  Fundamental Rights and Basic  Freedoms,
with  Articles 1, 2, 3, 4, 17, 20, 21, 26, and 36 of  the
Charter  of  Fundamental Rights and Basic Freedoms,  with
Articles  97,  98, and 102 of the CSFR Constitution  (No.
100/1960  Sb.,  as  amended  by  Constitutional  Act  No.
326/1991  Sb.), with Article 37 para. 2 of Constitutional
Act No. 143/1968 Sb., on the Czechoslovak Federation,  in
the  full  version  issued under No. 103/1991  Sb.,  with
Articles  2,  19,  22,  25, and 26 of  the  International
Convention  on  Civil  and Political Rights,  promulgated
under No. 120/1976 Sb., with Articles 1, 2, 3, and  4  of
the Discrimination (Employment and Occupation) Convention
1958  (No. 111), promulgated under No. 465/1990 Sb.,  and
with Articles 18, 26, and 28 of the Vienna Convention  on
Treaties,  promulgated under No. 15/1988  Sb.,  with  the
consequences   flowing  from  Article  3   para.   1   of
Constitutional Act No. 91/1991 Sb.
     As  a  part  of the proceeding on the petition,  the
Court  requested the Federal Assembly (which under  §  39
para.  1  of  Act  No. 491/1991 Sb., is a  party  to  the
proceeding) to give its view on the petition  within  the
legally   prescribed   period   and   to   designate    a
representative to act on its behalf before the  Court  in
the  proceeding on the petition (§ 40 of Act No. 491/1991
Sb.).
     After  the  June, 1992 elections, the Court  sent  a
similar  request  to the newly elected Federal  Assembly,
however,  nobody from the Federal Assembly even responded
to   either  of  these  requests,  so  that  the  Federal
Assembly's opinion on the group of Deputies' petition  is
not known to the Court.
     While  considering the petition, the  Court  had  to
concern  itself, first of all, with the issue of  whether
the  group of Deputies which submitted the petition still
has  full  standing to bring this proceeding, even  after
the  June, 1992 elections to the Federal Assembly.  Under
Article 8 para. 2 of Constitutional Act No. 91/1991  Sb.,
a  petition may be submitted by a group of at least  one-
fifth of the Deputies to the Federal Assembly, that is 60
Deputies  (Article  8 para. 2 of Constitutional  Act  No.
91/1991  Sb.).   Since  it  was determined  that  of  the
original  99 Deputies of the Federal Assembly who  signed
the  petition,  only 43 Deputies were re-elected  in  the
June,  1992  elections, it was necessary  to  decide  the
following  issue:   at  what  point  in  time  must   the
requirements   set  down  in  Article  8   para.   2   of
Constitutional Act No. 91/1991 Sb., be met.
     The  Court had dealt with an analogous issue in  the
matters Pl US 95/92 and Pl US 22/92, in which it came  to
the  conclusion that the decisive point in time  for  the
submission of the petition, as meant by the earlier-cited
provisions of Constitutional Act No. 91/1991 Sb., is  the
moment to which the statute's time conditions point, that
is  the  moment  when  the petition is  submitted.   This
conclusion  follows  both  from  the  interpretation   of
Constitutional  Act No. 91/1991 Sb., and  from  the  fact
that  a reduction in the number of Deputies who submitted
the  petition is not included in the Act as  one  of  the
grounds  for halting an already-commenced proceeding,  as
well  as  from  the  fact  that the  requirement  of  the
protection  of  constitutionality means  that  the  Court
should deal with already-commenced matters on grounds  of
the general public interest.
     Thus, no formal impediments which would prevent  the
Court from continuing in the proceeding were discerned in
this matter either.
     On  the  merits  of  the matter  itself,  the  Court
introduced the following documentary evidence:
The  Report  on the 17th Joint Session of the Chamber  of
Peoples  and  the  Chamber  of  Nations  of  the  Federal
Assembly,  at  which  the contested statute  was  adopted
(print No. 841), and documents and writings:
from  the archive of the Federal Interior Ministry, which
were submitted to the Court at its request, namely:
 - the Minister of Security's Order No. 49 of 10 December
1951 concerning Work with Agents,
  -  the  Interior Minister's Order concerning Work  with
Agents (the Directive on the Operational Work of Agents),
No. 72/54, from 20 April 1954,
  -  the Directive from 1962 for the Operational Work  of
Agents  of  the State Security Services (top  secret,  of
extraordinary importance),
  -  the  Interior Minister's Interpretation  of  Certain
Fundamental   Issues   concerning  the   State   Security
Service's  Work  and  of  the  new  Directive   for   the
Operational Work of Agents issued under Interior Minister
Order 13/1962 from 16 May 1962,
  -  the  Directive  for  Work with  those  Clandestinely
Cooperating with Czechoslovak Counterintelligence A-oper-
I-3 issued under CSSR Interior Minister Order No. 8 of 16
February 1972,
  -  the  Directive for Work with those Cooperating  with
Counterintelligence A-oper-I-3 of 25 January 1978,
  -  the  Principles for Counterintelligence  Activities,
file no. CB-002040/03-89 from 28 November 1981,
from  the  Federal Assembly archives, the record  of  the
testimony  given  before the Federal Assembly  Commission
for  the  Investigation of Events of 17 November 1989  by
the former heads of the First Division, Second Department
of   the  State  Security  Services  [hereinafter  "State
Security" or "StB"], Jan Roller, Josef Jerabek and Zdenek
Kozuch,  concerning the manner in which  clandestine  StB
collaborators  were recruited and in which  records  were
kept on them, and
from the archives of the former Central Committee of  the
Czechoslovak   Communist   Party,   Directives   on   the
Organization and Activities of the People's  Militia  and
Directives  on  the  Cadre  Orders  of  the  Czechoslovak
Communist Party.
     At  the Court's request, the Office of the Presidium
of  the  CSFR  Government submitted  the  Report  of  the
Director-General   of   the   Governing   Body   of   the
International  Labour Office GB-252/16/19 concerning  the
examination of the Complaint Submitted by the Trade Union
Association of Bohemia, Moravia, and Slovakia and by  the
Czech  and Slovak Confederation of Trade Unions  alleging
non-observance  of  the  Discrimination  (Employment  and
Occupation)   Convention  1958  (No.  111),   which   the
Governing  Body adopted at its session held in Geneva  on
June  2-6,  1992,  including the  correspondence  of  the
government   bodies  in  this  matter  and   the   Secret
Government  Resolution  No.  256  of  14  March  1958  on
Reorganization and Wage Restructuring.
     The  following  documents were  requested  from  the
criminal file of the Higher Court Martial in Tabor in the
matter  brought against defendant Alojz Lorenc and others
(T 8/91):
 - Instruction of the 1st Deputy Interior Minister of the
CSFR   NZ-006   71/8,  Instruction  CB-00134/01-89,   and
Instruction  CB  00153/01-09  including  a  Telex   about
Discarding Items.
  -  Expert Opinion of the Federal Interior Ministry  and
the   Supplementary  Opinion  on  the   Consequences   of
Discarding  Items with Numerical Data on the Consequences
of Discarding Items
 - that portion of the record containing the testimony of
witnesses Dr. Zdenek Formanek, Capt. Jan Frolik,  Dr.  M.
Churan and Dr. Z. Vajda.
 The Court further supplemented this documentary evidence
with  the  testimony of witnesses, namely Dr. J.  Setina,
Mag. J. Frolik, Jar. Basta and Dr. St. Novotny.

     On  the basis of the introduced evidence, the  Court
came to the following factual and legal conclusions:
     In  the  period from 1948 until 1989, which Act  No.
480/1991  Sb.,  defines as "the era of non-freedom",  the
totalitarian regime violated not only human  rights,  but
also  its own laws, which it had adopted for the  purpose
of establishing and maintaining its hold on power (§ 1 of
the   Act).   In  addition  to  the  formally  legitimate
institutions  of  legislative and  executive  power,  the
composition  and activities of which were  adapted  in  a
purpose-oriented fashion to their designs on power, other
state  bodies  and organizations also took  part  in  the
suppression  of  rights and freedoms without  having  any
foundation  at all in law for their activities  (People's
Militia), or they obtained such a foundation only through
subsequent  legal approval (Action Committees,  Screening
Commissions).
     In  keeping  with  the theory of a  permanent  class
struggle  and of the leading role of the Communist  Party
of   Czechoslovakia,  the  totalitarian  regime  deprived
hundreds  of  thousands  of persons  not  only  of  their
freedom or their lives (Act No. 119/1991 Sb., on Judicial
Rehabilitation, alone affected 245,000 persons), but also
even  of  their  employment.   Thus,  this  arbitrariness
became  subsequently legalized (by Act No. 213/1948  Sb.,
for  example),  and  the  action  committees'  manner  of
proceeding  was  characterized  as  measures  taken   "in
accordance with law, even in cases which would  not  have
otherwise   been  in  conformity  with  the   appropriate
enactments" (§ 4 para. 3 of the Act).
     The    Czechslovak   Republic   Government    Secret
Resolution No. 256 of 14 March 1958, also had  a  similar
character  of  a  mass,  unlawful  purge  in   that   the
reorganization  and wage restructuring  effected  thereby
were  connected  "with the screening  of  the  class  and
political  reliability  of the state  and  economic  team
("aparat"), the goal of which was to cleanse this team of
all  politically unreliable elements and to prevent  them
from  obtaining some other position of importance."  This
directive enumerates the categories of persons  who  were
not  permitted  to  be employed in the  governmental  and
economic  sectors.   Their ranks included,  for  example,
wholesalers, owners of financial and law offices,  former
high  state  officials, military officers,  directors  of
large  factories and those working closely with them,  as
well  as those whose close relatives were in a capitalist
country  or  had been punished for anti-state activities.
Those  measures applied not only to the group of  persons
listed,  but also to their close relatives.  In order  to
sever  employment relations with such employees,  it  was
not  necessary to obtain the consent of the  division  of
work  force  of  the  ONV [District National  Committee],
which would have otherwise been required.
     The process of normalization, which took place after
the  occupation  of Czechoslovakia by  the  Warsaw  Pact,
belongs  among those measures of mass repression relating
to  employment  law.   The  Screening  and  Normalization
Commissions  were  the  bodies  that  carried  out   this
normalization process, and their procedures and decision-
making   were  regulated  by  Presidium  of  the  Federal
Assembly  Measure No. 9 of 22 August 1969, which provided
(in  §  4):   "Anyone who, by his actions,  disrupts  the
socialist societal order and, as a consequence, loses the
trust  needed to hold the office or work position  he  is
currently  holding, may be removed from that  office,  or
his  employment relations may be immediately severed;  as
for employees to whom the provisions of the Labor Code on
the  severance of employment relations do not apply,  the
employment  or service relations with them,  as  well  as
other  possible  expert  relations,  may  be  immediately
terminated by dismissal.  In the circumstances  mentioned
above,  students can be expelled from their schools.   In
the  case of teachers at the university and other levels,
the  responsible  minister may  remove  them  from  their
position or immediately cancel their employment relations
also due to the fact that, in conflict with their duties,
they  are  educating  the youths  placed  in  their  care
contrary to the principles of a socialist society and  of
the building thereof.  The trade union bodies' refusal to
consent shall not have suspensive effect."
     Among   the  measures  taken  for  the  purpose   of
repression,  neither  can  we overlook  the  transfer  of
77,500  persons employed in the administrative sector  to
the  production sector, carried out in the fall  of  1951
under  the  pretext of limiting the growing  bureaucracy.
The arbitrariness and maliciousness of these measures  is
manifestly  confirmed by the fact that  during  the  same
period,  that is from September to December,  200,000  to
300,000  persons  were newly taken on into  positions  in
state  administration, security, justice, and  the  army,
generally  persons  without the  desirable  or  otherwise
necessary   qualifications,  almost  always   exclusively
members of the Communist Party of Czechoslovakia.
     This  scarcely  systematic way  of  filling  leading
positions  at  all  levels and the  blanket  purges  were
gradually  replaced by a methodical and purpose  oriented
personnel  policy worked out by the Central Committee  of
the  Czechoslovak  Communist Party.  For  each  level  of
administration,  binding  directives  were  issued   (the
"cadre  orders")  and,  as  a general  qualification  for
candidates   for  all  leading  positions,  it   required
"political maturity, a creative marxist-leninist approach
to  the  solution  of problems, and the determination  to
consistently  bring  the party's policies  to  life."  As
concerns  professional  qualifications,  such  should  be
linked to "skill at resolving issues of party policy  and
ideology  in the sector entrusted to them and  linked  to
moral  qualities, that is, a high sense of responsibility
to the party and to society in particular." (Cadre Orders
of  the  Central Committee of the Czechoslovak  Communist
Party, file no. UV 057/84 - principles for the Submission
of  Cadre Proposals to Bodies of the Central Committee of
the Czechslovak Communist Party, point 1.)
     Until the end of 1989, every crucial position at all
levels of administration (as well as those in bodies  and
organizations of state and economic teams) was filled  in
accordance with these cadre orders, so that the influence
of the Communist Party of Czechoslovakia on events in all
areas   of   public  and  economic  life  was  decisively
guaranteed by means of the persons engaged in this way.
     Both  in terms of significance and numbers, however,
neither  the  abolition  of  the  leading  role  of   the
Czechoslovak Communist Party which had been  embodied  in
the  Constitution,  nor  the statutory  measures  of  the
Presidium of the CSFR Federal Assembly No. 362/1990  Sb.,
which  increased  the  amount of leading  offices  to  be
filled  by appointment, thus making it possible to recall
compromised   persons   from   leading   offices,    were
substantial.
     To  maintain its position of power, the totalitarian
regime  relied above all on the tools of repression,  the
decisive  component of which consisted of State  Security
and  the network of clandestine collaborators.  As  early
as  10 December 1951, the Secret Order of the Minister of
National  Security No. 49 characterized  the  network  of
agents  as "the keenest and most effective weapon against
class enemies, which enables us to expose and dispose  of
class  enemies before they effect their criminal purposes
.  .  . . For this reason, it is the fundamental duty  of
the  commanders  at all levels to work with  the  agents"
(Part  V of the Order).  The agency itself was designated
as "the front-line weapon of national security which must
be  made the center of an all-encompassing vigilance  and
must  be directed against the enemies of socialism" (Part
VI of the Order).
     In  conformity with these principles, those  holding
totalitarian  power  in  the preceding  regime  tried  to
preserve,  to  the greatest possible extent,  a  mutually
connected and conspiratorial team which would enable  it,
even  under  a  changed internal political situation,  to
influence even the ensuing democratic developments, or to
reverse these developments at a propitious time.
     That  this conclusion is justified is borne out  by,
among     other     things,    the     directives     for
counterintelligence activities (file no.  CB-002040/03-8)
issued  on  28 November 1989, that is 11 days  after  the
17th  of  November,  1989;  parts  3a)  and  b)  of  that
directive  laid down the following way of proceeding  for
the anticipated situation:

"The managerial, organizational and cooperative sphere
 -despite the current position of the agents and official
relations to earmarked sites, to maintain conditions  for
the  possible  infiltration  of  StB  agents  into  their
structures.

Our own operational task
  - to markedly increase the operational activities of  a
conspiratorial nature in the overall workings of the StB;
  - to reevaluate the network of agents and to ensure its
stabilization  and  gradual spread to positions  of  true
significance;  to place emphasis on the  influential  and
well-positioned  agents;  to  activate  to  the  greatest
extent  possible the agents' work, in particular  by  the
use of influential agents;
  -  active measures aimed at disinforming our opponents,
compromising in as confrontational a manner  as  possible
the   favorably   disposed   representatives   of   these
structures before the public, and deepening the clash  of
ideologies, personalities, and actions;
  -  to  obtain, with the greatest possible  speed,  high
quality and influential agents in the mass media and from
among  the  university-level students who are capable  of
influencing   the   operational   situation   in    those
institutions   for   the  benefit  of  the   Czechoslovak
Communist Party."
     In  order  to  shield  the  network  of  clandestine
collaborators  or to make it impossible to identify  them
and  to  assess, on an individual basis, the  extent  and
nature of their activities, on 4 December 1989 the former
Deputy  CSFR  Interior  Minister,  Lt.  Gen.  Ing.  Alojz
Lorenc,   issued  an  Instruction  to   all   Chiefs   of
Administration  of the StB (under file no.  NZ-00671/89),
ordering  them to discard material which "had lost  value
for the purposes of state security".
     In this Instruction he stated, among other things:
"It  is  necessary to proceed in such a  manner  that  no
material  which could be of a compromising character,  in
view  of the present political constellation, remains  in
this section of the organization."
     Subsequently  (on 8 December 1989), the  1st  Deputy
CSFR Interior Minister issued a further Instruction (file
no.  00133/01-89), the attachment to which has  an  order
which  in  content is entirely identical to that  from  4
December 1989, except that the paragraph about discarding
compromising materials was omitted.  At the same time, it
ordered the first instruction from 4 December 1989 to  be
discarded.
     The  expert  opinion of Col. JUDr. Zdenek  Formanek,
the Chief of the Federal Interior Ministry Office for the
Protection of the Constitution and of Democracy, file no.
OV-O94/SE-90  from 9 March 1990, which was  part  of  his
testimony  before the Higher Court Martial in  Tabor  (p.
190  and  following of the record of the  main  trial  in
criminal matter T 8/91), stated that, as a result of  the
first instruction, operational bound volumes or files for
entire  departments  of  the internal  reporting  system,
including  bound  volumes  on clandestine  collaborators,
were  destroyed.   He further stated that  bound  volumes
(files)  on  clandestine  collaborators,  candidates  for
clandestine collaboration, trusted agents and others were
disposed  of  "in a panic".  He was not able to  reliably
demonstrate,   however,  whether  these  documents   were
actually destroyed, were merely relocated, or were hidden
at the homes of some StB agent.
     After  joining the Federal Ministry of the  Interior
(on 2 February 1990), Dr. Formanek ascertained that 90 to
95  %  of  the  safes  in  the  2nd  Administrative  Unit
(concerned  with  the struggle against internal  enemies)
were  empty, or in other cases contained only the  volume
covers or some worthless scrap paper.
     According  to the findings of the Statistical-Record
Division  (SEO)  of  the Interior  Ministry,  during  the
period  from  1 October 1989 until 31 January  1990,  the
number   of   volumes   in  the  records   of   the   2nd
Administrative Unit (concerned with the struggle  against
internal  enemies)  decreased from  the  original  20,337
volumes to 2189.  Therefore, a full 89.9 % of the volumes
were destroyed or relocated to an unknown place.
     Considering all of these facts both individually and
in  their  entirety, the Court has come to the conclusion
that this calculated and malicious conduct created a real
and  potentially  very perilous source of destabilization
and  danger,  which could easily threaten the  developing
constitutional order.  Therefore, in light above  all  of
these  considerations, the Court assessed the aims  which
the  legislators were advancing when they issued Act  No.
451/1991 Sb., the justification for the statute, and  the
consequences tied to the application of it.  In this case
the  decisive criterion was consideration of  the  issues
whether  the act or any of its provisions are in conflict
with  the CSFR Constitution, with constitutional acts  of
the   Federation   (Republics),  or  with   international
treaties  on human rights and fundamental freedoms  which
the CSFR has ratified and promulgated.

     Thus,   the   Court  has  come  to   the   following
conclusions:
     A  democratic state has not only the right but  also
the  duty to assert and protect the principles upon which
it is founded, thus, it may not be inactive in respect to
a  situation in which the top positions at all levels  of
state  administration, economic management,  and  so  on,
were  filled  in  accordance with  the  now  unacceptable
criteria   of  a  totalitarian  system.   Of  course,   a
democratic state is, at the same time, entitled  to  make
all   efforts  to  eliminate  an  unjustified  preference
enjoyed  in  the past by a favored group of  citizens  in
relation to the vast majority of all other citizens where
such preference was accorded exclusively on the basis  of
membership  in a totalitarian political party and  where,
as was already inferred earlier, it represented a form of
oppression  and discrimination in regard to  these  other
citizens.
     In   a  democratic  society,  it  is  necessary  for
employees  of  state  and  public  bodies  (but  also  of
workplaces  which have some relation to the  security  of
the  state)  to meet certain criteria of a civic  nature,
which  we  can characterize as loyalty to the  democratic
principles   upon  which  the  state  is   built.    Such
restrictions may also concern specific groups of  persons
without  those  persons  being  individually  judged,   a
situation  which can be found, without a  great  deal  of
difficulty, in other legal systems as well (for  example,
in  the  Federal  Republic of Germany, persons  from  the
former  German Democratic Republic or the east  bloc  may
not  be  engaged  by  firms  producing  highly  developed
technology for the weapons industry.)
     In comparison with the situation that existed during
the  communist regime, where all the top positions at all
levels   were   filled  not  only  in  contradiction   to
democratic principles and international norms,  but  also
at variance with the regime's own (hence, domestic) laws,
the  statute  under  consideration affects  only  a  very
limited  group  of employees, exclusively in  the  power,
administrative, and economic apparatus,  and  it  affects
licensed  trades  which are or could  be  the  source  of
certain  risks,  be  it merely from  the  perspective  of
protecting  the  establishment  of  democracy   and   its
principles, the security of the state, or the  protection
of  state secrets or of those positions from which it  is
possible,  either overtly or covertly, to  influence  the
development of society and the desirable performances  of
jobs in individual bodies or organizations.
     In   addition,  the  conditions  prescribed  by  the
statute  for holding certain positions shall  apply  only
during a relatively short time period by the end of which
it  is foreseen that the process of democratization  will
have been accomplished (by 31 December 1996).
     As  a  result of the considerations mentioned above,
the  Court  is convinced that it cannot deny the  state's
right,   if   in   conformity  with   the   international
commitments  it  has  undertaken,  to  lay  down  in  its
domestic law conditions or prerequisites crucial for  the
performance of leadership or other decisive positions if,
in  which  conditions or prerequisites,  as  was  already
referred  to  above, its own safety, the  safety  of  its
citizens   and,   most   of   all,   further   democratic
developments  are taken into consideration  when  setting
the conditions or prerequisites.
     If  compared  with the preceding legal order,  these
conditions might appear to be, from a formal perspective,
a  restriction on civil rights; however, in  the  current
legal  order the basic criteria which will serve  as  the
guide  for our actions in the future are those found  the
Charter and its introductory act. (23/1991 Sb.).
     In  contrast to the totalitarian system,  which  was
founded  on the basis of the goals of the moment and  was
never bound by legal principles, much less principles  of
constitutional  law,  a democratic  state  proceeds  from
quite  different values and criteria.  Even  the  statute
now  under consideration, Act No. 451/1991 Sb., was based
on  them.   It  cannot be understood as  revenge  against
particular   persons  or  groups  of  persons,   nor   as
discrimination  against persons who, acting  contrary  to
generally  recognized  principles  either  alone  or   in
cooperation  with  or  through  a  repressive  body,  had
violated  fundamental human rights and basic freedoms  as
they   are  understood  and  professed  in  a  democratic
society.
     The   statute  under  consideration  does  not  even
discriminate against such persons (neither in  employment
nor   in  their  profession),  it  merely  provides  (and
strictly for the future) certain additional preconditions
for  those positions designated as crucial by law, or for
engaging  in a licensed trade, particularly those  linked
with  the  possession  of a firearm,  of  ammunition,  of
especially dangerous poisons, or with access thereto.
     Such   generally  prescribed  conditions   do   not,
therefore, offend against either constitutional  acts  or
international  conventions.  Each state or  rather  those
which  were  compelled over a period of  forty  years  to
endure  the  violation of fundamental  rights  and  basic
freedoms  by  a  totalitarian regime  has  the  right  to
enthrone  democratic leadership and to apply  such  legal
measures as are apt to avert the risk of subversion or of
a  possible relapse into totalitarianism, or at least  to
limit those risks.
     The  law-based  state which, after the  collapse  of
totalitarianism,   is  tied  to  the  democratic   values
enthroned  after the collapse of totalitarianism,  cannot
in  the  final  analysis be understood as amorphous  with
regard  to  values.  With the adoption of the Charter  of
Fundamental  Rights and Basic Freedoms  as  part  of  our
legal  system  fundamentally changed the nature  and  the
value system of our entire constitutional and legal order
changed fundamentally.
     Constitutional  acts,  statutes  and   other   legal
enactments, as well as the interpretation and application
of  them,  must  conform  to the Charter  of  Fundamental
Rights   and  Basic  Freedoms  (§  1  para.  1   of   the
Introductory  Act  23/1991 Sb.). Thus,  an  entirely  new
element  of  the renaissance of natural human rights  was
introduced into our legal order, and a new foundation for
the law-based state was established in this way.
     Thus,  the concept of the law-based state  does  not
have  to  do  merely with the observance of any  sort  of
values  and any sort of rights, even if they are  adopted
in the procedurally proper manner, rather it is concerned
first and foremost with respect for those norms that  are
not  incompatible with the fundamental  values  of  human
society as they are expressed in the already referred  to
Charter of Fundamental Rights and Basic Freedoms.
     Finally,   from  this  perspective  not   even   the
principle   of  legal  certainty  can  be  conceived   in
isolation, formally and abstractly, but must be gauged by
those  values of the constitutional and law-based  state,
which  have  a systemically constitutive nature  for  the
future.
     As  one of the basic concepts and requirements of  a
law-based state, legal certainty must, therefore, consist
in  certainty with regard to the its substantive  values.
Thus, the contemporary construction of a law-based state,
which has for its starting point a discontinuity with the
totalitarian regime as concerns values, may not  adopt  a
criteria  of  formal-legal and material-legal  continuity
which  is  based  on a differing value system,  not  even
under   the   circumstances  that  the  formal  normative
continuity of the legal order makes it possible.  Respect
for  continuity with the old value system would not be  a
guarantee  of  legal certainty but, on the  contrary,  by
calling into question the values of the new system, legal
certainty  would be threatened in society and  eventually
the  citizens' faith in the credibility of the democratic
system would be shaken.
     Therefore,   after   taking  these   thoughts   into
consideration,  the  Court  has  come  to  the  following
conclusions concerning individual parts of the  group  of
Deputies' petition:
     With reference to § 6 para. 1 of Constitutional  Act
No.   23/1991  Sb.,  which  introduced  the  Charter   of
Fundamental Rights and Basic Freedoms, the petition seeks
a   declaration   that   Act  No.  451/1991   Sb.,   lost
force/effect  on  31 December 1991 due  to  its  lack  of
conformity with the Charter.
     The  legislators inserted § 6 into Introductory  Act
No.  23/1991  Sb.,  so  that  statutes  and  other  legal
enactments (understood to mean those that were  in  force
prior  to  8  February 1991, when the Charter  went  into
effect  by  declaration) would be brought into conformity
with the Charter by the 31 December 1991 deadline.
     Here  the  petitioners took into  consideration  the
specific nature of the problems of Act No. 451/1991  Sb.,
and  confused its employment law character with  criminal
law  concepts  and requirements, as if such  would  arise
from  collective responsibility for being a member  of  a
specific,  formally defined group of  persons.   However,
the  contested  statute  does not  have  a  criminal  law
character, neither in its sense or content, nor  does  it
give  rise to any sort of responsibility in this  regard.
As  was  indicated  earlier, the basic  purpose  of  this
statute is to prescribe, exclusively for the future,  the
preconditions   for  holding  certain  narrowly   defined
offices  or for engaging in certain activities  precisely
specified in the statute, and not permanently,  but  only
for a transitional period.
     For  conditions prescribed in this way  by  statute,
only   the   manner  and  the  degree  of  the   asserted
restriction  is  decisive;  of  course,  it  must  be  in
conformity   both  with  domestic  law   and   with   the
international obligations to which the CSFR is bound.
     On  the domestic legal plane, Article 4, para. 2  of
the  Charter  of  Fundamental Rights and  Basic  Freedoms
provides  that  limits may be placed on  the  fundamental
rights  and  basic freedoms only under the  circumstances
set  out  in  the  Charter and only if  laid  down  in  a
statute.   Article  26, para. 2 then specifies  that  the
preconditions  for  and  limitations  upon  engaging   in
certain  professions or activities may be  prescribed  by
statute.  Article 4 para. 3 of the Charter then specifies
that if such a restriction is placed by statute, then the
statutorily prescribed conditions must apply  equally  to
all cases which meet those conditions.
     Finally,   Constitutional  Act  No.   143/1968   Sb.
concerning  the  Czechoslovak Federation, promulgated  in
its entirety as amended under No. 103/1991 Sb., lays down
in  Article 2 para. 1 the requirement that the state  and
both republics be built upon the principles of democracy.
As  this provision is applicable against the state, it is
also  doubtless reasonable to apply it as against persons
who represent the state or who are in its service.
     In  adopting  the statute at issue, the  legislators
proceeded on the basis of the justified opinion that,  at
least  to  the  degree  of reasonableness  necessary,  it
cannot  be assumed that the values embodied in the above-
mentioned      constitutional      principles      would,
unconditionally and without more, be given expression  in
the  life even of members of the then power structure  or
those  who having been bound in employment to the StB  or
in   collaboration  with  them,  those  who  climbed   to
important  state, societal or economic positions  on  the
basis of antagonistic value criteria solely to be able to
serve,  as  a  representative  of  the  earlier  reigning
ideology,  to maintain the power monopoly of  the  ruling
bureaucratic   machinery.   Among   other   things,   the
instruction  shows  that  the  effort  to  maintain  such
positions even under the new conditions and the effort to
encroach  upon the democratic development of the  present
society  is  one of the key elements of the  totalitarian
regime   (see   the   Principles  of  Counterintelligence
Activities of 28.11.1989).
     In  comparing  the statute with international  legal
obligations,  it was necessary to review  its  conformity
with  the International Convention on Civil and Political
Rights and with the International Convention on Economic,
Social, and Cultural Rights, which were promulgated on 10
May 1976 by Declaration No. 120/1976 Sb.
     In  the  first of these conventions, Article 2  lays
down the state's obligation to ensure equal rights of all
individuals  without distinction of any kind and  Article
26   lays   down   the  prohibition  on   any   sort   of
discrimination.   So far as concerns the  possibility  to
restrict  the holding of an office or the performance  of
some employment in the public service, Article 25 of  the
Convention sets in substance three requirements:
     1)  no restriction may be applied if it concerns one
of  the  distinctions explicitly set down in  Article  2,
first sentence;
     2)  the limiting conditions must be justifiable  and
justified (Article 25, first sentence), and
     3)  each  citizen has the right to  enter  into  his
nation's   public  service  under  the  same   conditions
(Article   25,   letter   c),  which   means   that   the
prerequisites  set down for acceptance or tenure  in  the
public service must apply to all persons.
     Article   4  of  the  International  Convention   on
Economic,  Social,  and Cultural Rights  provides,  as  a
framework  requirement, that the  state  may  make  these
rights  subject to such conditions as are set by  statute
and only in so far as they are compatible with the nature
of  these  rights  and exclusively  for  the  purpose  of
advancing the common good in a democratic society.
     Article  6 of the Convention provides for the  right
of  everyone to earn their livelihood through the type of
work  which they have freely chosen or accepted, as  well
as  the  equality  of  both  partners  to  an  employment
contract as far as concerns their decision to enter  into
the  contract,  but does not provide job seekers  with  a
claim to be hired for the position, or in such employment
to  hold  a  position  for which  the  law  sets  special
conditions not met by the applicant.
     Article 7 of the Convention concerns the equality of
opportunity  in  employment  already  performed  and,  in
particular,  equal opportunity for all to gain  promotion
solely on the basis of the length of service and of their
ability  (Article 7, letter c).  This provision  concerns
persons  who,  on the basis of the set prerequisites  and
conditions,  are already performing some work;  they  are
not,  however, conditions and prerequisites  for  holding
the job itself.  Finally, the statute at issue cannot  be
understood  to  be  in conflict with  the  Discrimination
(Employment and Occupation), Convention 1958 No. 111 from
25  June 1958 (promulgated by Federal Ministry of Foreign
Affairs  Notice No. 465/1990 Sb.).  Article 1, letter  b)
of  the Convention designates as discrimination any  sort
of  distinction, exclusion, or granting of preference for
the purpose of making it impossible or jeopardizing their
chances to get an equal opportunity or equal treatment in
matters of employment or professions.  Nonetheless, para.
2   of   the   same  article  states  that  distinctions,
exclusions  or  the giving of preferences  shall  not  be
considered  discrimination  if  it  is  grounded  in  the
qualifications required for certain professions.
     In  connection therewith, it must be emphasiyed that
in  stabilized democratic systems where it is a matter of
persons competing for employment in service of the state,
in  public service and at workplaces which are considered
to be a risk with regard to the security and stability of
the  state, are considered to be at risk, one part of the
necessary  requirements consists in  the  fulfillment  of
certain criteria of a civic nature from which it  can  be
judged  whether  their  views are in  conflict  with  the
interests  of the state, as well as their loyalty  to  it
and to the democratic principles upon which the state  is
built.   The insufficiency of such prerequisites and  the
appropriate  restrictions  arising  therefrom  may   also
relate to formally defined categories (groups) of persons
without,  however, these persons being  distinguished  on
the basis of an individual evaluation.
     Thus,  even  in light of the state's above-indicated
convention  and treaty commitments, the state  cannot  be
denied   the   right   to  set  down  precisely   defined
requirements for persons employed in selected  categories
at  worksites,  in positions, or in activities  that  are
significant   for  the  protection  of   the   democratic
constitutional  system, the security of  the  state,  its
economic  and  political interests, or the protection  of
state secrets, or for those persons who lack the level of
loyalty toward the state which is required, or who might,
in the positions they are performing, have a considerable
impact on public affairs.
     In addition, the statutorily prescribed measures are
in  conformity  with  Article 4 of  Convention  No.  111,
according to which it is not considered discriminatory to
take   measures  against  persons  who  are   justifiably
suspected  of  activities which  are  damaging  to  state
security  if,  in opposition to specific measures,  those
persons  are given the opportunity to make use  of  legal
protections before a body established in conformity  with
domestic practice.
     The  Court has determined that the statute at  issue
respects  the  general requirement that the citizen  have
the right to seek protection before an independent court,
as  provided for by Article 36 of the Charter, Article  6
of  the Convention on the Protection of Human Rights  and
Fundamental Freedoms, and Article 14 para. 1,  the  first
two sentences, of the International Covenant on Civil and
Political Rights.  Citizens can assert a claim before the
appropriate  independent court that  the  termination  of
their  employment or service relations was  invalid.   In
order to put emphasis on high-quality decision-making  in
such  proceedings, the contested statute provides  (§  18
para.  2) that the regional court in the place where  the
citizen  has  his residence shall be the court  of  first
instance  in  such matters.  In contrast to  the  general
jurisdiction of courts in employment matters, the citizen
is thus accorded increased judicial protection.
     Finally, the judicial protection of citizens' rights
in these matters is also sufficiently guaranteed by civil
law  enactments  (§§  11  to  16  on  the  protection  of
personhood).
     Thus, in principle it is permissible on the basis of
constitutional  law  norms to prescribe  certain  further
prerequisites  for holding those offices or  engaging  in
those activities covered by Act No. 451/1991 Sb., and  it
is  in  conformity with international legal  commitments.
Other  European states also took measures  of  a  similar
type  after  the  collapse of the  totalitarian  regime's
monopoly  power,  and  they  considered  them  to  be   a
legitimate means, the purpose of which is not to threaten
the  democratic nature of the constitutional system,  the
value system of a constitutional and law-based state, nor
the  basic  rights and freedoms of citizens,  rather  the
protection and strengthening of just those things.
     However,  the  system  of  such  measures  in  post-
totalitarian  European  states  varies.   These  measures
relate  to  the  full gamut of sectors of state  activity
without  regard to the office held (the army, the police,
or    the    justice    system)   and   are    formulated
unconditionally, or relate to the severance of employment
or  service  relations  with the  exception  or  specific
assessment   (the  absence  of  personal  characteristics
necessary for holding the office, the lack of a  need  to
employ  the  person  in question due to  reasons  of  the
organization, etc.).
     The  general  objection that the  contested  statute
violates the principle of equality of fundamental  rights
and  basic freedoms in the sense meant by Article 3 para.
1  of  the  Charter  must be judged in  relation  to  the
purpose  and  the  content  of  the  statute.   From  the
constitutional law perspective, conditions prescribed  by
the state for holding certain offices and for engaging in
certain  activities  is  permissible  in  principle  and,
considering the current system of values and  the  nature
of the present constitutional system, is also necessary.
     To  the extent that § 2 para. 3 of the statute  (the
exception for the CSFR Ministry of Defense), § 3 para.  2
(the exception for the Interior Ministry), and § 13 para.
3  (the exception for persons rehabilitated under Act No.
119/1991 Sb.) violate this general principle of equality,
the  statute  has  already  breached  the  constitutional
confines;  therefore, the Court has granted the  petition
of the group of Deputies and in its judgment has declared
those  provisions' to be inconsistent with Article  1  of
the Charter.

     The  Court  further inquired into  the  petitioners'
objection    concerning   the   asserted    impermissible
retroactivity of the contested statute.  The objection in
essence consists in the assertion that a statute  may  be
applied  with  retroactive effect to  situations  and  to
legal  relations arising before its issuance only in  the
case that an earlier acquired right is not infringed as a
consequence.
     However,  the  principle  of  retroactivity  is  not
applicable to the contested statute at all.  The  statute
does  not declare the holding of certain offices  in  the
past  to be either an unlawful or legally actionable fact
or  the material elements of a criminal act, and it  does
not  attach  any  legal  consequences  whatsoever  to  it
retroactively.   As  was  already earlier  construed,  it
merely  sets certain additional preconditions for holding
in the future certain prominent positions.
     Similarly,  it is necessary to reject the  objection
contained   in  the  petition  that  the  statute   under
consideration is really a general prosecution simply  for
being  formally affiliated with a particular group, above
all where, in harmony with the policy of the totalitarian
regime, it concerned affiliation with the power apparatus
and its instruments of repression.
     The  Court  also dealt with the issue  of  citizens'
equality  in  relation  to  the  defined  categories   of
occupations.  In the end, it came to the conclusion  that
it  is not possible to guarantee the absolute equality of
the   category  of  persons  affected,  nor  is  it  even
necessary.   The  contested statute  is  an  unmistakable
effort  to define categories that pose a risk, the danger
of which for the democratic development of society can in
essence  be  evaluated in the same way which for  similar
reasons  is  true also for the period during which  these
persons were inscribed in the registry files or continues
in other activities.
     For  each objection of this type, contemplations  on
the asserted unreasonable breadth of the group of persons
to whom the statute applies was taken into consideration.
Even  though considerations of quantity are not  decisive
for  such  legal  judgments,  the  Court  considered   it
appropriate to take such quantifications into account.
     The  Report of the Director-General of the Governing
Body  of  the  International Labour Office GB  252/16/19,
which  in  Geneva  on  June  2-6,  1992  considered   the
complaint  lodged  by  the  Trade  Union  Association  of
Bohemia,  Moravia,  and Slovakia and  by  the  Czech  and
Slovak  Confederation  of  Trade  Unions  alleging   non-
observance   of   the  Discrimination   (Employment   and
Occupation)  Convention, 1958 (No. 111),  relied  in  its
introduction  upon  the declaration made  by  the  former
Chairman  of  the  Federal  Assembly,  Alexander  Dubcek,
namely,  that  it  is  a  discriminatory  statute   which
deprives  approximately one million Czechoslovak citizens
of  their basic human and trade-union rights (Point II-12
of the Report).
     As  a  result of its inquiry directed to the  bodies
which  keep  records  of employees  and  employment  (the
Federal Ministry of Labor and Social Affairs, the Federal
Statistical Office) and of bodies which keep  records  of
the  issuance  of  certificates and  their  results  (the
Federal Interior Ministry), the Court has found out  that
the  1st Division of the Federal Interior Ministry, which
is  responsible  for  issuing  certificates,  had  issued
168,928 certificates as of 7 September 1992, both at  the
request  of  individuals and of organizations  (political
parties,  for  example) not all of which  were  connected
with  Act  No.  451/1991  Sb.  Of  the  total  number  of
certificates   issued,   there  were   153,504   negative
certificates  and  15,424  positive  certificates.    The
positive certificates include 4061 persons filed under  §
2  para.  1, letter c) of the Act so that, not  including
them, the total number of positive certificates concern a
total of 11,363 persons.
     According  to the records of the Federal Statistical
Office,  as of the date of the inquiry there was  in  the
CSFR  a  total of 7,123,000 employed persons recorded  in
the  files.   Thus,  only 0.15% of the  total  number  of
employed  persons  received  positive  certificates  (not
taking into account those filed under § 2 para. 1, letter
c)).
     Thus,  it  is  evident  that the  group  of  persons
affected   by   the   statute  under   consideration   is
substantially  smaller  than has been  asserted,  and  in
reality only an insubstantial number of the total  number
of  employed  persons are affected.  Finally,  objections
were  also  raised  to  the  fact  that  the  information
contained  in  entries  kept  by  bodies  of  the  former
Ministry  of the Interior or its predecessor was  treated
as  conclusive  evidence.  This objection does  not  pass
muster either, primarily for the following reasons:
     The cooperation with the State Security Services  by
clandestine collaborators listed in § 2 para.  1,  letter
b)  of  the Act was in all respects regulated in  detail.
Clandestine  collaborators  were  fully  acquainted  with
their assignments and their position, and the cooperation
with  them  was  formally corroborated by  the  so-called
binding  act; clandestine collaborators signed  either  a
prepared  commitment to collaborate or  they  drafted  it
themselves    in   free   form.    If   the   clandestine
collaborators'  signature on  the  act  would  put  "good
relations"  with  counterintelligence at  risk,  an  oral
consent    was    sufficient.    Recruited    clandestine
collaborators  chose their code name themselves,  and  if
they  did not do so, a name was designated for them by  a
counterintelligence employee.
     Clandestine  collaborators did not  have  to  submit
written  reports, and even if they did so, they were  not
required to sign them.  Oral reports which were not tape-
recorded  were  written  up afterwards  by  employees  of
counterintelligence.
     Some clandestine collaborators whose names have been
made   public  have  asserted  that  they  only  formally
committed  themselves to collaborate,  but  then  nothing
ever  came of it.  This is contradicted by what  we  know
about the system of record-keeping and supervision, which
for   the  management  of  the  network  of  agents   was
unambiguously set down, and these facts are  corroborated
by witness testimony.
     Counterintelligence  agents   entrusted   with   the
direction of clandestine collaborators were, in addition,
obligated to regularly and systematically supervise their
activities and the results of their work, the  manner  in
which  they  conducted themselves while on  duty  and  in
their private lives (art. 78 of directive A-oper-I-3 from
25 January 1978).  The purpose of such supervision was to
obtain  the  best possible guarantee that the clandestine
collaborators    would    perform    their     assignment
scrupulously,   that  they  would   turn   over   correct
information,    that   they   would   not    double-cross
counterintelligence people, that they  would  not  betray
them, and that they would perform their assignment in the
manner  in which it was set for them.  Then, once a  year
he  put  together a written evaluation of the supervisory
measures and the results thereof.  The superior  head  of
the  counterintelligence agents would also take  part  in
this  supervision.  The results of this  supervision,  of
meetings   with   the   clandestine   collaborators    in
particular,  were  formulated  into  an  entry  with  the
appropriate conclusion, and the entry itself  was  placed
in  the  collaborator's file (art. 87 of the  above-cited
directive).
     At  least once a year a comprehensive evaluation  of
the   clandestine  collaborators  was  carried  out   and
additional specific goals of their activities  were  laid
down.    The   responsible  chief  would   approve   this
comprehensive  evaluation (arts. 82 to 85 of  the  above-
cited directive).
     All of the ascertained facts lead to the unequivocal
conclusion  that the methods described and the  means  of
proceeding  during the use and management of the  network
of  agents  in no way differed from the period  when  the
Czechoslovak  Communist Party took over  power  in  1948;
with  the passage of time these methods were merely  made
more  precise  and  supplemented by new knowledge  gained
through relations with the network of agents.
     Jan  Roller,  former head of the 1st  Division,  2nd
Department  of  the  Administrative  Unit  of  the  State
Security Services in Brno, Josef Jerabek, Senior Official
in  Charge  of  the 1st Division, 2nd Department  of  the
Administrative  Unit  of the State Security  Services  in
Brno  and  later  Chief of that Unit, and Zdenek  Kozuch,
originally  the  Deputy Chief of the  1st  Division,  2nd
Department,  and as of 1987 the Chief of this Department,
among  others, were questioned (on 24 January 1991 before
the   Commission  of  the  CSFR  Federal   Assembly   for
Investigation  of  the  Events  of  November   17th)   as
witnesses with regard to the circumstances connected with
the   commitment  to  collaborate  (verbovka)   and   the
clandestine collaborators relationship with the  managing
bodies  of  the State Security Services.  Their testimony
was  in  agreement  and confirms that the  directive  for
instituting  binding acts with clandestine  collaborators
was  carefully  observed and that contact was  made  with
them regularly, at least once every three months.  A form
was  also  created for this purpose and, while the  chief
supervised,  the  time  and  place  of  the  meeting  was
recorded therein.  If the meeting did not go as expected,
the  chief  always  made a proposal  to  discontinue  the
collaboration or to place the file into the archive  (Jan
Roller, page 2 of his testimony).
     In  addition  to  this, the Court itself  questioned
Magister  Jan  Frolik, the Director of  the  Archive  and
Statistical Department of the Federal Interior  Ministry,
and  Dr.  Jiri Setina, former Director of the Section  of
the  Federal  Interior  Ministry  for  Documentation  and
Investigation  of State Security Service Activities,  and
they confirmed all of these facts in their testimony.
     The  possibility of separately proving collaboration
by individual clandestine collaborators and the extent of
their  collaboration was in essence deliberately thwarted
by  the  orders  and procedures of the directors  of  the
State   Security  Services'  bodies,  that  is,  by   the
intentional discarding of almost 90% of the  files.   The
network of agents formed an inseparable part of the State
Security Services' activities and was a "principle device
in  fulfilling operational tasks.  For this  reason,  the
most  important part of the activities of the operational
agents  of  State  Security is  their  work  with  secret
collaborators"  (a  strictly  classified   directive   of
special  importance  of  the Interior  Ministry  for  the
operational  work  of agents of the  State  Security  for
1962).
     For  this reason, the totalitarian regime's security
services tried to keep the evidence concerning activities
of  the  clandestine collaborators secret  even  for  the
future.
     There  was  a  further  objection  in  the  petition
(complaint) to the effect that, in adopting the contested
statute,   the  Federal  Assembly  exceeded  its   powers
(Article  37  para. 2 of Constitutional Act No.  143/1968
Sb.,  on  the  Czechoslovak  Federation,  issued  in  its
complete  version as amended under No. 103/1991 Sb.)  and
that,  in this way, it effected an indirect amendment  to
the  Act  on  University-Level Schools or  CSAV  or  SAV,
which,  however,  it is not permitted  to  do  under  the
Constitutional   Act   on  the  Czechoslovak   Federation
(Article 37 of the cited Act).
     The  Court cannot concur with this objection  either
because  the statutory regulation of employment relations
and  measures to ensure international treaty  commitments
in  this  field comes under federal jurisdiction (Article
22, letter a) of the cited Act).
     Finally, the petitioners attack the portion  of  the
contested  statute  relating to carrying  on  a  licensed
trade  (§ 1 para. 5) due to the fact that the requirement
of  reliability demanded for it (§ 1 para. 1 of the cited
Act) is traditionally linked to the concept of "political
unreliability", as that is found in the  decrees  of  the
President  of  the  Republic (137/1945 Sb.  and  138/1945
Sb.),  and  that  the  statute under  consideration  sets
stricter   conditions  for  licensed   trades   than   is
appropriate owing to the nature of the trade.
     Not  even  in this respect does the Court find  this
objection to be well-founded.
     As  our legal order currently stands, the concept of
reliability  is  contained not only in  the  presidential
decrees  to  which the petitioners' make  reference,  but
also  in Act No. 34/1946 (§ 2 paras. 1 and 2) where  this
concept is also more or less defined.
     The  ratio  legis (legal rational) for  these  legal
provisions consists in the effort, during a period of far-
reaching  societal changes, to prevent those who  in  the
preceding (war-time) period compromised themselves in the
manner defined in the act by collaborating with those who
adversely affected the democratic-republican state  form,
the  security and defense of the state, or who instigated
or induced others to commit such acts (§ 2 para. 2 of the
cited Act).
     The petitioners' reference, to the extent that it is
aimed  at the earlier-cited Presidential decrees, is  not
well-founded  if  only because those  decrees  are  of  a
criminal law nature.  Keeping that in mind, these  issues
cannot  be  resolved otherwise than by the  consideration
that both cases involve measures that are necessary:   in
part  for the stabilization of society, and in part -  as
is  the  case in the matter under consideration - because
normal measures for the introduction of a legal order  in
a  restored democracy, thus measures which are  necessary
in  a  democratic society, among other reasons,  for  the
security of the state or for the protection of safety  or
of  the  public order (compare, for example, Articles  12
para. 3, 14 para. 3, 16 para. 4, 19 para. 2, 20 para.  3,
and 27 para. 3 of the Charter).
     In  contrast to this, the Court has determined  that
the petition (complaint) is well-founded to the extent it
raises  objections  to  the inclusion  of  the  group  of
persons  stated in § 2 para. 1, letter c) of the Act;  it
is  the  Court's conviction that it can concur  with  the
petitioners' objections in so far as files may have  been
kept   on   persons   designated  in   the   statute   as
collaborators  (§  2  para. 1, letter  C))  without  some
written commitment and without their knowledge.
     The  results  of  evidence-taking in the  proceeding
before  the  Court  yielded a sufficient  basis  for  the
conclusion that the files of persons who fall  into  this
category   (confidential   affiliate,   candidates    for
clandestine  collaboration, or clandestine  collaborators
in  confidential  contact)  was  based  on  the  personal
relations with the selected candidates; this relationship
was supposed to serve "personal acquaintance, in order to
verify  and  deepen  knowledge gained  by  administrative
screening  and  by counterintelligence methods,  further,
for  the  purposes of ascertaining the relations  of  the
candidate  to  the  State  Security  Services   and   his
willingness to provide information", while such  personal
relations  should  be  put  into  effect  so  that   "the
conspiracy of the future covert collaborator would not be
impaired in advance and so that the forms and methods  of
his  counterintelligence work would not be uncovered  nor
the actual grounds of the relationship." (Directive No. A-
oper-I-3 Article 26 and following)
     Finally, the above-cited directive testifies to  the
fact  that  in  the  case of these  persons,  it  is  not
possible to judge reliably and without any sort of  doubt
concerning their conscious collaboration with  agents  of
the  State  Security Services; thus, precisely  for  this
reason,  all  that  remains is to grant the  petitioners'
petition  and to hold that this provision of the  statute
is  not  in  conformity with Article 4  para.  3  of  the
Charter.
     That  the  above-mentioned objection is well-founded
is  also  evidenced by the fact that, while  certificates
issued  to  persons upon whom files were kept under  §  2
para.  1, letters a) and b) have an unambiguous character
showing  either  knowing solidarity  with  the  tools  of
repression  of  the  totalitarian  regime  (and   records
connected therewith), or that no such records exist,  the
certificate about files (§ 2 para. 1, letter c)) is of  a
merely contingent character.  That is to say, they do not
evidence conscious collaboration, rather they are only an
expression of the intention of the StB bodies to gain the
person caught in this way for conscious collaboration  in
the  future.  As concerns the factual conclusion in  this
part, reference is made both to several already-mentioned
directives  of  the  Interior  Ministry  and  to  witness
testimony  of Dr. Setina, Dr. Novotny and Jar. Basta;  it
follows  unambiguously from them that  entries  for  this
category  of  the contested statute were  made  not  only
without  the  knowledge of the persons  written  in,  but
sometimes even with the intention on the part of the  StB
agent  to  feign  his  work zeal and activity  (carkovaci
kod).
     In   connection  therewith,  it  was  necessary   to
consider  the status of the citizens who come within  the
category under consideration (§ 2 para. 1, letter c)) and
the  nature  of  the  independent commission  within  the
Federal Interior Ministry which should verify the finding
whether that citizen was a conscious collaborator of  the
StB  or not, whether he knew that he was in contact  with
StB  agents and regularly gave them reports by  means  of
clandestine  relations  or performed  tasks  assigned  by
them.    Only  when  the  decision  is  issued   by   the
independent  commission of the Federal Interior  Ministry
is   there  decisive  evidence  for  citizens,  and   the
consequences  following  from  the  act  at  issue.   The
unequal position of persons having such files as compared
with other categories of persons, especially those coming
under  §  2 para. 1, letters a) and b) follows  not  only
from  such  a  distinction as is made in the  proceedings
before this commission, but from other facts as well.
     The  outcome  of  the proceeding before  the  Higher
Court  Martial in Tabor against the defendant  A.  Lorenc
and  others  (T 8/91) even increased the level  of  doubt
with respect to whether it is possible for the commission
to  come  to  unambiguous conclusions  at  all.   It  was
ascertained  in  that  proceeding that  the  disposal  of
compromising  material  filed in  the  Interior  Ministry
archives  was  carried out by order of the defendant,  A.
Lorenc   (case  no.  NZ-00671/89  from  December,  1989).
Between December of 1989 and January of 1990, of the 3913
files  of candidates for clandestine cooperation, a total
of  2643  files  were discarded, of the 13,346  files  of
confidential  affiliates, 9176 (p. 253  of  the  criminal
file).
     So  the consequence of the above-indicated facts  is
that  the  necessary evidence-taking regarding  conscious
collaboration,   quite   often   in   conjunction    with
considerable  time  intervals between file  entries,  the
death  of  witnesses,  etc.,  results  not  only  in  the
independent  commission's failure to meet the  prescribed
deadline  for  issuing its findings (§ 13 para.  2),  but
also in the impossibility of deciding objectively on some
particular cases.
     In  this  connection, it is necessary to  take  into
consideration   as  well  the  Court's   findings   that,
according  to the testimony of witness Jar.  Basta  on  7
October  1992 (no. 1. 34 and following), so far  citizens
have  submitted  a  finding that  they  were  incorrectly
categorized  as StB collaborators.  A mere 300  (11%)  of
these  petitions have been resolved so far, and of  these
the  commission  came  to  the  conclusion  that  it  was
conscious collaboration only in 13 cases.
     Such  a  situation  even  raises  doubts  about  the
factual basis for these matters and evokes uncertainty in
legal relations (both employment and civil).
     It  is  not  advisable to tolerate such a  state  of
affairs, among other reasons, also due to the unfavorable
consequences that follow from it for these citizens (they
are  not able to compete for the positions listed in §  1
of  the Act, they are unable to successfully take part in
a  competition for such a position, etc.) for  it  is  no
longer  possible to actually eliminate such  consequences
of  a  commission  finding verifying that  there  was  no
conscious collaboration.
     Taking into consideration all of these circumstances
and findings, the Court has, thus, come to the conclusion
that § 2 para. 1, letter c) of the statute under judgment
and further provisions connected therewith (provisions on
the  Federal Interior Ministry Independent Commission and
proceedings  before  it) are not in conformity  with  the
Charter  of  Fundamental Rights and Basic  Freedoms  with
regard to the provisions and to the extent which is  made
apparent from the judgment rendered herein.
     Finally,   even   the  nature  of  the   independent
commission (§ 11 of the Act under consideration) does not
correspond  to legal guarantees.  The membership  of  the
commission (apart from representatives of the legislative
bodies,   there  were  members  named  by  the   Interior
Ministry,  the  Defense Ministry and  the  FBIS  Director
[FBIS   means   Federal  Security  Information   Service]
testifies  to the fact, that it is first of all  a  state
administrative authority, when its activities are secured
by  the  Federal  Interior Ministry as  a  central  state
administrative  authority for the area of domestic  order
and  security.  The delegates appointed to the commission
by  the Interior and Defense Ministries are bound by  the
oath  which  is taken by police (§ 4 para. 6 of  Act  No.
334/1991  Sb.) and army (§ 2 para. 2 of Act  No.  74/1990
Sb.)  personnel.  There is no doubt about the  fact  that
they  are  bound  by  such an oath even  while  they  are
delegates  to an independent commission.  In addition  to
this,  there  is  the  further fact that  the  Act  being
adjudicated  does not require any special  oath,  neither
for  these  members nor for other delegates, even  though
such  an oath would appear to be necessary (§ 37  of  Act
No. 335/1991 Sb.).
     Thus,   this  commission  was  not  established   in
conformity with the Constitution (Article 98 para.  1  of
the  CSFR  Constitution No. 100/1960 Sb., as  amended  by
Constitutional Act No. 326/1991 Sb.).
     Finally, it was necessary to concur with one of  the
petitioners'  further objections,  namely,  that  for  an
independent   commission  and  proceedings   before   it,
provisions  of  the Criminal Procedure Code  may  not  be
applied  nor may possible criminal sanctions be  attached
to  it.  The act at issue (§ 20) substantially formulates
the  material  elements for the offense of  giving  false
testimony (perjury); nonetheless, this statute  does  not
designate  these factual elements as a criminal  offense,
and  it  does  not contain any reference to the  Criminal
Code  (for  example, § 175 of the Criminal Code).   Since
the Charter requires (Article 39) that only a statute may
prescribe  what sort of conduct shall be a  criminal  act
and  what  punishment can be imposed therefor, the  Court
has  come to the conclusion that in this respect as  well
the statute under consideration is not in conformity with
the Constitutional Act.
     In  view  of  the Court's last mentioned conclusions
which  affect § 2 para. 1, letter c) on the  merits,  the
Federal Interior Ministry Independent Commission has lost
its raison d'etre.
     The  Court finds the petitioners' objections equally
justified  to  the extent that they are directed  against
the  fact  that  the Defense Minister  and  the  Interior
Minister  of  the CSFR may in justified cases  waive  the
condition set down by para. 1, letter a) (§ 2 para. 3,  §
3  para.  2  of  the Act), to the extent  that  it  would
interfere  with the state's vital security interests  and
would not undermine the purpose of this statute.
     Exceptions  from these statutory provisions  creates
blatant  inequality  between the  personnel  of  the  two
departments (defense and interior) and other persons  who
are  affected  by the statute under consideration.   Such
inequality is not in conformity with the Charter (Article
1),  and  therefore nothing remains but to hold that  the
claim of non-conformity of this part (of the statute)  is
justified.
     For  analogous  reasons, the Court also  concedes  a
further objection, directed against § 13 para. 3 by which
persons  who,  while  they were in the  position  of  the
persons  listed  in § 2 para. 1, letters d)  through  h),
they were later convicted for acts set down in § 2 of Act
No.  119/1990  Sb., on Judicial Rehabilitation  and  were
rehabilitated  out of compassion, should be  regarded  as
persons who meet the conditions stated in § 1 of the Act.
This  provision,  then  disadvantages  persons  who  were
rehabilitated  out of compassion under Act  No.  119/1990
Sb.  in  relation to persons adversely affected in  their
employment  relations  and administrative  relations  and
were  rehabilitated  out  of  compassion  under  Act  No.
87/1991  Sb.  on Extra-judicial Rehabilitation  or  under
other enactments.
     The  Court  also considers justified  the  objection
that  §  4  para. 4 of the Act at issue does not  comport
with the principle of equality (Article 4 para. 3 of  the
Charter).  For in this case, citizens are required (under
§  4  para. 4 of the cited Act), prior to taking up those
offices listed in § 1, to submit a declaration that  they
were   not   and   are   not  working   for   a   foreign
counterintelligence  agency  or  foreign   reconnaissance
services.  In contrast to the category of citizens listed
in  § 2 para. 1, letter d) through h) of the Act, who are
with   regard  to  possible  membership  in   the   named
organization  are  obliged to submit a true  and  correct
declaration  of  these facts (§ 4 para. 3  of  the  cited
Act), a mere declaration is all that is required of those
working for foreign intelligence services.  Since such  a
declaration does not have the character of a legal act (§
39  of the Administrative Procedure Code), the person  is
subject to no sanction if the declaration is untrue.  Due
to  the lack of a statutory definition, no employment law
or  other restrictions (§ 2 of the contested statute) are
tied  to the fact that a person was or is working  for  a
foreign  counterintelligence or  reconnaissance  service.
Thus,  this provision is of a declarative character,  and
it  places  that category of persons into a  position  of
inequality  in relation to other groups affected  by  the
restrictions.  Therefore, it was necessary to grant  this
part of the petition (complaint) as well.
     On  the  day  this  decision  is  published  in  the
Collection  of Laws, the following provisions shall  lose
force and effect:  § 2 paras. 2 and 3, § 3 para. 2,  §  4
paras. 2 and 4, §§ 11, 12, 13, § 18 para. 1 and §  20  of
Act  No. 451/1991 Sb., which Sets Down Several Additional
Conditions  for  the  Performance of Certain  Offices  in
Governmental  Bodies and Organizations of the  Czech  and
Slovak  Federal  Republic, the  Czech  Republic  and  the
Slovak Republic.
     If   the  Federal  Assembly  fails  to  bring  these
provisions   into   conformity  with   the   Charter   of
Fundamental   Rights   and  Basic  Freedoms,   with   the
International Convention on Economic, Social and Cultural
Rights  and  with the CSFR Constitution, these provisions
of  Act  No.  451/1991 Sb. shall cease to  be  valid  six
months from the day this decision is published.

No  appeal  is  permitted against  the  decision  of  the
Constitutional Court.

Brno, 26 November 1992

                              JUDr. Ernest Valko
                              Chairman of the CSFR
                              Constitutional Court