Decided 11 February 2004 – Pl US31/03
                               
              „Protection of Secret Information“
                               
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-r-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-r-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]..
    
JUDGMENT
The  Plenum  of the Constitutional Court, consisting  of  JUDr.
Frantisek   Duchon,   JUDr.  Pavel  Hollander,   JUDr.   Dagmar
Lastovecka, JUDr. Jiri Malenovsky, JUDr. Jiri Mucha, JUDr.  Jan
Musil,  JUDr.  Jiri  Nykodym, JUDr.  Pavel  Varvarovsky,  JUDr.
Miloslav  Vyborny  and  JUDr. Eliska Wagnerova,  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 Anglicka 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.  US  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. Vladimir Spidla, 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-r-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-r-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 Milos 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  Milos  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. US 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. US 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-r-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-r-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
[“odvolani”]  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


Dissenting Opinion
of JUDr. Eliska Wagnerova, 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.  US
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.,  Bockenforde,  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