Decided 28 January 2004 – Pl US 41/02
                               
                “Clearance of Defence Counsel”

HEADNOTES
1)  Clearance  of  defense counsel in criminal proceedings  for
purposes of access to classified information through a security
clearance by the National Security Office is inconsistent  with
Art.  37  par.  3, Art. 38 par. 2, and Art. 40 par.  3  of  the
Charter of Fundamental Rights and Freedoms and with Art. 6 par.
3  let. c) of the Convention on Protection of Human Rights  and
Fundamental Freedoms.
2)  Access  to classified information by an attorney acting  as
defense  counsel  in criminal proceedings is  governed  by  the
Criminal  Code,  and not by the Act on Classified  Information,
and  thus  under the existing valid legal framework, the  Czech
legal  order  does  not  require a clearance  by  the  National
Security Office for that purpose, i.e. for access to classified
information by defense counsel in criminal proceedings.

JUDGMENT
The  Plenum  of the Constitutional Court, consisting  of  JUDr.
Frantisek  Duchon, JUDr. Vojen Guttler, JUDr. Pavel  Hollander,
JUDr.  Dagmar  Lastovecka, JUDr. Jiri  Malenovsky,  JUDr.  Jiri
Mucha,  JUDr.  Jan  Musil,  JUDr.  Jiri  Nykodym,  JUDr.  Pavel
Rychetsky, JUDr. Pavel Varvarovsky, JUDr. Miloslav Vyborny, and
JUDr.  Eliska Wagnerova, after oral proceedings on  28  January
2004, ruled in the matter of a petition from the District Court
in  Prerov  seeking the annulment of § 42 par.  1  of  Act  no.
148/1998  Coll.,  on Protection of Classified  Information  and
Amending  Certain  Acts, as amended by  later  regulations,  as
follows:
I.  The petition is denied.
II. Clearance of defense counsel in criminal proceedings for
purposes of access to classified information through a security
clearance by the National Security Office is inconsistent with
Art. 37 par. 3, Art. 38 par. 2, and Art. 40 par. 3 of the
Charter of Fundamental Rights and Freedoms and with Art. 6 par.
3 let. c) of the Convention on Protection of Human Rights and
Fundamental Freedoms.
REASONING

I.
Description  of the Matter and Recapitulation of  Petition  The
District  Court  in  Prerov,  under  Art.  95  par.  2  of  the
Constitution and § 64 par. 3 of Act no. 182/1993 Coll., on  the
Constitutional   Court,  as  amended  by   later   regulations,
submitted to the Constitutional Court a petition to annul §  42
par.  1  of Act no. 148/1998 Coll., on Protection of Classified
Information  and  Amending Certain Acts, as  amended  by  later
regulations. The petitioner bases the petition to  annul  these
parts of that Act on the following grounds:
     Act no. 310/2002 Coll. amended Act no.  no. 148/1998 Coll.
as  of 12 July 2002. Art. I point 4 amended § 42 par. 1 of  Act
no. 148/1998 Coll. so that the word “attorneys” was deleted, as
a  result of which, in the petitioner’s opinion, attorneys were
removed  from  the  list  of persons not  subject  to  security
clearance.  However, Act no. 310/2002 Coll. did not  amend  the
Criminal  Procedure Code, and thus § 35 par. 4 of the  Criminal
Procedure Code remains in effect, unchanged, as established  by
Act no. 265/2001 Coll.
      Under § 35 par. 1 of the Criminal Procedure Code, only an
attorney  can  act as defense counsel in criminal  proceedings.
However, in the petitioner’s opinion, the result of the amended
wording  of  § 42 par. 1 of Act no. 148/1998 Coll. is  that  in
criminal  proceedings in which classified information protected
by  a  special act is discussed, a mere instruction under §  35
par.  4  of the Criminal Procedure Code is no longer sufficient
for  counsel  (attorneys), but the attorneys must  undergo  the
appropriate clearance under Act no. 148/1998 Coll. This is also
supported by the fact that an instruction to attorneys under  §
35  par. 4 of the Criminal Procedure Code was already necessary
under  the previous legal framework, when attorneys were  still
exempt  from clearance. Thus, this indicates that if  attorneys
who  are to be given access to classified information must  now
undergo  clearance  under  Act  no.  148/1998  Coll.,  then  in
criminal  proceedings in which classified information protected
by  a special act is discussed, an instruction to them under  §
35  par.  4  of  the  Criminal  Procedure  Code  is  no  longer
sufficient.  The opinion of the National Security  Office  (the
“NSO”,  on  p.  2275 of file no. 1 T 312/2001 of  the  District
Court  in  Prerov)  fully  agrees with the  petitioner’s  legal
opinion in this.
      The petitioner concludes that the present § 42 par. 1  of
Act  no. 148/1998 Coll., as amended by Act no. 310/2002  Coll.,
is  inconsistent with Art. 37 par. 2 and Art. 40 par. 3 of  the
Charter  of  Fundamental Rights and Freedoms  (the  “Charter”),
which  guarantee the accused’s right to free choice of  defense
counsel.  One must also keep in mind Art. 6 par. 3 let.  c)  of
the  Convention  on Protection of Human Rights and  Fundamental
Freedoms (the “Convention”), under which everyone charged  with
a  crime  has the minimum right to defend himself in person  or
through  legal  assistance of his own choosing. The  petitioner
also   pointed  to  the  legislative  process  concerning   the
amendment  of  Act  no.  148/1998  Coll.;  the  Senate  of  the
Parliament of the Czech Republic(the “Senate”), particularly in
view of the removal of attorneys from the group of persons  not
subject to clearance, returned the amendment to the Chamber  of
Deputies  of the Parliament of the Czech Republic (the “Chamber
of  Deputies”)  with  amending proposals, which,  however,  the
Chamber of Deputies subsequently did not accept.
      As  regards the grounds for filing the present  petition,
the  petitioner also stated that in the criminal  matter  under
file  no.  1  T  312/2001 the defendants, (V. Hucin  and  MUDr.
Chmelar)  exercised  their right and chose  their  own  defense
counsel,  insist on their choice, and do not intend  to  choose
other  counsel.  However, none of the selected defense  counsel
received  the  appropriate security clearance. In  the  court’s
opinion, these circumstances, in view of the legal framework in
effect, indicate that none of the chosen attorneys can continue
to  act  as  defense  counsel  in these  criminal  proceedings.
However,  the  District Court pointed to §  2  par.  4  of  the
Criminal Procedure Code, under which criminal matters  must  be
handled  as  quickly as possible, and must fully  preserve  the
rights   and  freedoms  guaranteed  by  the  Charter   and   by
international   treaties  on  human  rights   and   fundamental
freedoms.  Under Art. 95 par. 1 of the Constitution, the  judge
is  bound  in his decision making by statutes and international
treaties which are part of the legal order. Under Art. 95  par.
2  of  the Constitution, if the court concludes that a  statute
which  is to be applied in the matter is inconsistent with  the
constitutional  order,  it  shall present  the  matter  to  the
Constitutional Court. Article 95 par. 2 of the Constitution  is
further elaborated for criminal proceedings in § 224 par. 5  of
the   Criminal  Procedure  Code,  under  which  a  court  shall
interrupt  criminal prosecution if it believes that a  statute,
the  application of which is decisive for deciding on guilt and
punishment in a given criminal matter, is inconsistent  with  a
constitutional  act  or  an international  treaty  which  takes
precedence  before a statute; in that case it shall submit  the
matter  to the Constitutional Court. The petitioner also  added
that  in  such  cases  it does not matter whether  the  court’s
questions  concern a substantive or procedural statutory  norm,
or  whether  it  is a norm or criminal law or  a  statute  from
another  branch  of law. In the petitioner’s  opinion,  in  the
present  matter  it is quite indisputable that the  court  must
apply  Act  no. 148/1998 Coll., as amended by Act no.  310/2002
Coll.,  to  its  procedure,  as this legal  framework  directly
affects the defendants’ right to a defense, which is guaranteed
to  them by, in particular, Art. 37 par. 2 a Art. 40 par. 3  of
the Charter, Art. 6 par. 3 let. c) of the Convention, and by  §
2 par. 13 of the Criminal Procedure Code. The defendants have a
right  to  have  their  chosen defense counsel  participate  in
actions taken within criminal proceedings, in particular during
presentation of evidence in the main trial. However, the Act de
facto  makes  it  impossible to implement  this  constitutional
right  of  the  defendants. For the sake of  completeness,  the
petitioner  added  that with one of the defendants  (V.  Hucin)
there are also grounds for compulsory defense under § 36 par. 3
of  the  Criminal Procedure Code, and in that case it is  quite
impossible  to  conduct  main  trial  proceedings  without  the
presence  of  defense counsel (§ 202 par.  4  of  the  Criminal
Procedure Code).
      The  petitioner also pointed to certain wider connections
and  aspects of the legal issues at hand. First, it  cited  the
fact  that out of all the attorneys now in practice, apparently
no one has received clearance, because thus far no one has been
required  to do so. In addition, one can not overlook the  fact
that there is no legal regulation under which attorneys can  be
forced  to  undergo clearance; this can lead to  the  situation
that  if  attorneys  refuse to undergo  clearance  voluntarily,
there  will be no attorney with clearance available  who  could
provide  legal  assistance  in  matters  concerning  classified
information. The Czech bar association also does not  maintain,
nor is it required to maintain, a special list of attorneys who
can   have  access  to  classified  information,  as  no  legal
regulation  imposes any such obligation. This allegedly  means,
among  other things, that at the present time not only can  the
defendant  in  such  matters not choose  defense  counsel,  but
neither  can  the  court  appoint one  in  cases  of  so-called
“compulsory defense”, even though it is obligated  to  by  law.
The  petitioner also pointed out that an attorney also provides
legal  assistance  beyond  the are of  criminal  or  civil  law
proceedings, not only in the Czech Republic but also abroad. In
all   these   cases  he  may  be  given  access  to  classified
information by a client.
      The  petitioner  added  that in the  Czech  republic  all
attorneys  are  authorized to provide legal assistance  without
limitation.  In  that  regard,  all  available  European  legal
frameworks are comparable. The petitioner is not aware  of  any
foreign  legal framework which would provide an obligation  for
attorneys   to   undergo  clearance   in   order   to   provide
representation  in  matters involving  classified  information.
Introducing some sort of special lists of attorneys  in  a  way
suggests  a  return to the time when the country  wasn’t  free,
when,  during  World  War II, there was  a  list  of  attorneys
authorized  to provide representation before the Reich  courts,
or  the period before 1990, when there was also a special  list
of   attorneys   authorized  to  have  access   to   classified
information, which is surely undesirable and incompatible  with
the  principles of a democratic state governed by the  rule  of
law.  Providing  an  exception to attorneys,  who,  along  with
parliamentary  deputies and senators, did not have  to  undergo
clearance,  was  a  de  facto  expression  of  the  fundamental
principles  for  the  practice  of  law.  Yet,  disclosure   of
classified information is basically no longer a danger, in view
of the absolute confidentiality obligation imposed on attorneys
by  law,  which can not be canceled at the instruction  of  any
third  party with the exception of the client himself. In  this
regard,  one of the fundamental principles for the practice  of
law  must  also be respected, i.e. the attorney’s  independence
from  the state such that the attorney can practice law freely,
that  is, provide legal representation, including cases against
the  state,  without fear of state sanctions  against  him.  If
classified  information  were  discussed  in  these  cases,  at
attorney  could be prevented by the state from providing  legal
services   precisely  because  he  would  not  be   given   the
appropriate security clearance. The state would thus  de  facto
be  able  to  decide who would appear against it in a  dispute.
Thus,  the now-annulled exception from security clearances  was
not  an  unjustified  prerogative or some  sort  of  groundless
privilege  for  an attorney, but served to the benefit  of  the
consumer of legal services.
      Finally, the petitioner stated that it is fully aware  of
the fact that Act no. 148/1998 Coll. ceases to be in effect  on
31  December 2003, and that therefore the Parliament of the  CR
will  pass a new, comprehensive legal framework for this  area.
It  added that it is aware that the Constitutional Court, as  a
“negative legislature,” within its jurisdiction can decide only
to  annul statutes or individual provisions of statutes if they
are  inconsistent with the constitutional order,  and  that  it
therefore  can not decide to re-include attorneys in the  group
of   persons   not   subject  to  clearance.   Thus,   if   the
Constitutional  Court, after conducting proceedings,  concluded
that  there  are no grounds to annul § 42 par.  1  of  Act  no.
148/1998 Coll. and denied the petition, it is appropriate  that
it  at least, in the reasoning of the decision, state its legal
opinion  on  the legal issue concerning clearance of attorneys.
In  conclusion, it proposed that the Constitutional Court  rule
that  §  42 par. 1 of Act no. 148/1998 Coll., on Protection  of
Classified Information and Amending Certain Acts, as amended by
later  regulations, be annulled as of the day this judgment  is
promulgated in the Collection of Laws.

II.Recapitulation  of the Main Points of  the  Opinion  of  the
Party to the Proceedings
      At the request of the Constitutional Court, under § 69 of
Act no. 182/1993 Coll., on the Constitutional Court, as amended
by  later  regulations (the “Act on the Constitutional  Court”)
the Chamber of Deputies and the Senate filed opinions.
...

III.
Recapitulation of the Main Points of the Opinion under § 49  of
Act no. 182/1993 Coll.
At the request of the Constitutional Court, an opinion was also
filed  by the Czech Bar Association (the “CBA”), under § 49  of
Act  no. 182/1993 Coll., on the Constitutional Court. It stated
that  it fully agrees with the petition from the District Court
in Prerov, and added the following:
      The  denial  of  the  free choice of an  attorney  (which
follows  from  the  contested provision of  the  Act)  must  be
considered  a fundamental issue. Free choice of an attorney  is
one  of  the fundamental principles of a state governed by  the
rule  of  law, and is reflected in the constitutional order  of
the  Czech  Republic. Denial of this opportunity because  there
will  be  no  attorney whom a party (the accused or an  injured
party)  can choose, having confidence in him, or because  there
will  be  (perhaps under the best scenario) a choice of several
individual attorneys who will be able to provide representation
in  matters involving protection of classified information, is,
in  the  opinion of the CBA, flagrantly inconsistent  with  the
principles of a state governed by the rule of law.
      The CBA pointed out that, although the petition from  the
District  Court in Prerov logically concerns primarily criminal
proceedings,  one also can not overlook another legal  area  in
which  “the  deficiency of the legal framework  is  also  quite
marked,  particularly  in those areas which  concern  so-called
“compulsory  representation”  before  the  general  courts  (an
appeal  on  a  point of law [“dovolani”], or proceedings  on  a
cassation  complaint in the administrative  courts).  In  these
cases   not   only  is  the  party’s  choice  of  attorney   as
representative  more  difficult, if not completely  impossible;
the court also finds itself in the same situation, if it is  to
appoint an attorney as the party’s representative.
      The  CBA  also relied on Art. 38 par. 2 of  the  Charter,
under  which everyone has the right to have his case considered
without  unnecessary delay. It pointed to the similar provision
of  Art.  6 par. 1 of the Convention. In this regard it  states
that  –  as is evident from the specific matter of the District
Court  in  Prerov,  and  as logically be concluded  from  other
matters handled in criminal and civil court proceedings, and in
administrative court proceedings – “unnecessary delay”  or  the
failure  to make a decision “in an appropriate time”  must,  in
these cases, paradoxically be ascribed to the legislature.
      At  the request of the Constitutional Court the CBA added
to  its  statement  an  expert  report  prepared  by  Christian
Wisskioschen, director of international relations  at  The  Law
Society in London, concerning the issue of application of §  42
par.  1  of  Act  no.  148/1998 Coll., as amended  by  Act  no.
310/2002 Coll., to defense counsel, compared to the handling of
this issue in England and Wales, and a brief description of the
handling of similar situations in France and Austria.
      At  the  request of the Constitutional Court the National
Security Office (the “NSO”) also filed an opinion, in which  it
said:
      We  must agree with the opinion of the District Court  in
Prerov, that after the amendment of Act no. 148/1998 Coll.,  by
Act no. 310/2002 Coll., a mere instruction under § 35 par. 4 of
the  Criminal Procedure Code is no longer sufficient, even  for
attorneys  who act as defense counsel in criminal  proceedings.
This  provision refers to an instruction given under a  special
act,  which  governs the protection of classified  information,
Act  no. 148/1998 Coll. It must be emphasized here that Act no.
148/1998  Coll. understands an instruction to be an institution
of  evidentiary character. Its purpose is primarily to instruct
persons who will have access to classified information, but are
not designated persons, on all their obligations, primarily the
obligation   to   maintain   confidentiality.   Therefore,   an
instruction  can not replace the fulfillment of conditions  for
providing access to classified information under § 17 par. 1 of
Act   no.  148/1998  Coll.  To  fulfill  the  purpose  of   Act
no. 148/1998 Coll. it is desirable that activities where it  is
necessary to have access to classified information be conducted
by  persons who meet the conditions in § 17 par. 1 of that Act,
that  is,  primarily,  they must hold a valid  clearance  which
designates  them to have access to classified information.  The
interest of the state in protecting classified information must
also be respected in the practice of law. In case of a conflict
between  the  principle  of  protection  of  human  rights  and
freedoms and the principle of protection of state interests and
international interests in the area of security, the state has,
in  particular, the statutory right, and also, the  obligation,
imposed  primarily by international treaties, to  give  certain
information,  i.e. classified information, special  protection,
i.e.  it  is  obliged to handle that information in  a  special
manner, and is required to prevent it from being made public or
otherwise disclosed. This protection is implemented in a number
of  ways, primarily, however, through personnel security,  i.e.
by  the  state  itself selecting persons who are authorized  to
have access to such classified information.
      The  NSO  also stated that it is in accordance  with  the
principle of free choice of profession for every individual  to
decide  for  himself  whether he  is  willing  to  seek  to  be
considered  a suitable candidate and whether he is  willing  to
allow  the  state to decide on his suitability or unsuitability
as  regards  access  to  classified  information.  Thus,  every
attorney also has free choice of whether to accede to a certain
professional “elevation” of his qualifications and to  thus  be
able  to accept representation in which he will have access  to
classified information discussed in a given matter. Persons who
ask the state to allow them access to classified information  –
because  they  voluntarily chose to practice  a  profession  or
assume an office to which the state connects the possibility of
access  to classified information – must necessarily submit  to
those  restrictions which the state sets forth  for  access  to
classified information; it is not only the right of the  state,
but   above  all  an  obligation,  arising  from  international
treaties.
     In the opinion of the NSO, if attorneys who act as defense
counsel in criminal proceedings were to have a special position
in  access  to  classified information, this would  also  be  a
certain  disproportion in view of the requirements  imposed  on
bodies   acting   in   criminal  proceedings,   include   state
prosecutors, who are required to meet the conditions for access
to   classified  information  under  Act  no.  148/1998  Coll..
Concerning  attorneys providing legal assistance in  civil  law
and  administrative proceedings, one must  also  point  to  the
fundamental  principle  of protecting  classified  information,
i.e.  that  access by person who do not hold a valid  clearance
may  be  only exceptional and justified. However, attorneys  do
not  automatically  meet  this condition  of  “exceptional  and
justified.”
      As  regards the objection that the current wording of Act
no.  148/1998 Coll. makes it impossible to continue in criminal
proceedings, the NSO state that if neither of the attorneys who
are  in  the position of defense counsel to the accused (Hucin)
meets  the  conditions  under  which  he  may  have  access  to
classified information, the District Court in Prerov should, by
its  official authority, provide an attorney ad hoc who has the
necessary  qualifications for the performance of those  actions
when  classified information will be discussed. Of course, both
of the chosen attorneys can continue to act as defense counsel,
they   will  simply  not  participate  in  that  part  of   the
proceedings  where  classified  information  will  have  to  be
discussed.  Proceeding in this way can not result in  violation
of   the  accused’s  rights,  nor  to  inconsistency  with  the
constitutional order of the Czech Republic.
     The NSO added that the fact that the Czech Bar Association
does  not  maintain a special list of attorneys who hold  valid
clearance  does not rule out the possibility that such  persons
exist,  and  can  thus  be appropriately appointed  to  provide
representation.  It states that the District  Court  in  Prerov
should  have  inquired at the NSO whether  it  is  possible  to
appoint  defense counsel, and not merely stated the  assumption
that “apparently no attorney has received security clearance.”
      In  addition, according to the NSO, one can assume  that,
even  if the Constitutional Court granted the petition  of  the
District  Court in Prerov and annulled § 42 par. 1 of  Act  no.
148/1998  Coll., this would not achieve the obviously  intended
aim – i.e. to return to the legislative situation as before the
amendment  made  by  Act  no. 310/2002  Coll..  Annulling  this
provision  will  have  no effect on the position  of  attorneys
generally,  and thus also not on attorneys who act  as  defense
counsel in criminal proceedings.
      The  NSO  is  aware that the present legal framework  for
access  to classified information in individual types of  court
and  administrative  proceedings  is  inadequate  in  terms  of
protecting  classified  information  and  that  it   does   not
adequately  observe the special characteristics of  that  area.
Therefore,  the future legal framework should provide  that  in
proceedings where classified information will be discussed  all
person  who  will  have any sort of access to  such  classified
information,   with  the  exception  of  the   party   to   the
proceedings,  will need to hold clearances for the  appropriate
level  of  secrecy.  In these cases the procedural  regulations
should  also provided stricter rules than in proceedings  where
classified  information is not discussed. It is  not  desirable
for   the  legal  framework,  in  the  interest  of  protecting
fundamental human rights, to establish – on the basis  of  only
an  instruction  – practically unlimited access  to  classified
information which will be discussed in the proceedings, e.g. to
the results of investigations by the intelligence services.
      In  conclusion, the NSO stated that even the draft of the
new  legal framework for protecting classified information does
not  expect that attorneys would be included among persons  who
are  not  required to meet statutory conditions for  access  to
classified information. On the contrary, the draft proposes  to
narrow  the group of persons who will have access to classified
information without further requirements, merely by  reason  of
the  position they hold, which is also fully in accordance with
NATO requirements. In this regard, the NSO also referred to the
Constitutional Court judgment published as no. 322/2001  Coll.,
under which the area of protection of classified information is
sufficiently  unique that it is legitimate to  have  a  certain
limitation  on the standard procedural rights of  persons  with
respect  to whom the state is investigating whether  they  meet
the conditions for access to classified information.
      At  the  request of the Constitutional Court the National
Security  Office  added to its statement,  and  identified  and
submitted  regulations which govern the issue of protection  of
classified  information  in  the  framework  of  the   European
Communities. These are:
      -  EU  Council Decision no. 2001/264/EC of 19 March 2001,
adopting  the  Council’s security regulations.  Under  to  this
regulation, the condition for access to information  classified
as CONFIDENTIEL UE is clearance of the person requesting access
to  information.  The  general rules are not  weakened  by  any
exceptions  for  person who were allowed access  to  classified
information only by reason of the office they hold. Part I Art.
9  of  the  Security Directive provides that “All  persons  who
require  access  to information classified CONFIDENTIEL  UE  or
above  shall  be  appropriately cleared before such  access  is
authorised. Part II, section V., point 1 provides that  “Access
to  EU  classified  information will  be  authorised  only  for
persons  having a "need-to-know" for carrying out their  duties
or  missions. Access to TRCS SECRET UE/EU TOP SECRET, SECRET UE
and  CONFIDENTIEL  UE information will be authorised  only  for
persons in possession of the appropriate security clearance”;
      -  EU  Commission Decision no. 2001/844/EC of 29 November
2001,  amending  its  Internal Rules of Procedure.  Under  this
regulation  too,  persons  who request  access  to  information
classified  as CONFIDENTIEL UE and higher must be appropriately
cleared  before access is permitted. Here too rules for  access
to  information  are not weakened by any exceptions.  Part  II,
Art.  19  point  1  provides  that  “Access  to  EU  classified
information will be authorised only for persons having a "need-
to-know"  for carrying out their duties or missions. Access  to
TRCS  SECRET  UE/EU TOP SECRET, SECRET UE and  CONFIDENTIEL  UE
information  will be authorised only for persons in  possession
of the appropriate security clearance.”
     The NSO added that the obligation to observe international
undertakings also arises from the CR’s membership in the  North
Atlantic  Treaty  Organization.  Standards  for  protection  of
classified information are contained in the presented document,
C-M  (2002)  49  –  Security within the North  Atlantic  Treaty
Organization.  Under the rules provided in this  document,  all
persons  who  request  access  to  information  classified   as
“Confidential”  or higher, or persons who may  have  access  to
such  information by reason of their job or position,  must  be
appropriately cleared and instructed in advance.

IV. Wording of the Contested Statutory Provision
The Constitutional Court states that the wording of § 42 par. 1
of  Act no. 148/1998 Coll., which was valid and in effect until
11 July 2002, was the following:

Ҥ 42
(1)  Deputies  and senators, with the exception of  members  of
inspection  bodies  under  special statutes,12)  and  attorneys
shall not be subject to security clearance.”
12)  § 18 of Act no. 154/1994 Coll.
This  provision was affected by Act no. 310/2002  Coll.,  which
Amends  Act  no.  148/1998 Coll., on Protection  of  Classified
Information  and  Amending Certain Acts, as  amended  by  later
regulations,  of  Act  no.  101/2000 Coll.,  on  Protection  of
Personal  Data and Amending Certain Acts , as amended by  later
regulations,  by  Act no. 18/1997 Coll.,  on  Peaceful  Use  of
Nuclear  Energy and Ionizing Radiation (the Atomic Energy  Act)
and  Amending  and Supplementing Certain Acts,  as  amended  by
later  regulations, by Act no. 38/1994 Coll., on Foreign  Trade
with  Military  Materials and Supplementing  Act  no.  455/1991
Coll., on Trade Licensing (the Trade Licensing Act), as amended
by  later  regulations,  and by Act  no.  140/1961  Coll.,  the
Criminal  Code,  as amended by later regulations,  by  Act  no.
283/1993 Coll., on the State Prosecution Office, as amended  by
later  regulations, and by Act no. 42/1992 Coll., on Regulation
of  Property Relationships and Settling Property Claims in  Co-
operatives, as amended by later regulations (“Act no.  310/2002
Coll.”).  Act no. 310/2002 Coll. in Part One, Art. I, point  4,
set  forth a new wording of § 42 par. 1, with effect as  of  12
July 2002, as follows:

“4. § 42 par. 1 including footnote no. 12) reads:
(1)  Deputies  and senators, with the exception of  members  of
inspection  bodies  under  special statutes,12)  shall  not  be
subject to security clearance.
12) § 18 of Act no. 154/1994 Coll.
      § 23a of Act no. 67/1992 Coll.’.”

Thus,  as a result of this amendment of Act no. 310/2002 Coll.,
the  text  of  the  contested § 42 par. 1 of Act  no.  148/1998
Coll., in the wording in effect, is as follows:

Ҥ 42
(1)  Deputies  and senators, with the exception of  members  of
inspection  bodies  under  special statutes,12)  shall  not  be
subject to security clearance
12) § 18 of Act no. 154/1994 Coll.
   § 23a of Act no. 67/1992 Coll.“

Under  Art.  IX  of  Act no. 310/2002 Coll., Act  no.  148/1998
Coll.,  on  Classified  Information and Amending  Certain  Acts
ceases to be in effect on 31 December 2003.
Act no. 436/2003 Coll., which Amends Act no. 555/1992 Coll., on
the Prison Service and the Justice Guard of the Czech Republic,
as amended by later regulations, and Certain Other Acts, states
in  Art.  VI: “In § 89 of Act no. 148/1998 Coll., on Protection
of  Classified  Information  and  Amending  Certain  Acts,  the
existing  text  is marked as paragraph 1, and  paragraph  2  is
added, which reads:

(2) This Act ceases to be in effect on 30 June 2004.”

Thus,  the  amendment  of  the Act on  Classified  Information,
implemented by Art. VI of Act no. 426/2003 Coll., extended  its
validity until 30 June 2004.


V. Conditions for the Petitioner’s Active Standing
The  Constitutional  Court  first considered  the  question  of
whether  the  petitioner – a general court – is  authorized  to
file  a petition to annul the contested provision. It concluded
that it was. It is evident, as the petitioner correctly stated,
that a general court must apply the contested provision to  its
actions  in  particular  criminal  proceedings,  and  that  the
current  legal framework directly affects the rights of accused
persons  to  a  defense.  The petition, although  it  basically
concerns  procedural  law, is related  to  the  decision-making
activity  of  the  general court, which is thus  an  authorized
petitioner  (§ 64 par. 3 of Act no. 182/1993 Coll., as  amended
by later regulations).

VI.Constitutional Conformity of the Legislative Process
The Constitutional Court, in accordance with § 68 par. 2 of the
Act  on  the Constitutional Court, then considered whether  the
contested  provision of Act no. 148/1998 Coll., as  amended  by
Act no. 310/2002 Coll., was passed and issued within the bounds
of   Constitutionally   provided   jurisdiction   and   in    a
constitutionally prescribed manner. The Court concluded that it
was.
      The  Constitutional Court determined  from  the  relevant
stenographic records of the Chamber of Deputies and the  Senate
that  the  bill amending Act no. 148/1998 Coll., was passed  at
the  47th session of the Chamber of Deputies on 27 March  2002,
in  the 3rd term of office, by resolution no. 2201. When voting
on  the draft, 170 deputies were present, 152 deputies voted in
favor  of  passing the bill, 18 deputies voted against  passing
the bill, and no one abstained. The bill was properly passed.
      The  bill was then discussed in the Senate, at its  17the
session  in  the  3rd  term of office  on  3  May  2002.  After
substantive  discussion, the Senate,  by  resolution  no.  372,
decided to return the draft act to the Chamber of Deputies,  as
amended by amending proposals. Sixty senators voted in favor of
this  proposal, and none against. The proposal  to  return  the
draft  act  to the Chamber of Deputies with amending  proposals
was duly passed.
      The  Chamber of Deputies again discussed the  draft  act,
which amends Act no. 148/1998 Coll., at its 51st session on  13
June  2002  in the 3rd term of office. When voting  whether  to
pass  the draft act with the Senate’s amending proposals  there
were  182 deputies present; 76 deputies voted in favor, and  98
deputies  voted  against. The draft  act,  as  amended  by  the
Senate’s amending proposals was not passed, and the Chamber  of
Deputies  thus confirmed the draft act in the original wording,
passed  at  the  47th session on 27 March 2002 (resolution  no.
2319).
     The bill was signed by the president of the Czech Republic
on  28  June  2002,  and delivered to the  prime  minister  for
signature  on 2 July 2002. The Act was promulgated on  12  July
2002 in the Collection of Laws, in Part 114 as number 310/2002.
     The abovementioned Act no. 436/2003 Coll. was discussed in
the  Chamber  of  Deputies on 4 November  2003  and  passed  by
resolution no. 750. There were 168 deputies present; 149  voted
in  favor,  and 5 deputies voted against. The Act was discussed
in  the Senate on 3 December 2003, with 58 senators present; 49
senators  voted  in favor, and one senator voted  against.  The
president  signed  the  Act on 9 December  2003.  The  Act  was
promulgated in the Collection of Laws on 16 December 2003.

VII.  Definition  of  the  Subject Matter  of  the  Proceedings
According to the Proposed Verdict in the Petition
The  wording  of the contested § 42 par. 1 of Act no.  148/1998
Coll.,   on  Classified  Information,  as  amended   by   later
regulations, as already stated, is the following: “Deputies and
senators,  with  the exception of members of inspection  bodies
under  special  statutes,  shall not  be  subject  to  security
clearance.” This wording of the provision was inserted into the
Act  on Classified Information by the amendment made by Act no.
310/2002  Coll.,  with  effect as of 12  July  2002,  when  the
previous  wording of the provision, set forth by the  amendment
of  the  Act on Classified information, made by Art. IX of  Act
no.  30/2000 Coll., was the following: “Deputies and  senators,
with  the  exception  of  members of  inspection  bodies  under
special  statutes,  and  attorneys  shall  not  be  subject  to
security clearance.” The original wording of § 42 par. 1 of Act
no.  148/1998 Coll. was passed by the Parliament of  the  Czech
Republic  in  this  wording: “Deputies and senators,  with  the
exception  of  members  of  inspection  bodies  under   special
statutes, and defense counsel shall not be subject to  security
clearance.”
      The text of the Act on Classified Information reviewed by
the  Constitutional Court was passed as amended by the amending
proposal by deputy Jan Klas at the motion of deputies Frantisek
Ondrus, Petr Necas and Ivan Langer to issue an Act which amends
Act no. 148/1998 Coll., on Classified Information, and Amending
Certain  Acts,  as amended by Act no. 164/1999 Coll.,  Act  no.
18/2000  Coll.,  Act no. 29/2000 Coll., Act no. 30/2000  Coll.,
Act  no. 363/2000 Coll. and Act no. 60/2001 Coll. This amending
proposal  was  presented  in the second  reading  at  the  47th
session  of  the Chamber of Deputies of the Parliament  of  the
Czech Republic on 22 March 2003, and its aim was not explicitly
made clear by the sponsor. The issue was adding to the amending
proposal  from  the  guaranteeing  Committee  for  Defense  and
Security of 15 March 2002, passed by resolution no. 206,  which
presented to the Chamber of Deputies the following wording of §
42  par.  1  of  the Act: “Deputies and senators shall  not  be
subject  to  security clearance.” In the subsequent discussion,
none  of the deputies spoke concerning the issue, and the  same
occurred in the third reading, conducted in the continuation of
the 47th session of the Chamber of Deputies on 27 March 2002.
      After  substantive discussion, the Senate, by  resolution
no.  372  of  3 May 2002, returned the bill to the  Chamber  of
Deputies as amended by its amending proposals, in which it also
included  a new wording of § 38 par. 7 of the Act on Classified
information: “The manner of designating a person in  the  scope
necessary  for access to classified information  in  civil  law
court  proceedings, criminal proceedings, and in administrative
court  proceedings  shall be provided by special  regulations.”
The  senate also identified these regulations in note no.  11a)
to  that provision: “11a) § 40a of the Civil Procedure Code, as
amended by Act no.30/2000 Coll. § 35 par. 4, § 50 par. 3, §198a
and § 201 par. 3 of the Criminal Procedure Code, as amended  by
Act no. /2002 Coll.” As the discussion from the 17th session of
the   Senate  on  3  May  2002  shows,  the  Senate  considered
conditioning  the  access  of  an attorney  acting  as  defense
counsel in criminal proceedings on security clearance to  be  a
limitation  on  the right of the accused to a defense,  in  the
sense of his right to choose an attorney.
      The  Chamber of Deputies, at its 51st session on 13  June
2002, by resolution no. 2319 reject the draft act as amended by
the Senate’s amending proposals, and approved it in the wording
passed at the 47th session on 27 March 2002.
VIII. Ratio Decidendi

VIII/a  Review of the Matter on the Level of Simple Law
The arguments contained in the petition from the District Court
in  Prerov  to  annul  §  42 par. 1 of the  Act  on  Classified
Information  implicitly  contain  a  balancing  of  the  public
interest  in  ensuring  protection of  information  (classified
information)  on  the  one hand, and, on the  other  hand,  the
public  interest in ensuring the right to a defense in criminal
proceedings, which includes the right of the accused to  freely
choose  an attorney. The arguments are based on giving priority
to  protecting  the right to a defense and on  emphasizing  the
principle  of an attorney’s independence from the state,  which
are  undermined  by  state approval of fitness  for  access  to
classified  information,  and also by unacceptable  inequality,
i.e. the unacceptability of categorizing attorneys into a group
authorized to have access to classified information and a group
which  does  not have that right. On that basis, the  contested
statutory  provision is seen to have a gap, and the  democratic
legislature’s filling in of that gap (i.e. the wording  of  the
Act  before  the amendment made by Act no. 310/2002  Coll.)  is
seen to fulfill the cited constitutional principles.
      Review  of  these  arguments by the Constitutional  Court
requires  reconstruction of the purpose and  wording  of  those
provisions  of simple law which affect the issue of  access  to
classified  information by attorneys acting as defense  counsel
in criminal proceedings.
      Under  §  1  of  the Act on Classified  Information,  the
subject matter of the Act is defining information which must be
classified  in  the  interests of the Czech Republic,  how  the
information is to be protected, the jurisdiction and  authority
of  state bodies in conducting state administration in the area
of classified information, the obligations of state bodies, the
rights  and obligations of natural persons and legal  entities,
liability for violation of obligations imposed by the Act,  and
establishing the position of the National Security  Office.  In
other  words,  the subject matter of the Act is  the  normative
definition of the concept of classified information, procedural
regulation  for  setting classification levels, conditions  for
access  to  classified  information, protection  of  classified
information,  and the authority of state bodies  in  conducting
state administration in that area.
      Under  §  1  par. 1 of the Criminal Procedure  Code,  the
purpose  of  criminal proceedings is to govern the  actions  of
bodies  acting in criminal proceedings so that crimes  will  be
duly  discovered and their perpetrators justly  punished  under
the  law.  The principles of criminal proceedings  include  the
principle  of  the accused’s right to a defense, including  the
right  to  choose defense counsel (§ 2 par. 13 of the  Criminal
Procedure  Code).  In  a  number of  provisions,  the  Criminal
Procedure  Code  responds to possible conflict  of  the  public
interest   in  protecting  classified  information   with   the
constitutional order and the legally guaranteed  right  of  the
accused  to  a defense, including the right to respond  to  all
evidence  presented in criminal proceedings and  the  right  to
freely  choose defense counsel. These provisions include  §  35
par.  4, § 50 par. 3 and § 198a of the Criminal Procedure Code,
governing the instruction and notification obligation of bodies
acting   in   criminal  proceedings,  relating  to  issues   of
protection  of  classified  information,  as  well  as  special
conditions for access to classified information on the part  of
a  representatives of a party and an injured person, as well as
§  200  of the Criminal Procedure Code, on excluding the public
from the main trial proceedings if discussion of the matter  in
public  would  endanger classified information protected  by  a
special act, and § 8 and § 99 of the Criminal Procedure Code on
questioning witnesses about circumstances concerning classified
information. Also connected to these provisions of the Criminal
Procedure   Code   for   ensuring  protection   of   classified
information in criminal proceedings are § 5 and § 21 of Act no.
85/1996  Coll.,  on Advocacy, as amended by later  regulations,
and  § 6 of Act no. 36/1967 Coll., on Experts and Interpreters,
governing  the  obligation  of  confidentiality  of  attorneys,
experts  and interpreters, § 105, § 106, and, in particular,  §
107 of the Criminal Code, enshrining the criminal law treatment
of  protection of classified information, and finally §  21,  §
24,  § 39, § 44, § 51, § 86, § 132, § 139, § 162, § 166, § 183,
§  188, and § 192 of Ministry of Justice instruction no. 1/2002
of  3  December 2001, file no. 505/2001-Org, which  issues  the
internal  and office rules of procedure for district, regional,
and   high  courts,  which  provide  measures  to  ensure   the
protection of classified information in managing court agendas.
      The  present  issue  is  governed  only  indirectly,  for
purposes of systematic analysis, by § 38 par. 7 of the  Act  on
Classified  Information. Under it, the manner of designating  a
person,  in  the scope necessary, to have access to  classified
information   in   civil   law   court   proceedings   and   in
administrative court proceedings shall be provided by a special
regulation. In civil law court proceedings that regulation is §
40a  par.  1  of  the  Civil Procedure Code,  under  which,  in
proceedings  in  which classified information  protected  by  a
special  act  is discussed, the panel chairman is  required  to
instruct  in  advance, under this special act, lay judges,  the
parties, persons authorized to act on their behalf (§ 21 to 21b
of  the  Civil  Procedure Code), the parties’  representatives,
i.e. including attorneys, interpreters, persons named in §  116
par. 3, and other persons who must take part in the proceedings
by  law,  on the criminal consequences of violating the secrecy
of  classified information; this instruction is recorded  in  a
protocol,  and  by signing the protocol the instructed  persons
become persons designated in the scope necessary to have access
to  classified information. In administrative court proceedings
that  regulation is § 45 of the Administrative Procedure  Code,
which  governs the authorization of a party to the  proceedings
and  his  representative  to view parts  of  the  record  which
contain  classified  information and  which  were  or  will  be
presented as evidence by the court. Another such regulation  is
§  64  of  the Administrative Procedure Code, which establishes
the appropriate use of § 40a par. 1 of the Civil Procedure Code
in the administrative courts.
     At the level of simple law, we must answer the question of
whether  the  issue of defense counsel’s access  to  classified
information in criminal proceedings is governed by the  Act  on
classified Information or the Criminal Procedure Code, i.e.  in
comparing  these statutes, which of them is lex  generalis  and
which is lex specialis.
       This   complex   of   simple  law  norms   permits   two
interpretations:
In  the first interpretation, the issue of access to classified
information by attorneys acting as defense counsel in  criminal
proceedings is governed by § 38 par. 7 and § 42 par. 1  of  Act
no.  148/1998  Coll.,  as amended by later  regulations,  under
which,  although the Act did not establish the  same  reference
for  criminal  proceedings  as  it  did  for  civil  law  court
proceedings and administrative court proceedings and  so  on  a
contrario, as attorneys are not included in the list of persons
not  subject  to  security clearance, it  is  a  condition  for
attorneys acting as defense counsel in criminal proceedings  to
have access to classified information that they pass a security
clearance. This interpretation comes from linguistic  analysis,
i.e. from the literal wording of these provisions.
      Whether  it  also  flows from the presupposed  subjective
teleological analysis, i.e. from reconstruction of the original
legislative intent, can not be claimed with certainty.
      The original intent of the Chamber of Deputies can not be
concluded  simply  from its rejection of the Senate’s  explicit
arguments, which opposed making passing a security CLEARANCE  a
condition for access to CLASSIFIED information by attorneys  in
criminal court proceedings and which proposed, in that  regard,
supplementing the referring norm, contained in § 38 par.  7  of
Act no. 148/1998 Coll., as amended by later regulations, as the
Chamber  of  Deputies  voted on whether to  pass  the  Act,  as
amended by changes proposed by the Senate, as a whole (Art.  47
par. 2, 3 of the Constitution).
      Finally, the original intention also can not be concluded
a  contrario based on the deletion of a category of  persons  –
attorneys – from the wording of § 42 par. 1 of Act no. 148/1998
Coll.,  implemented by Act no. 310/2002 Coll. This  is  because
replacing  the term “defense counsel” with the term “attorneys”
in  § 42 par. 1 of the Act on Classified Information, which the
legislature did in Art. IX of Act no. 30/2000 Coll.,  was  tied
to  the simultaneous establishment of a new provision, § 40a of
the  Civil Procedure Code (Art. I point 53. of Act no.  30/2000
Coll.),  governing access to classified information by  parties
to  civil  law court proceedings and their representatives,  as
well  as  other persons, and thus also the establishment  of  a
special  framework  for  access to  classified  information  by
attorneys  not only in the role of defense counsel in  criminal
court  proceedings, but also as representatives in civil  court
proceedings.  If  the exception to the obligation  for  defense
counsel  to undergo a security clearance, before the  amendment
of  the  Act on Classified Information implemented by  Act  no.
30/2000 Coll., both from the Act on Classified Information, and
from  the  Criminal Procedure Code, we can only  consider  that
fact superfluous, and directly apply the interpretational maxim
superfluum noc nocet (cf. judgment file no. Pl. US 6/02).
      If  the  hypothetical original intent of the  Chamber  of
Deputies  was  to  introduce  security  clearances  of  defense
counsel  in  criminal proceedings by amendment of  the  Act  on
Classified Information, implemented by Act no. 310/2002  Coll.,
under  the  second possible interpretation of  the  complex  of
relevant  simple  law  the intent of the  legislature  was  not
expressed adequately, i.e. there was inconsistency between  the
legislature’s   intent  and  the  wording  of   the   statutory
provision.
      Under the second interpretation, protection of classified
information  in  criminal proceedings  is  a  special  area  in
protection of classified information, and therefore the  regime
for  it is governed by the Criminal Procedure Code, and not  by
the  Act  on  Classified Information, ergo in that context  the
Criminal  Procedure Code is a lex specialis, and its  framework
takes precedence of the Act on Classified Information, which is
a general law – lex generalis. This conclusion results not only
from  comparing the subject matter of both statutes,  but  also
from other arguments:
      Applying the Act on Classified Information to the present
issue  then  by the argument reductionis ad absurdum  leads  to
consequences which can hardly be supported.
      The  position of defense counsel in criminal proceedings,
i.e.  in  particular his procedural authorization, is based  on
the  position  (rights) of the accused person. Establishing  an
exception  for  attorneys leaves open a  fundamental  question,
that of the accused’s access to classified information which is
part  of  the  evidence  in  criminal  proceedings.  From   the
viewpoint of Art. 37 par. 3 and Art. 38 par. 2 of the  Charter,
as  well as Art. 6 par. 3 let. c) of the Convention, it is hard
to  imagine restricting such access. Similarly, it is  hard  to
imagine  the  National Security Office “clearing”  the  accused
person  in order to permit his access to classified information
(a  hyperbolic  example taking these consequences  ad  absurdum
would be the idea of security clearances on a person accused of
crimes  under  §  105  and § 106 of the  Criminal  Code).  This
interpretation  would then lead to another absurd  consequence:
It  could  create  a situation where it would be  necessary  to
require  an attorney in criminal proceedings to pass a security
clearance  in  order  to  have access to  evidentiary  material
containing  classified  information, but  in  civil  law  court
proceedings, or in administrative court proceedings,  the  same
attorney,  acting  as  representative  of  a  party  to   those
proceedings,  would  not  be required  to  pass  this  security
clearance  for  access  to the identical evidentiary  material,
containing the identical classified information.
      Here  we must point to the fact that, in a number of  its
decisions (II. US 315/2001, II. US 326/98, Pl. US 2/99, II.  US
221/98),   the   Constitutional  Court  applied  analysis   per
reductione  ad  absurdum,  which  is  a  form  of  teleological
analysis  (teleological reduction): in that  analysis,  in  the
event  of several alternative interpretations, any which  leads
to  unacceptable results relative to the purpose and aim  of  a
norm is ruled out.
      Another argument is the conclusion arising from objective
teleological  analysis, i.e. from the principal  difference  in
the  roles which an attorney fulfils under the Act on  Advocacy
and  under  the codes of procedure: if, on the one  hand,  that
role  can  mean  that  an  attorney  is  authorized  to  manage
another’s property, including acting as bankruptcy trustee,  on
the  other  hand it can mean legal representation  of  parties,
generally  in  civil law proceedings, criminal proceedings,  or
administrative court proceedings. In this regard, we must point
to the amendment of the Act which amends Act no. 85/1996 Coll.,
on  Advocacy,  as  amended by later regulations,  and  Act  no.
6/2002 Coll., on Courts and Judges (which was passed on  9  May
2002  and published as no. 228/2002 Coll.). The provision of  §
56  of the Act on Advocacy, as amended by this Act, established
the  authorization of an attorney to manage another’s property,
including  acting  as bankruptcy trustee; it  provided  for  an
attorney  an  exception from the obligation of  confidentiality
under  §  21 of the Act on Advocacy, for information  which  he
learns in connection with acting as bankruptcy trustee, and  it
preserved  a bankruptcy trustee’s obligation of confidentiality
under   the  provisions  of  special  legal  regulations.   The
authorization  to  manage  another’s  property,  including  the
authorization  to act as bankruptcy trustee, is,  depending  on
the  nature of the managed property, also tied to the potential
need for access to classified information.
      Based  on  this  teleological  differentiation,  one  can
conclude  that,  precisely in view  of  §  56  of  the  Act  on
Advocacy,  as  amended by Act no. 228/2002 Coll., an  attorney,
under  §  42  par. 1 of Act no. 148/1998 Coll., as  amended  by
later  regulations,  is  subject to a  security  clearance  for
access to classified information, unless a special act provides
otherwise.  Such special acts, according to the referring  norm
contained  in § 38 par. 7 of the Act on Classified  information
are  the  Civil Procedure Code and the Administrative Procedure
Code. In addition, special conditions, for access to classified
information  by  an  attorney  acting  as  defense  counsel  in
criminal court proceedings, different from those of the Act  on
Classified  information, are also established in  the  Criminal
Procedure  Code (in particular § 35 par. 4 and §  198a  of  the
Criminal  Procedure  Code): “If there is a conflict  between  a
general  and  special rule, one can assume that the legislature
wished  to  deviate from the general rule through  the  special
statute.”   (Ch.  Perelman,  Logique  Juridique.  Paris   1976;
citation   from  German  translation:  Juristische  Logik   als
Argumentationslehre. Freiburg-Munchen 1979,  p.  65).  However,
the referring norm itself does not establish the precedence  of
the special over the general, it only plays an informative role
(in  this  regard, it is also appropriate to  point  out  that,
despite the formulations chosen by the legislature, § 38 par. 7
of  Act no. 148/1998 Coll., as amended by later regulations, is
not  a delegation, but a reference – delegation is conceptually
tied to the hierarchy of legal force of an authorizing norm and
a delegated norm). Thus, a contrario, one can not conclude from
the absence of a norm in § 38 par. 7 of Act no. 148/1998 Coll.,
as  amended  by  later  regulations,  referring  to  a  special
regulation  governing criminal proceedings,  that  the  general
framework in the Act on Classified information takes precedence
over the special framework for access to classified information
by   an   attorney  acting  as  defense  counsel  in   criminal
proceedings, contained in the Criminal Procedure Code.
     The conclusion reached by objective teleological analysis,
as  well  as by analysis per reductionem ad absurdum,  is  also
supported by an argument based on the maxim of internal lack of
conflict and consistency of the legal order (in other words, it
is  based  on the axiom of a rational legislature – e.g.,  when
applying  the  current teleological analysis the Constitutional
Court  of  the  Republic of Poland relies  on  the  theoretical
concept  of  a  “rational legislature” – see A. Kozak,  Rodzaje
wykladni  prawa  w  uchwalach  Trybunalu  Konstytucyjnego.  In:
Z  zagadnien wykladni prawa. Red. S. Kazmierczyk, Wroclaw 1997,
p.  57-60).  If  the  legislature, in  the  Act  on  Classified
information,  were  to  regulate the  obligation  of  attorneys
acting  as  defense counsel in criminal proceedings to  undergo
security clearance when having access to classified information
it  would  consequently have to reflect  the  results  of  that
framework  in  a  special definition establishing  grounds  for
excluding  chosen defense counsel under § 37a of  the  Criminal
Procedure Code and removing appointed defense counsel from  the
defense under § 40a of the Criminal Procedure Code. If  it  did
not  do so, one can only conclude that the assumed premise  was
not met.
      On the level of methodological analysis of simple law, in
particular relying on the argument reductionis ad absurdum  and
the  maxim of internal lack of conflict and consistency of  the
legal  order,  one  can  conclude that the  second  alternative
analysis  of  §  38  par. 7 a § 42 par. 1 of Act  no.  148/1998
Coll.,  as  amended  by later regulations  is  justified.  This
conclusion  is based on a doctrinaire opinion, under  which  in
the  event  of  conflicting analyses, the  decisive  viewpoint,
tertium  comparationis,  is teleological  reduction  (in  other
words,   analysis  per  reductione  ad  absurdum):  “Argumentum
reductione ad absurdum is applied either independently,  or  if
analysis   under   several   different   arguments   leads   to
inconsistent  (incompatible) conclusions.”  (V.  Knapp,  Teorie
prava. Prague 1995, p. 173. Neil MacCormick calls Argumentum ad
absurdum,  or  teleological reduction,  the  “golden  rule”  of
analysis:  N.  MacCormick, Argumentation and Interpretation  in
Law. Ratio Juris, No. 1, 1993, p. 26).
     Just this reconstruction of the relevant, valid simple law
leads  to  the conclusion that access to classified information
by   an   attorney  acting  as  defense  counsel  in   criminal
proceedings is governed by the Criminal Code, and  not  by  the
Act  on  Classified  information, and thus under  the  existing
valid legal framework, the Czech legal order does not require a
security  clearance by the National Security  Office  for  that
purpose,  i.e. for access to classified information by  defense
counsel in criminal proceedings.

VIII/b
Constitutional Law Review
Constitutional  law  review  of  the  conflicting   alternative
interpretations  of the relevant simple law  is  based  on  the
principle  of  proportionality and on the principle  of  giving
priority   to  a  constitutionally  consistent  analysis   over
derogation of a law.
      Based on the fact that the position of defense counsel in
criminal  proceedings  is  derived from  the  position  of  the
accused, at the constitutional level the nucleus of the  matter
being adjudicated is conflict between the public value (on  the
concept  of a public value see judgment file no. Pl. US  15/96)
of security of the state as an element of its sovereignty (Art.
1  of  the  Constitution), one component of which  is  ensuring
protection of classified information, and the accused  person’s
fundamental  right to a defense under Art. 40  par.  3  of  the
Charter  and  Art.  6  par. 3 let. c) of  the  Convention,  his
fundamental right to express his views on all evidence admitted
in the proceedings under Art. 38 par. 2 of the Charter, as well
the  fundamental  right  arising from the  principle  of  equal
“weapons” under Art. 37 par. 3 of the Charter.
      Similarly as all democratic constitutional courts, so too
the  Constitutional  Court of the Czech  Republic  applies  the
principle  of  proportionality  to  resolve  conflicts  between
fundamental   rights,  or  public  values  protected   by   the
constitutional order, in proceedings on review of norms and  in
proceedings  on  constitutional complaints,  (the  Court  first
comprehensively analyzed the principle of proportionality  when
evaluating the constitutional institution of keeping secret the
personal data of witnesses in criminal trials - Pl. US 4/94).
     The principle pf proportionality is methodologically based
on three steps:
The  first  is  review  of simple law  from  the  viewpoint  of
suitability; this involves reviewing the chosen normative means
in terms of whether they will fulfill the aim pursued. If given
normative  means are not capable of attaining the aim  pursued,
this  is  a  manifestation of arbitrariness by the legislature,
which is considered inconsistent with the principles of a state
governed by the rule of law.
       The   second   step   in  applying  the   principle   of
proportionality is reviewing simple law from the point of  view
of  necessity,  which analyzes a number of  possible  normative
means  in relation to the intended aim and their subsidiariness
in  terms of restricting constitutionally protected values –  a
fundamental right or a public good. If the aim pursued  by  the
legislature  can  be achieved by alternative  normative  means,
then   the  one  which  restricts  the  given  constitutionally
protected  value  in the smallest degree is the  one  which  is
constitutional.
      If  the  reviewed simple right aims to protect a  certain
constitutionally  protected value, but also restricts  another,
the  third  viewpoint  of  the  principle  of  proportionality,
balancing,  is  a  methodology of  weighing  these  conflicting
constitutional values.
      To  arrive  at  a conclusion in the case of  conflict  of
fundamental  rights, or the public good, as principles,  unlike
the case of conflict of norms of simple law, the Constitutional
Court  is  guided  by  the requirement to  optimize,  i.e.  the
postulate  of minimizing the limitation of a fundamental  right
or  freedom, or a public good. This involves the maxim that, if
it  is concluded that one of two conflicting fundamental rights
or public estates has justified priority, a necessary condition
of  the  final decision is to use all possibilities to minimize
interference in one of them. The requirement to optimize can be
normatively  derived from Art. 4 par. 4 of the  Charter,  under
which  fundamental rights and freedoms must be  preserved  when
applying  provisions  on the bounds of fundamental  rights  and
freedoms,  and  thus,  analogously, they must be  preserved  if
they are limited as a result of being in conflict.
     Based on these viewpoints for constitutional review of the
issue,  it  must  be  said that in terms of  the  postulate  of
suitability, i.e. the relationship between the legal means used
and  the legislature’s aims, having an attorney pass a security
clearance is an effective means for achieving the pursued  aim,
a  public  value.  However, in terms of the  subsidiariness  of
possible  alternative instruments which would ensure the  given
aim,  i.e.  in  terms  of the criterion of necessity,  one  can
conclude that security clearances are not a proportional  means
to  achieving the desired aim, because in criminal  proceedings
that can be achieved through a combination of other instruments
(instruction  by the court about obligations arising  from  the
Act on Classified information and about criminal penalties, the
obligation of confidentiality under the Act on Advocacy, etc.),
which, in this context, do not affect, and in no way limit  the
fundamental rights which are in conflict with the public  value
(security  of the state) – the fundamental right to a  defense,
to  equal “weapons,” or the right to express one’s views on all
evidence.  The  framework contained in the  Criminal  Procedure
Code not only guarantees protection of fundamental rights under
Art.  37  par.  3, Art. 38 par. 2, and Art. 40 par.  3  of  the
Charter and Art. 6 par. 3 let. c) of the Convention, but  also,
through  a  number of its norms, as well as a number  of  other
related   norms  of  simple  law,  meets  the  requirement   of
minimizing limitation of protection of a public good  (ensuring
security  of  the  state by protecting classified  information)
that  is  in conflict in a given matter, and thus also  follows
the constitutional requirement of optimization.
      In  this  regard, the framework contained in the Criminal
Procedure  Code  can  also be considered  consistent  with  the
results  of  interpretation of Art. 6 par. 3  let.  c)  of  the
Convention  by  the  European Court of  Human  Rights.  In  the
Court’s  judgment in the case of Meftah and others  v.  France,
2002: “The Court reiterates that the right for everyone charged
with  a  criminal offence to be defended by counsel of his  own
choosing  (see Pakelli v. Germany, judgment of 25  April  1983,
Series  A  no.  64,  p. 15, § 31) cannot be  considered  to  be
absolute  and,  consequently the national courts  may  override
that  person's  choice when there are relevant  and  sufficient
grounds for holding that this is necessary in the interests  of
justice  (see  Croissant,  cited above,  p.  33,  §  29).”  The
European  Court  of Human Rights came closest to  expressing  a
view regarding analysis of the concept “relevant and sufficient
grounds  required by the interests of justice, which limit  the
absolute  nature  of the right to choose an attorney,”  in  the
context  of  the  matter  being decided by  the  Constitutional
Court,  in the case Chazal v. United Kingdom, 1996, and Tunelky
and  others  v.  United Kingdom, 1998. Insofar as  English  law
allows  the appointment of a special attorney in certain  types
of  proceedings,  one who has access to classified  information
concerning national security, but who is bound by an obligation
of  confidentiality  in relation to the  client,  the  European
Court  of  Human  Rights  found  this  circumstance  to  be   a
limitation in terms of Art. 6 par. 1 of the Convention. Under a
doctrinaire  interpretation of these decisions,  “it  does  not
appear,  however, that only an attorney registered on a special
list,  or  an attorney specially cleared from a state  security
viewpoint could be appointed as a special attorney” (B.  Repik,
Advokat ve svetle judikatury Evropskeho soudu pro lidska  prava
[The Attorney in Light of the Case Law of the European Court of
Human  Rights]. part I, Bulletin advokacie, no.  10,  2002,  p.
19).
      If  the  requirement to optimize two  conflicting  values
guaranteed  by the constitutional order leads one  to  conclude
that security clearances on attorneys acting as defense counsel
in  criminal proceedings for purposes of permitting  access  to
classified  information are constitutionally unacceptable,  but
that  the conditions for defense counsel’s access to classified
information  which  are established in the  Criminal  Procedure
Code  and  do  not limit the fundamental rights to  a  defense,
equality  of “weapons” and the right to express one’s views  on
all  evidence are acceptable, it becomes necessary to apply the
principle of giving priority to a constitutional interpretation
over derogation, when evaluating the constitutionality of §  42
par.  1  of  Act  no. 148/1998 Coll.. The Constitutional  Court
applied  this principle in a number of its decisions. It  first
did  so in judgment Pl. US 48/95, in which it said that,  in  a
situation  where  a  certain provision of  a  legal  regulation
allows  two  different interpretations, one being in accordance
with  the  constitutional order and the other  is  inconsistent
with  it,  grounds for annulling that provision do  not  exist;
when  applying the provision, courts must interpret it  in  the
constitutionally  consistent manner. The  Constitutional  Court
then  applied  the  principle  of  preferring  constitutionally
consistent interpretation over annulment in a number  of  other
decisions in proceedings to review norms (e.g. Pl. US 5/96; Pl.
US  19/98;  Pl.  US 15/98; Pl. US 4/99; Pl. US  10/99;  Pl.  US
17/99).
      These  conclusions concerning optimization when resolving
conflict  between constitutionally guaranteed values, based  on
the  content and purposes of the simple law reviewed,  together
with   the  method  of  giving  priority  to  a  constitutional
interpretation  over  annulling a statute,  are  constitutional
arguments for reviewing the constitutionality of § 42 par. 1 of
Act  no. 148/1998 Coll., as amended by later regulations, which
fully  correspond to the conclusions reached  by  applying  the
methodology  of  analyzing simple law,  based  on  teleological
reduction,  objectively teleological analysis,  and  systematic
analysis,  which includes the rule lex specialis  derogat  legi
generali.  For this reason the Constitutional Court denied  the
petition of the District Court in Prerov to annul § 42  par.  1
of   Act  no.  148/1998  Coll.,  on  Protection  of  Classified
information  and  Amending Certain Acts, as  amended  by  later
regulations.
      In  a  number  of its decisions the Constitutional  Court
addressed  the  interpretation  of  Art.  89  par.  2  of   the
Constitution, in particular, in its most recent  case  law,  in
the  judgment  Pl. US 2/03, under which, “it is  not  only  the
verdict  of  the  judgment  which  is  binding,  but  also  the
reasoning,  or  those  parts of it which contain  ‘significant’
grounds “ (similarly, judgment file no. III. US 200/2000).  The
Constitutional Court continues to hold these opinions.
     A special situation arises in this regard with proceedings
on the review of norms where the Constitutional Court denies  a
petition  to annul a statute, other legal regulation, or  their
individual provisions, and bases its decision on the  principle
of   giving  priority  to  constitutional  interpretation  over
annulment  of  a  statute,  other legal  regulation,  or  their
provisions,  under  which principle, in  a  situation  where  a
certain  provision of a legal regulation permits two  different
interpretations,  one being consistent with the  constitutional
order and the other inconsistent, there are no grounds to annul
that   provision;  when  applying  the  statute,  other   legal
regulation, or their provisions, the bodies of public power, in
particular   courts,  must  interpret  that  provision   in   a
constitutional  manner (Pl. US 48/95 and  other  decisions).  A
different interpretation of Art. 89 par. 2 of the Constitution,
in judgments which deny petitions to annul legal regulations on
the    grounds    of    giving   priority   to   constitutional
interpretation, would make the Constitutional Court’s decisions
legally  meaningless, or confusing, and at the same time  would
force  the  Constitutional Court to steps which lead to  absurd
and  unsustainable results: to not rely on the  possibility  of
constitutionally   consistent   interpretation,   abandon   the
principle  of  judicial self restraint, and  if  there  is  the
slightest     chance    of    constitutionally     inconsistent
interpretation  of a contested regulation,  to  annul  it.  For
these reasons, in these proceedings on review of norms, given a
negative    verdict   with   interpretative   arguments,    the
Constitutional  Court  placed  the  fundamental  constitutional
principle, arising from a number of significant grounds, in the
verdict section of the judgment.
Notice:   Decisions  of the Constitutional  Court  can  not  be
appealed.
Brno, 28 January 2004

Dissenting Opinion
of  Constitutional  Court  judge JUDr.  Vojen  Guttler  to  the
decision  of  the  Plenum  of the Constitutional  Court  of  28
January  2004  in  the matter of a petition from  the  District
Court  in  Prerov seeking the annulment of § 42 par. 1  of  Act
no. 148/1998 Coll., on Protection of Classified Information and
Amending Certain Acts, as amended by later regulation

I.
1) The Plenum of the Constitutional Court decided in part I. of
its verdict that the petition is denied.
The  nucleus of this verdict in the judgment of the  Plenum  of
the  Constitutional  Court  is  the  idea  that  protection  of
classified   information  is  a  special   area   in   criminal
proceedings,  so  that the regime for it  is  governed  by  the
Criminal  Procedure  Code, and not by  the  Act  on  Classified
information,  which does not apply at all to  this  area  (i.e.
also  not  to the issue of access to classified information  by
attorneys acting as defense counsel).
     I do not accept this thinking.
First  of  all,  I  point out – as was  also  said  during  the
Plenum’s  discussions  –  that the  wording  of  the  contested
provision  of  the  statute – read outside  of  any  particular
context    –    does    not   in   itself    actually    create
unconstitutionality. Of course, the contested provision can not
be read so narrowly. It is evident that the amended § 42 par. 1
of the Act deleted attorneys – to which it previously expressly
applied  –  from  the  original  text  precisely  because   the
amendment  wished, in contrast to the previous legal framework,
to  include attorneys in the group of person who are  generally
subject  to  the regime of security clearances by the  National
Security Office (the “NSO”), including in criminal proceedings.
If  the  Constitutional Court denied the petition to annul  the
contested  provision,  and  in the reasoning  of  its  judgment
merely  expressed the opinion that Act no. 148/1998 Coll.  does
not  apply at all to the area of criminal proceedings (and thus
also not to attorneys acting as defense counsel), in my opinion
it created the risk that in practice, some (and not only in the
courts)  will  not accept this, it being merely  the  reasoning
section  of the judgment. In this regard, it is appropriate  to
point out that the contested (amended) provision of the Act  is
a  lex posterior in relation to the Criminal Procedure Code, on
which the Plenum’s judgment relies. For this reason as well, it
is  not indisputable whether the Criminal Procedure Code really
is  a  lex  specialis,  as  regards  protection  of  classified
information, in relation to Act no. 148/1998 Coll., or  whether
the  opposite  is  the  case. In my opinion,  in  this  overall
context, it is necessary to review the constitutionality of the
contested provision, insofar as it deleted attorneys  from  the
group  of people who are not subject to security clearances  by
the NSO. I believe that there is an unconstitutional gap in the
statute, which I discuss more closely elsewhere.
      Therefore,  I  believe  that  the  cited  opinion  should
outweigh the arguments (though they are well worked out) in the
Plenum’s  judgment, which are based particularly on  comparison
with  the  new  §  40a  of  the  Civil  Procedure  Code  (which
establishes  a  special framework for this area)  and  conclude
that  if,  before  the  amendment  of  the  Act  on  Classified
information,  there was an exception for defense  counsel  from
the  obligation to undergo a security clearance,  arising  both
from  the  Act on Classified information, and from the Criminal
Procedure Code, this can only be seen as superfluous.
      The  Plenum’s judgment argues – among other things – that
the  possible establishment of an exception (from NSO  security
clearances)   for   defense  counsel  does  not   address   the
fundamental  issue, i.e. the access of the  accused  person  to
classified information. However, as far as we know, no relevant
body  of  the  Czech Republic has posed this question.  In  any
case,   the  accused’s  right  to  have  access  to  classified
information  in his own case is not questioned in  the  opinion
from  the NSO, which, on the substantive side, is most affected
by this issue.
     I emphasize that in relation to part I of the verdict this
dissenting  opinion is mainly guided by the attempt  to  ensure
the   highest  possible  degree  of  legal  certainty  in  this
exceptionally sensitive area.
2)  In part II. of its verdict the Plenum of the Constitutional
Court  said  that  clearance  of defense  counsel  in  criminal
proceedings  for  purposes of access to classified  information
through a security clearance by the National Security Office is
inconsistent with Art. 37 par. 3, Art. 38 par. 2, and  Art.  40
par.  3  of the Charter of Fundamental Rights and Freedoms  and
with  Art. 6 par. 3 let. c) of the Convention on Protection  of
Human Rights and Fundamental Freedoms.
      On  the  substantive  side I naturally  agree  with  this
verdict. It corresponds to my opinion, discussed in more detail
in  the next part of this dissenting opinion. Therefore, I went
on  to  say that the Constitutional Court should have  annulled
the contested provision.
      However,  on  the formal side I do not  agree  with  that
verdict.  This is because the statement of law given  there  is
part  of  the  verdict of the Constitutional Court’s  judgment,
although  it  is  undoubtedly  a significant  statement,  which
belongs   in  the  reasoning  of  the  Constitutional   Court’s
judgment.  Although I am basically against excessive formalism,
I state that under Article 88 par. 2 of the Constitution judges
of  the Constitutional Court are (also) bound in their decision
making  …  by  the  Act in paragraph 1, i.e. Act  no.  182/1993
Coll., on the Constitutional Court. That Act provides, in §  70
par. 1 and 2, that the Constitutional Court – depending on  the
conclusion  it reaches – shall decide either that a statute  or
other  legal  regulation  or  their individual  provisions  are
annulled,  or  shall  deny  the  petition.  The  Act   on   the
Constitutional  Court  does not recognize  any  other  type  of
verdict  in  proceedings  to annul a  statute  or  other  legal
regulation.  So,  if the Constitutional Court overlooked  these
provisions,  it  acted – in my opinion  –  in  too  activist  a
manner,  and  thus  exceeded the bounds  given  to  it  by  the
Constitution  and  by the Act on the Constitutional  Court.  In
this  regard  one  can only add that this is a  ground-breaking
verdict, which has never yet been heard in the history  of  the
Constitutional Court of the Czech Republic.

II.
I  am  of the opinion that the Constitutional Court should have
granted the petition, annulled the contested § 42 par. 1 of Act
no.  148/1998  Coll.,  as  amended by  later  regulations,  and
postponed   the   enforceability  of  this  judgment   for   an
appropriate  time  so  that  the  legislature  would  have  the
opportunity   to   pass   a   legal   framework   which   would
proportionately  guarantee  the  constitutional  right   to   a
defense, but also reflect the public interest in protection  of
classified information.
      On the substantive side, this opinion can be justified as
follows:
A)  The right to a defense is considered a fundamental right of
the   individual,   which  is  provided  in   all   the   basic
international documents concerning fundamental human rights and
freedoms.
      The International Covenant on Civil and Political Rights,
in Art. 14 par. 3 let. d) provides the right of everyone who is
accused of a crime “to be tried in his presence, and to  defend
himself  in  person  or  through legal assistance  of  his  own
choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without
payment  by him in any such case if he does not have sufficient
means to pay for it.”
     The right to a defense is also enshrined in the Convention
for the Protection of Human Rights and Fundamental Freedoms, in
Art. 6 par. 3 let. c), under which everyone who is accused of a
crime  has the following minimum rights: “to defend himself  in
person  or through legal assistance of his own choosing or,  if
he  has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require.”
     The extent of the right to a defense is also emphasized in
decisions  of  the  European  Court  of  Human  Rights,   which
concluded that the aim and subject matter of Art. 6 par. 3 let.
c) is to ensure effective protection of the right to a defense,
and therefore a person charged with a criminal offense who does
not  wish  to  defend himself in person must be  able  to  have
recourse  to  legal assistance of his own choosing [Pakelli  v.
Germany,  decision of 25 April 1983, series A no. 64, cited  in
Berger V., Judikatura Evropskeho soudu pro lidska prava,  {Case
Law  of  the European Court of Human Rights} IFEC, 2003  (Czech
edition  ),  p. 313]. the European Court of Human  Rights  also
stated  that  Although  not absolute,  the  right  of  everyone
charged with a criminal offence to be effectively defended by a
lawyer,
assigned  officially  if  need be, is one  of  the  fundamental
features of a fair trial [Poitrimol v. France, decision  of  23
November 1993, series A no. 277-A, id., p. 307].
      The  Constitutional Court of the CR  also  addressed  the
right  to  a  defense;  in  its  decisions  it  stated  certain
attributes  of this fundamental right based on the Czech  legal
order,  specifically  the  Charter of  Fundamental  Rights  and
Freedoms (see, e.g. Constitutional Court judgment file  no.  I.
US  592/2000, volume 25, p. 118 et seq.). Under Art. 37 par.  2
of   the  Charter  of  Fundamental  Rights  and  Freedoms,   in
proceedings  before  courts,  other  state  bodies,  or  public
administrative  authoritieseveryone shall  have  the  right  to
assistance  of  counsel  from  the  very  beginning   of   such
proceedings.Under Art. 40 par. 3 of the Charter an accused  has
the  right  to be given the time and opportunity to  prepare  a
defense and to be able to defend himself, either pro se or with
the  assistance  of counsel. The judgment also  refers  to  the
Convention  for the Protection of Human Rights and  Fundamental
Freedoms, which provides in Art. 6 par. 3 let. b) and c),  that
everyone  charged  with  a criminal offence  has,  among  other
things, the right to have adequate time and facilities for  the
preparation of his defence and the right to defend  himself  in
person  or through legal assistance of his own choosing.  These
provisions  enshrine certain fundamental procedural  guarantees
of the right to a fair trial which are an indispensable part of
the  concept of a state governed by the rule of law. The  right
to a defense is one of the most important fundamental rights of
persons  prosecuted in criminal proceedings  and  is  aimed  at
achieving  a just decision, issued not only in the interest  of
the prosecuted person, but undoubtedly also in the interests of
a  democratic  state governed by the rule of  law,  founded  on
respect  for  the  rights and freedoms of man and  of  citizens
(Art.  1  of the Constitution of the CR). Therefore, the  state
must  ensure conditions so that these principle can be realized
through  appropriate procedural guarantees of the  position  of
the defense counsel and of the accused.
     It must be emphasized that the constitutionally guaranteed
right  to  a  defense (Art. 37 par. 2, Art. 40 par.  3  of  the
Charter  of  Fundamental Rights and Freedoms –  the  “Charter”)
together with the presumption of innocence (Art. 40 par.  2  of
the  Charter)  are fundamental conditions for a  fair  criminal
trial  (Art.  36  par. 1 of the Charter); these  constitutional
guarantees  are  also  reflected in the  applicable  procedural
regulation,  the Criminal Procedure Code (§ 33 par.  1  of  the
Criminal  Procedure  Code),  which,  in  accordance  with   the
Constitution, is quite clearly built on the principle of giving
priority  to the choice of defense counsel (§§ 33  par.  1,  37
par.  2  of  the  Criminal Procedure Code), which  the  accused
(defendant) is entitled to apply at any stage of proceedings in
progress  (§  37  par.  2  of  the  Criminal  Procedure  Code);
therefore,  it is fundamentally up to the accused  (defendant),
when  and  whom  of  the persons authorized  to  provide  legal
assistance through defense in criminal proceedings (§ 37 of the
Criminal  Procedure Code) he will entrust with his defense,  or
whether he will make use of his right to choose. Of course, the
accused  (defendant)  bears  responsibility  himself  for   his
choice,  once  made,  and  therefore a  general  court  is  not
authorized  to  evaluate the “quality” of the  defense  or  the
“inactivity” of defense counsel, as he (the defendant) may  not
be  denied  the  right  to choose the trial  tactics  which  he
intends  to  use to present his case in proceedings before  the
court; the contrary situation would be obvious interference  by
the  state power in the constitutionally guaranteed fundamental
right  to  a  defense,  and perhaps also a  certain  –  clearly
undesirable and primarily constitutionally inadmissible –  form
of state control over exercise of that right.

B)  The Constitutional Court also relies on these principles in
these  proceedings,  even though, naturally,  it  also  weights
arguments  emphasizing the lawful need of the state to  reflect
its  legitimate  interests (public interests  in  the  area  of
classified  information). Therefore, one must evaluate  whether
the fundamental right to a defense may be limited by the public
interest  in  protecting  classified  information  (the  public
disclosure of which could damage the security interest  of  the
state)  and whether – if so – including attorneys (specifically
defense  counsel  in  criminal proceedings)  in  the  group  of
persons  subject  to the regime of Act no. 148/1998  Coll.  and
therefore  NSO clearance is a limitation which, in  the  matter
being  adjudicated, is sufficiently proportional that it  still
preserves the essence and significance of the fundamental right
to a defense.
      The  Constitutional Court concludes  that  protection  of
classified  information  can  basically  be  described   as   a
legitimate public interest which can – in some aspects  –  also
affect  the  fundamental right to a defense. This can  also  be
concluded  from a number of comparable articles of the  Charter
of   Fundamental   Rights  and  Freedoms,  which   govern   the
possibility  of limiting one or another freedom by statute,  if
it  is a measure which is necessary in a democratic society for
–  among other things – the security of the state (cf. Articles
14  par. 3, 17 par. 4, 19 par. 2, 20 par. 3, and 27 par.  3  of
the  Charter).  However, the Constitutional Court  nevertheless
believes  that including attorneys – defense counsel –  in  the
group  of  persons subject to NSO clearance  would  be  such  a
necessary  measure  which is proportional to  the  essence  and
significance  of  the  fundamental  right  to  a  defense.   It
concludes   this  based  on,  in  particular,   the   following
considerations:
a)  The  primary  essential point is that  including  attorneys
(defense  counsel) in the group of persons subject to clearance
means  violating one of the fundamental principles of advocacy,
the principle of the attorney’s independence from the state, so
that he can practice advocacy freely, that is, act as the legal
representative  of a natural person or legal entity,  including
against the state, without fear of state penalties against him.
Imposing  security clearance on an attorney as a condition  for
providing  legal  services  in  a  trial  in  which  classified
information  may  appear could mean as a consequence  that  the
state  could  determine who is entitled to provide  such  legal
services, and in practice thereby eliminate those attorneys who
are  “uncomfortable” persons. This would naturally be  flagrant
interference in the accused’s right to a defense.  It  must  be
emphasized  here that a client fundamentally  has  a  right  to
representation by an attorney of his choosing.  It  is  obvious
that there is no legal regulation under which attorneys can  be
forced to submit to security clearance. A contrary legal regime
could lead to a situation where a “cleared” attorney would  not
be  available at all, which would, as a consequence, also limit
a  general  court,  where it is required by  law  to  designate
defense  counsel  in  cases of so-called “compulsory  defense.”
Here  one  can  also rely on the persuasive  arguments  of  the
petitioning general court and the grounds used by the Senate in
its opinion on the petition to annul the contested provision.
b)  Thus, the Constitutional Court must weigh whether – in view
of the reasons presented – the contested § 42 par. 1 of Act no.
148/1998  Coll.,  as  amended by later  regulations  (note:  in
particular   as  amended  by  Act  no.  310/2002   Coll.),   is
inconsistent  with Art. 37 par. 2 and Art. 40  par.  3  of  the
Charter,  with  Art.  14 par. 3 let. d)  of  the  International
Covenant on Civil and Political Rights, and with Art. 6 par.  3
let.  c)  of  the Convention on Protection of Human Rights  and
Fundamental  Freedoms,  on  which the  petitioner  relies.  The
Constitutional  Court is convinced that such  conflict  exists.
However, it does not lie in the actual text of the Act (in  its
wording)  but in the gap which the Act created. Thus,  what  is
unconstitutional  is  the legislature’s silence  –  undoubtedly
intentional   –   which   results   in   the   constitutionally
unacceptable  limitation  of the right  to  a  defense.  (On  a
doctrinal  concept  of  the  term  “legislative  omission”  cf.
Simicek  V.,  Legislative Omission as violation of  Fundamental
Rights,  in:  Deset  let  Listiny  zakladnich  prav  a   svobod
v pravnim radu Ceske republiky a Slovenske republiky [Ten Years
of  the Charter of Fundamental Rights and Freedoms in the Legal
Order  of the Czech Republic and the Slovak Republic],  Dancak,
B.,  Simicek, V., eds., Brno 2001 p. 144-159.) One  can  surely
conclude that if the legislature’s silence arising from  simple
omission  can be found unconstitutional, this applies  all  the
more  to cases where the legislature – in a particular  case  –
created a gap in the law intentionally.
      However, in this particular case, the gap is not a  false
one,1  meaning  incompleteness (absence)  of  written  law,  in
contrast  to  the  explicit regulation of similar  cases,  i.e.
incompleteness  in terms of the principle of equality  or  from
the  viewpoint of general legal principles. An illustration  of
how to address such a gap is the judgment file no. Pl. US 48/95
(see  Collection  of Decisions, vol. 5, judgment  no.  21),  in
which  the Constitutional Court normatively filled in  the  gap
created  by  inequality  in  the statutory  framework  using  a
constitutionally  consistent interpretation  of  the  statutory
framework, and denied the petition to annul it, as it  was  not
inconsistent with the constitutional order.
      However,  that  method can not be  used  in  the  present
matter. The provision whose current text removes attorneys from
the  list of persons not subject to NSO clearance – whereby  it
establishes unacceptable limitation of the right to a defense –
should  contain a legal framework under which a person  who  is
being  criminally  prosecuted  is  not  restricted  as  regards
choosing  from only a certain limited group of defense counsel.
However,  the  wording  of the contested  provision  completely
rules out the possibility of that interpretation.
       Finally,   in  this  regard  one  can  also   point   to
Constitutional Court judgment file no. Pl. US 36/01,  vol.  26,
p.   329,   which  specifically  considered  the  question   of
unconstitutional legislative omission.
c)  In  its  position statement, the NSO also stated  that  the
unique   position  of  attorneys  in  relation  to   classified
information would be “a certain disproportion, in view  of  the
requirements  imposed on bodies acting in criminal proceedings,
including   state  prosecutors,  who  are  required   to   meet
conditions for access to classified information under  Act  no.
148/1998  Coll.”  However,  the Constitutional  Court  can  not
accept  this  argument  either. This  is  because  the  NSO  is
comparing  non-comparable  things:  the  position  of  a  state
prosecutor,  who represents the state in criminal  proceedings,
and  the  position  of defense counsel, whom  the  accused  can
freely chose and who will defend him against the state.  It  is
logical  that the state can set rules for access to  classified
information for persons who are its, that is “state  employees”
and perform its tasks, which, in this context, applies to state
prosecutors.  However, one can not take the same  view  of  the
role  of  defense  counsel, whose defense protects  the  client
precisely   against  that  state  whom  the  state   prosecutor
represents in criminal proceedings.

d)  For  completeness, the Constitutional Court also considered
the legal framework of some other democratic European countries
concerning the issues under review.
      According  to the expert report from The Law  Society  in
London, issuing of “state license” to attorneys does not  exist
in  England  and Wales. Thus, there is no privileged  group  of
attorneys who would obtain information from the state to  which
another group of attorneys would not have access. Under  common
law  the  judge in a criminal matter orders information  to  be
made  public which the state considers “sensitive” (i.e.  which
it  tries  to  keep  secret) if such  material  can  prove  the
innocence  of  an accused person or otherwise prevent  judicial
error  see Kean (1994) 99 CR.App.R 1 appendix 1. In such  case,
the  prosecution must either make the material public  or  stop
the  proceedings.  If, on the contrary, the judge  upholds  the
right  to designate the material “sensitive,” then the material
is  not  made  public; it is then edited so that key  sensitive
passages  are  removed.  As  regards the  statutory  framework,
dissemination  of certain information provided in  the  law  is
forbidden, so that the judge’s options are limited thereby. The
statutes  which  are cited in the expert report  from  The  Law
Society  basically concern the ban on disseminating and  making
public  sensitive  or secret material (under  these  statutes),
however,  they  do not directly address the issue  of  a  state
license for a certain group of attorneys. The Law Society  says
in conclusion that the English system does not create a special
category of persons who are trustworthy for work with sensitive
materials,  but it is “the material itself” which is  protected
against unauthorized publication.
      As  regards France, the Constitutional Court has  at  its
disposal  a written report from the foreign department  of  the
Czech  Bar Association, reporting information from Me.  Laurin,
secretary  of  the  Paris Bar Association.  According  to  this
information,  France does not have a special list of  attorneys
or clearances. If the relevant ministry does not de-classify  a
matter – if it is part of a fact which is a state secret –  the
relevant  document can not be part of the file,  so  that  such
fact  is not proved, “doubts remain, and those act in favor  of
the accused.” Neither the attorney, or the investigating judge,
or the prosecutor are informed of the state secret, and neither
the judge deciding the matter nor any of the others undergo any
sort of clearance.
      As regards, Austria, it was determined from a report from
the  Czech  Bar Association (prepared according to  information
from  Dr. Winternitz, an attorney in Vienna, registered in with
the Czech Bar Association with authorization to practice in the
Czech  Republic), that there is no statutory  norm  in  Austria
which would require attorneys to have passed a special security
exam  if state secrets are to be discussed in proceedings.  Nor
is  any  such  exam known to be required in practice.  In  such
matters  the  attorney  is,  however,  bound  by  the  duty  of
confidentiality. In addition, in these cases the public can  be
excluded  from  proceedings; then neither the parties  nor  the
attorney  may  disclose the contents of  proceedings  in  which
state secrets were discussed, subject to criminal penalties.
      As  regards  Germany, these issues are addressed  by  the
Directive for Criminal Proceedings and for Proceedings on Fines
(RiStBv) of 1 January 1977, in the version in effect  as  of  1
June  1998  (Art. 213, Art. 214). These provide, in particular,
the following:

a)  Facts and information which must be kept secret, especially
state  secrets, may be contained in case files only  if  it  is
necessary   for  the  proceedings.  When  handling   classified
information, regulations concerning them must be observed,  and
when   handling   classified  information  of  inter-state   or
international origin, special regulations on protecting secrets
which  apply  to  them must be observed. This also  applies  to
disclosing classified information to defense counsel,  experts,
and  other  participants  in  proceedings  (e.g.  interpreters)
unless mandatory legal principles prevent it.
       Likewise,  when  disclosing  classified  information  to
attorneys,  experts, or other participants in  proceedings,  if
there   are   mandatory   legal  principles   cutting   through
regulations on classified information or special regulations on
the  protection of secrets, the recipients must be emphatically
reminded  of  their  duty  to keep the  secret;  they  must  be
advised,  when  handling  classified  information,  to  proceed
according  to  regulations concerning individual  cases,  which
will  be explained to them. A note is entered in the file about
these  warnings and recommendations, which is to be  signed  by
the recipient.
b) Disclosing classified information to defense counsel has the
same regime as viewing files concerning classified information.
Files   containing   classified   information   classified   as
confidential,  secret, and top secret, it  must  be  especially
carefully verified
  -   whether there are any serious reasons which prevent giving
     files to the attorney to view in his office or home,
-   whether there are legal stipulations as regards attorneys
making notes, transcripts, extracts or photocopies by
attorneys.
c)  In  appropriate cases the state prosecutor is  to  formally
bind   attorneys,  experts,  and  other  participants  of   the
proceedings to keep secret information disclosed to them  which
requires  secrecy, and to point out that violating the  secrecy
is subject to criminal penalties. It must be taken into account
that  this  duty to preserve a secret is possible only  on  the
basis of a statute or with the consent of the injured party.
d)  In  investigations which concern the loss or  “issuing”  of
classified information (i.e., evidently, relevant materials) it
is  necessary to review whether there is an obligation to  take
into  account  foreign  interests  in  preserving  the  secret.
Therefore, it is recommended to consult the federal minister of
the interior, who maintains a list of international treaties on
protection of secrets.
      Thus,  one  can  close  by saying that  in  the  compared
European  countries, there are no special groups  of  attorneys
who  would  be  cleared  for  access  to  so-called  classified
information  by  the appropriate state body. That  too  can  be
considered  one  of  the  arguments in  favor  of  the  opinion
presented in this text.

Brno, 28 January 2004