<pre>

     The  Plenum  of  the  Constitutional Court  of  the  Czech
Republic, after oral proceedings on 5 December 2001, decided in
the matter of a petition by a group of 44 deputies to annul Act
no.  451/1991  Coll.,  CNR  Act no.  279/1992  Coll.,  Act  no.
422/2000 Coll. and Act no. 424/2000 Coll., as follows:

The provisions of § 3 par. 1 letter d), § 3 par. 3, § 3 par.  4
and  §  5  par.  2  of CNR Act no. 279/1992 Coll.,  on  certain
additional prerequisites for holding of certain offices  filled
by  designation or appointment of members of the Police of  the
Czech  Republic  and  members of the  Corrections  Corps  (Sbor
nápravné  výchovy) of the Czech Republic, as amended  by  later
regulations,  are  annulled as of  the  day  this  judgment  is
promulgated in the Collection of Laws.
The remainder of the petition is denied.


                          Reasoning:
                              I.
     On  2  March  2001  the Constitutional  Court  received  a
petition  from a group of 44 deputies in which the  petitioners
seek the annulment of:
     *   Act  no.  451/1991  Coll.,  which  sets  down  certain
additional   preconditions  for  holding  certain  offices   in
governmental bodies and organizations of the Czech  and  Slovak
Federal  Republic, the Czech Republic and the Slovak  Republic,
as  amended  by  later regulations (also the “large  lustration
law”),
     *  Act  no. 279/1992 Coll., on certain other prerequisites
for  the  exercise of certain offices filled by designation  or
appointment of members of the Police of the Czech Republic  and
members  of  the  Corrections Corps of the Czech  Republic,  as
amended by later regulations (also the “small lustration law”),
     *   Act   no.  422/2000  Coll.,  which  amends  the  large
lustration law,
     *   Act   no.  424/2000  Coll.,  which  amends  the  small
lustration law.
     The  petitioners intention is aimed, for reasons discussed
further  below, at removing the cited laws in future  from  the
legal  order  of the Czech Republic due to their  conflict,  in
particular with the provisions of art. 1 of the Constitution of
the  Czech  Republic  no. 1/1993 Coll.,  as  amended  by  later
regulations (the “Constitution”), art. 1, art. 4 par. 2  and  4
and  art.  21 par. 4 of the Charter of Fundamental  Rights  and
Freedoms,  no.  2/1993 Coll., as amended by  later  regulations
(the  “Charter”),  art.  4 of the International  Convention  on
Economic,  Social and Cultural Rights, no. 120/1976 Coll.,  and
with  the  World Trade Organization Discrimination  (Employment
and  Occupation)  Convention, no. 111 from 1958  (no.  465/1990
Coll. – “Convention no. 111”).
      The  Constitutional  Court  of  the  CSFR  reviewed   the
constitutionality of the large lustration law in  1992  upon  a
petition  from 99 deputies of the Federal Assembly. By judgment
of  26 November 1992, file no. Pl. ÚS 1/92, it found that  §  2
par. 1 letter c), § 2 par. 2 and § 4 par. 2, 4 of the contested
Act are not in accordance with art. 2 par. 3 and art. 4 par.  1
and 3 of the Charter and art. 4 of the Convention; § 2 par.  3,
§  3  par.  2 and § 13 par. 3 of the contested Act are  not  in
accordance  with art. 1 of the Charter, and § 11, §  12,  §  13
par.  1, 2, 4 and 5, § 18 par. 1 and § 20 of the contested  Act
are  not in accordance with art. 37 par. 1 and art. 38  of  the
Charter  and  with  art. 98 par. 1 of the Constitution  of  the
CSFR, no. 100/1960 Coll., as amended by Constitutional Act  no.
326/1991  Coll. The cited provisions became ineffective  on  15
December 1992.
     In  evaluating the constitutionality of Act  no.  451/1991
Coll., as the petition states, the Constitutional Court of  the
CSFR began with the situation at the time the Act was passed (4
October 1991), or at the time roughly one year later. This  Act
primarily pursued the aim of arranging that in state and public
bodies  and  in  workplaces  which are  connected  to  national
security,  persons who held leading offices under the  previous
regime could be replaced by persons from whom loyalty could  be
expected to democratic principles on which the state is  built.
It  was also to help avert the risk of subversion or a possible
return  of  totalitarianism  or  at  least  to  limit  it.  The
Constitutional Court of the CSSFR also emphasized its  view  by
references to the limited time during which the lustration laws
was to be in effect. In its judgment it stated: “The conditions
prescribed  by the statute for holding certain positions  shall
apply only during a relatively short time period by the end  of
which  it is foreseen that the process of democratization  will
have been accomplished (by 31 December 1996). The basic purpose
of  this  statute is to prescribe, exclusively for the  future,
the  preconditions for holding certain narrowly defined offices
or  for  engaging in certain activities precisely specified  in
the  statute,  and not permanently, but only for a transitional
period.”
     In  January 1999 the Chamber of Deputies of the Parliament
of  the  Czech  Republic rejected a bill proposed  by  deputies
which  was  to  annul the large lustration law  (PS  1998,  3rd
election period, publication no. 74). The background report  to
the  bill  stated,  among other things,  the  position  of  the
Administrative Council of the International Labour Office (file
no.  GB.252/16/19). It contained a call on the CSFR  government
to  implement necessary  measures to annul or amend the (large)
lustration  law  and  ensure compensation  of  damages  to  all
persons  who  had been unfairly affected by it. The  background
report  also points out that the lustration law is  subject  to
constant  criticism  in  the Council of  Europe,  the  European
Parliament    and    European   and   world    non-governmental
organizations,  and therefore it is highly desirable  to  annul
this extraneous law. In evaluating the situation connected with
the performance of lustrations the investigation commission  of
the International Labour Organization stated in 1994 that there
had   been   only   a  little  progress  in  implementing   the
recommendation  of the Administrative Council of  the  ILO.  It
expressed “deep regret” that the law had been extended to  2000
without  regard  to  the  position of  the  ILO  Administrative
Council. The commission recommended that the ILO Administrative
Council,  among  other  things,  call  on  the  Czech  Republic
government  to take measures which would lead to the  annulment
or  amendment  of  those provisions of Act no. 451/1991  Coll.,
which are incompatible with Convention no. 111.
     The  constitutionality of the small lustration law was not
reviewed,  so it continues to be valid and in effect,  even  in
those  parts which correspond to parts of the large  lustration
law  which the Constitutional Court of the CSFR declared to  be
unconstitutional.  It  too  was to  be  affected  by  the  bill
submitted  in 1998 as chamber of deputies publication  no.  73,
which  was  aimed  at  annulling it; the  Chamber  of  Deputies
rejected this bill also.
     The  group of deputies sees the substance of its  petition
in  the time factor of the social dynamic between November 1989
and  2000, in which one set of democratic elections took  place
(to  regional representative bodies), and in the changes  which
took  place during that time. In the petitioners’ opinion,  the
legislative,   executive   and  judicial   powers   have   been
definitively  constituted  on democratic  foundations,  leading
positions  in  state and other public bodies  and  institutions
have not, for a long time, been held by persons who were put in
place by the previous political regime, whereby the reasons for
both lustration laws, insofar as they lay in the need to change
the  circle  of  persons  holding these positions,  lost  their
justification during the course of that time. Leading positions
are  mostly filled on the basis of a selection process in which
it is possible to consider the applicant’s loyalty to the Czech
Republic  as a democratic state based on the rule  of  law,  as
documented  by  the applicant’s actual behavior in  the  period
after  November 1989; this applies even more so in  matters  of
public  law  service  relationships in  the  armed  forces  and
security   forces,   which   are  decided   in   administrative
proceedings.   Only  individuals  who  have   been   issued   a
certificate  can be acquainted with classified  information  of
all  classified levels. One of the conditions for  issuing  the
certificate is the circumstance that the individual is reliable
in terms of security, i.e. that the individual was not found to
have  a  security risk, consisting, e.g. in activity  aimed  at
suppressing  human  rights or freedoms or in  support  of  such
activity  (§  17, § 18 and § 23 of Act no. 148/1998  Coll.,  on
Protection of Classified Information and Amending Certain Acts,
as  amended by later regulations (the “Protection of Classified
Information Act”).
     The  petitioners believe that the risk of subversion or  a
possible return of totalitarianism, the existence of which  the
Constitutional  Court  of  the  CSSFR  admitted  in   1992   in
connection with the holding of public office by persons tied to
the  previous  regime, is no longer a danger. The  intelligence
services   are  required  to  secure  information  on  possible
intentions   and   activities  aimed  against  the   democratic
foundations of the Czech Republic under Act no. 153/1994 Coll.,
on  the Intelligence Services of the Czech Republic, as amended
by   later  regulations  (the  “Intelligence  Services   Act”).
Moreover, as the petitioners point out, the Communist Party  of
Bohemia and Moravia functions legally in the Czech Republic  as
a   political  party  with  not  negligible  voter  support  in
parliamentary  and  communal elections.  The  law  permits  the
activities  of  political  parties which  seek  to  remove  the
democratic  foundations of the state  or  which  are  aimed  at
seizing  and  holding  power  restricting  other  parties   and
movements  from  seeking power by constitutional  means  to  be
suspended  by  a court, or for such a party to be dissolved  by
court  decision.  The Czech Republic, in which the  “democratic
process  was  accomplished,”  is  at  present  struggling  with
serious  risks of an entire different kind, examples  of  which
are  economic  crime,  organized crime, corruption  and  racial
hatred.
     Under  art. 3 of the Constitution, the Charter is part  of
the  constitutional  order  of  the  Czech  Republic.  One  can
conclude from its status the binding nature of the decisions of
the  Constitutional Court of the CSFR, which were issued on the
basis  of  the Charter. That court recognized the substance  of
the  regulation  implemented by the  large  lustration  law  as
constitutional  in view of the situation at  the  time  in  the
state and in society, i.e. the situation shortly after the fall
of  the previous regime and the renewal of democracy, and  also
in  view of the fact that the restrictions implemented  by  the
law  were  not to apply absolutely, but only for a transitional
period,  i.e.  until  31 December 1996.  In  this  context  the
Constitutional Court of the CSFR recognized in  1992  that  the
interest of society and the state (the public estate) in having
persons  in certain publicly important positions to be replaced
and  to  have  measures  implemented  to  avert  the  risk   of
subversion  or  a  possible  return  to  totalitarianism  takes
precedence  before the fundamental right of  citizens  to  have
access  under  equal  conditions to elected  and  other  public
offices (art. 21 par. 4 of the Charter) and before the right to
conduct  one’s employment or profession without discrimination,
under Convention no. 111.
     Because the public interest (the public estate), the  then
existence of which the federal Constitutional Court took  as  a
starting point in 1992, has passed, the reasons for restricting
fundamental  rights and freedoms guaranteed by the Charter  and
international  treaties under art. 10 of the Constitution  have
also passed.
     The large and small lustration laws, as well as amendments
to  them,  no.  422/2000  Coll. and no. 424/2000  Coll.,  which
extended  the  validity  and  effectiveness  to  an  indefinite
period,   restrict   without  due  cause   the   abovementioned
fundamental  rights,  and are thus in conflict,  in  particular
with art. 4 par. 2 and 4 of the Charter, as well as with art. 1
of  the  Constitution,  under which the  Czech  Republic  is  a
democratic  state  governed by the rule of  law.  For  all  the
foregoing  reasons, therefore, the group of deputies  petitions
the  Constitutional Court to make a judgment annulling all four
of the cited laws.
     
                              II.
     The  Constitutional  Court, under §  69  par.  1  Act  no.
182/1993  Coll.,  on the Constitutional Court,  as  amended  by
later  regulations (the “Act”), requested from the  Chamber  of
Deputies  and  the  Senate  of  the  Parliament  of  the  Czech
Republic, as participants, their positions on the petition.
     The  Chairman of the Chamber of Deputies of the Parliament
of  the  Czech  Republic stated concerning the petition,  among
other  things:  “…each democratic state is  entitled  to  pass,
within the limits of its constitutional order and international
obligations,  such  regulations  as  protect  and  promote  the
principles on which it is founded. Determination of the  period
for  which  such regulations are passed is not merely  a  legal
issue,   but  in  my  oopinion  primarily  a  political  issue,
connected  with the situation in our society. At the same  time
it  is also necessary to consider the fact that in a democratic
state  a  right  to any positions of power does not  exist  and
cannot  exist, as it is up to the state to decide the  criteria
by  which it will fill them. It is undoubted that such criteria
must  be  set  in advance and must apply equally to  all  cases
which  meet the set conditions. On the other hand, the  Chamber
of  Deputies also took into account the fact that every citizen
has the right to turn to the courts with a petition to issue  a
decision  whereby his possible collaboration with the communist
regime would be reviewed. The purposes of the cited laws is  at
the  present time to a certain extent also fulfilled  by  other
laws in effect; however, their full replacement can be expected
only  in  connection with passage of the Act on State  Service,
which  is  to contain a provision that designated positions  in
state  administration can be held only by persons who have  not
personally  been  at  fault in violation of  human  rights  and
freedoms. Based on the foregoing, I cannot but state my  belief
that  the legislative bodies passed the abovementioned laws  in
the  belief that they are in accordance with the constitutional
order and relevant international agreements.”
     The  Chairman of the Senate of the Parliament of the Czech
Republic  in  his  position  on the second  amendment  of  both
lustration laws(Acts no. 422/2000 Coll. and no. 424/2000 Coll.)
stated,  among other things: “The Senate committees which  were
assigned the draft amendments for review, recommended that  the
Senate  approve them … The Senate’s discussion was not  limited
to  the  content itself of the minor amendments (extending  the
validity  of  the  given laws), but to a decisive  degree  took
place as a dispute over the “lustration laws” themselves …  The
arguments for rejecting the amendments were based in particular
on  the  fact  that excluding citizens from the opportunity  to
seek  positions  in  state administration  was  being  done  by
formal, group characteristics, not by individual evaluation  of
persons  according to statutory criteria as to whether  or  not
they  are capable of observing democratic principles …  Critics
of  the  amendments in question also submitted that these  laws
clearly  did not include all categories of persons  which  they
should  include, but do include some which they clearly  should
not include … the general doubt was also raised, whether it  is
possible   to   find   a  solution  which  would   not   permit
discrimination and simultaneously ensure uncovering  those  who
were  responsible for communist repression and  could  endanger
the  transition to democracy. The arguments for  approving  the
amendments  …  were based in particular on the fact  that  each
state  has the right to set by statute personal conditions  for
holding  positions in state administration. One such  condition
is  …  also loyalty to the method of government. The democratic
method  then  requires a guarantee of the  certainty  that  its
office   holders  will,  under  all  circumstances,  heed   the
democratic  rights of citizens. This guarantee  is  provided  …
precisely by “lustrations”… Anyone who consciously participated
in  suppressing the rights of citizens is a potential danger to
a  democratic society, and thus does not meet the prerequisites
for  important positions in state administration … there is  no
legal  right to hold a position in state administration  …  the
lustration  laws  … do not restrict anyone in entering  into  a
political  office (deputies, senators, etc.) …  the  lustration
laws  are  not concerned with determining guilt and punishment.
In cases where the instrument of “lustration” is the records of
those  who  worked with the secret police, the person  affected
can turn to the courts to deny the truthfulness of the entry in
the records. Finally, those who defended passing the amendments
stated  the  opinion that, in principle,  it  is  a  right  and
obligation of democracy to protect itself. The criteria for the
continuation  of such defense is whether that which  should  be
natural in a society works by itself. If it is not so, the  law
must continue to be used to delimit the necessary rules.”
      The  petitioners’  response  to  the  positions  of  both
participants states: “Both … lustration laws … limit the rights
of  citizens on the basis of certain circumstances of a  formal
nature,  without it being reviewed in any way how  the  citizen
actually  behaved  in the period from 25 February  1948  to  17
November  1989  … This formalistic approach is constitutionally
quite  unacceptable 11 years after the fall  of  the  communist
regime  and differs markedly from the legal regulations  passed
in  other post-communist states (e.g. Poland), as well as  from
the  regulations which were passed in Germany  in  relation  to
former  Stasi  employees and those who collaborated  with  it.”
Concerning  the decisions of the ordinary courts in matters  of
petitions  for  protection  of personhood  in  connection  with
lustrations,  the  response emphasizes that “…such  a  decision
(i.e.  containing a verdict of unjustified registration on  the
part  of  the  StB) is … only moral and not legal satisfaction,
because  it  changes nothing about the fact  of  someone  being
registered  and the lustration law continues to apply  to  that
person. The fact that consent with registration was forced from
someone, perhaps by extortion, but the person in fact  did  not
collaborate  with  the State Security at all,  is  without  any
meaning whatsoever de jure .” The petitioners also point to the
fact  that “a democratic state governed by the rule of  law  is
undoubtedly  entitled  and obligated  to  protect  itself  from
persons who subvert the democratic foundations of the state  or
who would probably do so if given an opportunity. If they do so
by  restricting fundamental rights and freedoms, the scope  and
duration  in time of such restriction can not be a  matter  for
mere  “political consideration” by the momentary  parliamentary
majority:  only such restrictions can be permissible which  are
necessary  in a democratic society in the particular  situation
and  which do not otherwise exceed the bounds of constitutional
admissibility  ( … ). The formalistically conceived  lustration
laws  from 1991 and 1992, whose validity has now been  extended
ad  infinitum,  do not meet these requirements,  especially  as
since  that  time there have been marked changes  in  both  the
social situation and the legal order, which protects the  state
in  the  cited  respect  by numerous  others  (and  often  more
effective)  methods.”  The petitioners consider  the  arguments
against  annulling  the lustration laws and  their  amendments,
based on passing the Act on State Service, to be “…purely self-
serving…; this is testified to by the very fact that  this  Act
would concern only some state administration employees, who are
far  from  begin all those who are restricted by the lustration
laws  as  applied.”  They then add: “The  tendency  of  certain
political  circles  to expand the scope of application  of  the
lustration  laws even further was manifested in, e.g.  Act  no.
147/2001  Coll.,  which  expanded the application  of  Act  no.
451/1991 Coll. to public institutions of higher education …  Of
course,   the  lustration  law  does  not  apply   to   private
institutions  of  higher education (or to all  other  kinds  of
private  business  in  general).  Clearly,  the  legislator  is
concerned  only  with certain positions in a  certain  kind  of
institution  of  higher education, not with what  persons  will
participate  in  providing higher education.”  The  petitioners
close their response with a comment about the fact that § 19 of
the  large  lustration  law  is  lex  imperfecta  in  terms  of
practice,  as  “…e.g.  making public the  so-called  lustration
lists, i.e. data from the records of the State Security, is not
considered a public law delict.”
     The  Constitutional court also requested the  position  of
the Ministry of the Interior of the CR on the petition, and the
same  ministry’s position on the court disputes for  protection
of  personhood  which were led against the  Czech  Republic  by
persons who received a positive lustration certificate, as well
as on the result of proceedings in matters of issuing incorrect
negative lustration decisions.
     The Deputy Minister of the Interior stated, concerning the
petition  from the group of representatives, that he  “…had  no
comments.  He  believes that the legal arguments  were  already
presented in the past, by both the opponents and proponents  of
this  legal  regulation,  including the Constitutional  Court’s
judgment in the matter.” The Ministry of the Interior  has  not
noted  “…any completely new legal view which would  support  or
cast doubt on the existence of the contested law.”
     The  Ministry  of the Interior also stated  that,  on  the
basis  of the contested laws, from 1991 until 5 September  2001
it  issued a total of 366,980 lustration certificates, of which
3.45  %  were positive. For that period, the ministry’s records
show  a total of 692 petitions for protection of personhood  on
the  grounds of positive lustration certificates issued by  the
ministry,  in  various stages of the proceedings.  However,  it
does  not  keep  separate  records of disputes  where  a  final
decision  has been made and the results of these disputes,  for
reasons  which it described in more detail in its position.  On
the  basis  of  review of the correctness of issued  lustration
decisions,  the Ministry found 117 cases of incorrectly  issued
decisions.   All   the  persons  concerned  were   issued   new
certificates  and  they were simultaneously notified  of  their
obligation  to  present  them to their employer  if  they  held
positions  which were subject to the lustration laws.  The  new
decisions  were  not  issued  to persons  who  are  at  present
citizens  of the Slovak Republic. Written materials  concerning
these persons were delimited by the Ministry of the Interior of
the  Slovak Republic on the basis of an international agreement
between the Czech Republic and the Slovak Republic.
     
                             III.
     Under  §  68  par.  2 of Act no. 182/1993  Coll.,  on  the
Constitutional Court, the Constitutional Court, in its decision
making  in  proceedings  to  annul  statutes  and  other  legal
regulations,  evaluates  the content of  these  regulations  in
terms   of  their  compliance  with  constitutional  acts   and
international agreements under art. 10 of the Constitution  and
determines  whether  they were passed  and  issued  within  the
limits of the competence provided by the Constitution and in  a
constitutionally  prescribed  manner.  With  legal  regulations
issued before the Constitution of the Czech Republic no. 1/1993
Coll. went into effect the Constitutional Court is entitled  to
review  only  their compliance with the existing constitutional
order,  but  not  their constitutionality of the  procedure  of
their creation and observance of legislative jurisdiction  (see
judgment  file no. Pl. ÚS 9/99, published in the Collection  of
Judgments and Resolutions, vol. 16, p. 13-14).

     In  the  matter at hand the Constitutional Court therefore
limited  itself  to  evaluation the  constitutionality  of  the
procedure  of the creation of amendments to both the lustration
laws  (Acts no. 422/2000 Coll. and 424/2000 Coll.) and did  not
evaluate the constitutionality of the procedure of the creation
of Acts no. 451/1991 Coll. and no. 279/1992 Coll.
     The  bill  amending Act no. 451/1991 Coll., as amended  by
later  regulations  was discussed at the 27th  session  of  the
Chamber  of  Deputies of the Parliament of the Czech  Republic.
Voting  on  it  took  place  on 21  September  2000.  From  the
requested report about that session it is determined  that,  of
the  178 deputies present, 99 voted to pass the law and 77 were
against. The Senate discussed the bill at its 22nd session  and
voted  on  25  October 2000. From the requested report  on  the
course of the session it is determined that, of the 68 senators
present,  47 were in favor of the Act and 17 voted against  it.
The President of the Republic exercised his right under art. 50
par. 1 of the Constitution and on 16 November 2000 returned the
Act  to  the Chamber of Deputies. By resolution of 28  November
2000  the  Chamber  of Deputies upheld the returned  Act  by  a
majority  of  all deputies, where 115 deputies  voted  for  the
returned  Act  and  71  voted against. The  resolution  of  the
Chamber  of  Deputies upholding the Act was  published  in  the
Collection  of Laws under no. 423/2000 Coll. The Act  was  thus
validly  passed  and  promulgated on 13 December  2000  in  the
Collection of Laws under no. 422/2000.
     The  bill  amending Act no. 279/1992 Coll., as amended  by
later regulations, was discussed by the Chamber of Deputies  of
the  Parliament  of  the Czech Republic at  its  27th  session.
Voting  on  it  took  place  on 21  September  2000.  From  the
requested report about that session it is determined  that,  of
the  178 deputies present, 99 voted to pass the law and 74 were
against.  The Senate discussed the bill at its 22nd session  on
25 October 2000. From the requested report on the course of the
session  it is determined that, of the 63 senators present,  43
were in favor of the Act and 13 voted against it. The President
of the Republic exercised his right under art. 50 par. 1 of the
Constitution  of  the Czech Republic and on  16  November  2000
returned  the Act to the Chamber of Deputies. By resolution  of
28  November  2000 the Chamber of Deputies upheld the  returned
Act by a majority of all deputies, where 109 deputies voted for
the  returned Act and 73 voted against. The resolution  of  the
Chamber  of  Deputies upholding the Act was  published  in  the
Collection  of Laws under no. 425/2000 Coll. The Act  was  thus
validly  passed  and  promulgated on 13 December  2000  in  the
Collection of Laws under no. 424/2000.


                              IV.
     The  Constitutional Court considers it necessary right  at
the beginning of its evaluation to refer to its judgment of  15
August  2000 (Pl. ÚS 25/2000), in which it rejected a  petition
from  a  group  of deputies of the Chamber of Deputies  of  the
Parliament  of the CR to annul provisions of the amending  act.
In  it the Constitutional Court points out that an amending act
has  no  independent legal existence and becomes  part  of  the
amended  act.  In the petition considered here, therefore,  the
Constitutional  Court  can  not state  a  separate  opinion  on
amendments no. 422/2000 Coll. and no. 424/2000 Coll., but  only
on  Acts  no. 451/1991 Coll. and no. 279/1992 Coll.,  of  which
both   amendments  became  part.  Therefore,  it  will  further
consider  exclusively Acts no. 451/1991 Coll. and no.  279/1992
Coll., both as amended by later regulations.

                              V.
     The  Constitutional Court first had to  address  the  fact
that  Act  no.  451/1991 Coll. was evaluated in  terms  of  its
constitutionality by the Constitutional Court of the CSFR.
     A petition from 99 deputies of the Federal Assembly of the
CSFR  requested,  in  the alternative, that the  Constitutional
Court  of the CSFR make a judgment that Act no. 451/1991  Coll.
ceased to be in effect on 31 December 1991, or that this Act  –
again as a whole – is not in accordance with various provisions
of  the  Charter  of  Fundamental Rights  and  Freedoms,  other
provisions  of a constitutional nature, and some provisions  of
several   international  agreements   on   human   rights   and
fundamental  freedoms. The Constitutional  Court  of  the  CSFR
therefore, within the framework of its powers provided in  art.
2  letter  a)  and b) of Constitutional Act no.  91/1991  Coll.
addressed Act no. 451/1991 Coll. as a whole (that is,  all  its
provisions).  Not being bound by the grounds in  the  deputies’
petition,  it  evaluated  the Act in terms  of  all  applicable
constitutional law provisions and international  agreements  on
human  rights and fundamental freedoms, including  those  which
the  deputies’  petition  did not specifically  set  forth.  It
completed its proceedings with a judgment of 26 November  1992,
in  which it stated the conflict of some provisions of Act  no.
451/1991 Coll. with the Constitutions of the CSFR, the Charter,
and the International Covenant on Economic, Social and Cultural
Rights.  These provisions ceased to be in effect on 15 December
1991  and  the  Czech  Republic  took  over  the  Act  in  this
expurgated form.
     The  current  petition from the group of deputies  request
the  issuance of a judgment which would annul Act no.  451/1991
Coll.  as  a whole and also annul Acts no. 279/1992 Coll.,  no.
422/2000  Coll.  and  no. 424/2000 Coll.  Of  course,  Act  no.
451/1991 Coll. was already reviewed by the Constitutional Court
of  the  CSFR  and the results of the review were  incorporated
into its cited judgment.
     As  a  result  of this, the Constitutional  Court  had  to
answer  the  question whether § 35 par. 1 of Act  no.  182/1993
Coll.,  on  the Constitutional Court, which reads: “A  petition
instituting  a proceeding is inadmissible if it  relates  to  a
matter upon which the Constitutional Court has already passed a
judgment,  and in other instances cases provided  for  by  this
Act.”  is  applicable  in connection  with  that  part  of  the
deputies’ petition which proposes annulment of Act no. 451/1991
Coll..
     The  Constitutional  Court had to  interpret  whether  the
“Constitutional Court of the CSFR” can be considered to be  the
"Constitutional  Court" under § 35 par. 1.  Constitutional  Act
no.  542/1992 Coll. (art. 3 par. 1) terminated the activity  of
all  bodies  of the CSFR ex constitutione. The jurisdiction  of
the Constitutional Court of the CSFR was transferred under art.
6  par.  2 of the same Constitutional Act to the Supreme Courts
of  the  CR  and  SR, unless the constitutional  acts  of  both
successor  states provided otherwise. The last cited  provision
became   obsolete  at  the  moment  of  establishment  of   the
Constitutional Court of the CR on the basis of  art.  83-89  of
the Constitution of the CR. Neither the Constitution of the  CR
nor any other constitutional act provides that the jurisdiction
of  the  Constitutional Court of the CSFR  is  transferred,  in
relation to the CR, to the Constitutional Court of the CR.  The
constitutional law existence of both constitutional  courts  is
therefore   mutually   independent.   There   is   no    formal
constitutional law continuity between them.
     Act no. 182/1993 Coll., on the Constitutional Court, is  a
regulation whose passage is anticipated by art. 88  par.  1  of
the  Constitution of the CR, which reads: “An Act shall specify
who  shall  be  entitled  to submit a  petition  instituting  a
proceeding  before  the Constitutional court,  and  under  what
conditions,  and  shall  lay down other  rules  for  proceeding
before  the  Constitutional Court.” A systematic interpretation
leads  to  the conclusion that this provision has in mind  only
the  Constitutional Court of the CR, as it is  a  component  of
that part of the Constitution of the CR, which establishes  the
Constitutional   Court  of  the  CR.  On  the   contrary,   the
Constitutional   Court   of  the  CSFR   was   established   by
Constitutional Act no. 91/1991 Coll. and the rules of procedure
before it were regulated by Act no. 491/1991 Coll.
     Act  no.  182/1993 Coll. thus functions  in  a  system  of
judicial  protection of constitutionality  established  by  the
Constitution of the CR, i.e. in a different system than was the
analogous system established by Constitutional Act no.  91/1991
Coll.

     Although the Constitutional Court of the Czech Republic is
to  consider, just as the Constitutional Court of the CSFR  did
in 1992, Act no. 451/1991 Coll., in its opinion this is not the
identical  matter.  In  this regard it points  to  its  opinion
expressed  in  its  judgment of 24 January 2001,  by  which  it
annulled  certain  provisions of Act  no.  247/1995  Coll.,  on
Elections  to  the  Parliament of the Czech Republic  (see  no.
64/2001  Coll.). In it, it reached the conclusion  that,  under
certain  circumstances,  after the passage  of  more  than  4.5
years, the same thing can appear in a somewhat different light,
in  particular  if  social changes have  occurred  during  that
period of time. Such an occurrence does not in any way step out
of  the bounds of constitutionality. The petition from a  group
of  deputies  in  the matter of the lustration laws  which  the
Constitutional  Court is evaluating now,  in  2001,  points  to
significant  changes  in  society, which  occurred  during  the
course  of  more  than eight years since the  judgment  of  the
Constitutional   Court  of  the  CSFR  was  issued,   and   the
Constitutional  Court in no way casts doubt on  these  changes.
Therefore, it considers its conclusion in the judgment  in  the
matter of the Election Act to be relevant in this case as well.
In  addition, the fact that Constitutional Court is  evaluating
an  amended,  i.e.  altered version of Act no.  451/1991  Coll.
plays its part here, as does the fact that this Act is now also
to  be  evaluated in the light of instruments  which  were  not
valid  at the time of the judgment by the Constitutional  Court
of  the CSFR. This is true primarily of the Constitution of the
Czech  Republic, or for certain international agreements  which
became  binding on the CSFR, or the Czech Republic, only  after
the judgment was issued in 1992.
     In  view of the foregoing, the Constitutional Court of the
CR   reached   the   conclusion  that  the  judgment   by   the
Constitutional Court of the CSFR of 26 November 1992  does  not
establish  the obstacle of res judicata under § 35 par.  1  Act
no.  182/1993 Coll. The Constitutional Court of the CR is  thus
formally  entitled to evaluate the submitted petition from  the
group of deputies in full.

                              VI.
     The  Constitutional  Court of the CR then  summarized  its
relationship to the case law of the Constitutional Court of the
CSFR. In its judgment on the question of the difference between
restitution and expropriation of 24 May 1994, file no.  Pl.  ÚS
16/93  the  Constitutional  Court of  the  CR  cites  from  the
decision  of  the  Constitutional Court of the  CSFR  sentences
devoted  to  the principle of equality. It states  about  them:
“Because under art. 3 of the Constitution of the Czech Republic
the  Charter of Fundamental Rights and Freedoms is part of  its
constitutional  order, from the foregoing we can  conclude  the
binding nature of decisions of the Constitutional Court of  the
CSFR  which  were  issued based on it.”  The  petitioners  also
expressly  rely on this conclusion of the Constitutional  Court
of the CR.
     The cited conclusion of the Constitutional Court of the CR
on  the binding nature of decisions by the Constitutional Court
of  the CSFR of course has only limited effect in practice,  in
view   of  the  fact  that  during  abstract  review   of   the
constitutionality  of laws the Constitutional  Court  generally
measures  the statutory text not only by the Charter  or  other
constitutional acts which form the constitutional  order  (art.
112  par.  1  of  the Constitution), but also by  international
agreements on human rights and fundamental freedoms, which,  in
contrast, are not part of the constitutional order. In the past
the  Constitutional Court of the CSFR also  proceeded  in  this
manner,  including  in  the  case of  Act  no.  451/1991  Coll.
Application  of  the  conclusion about the  binding  nature  of
decisions  of the Constitutional Court of the CSFR  would  thus
lead  to the impractical and logically unsustainable conclusion
that  its judgment in the matter of the lustration law of  1991
is partly binding and partly not.
     Moreover, the Constitutional Court of the CR, in its later
decisions,   acceded  to  the  decisions  of  its  Czechoslovak
predecessor  less formally. It considers itself  as  continuing
its   material  concept  of  constitutionality  in  the   Czech
Republic,  though  it is not formally its legal  successor.  It
formulated  this  in  a number of its judgments,  in  which  it
relies in agreement on the case law of the Constitutional Court
of  the  CSFR, without considering it necessary to  repeat  its
deduction on the binding nature of its decisions based  on  the
Charter (see, e.g., judgments I. ÚS 68/93 of 21 April 1994,  I.
ÚS  108/93  of 30 November 1994, and Pl. ÚS 5/95 of 8  November
1995).
     Judgment  I.  ÚS 56/95 is persuasive, which  states:  “For
completeness   the   Constitutional  Court   also   took   into
consideration the complainant’s objection, which relies on  the
judgment by the Constitutional Court of the CSFR of 21 December
1992.  However, this reference is incorrect… Taking account  of
this,  the Constitutional Court of the CSFR also evaluated  the
instructional obligations of the court under § 5 of  the  Civil
Procedure  Code.  The  cited  decision  is  thus  unusable  for
resolving  the adjudicated matter, as its substance concerns  a
completely different problem.” It is evident from this citation
that the Constitutional Court of the CR treats the judgments of
the  Constitutional  Court of the CSFR  de  facto  as  its  own
judgments,  and does not seek formal grounds which  would  rule
out the use of such decisions or, on the contrary, permit them.
     Thus,  in its practice the Constitutional Court of the  CR
promotes   the   idea   of   continuity   of   protection    of
constitutionality  in  democratic  Czechoslovakia  and  in  the
democratic Czech Republic, which is its successor state. It was
not  led  to  this only by a spontaneously arising identity  of
opinion    with    individual   cases   of   the   Czechoslovak
Constitutional Court, but also by the imperative  arising  from
art.  1  of  the Constitution of the CR, under which the  Czech
Republic is a “democratic state based on the rule of law.”  The
essential  attributes of the sovereignty of law in a democratic
state include its predictability, which is closely tied to  the
categories   of   continuity  in  law  and   legal   certainty.
Constitutionality  in  democratic  Czechoslovakia  and  in  the
democratic Czech Republic was and is identically established on
values  guaranteed  by  the Charter of Fundamental  Rights  and
Freedoms  and  international agreements  on  human  rights  and
fundamental  freedoms. Therefore, there is no real  reason  for
the concept of constitutionality of the Constitutional Court of
the  CSFR  and that of the Constitutional Court of  the  CR  to
differ essentially and fundamentally.
     Thus,  even  though  the judgments of  the  Constitutional
Court of the CSFR do not create for the Constitutional Court of
the CR the formal obstacle of an already decided matter under §
35  par. 1 of Act no. 182/1993 Coll., they represent for  it  a
real authority, based on the fact that the Constitutional Court
of   the  CSFR  was  the  “judicial  body  for  protection   of
constitutionality”  with jurisdiction in  the  Czech  Republic,
which it now is itself.
     This  occurrence,  connecting a  spontaneous  identity  of
concept  with the imperatives of a state based on the  rule  of
law, or the sovereignty of law, can be seen in the case law  of
the European Court for Human Rights (the “European Court”). The
analogy  with  the  relationships between the Czechoslovak  and
Czech  Constitutional  Courts  is  evident.  The  previous  and
present European Court are two separate entities. The first was
established  by  the  Convention for the  Protection  of  Human
Rights   and  Fundamental  Freedoms  of  1950  (the   “European
Convention”), the second by the 11th protocol to  it  of  1994.
Proceedings before them differ. Both evaluate the compliance of
the  behavior  of states parties with the European  Convention.
The  11th  protocol  does not contain  any  provisions  on  the
binding nature of decisions by the previous European Court  for
today’s European Court.
     The  present European Court, which began its  activity  in
1998, did not consider it necessary to consider the question of
the  binding  nature  of decisions by the  previous  court.  It
simply  resolved  it, beginning with its   first  decision,  by
relying on the cases of its predecessor as if they were its own
decisions.  In  the judgment of 21 January 1999 in  the  matter
Geyseghem  versus Belgium it confirms without any  explanations
whatsoever,  that in the adjudicated matter it will  apply  the
principle  used  in  the cases Lala and  Pelladoah  versus  The
Netherlands  of  1994, and also relies on  the  case  Poitrimol
versus France of 1993.
     The  postulate  of continuity of the protection  provided,
which  is  characteristic for the decision making of a judicial
body  which steps into the place of a body which has ceased  to
exist or been annulled, has two aspects. On one hand it permits
the  new  court  to  diverge  from the  legal  opinion  of  the
preceding court if there has been a change in the circumstances
under  which that previous court made its decision, and on  the
other hand it requires it not to cast doubt on the decisions of
the  previous  court  if no such change  in  circumstances  has
occurred.

                             VII.
     The Constitutional Court then applied its deliberation  on
the  degree of reviewability of judgments of the Constitutional
Court  of the CSFR to its judgment of 26 November 1992  and  in
light  of it evaluated the petition from the group of deputies.
In  it,  the  petitioners  state: “Therefore,  the  undersigned
deputies can not but petition the Constitutional Court to annul
both  Acts no. 422/2000 Coll. and no. 424/2000 Coll.,  and  Act
no.  451/1991 Coll. and no. 279/1992 Coll. themselves,  due  to
their   conflict  with  the  provisions  of  art.  1   of   the
Constitution, art. 1, art. 4 par. 2 and 4 and art. 21 par. 4 of
the  Charter of Fundamental Rights and Freedoms, art. 4 of  the
International Covenant on Economic, Social and Cultural  Rights
and with the International Labour Organization’s Convention  on
Discrimination (Employment and Profession) of 1958  (no.  111),
which  is undoubtedly an international agreement under art.  10
of the Constitution.”
     Act no. 451/1991 Coll. was amended twice after 26 November
1992: by Act no. 254/1995 Coll., which established its validity
until  31  December 2000, and by Act no. 422/2000 Coll.,  which
annulled the cited provision on the period of validity  amended
in 1995 and also removed from the jurisdiction of § 1 to § 3 of
the  lustration  law citizens born after 1 December  1971.  The
only    provisions   of   Act   no.   451/1991   Coll.    whose
constitutionality the Constitutional Court of the CSFR did  not
evaluate  in  1992 and which are now part of it, are  thus  the
provisions contained in the present § 20 and incorporated in it
by Act no. 422/2000 Coll.
      The  Constitutional  Court  of  the  CSFR  reviewed   the
constitutionality  of  Act   no.  451/1991  Coll.   under   all
applicable   provisions  of  the  Charter   and   international
agreements on human rights and fundamental freedoms,  including
the  International  Covenant on Economic, Social  and  Cultural
Rights  and  Convention  no.  111,  on  which  the  petitioners
explicitly   rely.  Review  of  compliance  with   both   cited
international  agreements was also expressly requested  by  the
petition  from  the group of deputies of the Federal  Assembly,
and  in  its  judgment the Constitutional  Court  of  the  CSFR
expressed itself clearly concerning both.
     The petitioners also refer to conflict of Act no. 451/1991
Coll.  with  art.  1  of the Constitution  of  the  CR,  which,
naturally,  in  1992 could not serve as a measuring  instrument
for  the  Constitutional Court of the CSFR  .  Art.  1  of  the
Constitution  states that “the Czech Republic is  a  sovereign,
unitary  and democratic state governed by the rule of  law  and
founded  on respect for the rights and freedoms of man  and  of
citizens.”  At the time when the Constitutional  Court  of  the
CSFR  reviewed  the constitutionality of the  large  lustration
law,  art.  1 of the Constitution of the CSFR read as  follows:
“The  Czech  and Slovak Federal Republic is a democratic  state
governed by the rule of law, composed of the Czech Republic and
the Slovak Republic” (see Constitutional Act no. 493/1992 Coll.
of  8  October 1992). Thus, the common central concept of  both
articles 1 is the concept of a “democratic state based  on  the
rule of law,” where respect for the rights and freedoms of  the
human being and the citizen was then and now guaranteed by  the
constitutional Charter of Fundamental Rights and  Freedoms.  It
is  undoubted  that the Constitutional Court of the  CSFR  also
reviewed the constitutionality of the large lustration law from
the point of view of art. 1 of the then Constitution, i.e. from
the point of view of the attributes of a democratic state based
on  the rule of law, and did not find conflict with it. In  the
reasoning  of  its  judgment it refers  to  the  concept  of  a
democratic  state  based on the rule  of  law  many  times,  in
particular  concerning its value framework.  For  example,  the
cited  judgment states that a “state based on the rule  of  law
which  is tied to democratic values implemented after the  fall
of  totalitarianism  can not … be seen as  amorphous  from  the
point of view of values.”
     CNR Act no. 279/1992 Coll., i.e. the small lustration law,
was not, in terms of its constitutionality, reviewed either  by
the  Czechoslovak or the Czech Constitutional Court.  According
to the background report, it is based on the overall concept of
Act no. 451/1991 Coll. The reason why it had to be passed –  as
a lex specialis to the large lustration law – lay in art. 27 of
the  constitutional act on the Czechoslovak  Federation.  Under
that,  establishing their own armed forces  and  regulation  of
their  status fell under the exclusive jurisdiction of each  of
the  republics, i.e. the legislative jurisdiction of the  Czech
National Council. The construction of the small lustration  law
is  identical  with the structure of the large lustration  law.
The  small  lustration law contains an enumeration of positions
in the Police of the CR and the Corrections Corps of the CR, to
which  a  citizen  who does not meet some of the  prerequisites
provided in § 3 of Act no. 279/1992 Coll. (for positions in the
Police of the CR), or in § 5 (for a position in the Corrections
Corps of the Czech Republic) can not be nominated or appointed.
     It  is  proposed that the Constitutional Court of  the  CR
annul the entire Act no. 279/1992 Coll. The petitioners do  not
provide specific grounds, where they find its provisions to  be
in  conflict  with the Charter or international  agreements  on
human  rights, i.e. grounds which would have their origin  only
in this small lustration law, but not in Act no. 451/1991 Coll.
Under  these circumstances, the Constitutional Court of the  CR
does  not  find  grounds  to  exceed,  in  its  review  of  the
constitutionality of the small lustration law, the framework of
the review conducted in 1992 by the Constitutional Court of the
CSFR  in  connection with Act no. 451/1991 Coll. With reference
to  the arguments provided in the reasoning of the judgment  of
the  Constitutional Court of the CSFR of 26 November 1992,  the
Constitutional Court of the CR finds conflict of the provisions
of  § 3 par. 1 letter d) and § 3 par. 3 Act no. 279/1992 Coll.,
on  conscious  collaboration with  the  State  Security,  whose
content is identical to § 2 par. 1 letter c) and § 2 par. 2  of
Act  no. 451/1991 Coll., specifically conflict with art. 2 par.
3  and  art. 4 par. 1 and 3 of the Charter and art.  4  of  the
International Covenant on Economic, Social and Cultural Rights.
Likewise  with reference to the arguments in the  reasoning  of
the  judgment of the Constitutional Court of the CSFR it  finds
conflict  of  §  3  par. 4 and § 5 par. 2 of Act  no.  279/1992
Coll.,  on granting exceptions, with article 1 of the  Charter.
Both  of  the latter provisions are, in terms of their content,
basically identical with the provisions of § 2 par. 3 and  §  3
par. 2 of Act no. 451/1991 Coll., whose conflict with art. 1 of
the  Charter was found by the Constitutional Court of the CSFR.
The  cited  provisions of the large lustration law  do  presume
violation  of  an “important security interest of  the  state,”
whereas the corresponding provisions of Act no. 279/1992  Coll.
only  violation  of  an  “important security  interest  of  the
service”  (§ 3 par. 3), or “important interest of the  service”
(§  5  par.  2),  but  from  the point  of  view  of  reviewing
constitutionality these differing expressions  are  irrelevant.
In  the  case  of  Act no. 451/1991 Coll. the cited  provisions
established an unjustified inequality between employees of  two
ministries (the interior and defense) and other person affected
by  the  Act.  In the case of Act no. 279/1992  Coll.,  on  the
contrary,  there is an unjustified inequality between employees
of  the ministries of the interior and justice, who, until  the
present time, can be granted an exception on the basis  of  the
Act,  on the one hand, and other persons affected by lustration
legislation,  i.e. Act no. 451/1991 Coll., in which  provisions
on  providing exceptions lost their validity in the past, as  a
result of the judgment of the Constitutional Court of the CSFR,
on the other hand.
     The  Constitutional Court’s statement annulling the  cited
provisions  of  the small lustration law due to their  conflict
with  the Charter and international agreements on human  rights
and  fundamental freedoms also has an influence on  some  other
provisions of this law, which refer to the annulled provisions.
These  are, in particular, the provisions of § 6 par.  1,  §  8
par.  1  and § 9 par. 5. In view of the fact that the  subject-
matter  applicability of these provisions is not  exhausted  by
reference  to  the  provisions which the  Constitutional  Court
found  to  be unconstitutional, and it is merely narrowed,  the
cited  provisions continue to have their purpose and  place  in
Act  no.  279/1992  Coll. In addition, the  fact  that  certain
provisions  refer  to  another  provision,  which   was   found
unconstitutional, does not establish the unconstitutionality of
the  referencing provision. Therefore, the Constitutional Court
did not find grounds to annul the cited referencing provisions.
Likewise, it did not find grounds to annul those parts  of  the
text of Act no. 279/1992 Coll. which rely on the content of the
provisions of Act no. 451/1991 Coll. which ceased to  be  valid
as  a result of the judgment of the Constitutional Court of the
CSFR.  These  are  especially the provisions  relating  to  the
decisions of the independent commission established under §  11
-   §  13  of  Act  no.  451/1991  Coll.  A  reference  to  the
commission’s decisions is found in, e.g. the provisions of §  6
par.  1  in  fine and § 8 par. 1 of Act no. 279/1992 Coll.  The
Constitutional Court is a judicial body for the  protection  of
constitutionality,  and it is not its  job  to  make  editorial
changes in Acts which were submitted to it for review. It would
thereby interfere in the competence of the legislator.
     Together  with the amendment of the large lustration  law,
in  2000 Act no. 279/1992 Coll. was amended analogously, by Act
no.  424/2000  Coll.  The amendment pursues  the  same  aim  as
amendment no. 422/2000 Coll. of the large lustration  law,  and
therefore  the further conclusions of the Constitutional  Court
concern both lustration laws jointly.
     
                             VIII.
     With  their  petition, the petitioners seek  to  have  the
large  and small lustration Acts pro futuro “removed  from  the
legal  order  of  the  Czech Republic.” The  substance  of  the
arguments  is summarized in part V of the petition. They  begin
with  the judgment of the Constitutional Court of the  CSFR  of
1992.  They state: “The Constitutional Court of the CSFR  found
the substance of the regulation implemented by Act no. 451/1991
Coll.  to  be  constitutionally  conforming  in  view  of   the
situation of the state and the society shortly after  the  fall
of the previous regime and the renewal of democracy and in view
of the fact that the restrictions introduced by the Act are not
to  apply absolutely, but only for a transitional period,  i.e.
until  31  December 1996. The Constitutional Court of the  CSFR
would  apparently have taken an analogous position  toward  CNR
Act  no. 279/1992 Coll., had it considered it. Under the stated
circumstances and conditions, the Constitutional Court  of  the
CSFR  recognized in 1992 that the public interest  (the  public
estate) consisting of the need of society and the state to have
persons in certain publicly significant positions replaced  and
to apply measures aimed at averting the risk of subversion or a
possible  return of totalitarianism takes precedence …”  before
the  fundamental rights of citizens which the petition  further
specifies. From the cited substantive review of the judgment of
the Constitutional Court of the CSFR, the petitioners also draw
the   conclusion  to  which  their  petition  provides  various
arguments.  This argument is formulated as follows: “Because  …
the public interest (the public estate), the then existence  of
which  the Constitutional Court of the CSFR took as a  starting
point in 1992, has ceased to exist, the reasons for restricting
fundamental  rights  and freedoms … which  were  based  on  the
existence  of that public interest have also ceased to  exist.”
In  other  words, the petitioners believe that the time  factor
plays  a  key  role in reviewing the constitutionality  of  the
lustration   laws.  Because  their  validity  and   period   of
effectiveness  were expanded to an indefinite period  of  time,
they  restrict fundamental rights and freedoms at  the  present
time  “without appropriate reasons,” and are thus  in  conflict
with  some  provisions  of the Constitution,  the  Charter  and
international  agreements  on  human  rights  and   fundamental
freedoms.

                              IX.
     The  Constitutional  Court agrees  with  the  petitioners’
opinion  that  the  amendment  of the  lustration  laws,  which
removed provisions about their restricted validity in time, was
considerable  intervention in their meaning. This  intervention
undoubtedly  represents  a marked change  in  circumstances  in
terms  of  reviewing the constitutionality of  both  lustration
laws.  The Constitutional Court therefore cannot simply  assume
all   the  conclusions  contained  in  the  judgment   of   the
Constitutional  Court of the CSFR, but must  first  answer  the
question  whether, when they were being drawn, the  restriction
of  the  time validity of Act no. 451/1991 Coll. to the end  of
1996   was  for  the  Constitutional  Court  of  the   CSFR   a
sufficiently   significant  factor  that  it   influenced   its
decision,  in  which it did not find most of the provisions  of
this  Act to be in conflict with the Constitution, the  Charter
or  international  agreements on human rights  and  fundamental
freedoms.
     In  this regard the Constitutional Court believes that the
petition  inexactly and especially incompletely  perceived  the
substance of the arguments used by the Constitutional Court  of
the CSFR in the reasoning of its judgment, and therefore cannot
agree  with the interpretation made by the petitioners.  It  is
true  that the Constitutional Court of the CSFR recognized  the
justification for the need of society and the state to  replace
person  in  certain public positions and to implement  measures
aimed  at averting the risk of subversion or a possible  return
of  totalitarianism. It also emphasized the  relevance  of  the
time restriction on the validity of the lustration law.
     However, the judgment of the Constitutional Court  of  the
CSFR also states other arguments, which the petition completely
omits. The Constitutional Court of the CSFR emphasizes that  in
“stabilized democratic systems part of the requirements  placed
on  persons  seeking  employment in state  service,  in  public
service  and in workplaces which are considered risky in  terms
of  the  security and stability of the state is fulfillment  of
certain  civic prerequisites signaling a consensus  of  opinion
and  loyalty  to the interests of the state and the  democratic
principles on which the state is built.” In light of this maxim
it  approves  the actions of the legislator which  “justifiably
took  as  its starting point the opinion” that, at least  to  a
necessary degree of justification it cannot be assumed that the
values of democratic constitutional principles “will be without
anything further and without reservation brought to life by the
members of former power structures.” Finally it also states the
belief that the state cannot be denied the ability to set,  for
the  performance  of  management or other  decisive  positions,
conditions   or   prerequisites  in  which   “it   takes   into
consideration  its own security, the security of citizens,  and
further democratic development.”
     Thus, the argumentation of the Constitutional Court of the
CSFR  is  thus infinitely richer and more diverse than  as  the
group  of deputies presents it. Some of its arguments are  tied
to  the  needs  of the state and the society in the  conditions
during the transition from totalitarianism to democracy,  which
the   petition   reflected  in  full.  In   this   regard   the
Constitutional  Court  of the CSFR also  pointed  to  the  time
restricted  validity  of  the lustration  law,  without  itself
necessarily tying the end of its justified validity to the year
1996. It merely states the time restricted validity of the  law
and  identifies 1996 for reference as the year  “in  which  the
democratic  process is expected to culminate.”  It  thus  takes
over  a  sort  of  working hypothesis about the  tempo  of  the
dynamics  of  the  development of democracy in  the  CSFR.  The
petition  from  the group of deputies brings  many  data  which
convincingly  document  that  the  development  of   democratic
changes after 1992 is stormy and that – as they expressly state
–   the  “democratic  process  culminated.”  Nonetheless,   the
Constitutional  Court considers it necessary to  add  to  these
data  that  determination  of  the  degree  of  development  of
democracy  in  a  particular state is a  social  and  political
question,   not  a  constitutional  law  question.  Thus,   the
Constitutional  Court  is  not able  to  review  the  claim  of
“culmination”  or,  on  the contrary “non-culmination”  of  the
democratic  process by the means which it has at its  disposal.
However,  it  can,  in  some agreement  with  the  petitioners,
confirm  that the public interest resting in the state’s  needs
during  the  period  of  transition  from  totalitarianism   to
democracy have declined in intensity and urgency since 1992.
     The second group of reasons, neglected by the petition  of
the  group of deputies, which the Constitutional Court  of  the
CSFR states, relates to the need of a democratic society and  a
democratic state to protect its state administration and public
services  from  the entry of persons who do  not  meet  certain
prerequisites. Among these prerequisites it expressly  mentions
“loyalty  with  the interests of the state and  the  democratic
principles  on  which  the state is built.”  It  considers  the
setting of such prerequisites a measure which belongs not  only
to  states  in  a period of transition from totalitarianism  to
“democracy,   but  to  all  “stabilized  democratic   systems.”
Finally, it stated the belief that such loyalty cannot “without
anything  further  and without reservation”  be  expected  from
“members of previous power structures” and from those who “were
put  in  important state, social and economic positions on  the
basis   of   conflicting  value  criteria  only  so  that,   as
representatives of the previously ruling ideology, they  served
to  maintain  the  power  monopoly of the  ruling  bureaucratic
apparatus.”
     With these arguments the Constitutional Court of the  CSFR
expressed  its  support  for another  public  interest  (public
estate),  which  is the right and obligation  of  a  democratic
state   to   actively  defend  its  democratic   establishment,
including  by restricting access to state and public  services,
using  the  condition  of  loyalty of its  representatives  and
employees.  The Constitutional Court of the CSFR  unambiguously
assigns  this public interest to a democratic state  generally,
i.e.  in  a phase where its democratic establishment  is  still
being  built and in a phase where its democracy has  culminated
(in “stabilized democratic systems”).
     Therefore,  the task of the Constitutional  Court  of  the
Czech Republic was to state its opinion as to whether the cited
public  estate  is of a “timeless nature” and is thus  relevant
even  now,  ten years after passage of Act no. 451/1991  Coll..
The   Constitutional   Court  states   above   all   that   the
justification of the idea of “a democracy capable of  defending
itself”  (wehrhafte Demokratie, démocratie apte ŕ se  défendre)
was repeated recognized by the European Court in its decisions.
The European Court considers achievement of it as a “legitimate
aim,”  fulfillment of which permits, within appropriate bounds,
states  to  restrict  the  rights guaranteed  in  the  European
Convention. At the same time it has often emphasized  that  the
creators  of  the  European Convention consciously  omitted  to
include in its text the right of an individual to equal  access
to  a  state’s  public services (see, e.g. the verdict  in  the
matter Glasenapp versus Germany from 1986). The European  Court
stated  its  position on the question of loyalty of persons  in
state administration and public services in its verdict in  the
matter  Vogt versus Germany from 1995, as follows:  “The  court
takes  as  its starting point the assumption that a  democratic
state  is entitled to require of its bureaucrats that  they  be
loyal to the constitutional principles on which it is based. In
this  regard  it takes into account the experience  in  Germany
during  the Weimar Republic and during the bitter period  which
followed the collapse of this regime until the passage  of  the
Founding  Act  in  1949. Germany wished to bar the  possibility
that  these experiences would repeat themselves, and  therefore
established  its new state on the idea of a democracy  able  to
defend  itself  … It is understood that the cited circumstances
added  to the seriousness of this substantive concept  and  the
corresponding  obligation  of  political  loyalty  imposed   on
bureaucrats.”
     Thus, in the given question several conclusions arise from
the two cases of the European Court :
     1)  Promoting  the  idea of “a democracy  able  to  defend
itself”  is  a  legitimate  aim  of  the  legislation  of  each
democratic state, in any phase of its development.
     2)  The  requirement of political loyalty  of  persons  in
state  administration  and  public services  is  considered  an
undoubted  component  of the concept of “a  democracy  able  to
defend itself.”
     3)  The specific degree of loyalty required depends on the
historical, political and social experiences of each individual
state  and  on the degree of threat to democracy in  the  given
state.  In this regard, the European Court, in the decision  in
the  matter of Vogt, states that no state in Europe in the  80s
(in  the  period of the evens being reviewed) required  loyalty
with  such  strictness  as Germany,  and  it  paused  over  the
“absolute nature” of this requirement in the German conditions,
as  the  German courts apply the requirement of loyalty equally
to  all bureaucrats, regardless of their positions and place in
the hierarchical structure of the public services.
     Of  course, the European Court also expressed its  opinion
concerning  the  requirement of loyalty of state  employees  in
other  cases,  in  which the complaint was directed  against  a
consolidated democratic state. The Constitutional Court  points
out  at  least  the judgment in the matter of Pellegrin  versus
France  from 1999, in which the European Court state its belief
that  the  state has a “legitimate interest” in requiring  from
state  employees  a “special tie of trust and loyalty”  because
these  employees  are  in  a way the holders  of  part  of  its
sovereignty.
     Thus,  on the basis of its excursion into the case law  of
the  European  Court the Constitutional Court  can  reach  this
conclusion:  a democratic state, and not only in a transitional
period   after  the  fall  of  totalitarianism,  can   tie   an
individual’s  entry  into  state  administration   and   public
services,   and   continuing  in  them,  to   meeting   certain
prerequisites,   in  particular  meeting  the  requirement   of
(political)  loyalty. Moreover, this is  proved  by,  e.g.  the
legislative  or  judicial  practice in  the  United  States  of
America  (see the decision of the Supreme Court of the  USA  in
the matter of Adler v. Board of Education).
     The Constitutional Court begins with the premise that  the
concept  of  “loyalty” must be interpreted  –  like  other  key
concepts, e.g. impartiality and independence of courts – by two
complementary methods. The concept of loyalty covers the  level
of  loyalty  of each individual active in public services,  and
the level of loyalty of the public services as a whole. Here it
is  not  only relevant whether the public services are actually
loyal,  but  also whether they appear loyal to the public.  For
that it is necessary that doubts about their loyalty not arise.
Such doubts undermine the public’s trust in the public services
and   also   in  the  democratic  state  which  these  services
represent.    Untrustworthy   public   services    and    state
administration as a result endanger democracy, and a democratic
state  is  entitled  to defend itself against  such  danger  by
ensuring  that the public services can not appear untrustworthy
to the public by eliminating reasons for doubts.
     The  Constitutional  Court then turned  to  answering  the
question  whether  an  individual’s close connection  with  the
power  apparatus  and repressive components of  a  totalitarian
state  can  be  considered an expression  of  disloyalty  to  a
democratic  state,  or at least a relevant reason  for  casting
doubt on loyalty in the eyes of the public.
     The  Constitutional Court points first of all to  Act  no.
198/1993  Coll. on the Lawlessness of the Communist Regime  and
Resistance  to  It  and  to its judgment  concerning  this  Act
published  under  no. 14/1994 Coll.. The cited  Act  enumerates
crimes  and  other  comparable events  which  occurred  in  the
territory  of the present-day Czech Republic during  1948-1989,
and  in  the  operative  part  of the  text  assigns  full  co-
responsibility  for them to those “who promoted  the  communist
regime  as  functionaries, organizers and  instigators  in  the
political and ideological area.” In the preamble it states  the
special  responsibility  of the pre-November  Communist  Party,
including its leadership and members. Thus, it is evident  that
an individual’s close connection to the pre-November regime and
its  repressive components is a circumstance capable of  having
an  adverse effect on the trustworthiness of a public  position
which  that  individual  holds in a democratic  state,  as  the
communist regime was identified by the Parliament of the  Czech
democratic state as “criminal, illegitimate, and abominable.”
      In   this   regard  the  Constitutional  Court  considers
irrelevant   the  petitioners’  objection  that   the   present
Communist   Party  of  Bohemia  and  Moravia  is   a   “legally
functioning  party  with  not  negligible  voter   base.”   The
regulation of the lustration legislation only takes a  position
on   the   pre-November  Communist  Party  and  draws   certain
conclusions only from classified forms of involvement with it.
     In  its judgment of 1992 the Constitutional Court  of  the
CSFR   pointed   out  that  other  European  states   where   a
totalitarian regime of monopoly power collapsed during the  80s
and  90s also apply lustration legislation. In view of the fact
that  no international court has yet issued a decision  in  the
question   of   the   compliance  of   lustration   laws   with
international agreements, the Constitutional Court considers it
desirable to use other international and foreign indicators for
its answer to the abovementioned question.
     A common feature of the “lustration laws” passed in Europe
during  the  90s  is  the  fact that  they  concentrate  on  an
individual’s position and/or behavior under totalitarianism and
draw  negative consequences for him from them in terms  of  his
involvement  in  public life in the present  democratic  state.
Such Acts were passed in Germany (Act on Stasi Documentation of
20  December  1991), in Bulgaria (Act on Additional  Conditions
Concerning  Scientific Institutions and the  High  Verification
Commission  of 9 December 1992), in Hungary (Act  on  Reviewing
the  Background of Persons Holding Certain Key Positions  of  9
March  1994),  in  Albania (two Acts of  22  September  and  30
November 1995), in Poland (Act on Recognizing the Employment or
Service Relationship of Persons who Hold Public Office in State
Security Forces or Collaboration with Them in 1994-1990  of  11
April  1997),  in  Romania (Act on Citizens’  Access  to  their
Personal  Files  Maintained  by the  Securitate  and  Aimed  at
Revealing  the  Character  of That  Organization  as  Political
Police  of  20  October 1999) and to a limited extent  also  in
other  countries in central and eastern Europe.  Without  going
into  the  details  of the individual Acts, the  Constitutional
Court  states  that  practically all the  cited  Acts  consider
persons’ membership in a totalitarian state’s secret police  or
collaboration with it to be relevant, some of them also include
persons’  positions  in  the  party  or  state  apparatus  (the
Albanian and Bulgarian Acts). The Parliamentary Assembly of the
Council of Europe, in its Resolution no. 1096(1996) (point  11)
fundamentally admits the compatibility of lustration laws  with
the   attributes  of  a  democratic  legal  state,   with   the
presumption  that their purpose is not to punish  the  affected
persons, but to protect the forming democracy.
     In  light of the foregoing facts, the Constitutional Court
has  grounds  to  state  that certain behaviour  or  a  certain
position  of an individual in a totalitarian state is generally
considered, from the viewpoint of the interest of a  democratic
state, to be a risk to impartiality and trustworthiness of  its
public  services, and therefore has a restrictive influence  on
the  possibility and manner of including “positively lustrated”
persons in them.
     The  Constitutional  Court  then  addressed  the  question
whether  certain  behavior  and/or a  certain  position  of  an
individual in a former totalitarian state represents, from  the
point of view of the interests of a democratic state which  was
constituted  in  its place, a “timeless” or  only  a  temporary
risk.  The  Constitutional Court is aware that an  individual’s
attitudes   to  the  democratic  establishment  are  determined
primarily  by  his actual actions. The longer the period  which
has  passed  from the collapse of the totalitarian regime,  the
more  and the more thoroughly will an individual’s attitude  to
the  democratic state be verified by his daily interaction with
it  and  with the democratic society. In other words, with  the
passing of time the relative significance of attitudes and  the
position  of  persons in the totalitarian state certainly  does
not  disappear, but certainly does decrease. There is evidently
consensus in Europe in this regard. The time of application  of
individual  lustration laws or individual provisions  based  on
them is generally restricted in Europe, either by the temporary
validity of the Act (the Albanian Act – to the end of 2002), or
by  setting  a  period in which individual lustrations  can  be
conducted,  which  is, according to available  information,  in
Hungary  to the end of 2004, in Germany to the end of 2006,  in
Romania  to the end of the six-year existence of the lustration
body  established  on  the basis of the abovementioned  Act  in
2000,  i.e.  until  2006 (with a possibility  of  extension  by
Parliament),  or,  finally,  by restricting  the  time  of  the
effects of individual lustration measures. This is the case  in
Poland,  where the effects of the relevant court decision  last
ten  years.  Although the Constitutional Court is convinced  of
the  temporary nature of lustration legislature, it also states
that  in  the  great  majority of other European  states  which
addressed the same problem in the last decade, lustration  laws
are still valid and are in effect.

                              X.
     After  the Constitutional Court answered all the questions
which  it  raised  for  itself as  preliminary,  it  turned  to
reviewing the constitutionality of Acts no. 451/1991 Coll.  and
no.  279/1992  Coll., exclusively in light of their  amendments
no.  422/2000 Coll. and no. 424/2000 Coll., which removed their
temporary time of validity.
     The  Constitutional Court does not share the legal opinion
of  the  petitioners,  according to which the  public  interest
(public  estate) the then existence of which the Constitutional
Court  of the CSFR took as a starting point in 1992, has ceased
to exist and the reasons for restricting fundamental rights and
freedoms  which  were based on this public interest  have  also
ceased to exist.
     The  large  and  small lustration laws  still  protect  an
existing  public interest, or – in other words – they pursue  a
legitimate  aim, which is the active protection of a democratic
state  from  the  dangers  which could  be  brought  to  it  by
insufficiently  loyal and little trustworthy  public  services.
Both  Acts  pursue  this  legitimate  aim  by  setting  certain
prerequisites for the performance of certain positions in state
bodies  and organizations, in the Police of the CR and  in  the
Corrections Corps of the CR. A legislative measure of this kind
is  not  exceptional  in Europe at the  present  time,  and  is
expressly admitted by, e.g. recommendation no. (2000)6  of  the
Committee  of Ministers of the Council of Europe, in which  the
Czech  Republic is a member. This recommendation regulates  the
position  of representatives of public power (public officials,
agents publics). In the preamble the recommendation points  out
that  the  public  administration plays a substantial  role  in
democratic  societies and that persons in  it  are  subject  to
special  obligations  and commitments because  they  serve  the
state.  Point  4  explicitly recognizes that both  general  and
specific   prerequisites  may  exist  for  access   to   public
positions, on the assumption that they are provided by law.
     Both  lustration laws set special prerequisites for access
to   only  some  (basically  only  management  or  significant)
positions in state or public services. This method of selection
positions,  the  performance  of  which  is  tied  to   special
prerequisites, is also normal in a democratic state, and in the
Czech  Republic it is applied, e.g. in connection with Act  no.
148/1998 Coll., which the petitioners themselves refer to.
      The  specific  presumptions  which  the  lustration  laws
introduced reflect the position of an individual in the  period
of  totalitarianism, 1948-1989. While this position  meets  the
elements  provided in the lustration laws, it makes  impossible
the  access of a lustrated individual to public positions named
in  them. The Constitutional Court of the CR, in agreement with
its  Czechoslovak predecessor, considers the closer  connection
of  persons  with  the totalitarian regime and  its  repressive
components to still be a relevant circumstance which  can  cast
doubt  on  political loyalty and damage the trustworthiness  of
the  public  services of a democratic state and  also  threaten
such  a state and its establishment. At the present time  other
newly  democratic European states view this aspect of the  past
of their public representatives and bureaucrats analogously.
     The Constitutional Court considers it  undoubted that  the
relevance of the stated presumption decreases with the  passage
of  time  from the fall of the totalitarian establishment,  and
therefore considers lustration legislation to be temporary,  as
is  the case in Germany and in various countries in central and
eastern  Europe. Therefore, the question is posed, whether  the
restrictions  of certain rights introduced in  them  are  still
“necessary  in  a democratic society,” in other words,  whether
these restrictions are still commensurate to the legitimate aim
which they pursue.
     In  its  review,  the  Constitutional  Court  takes  as  a
starting  point  the  fact that lustration prerequisites  apply
only   to   a  restricted  circle  of  fundamentally  important
positions,  and that, on the contrary, they do not restrict  an
individual’s  access to most positions in state  administration
and  the  public  services.  It also  takes  into  account  the
declining tendency to apply the lustration laws in practice. As
is indicated by the statement from the Ministry of the Interior
which  the  Constitutional Court requested, in the first  eight
months of 2001 roughly 5,800 certificates were issued based  on
the  laws, of which about 2 % were positive. Thus, in practice,
in  the period from January to August 2001 the lustration  laws
restricted   access   to   the  named   public   positions   to
approximately 120 individuals.
     However, the Constitutional Court states, above all,  that
the   imperative  incorporated  in  art.  79  par.  2  of   the
Constitution,  under  which  “The  legal  relations  of   state
employees   within  the  ministries  and  other  administrative
offices  shall  be  laid down in a statute” has  not  yet  been
fulfilled. An Act on State Service has not yet become  part  of
the Czech legal order. Thus, both lustration laws, in a limited
extent  and  by setting specific prerequisites for  working  in
state services supplement the absence of a key law required  by
the  Constitution,  and their existence is  therefore,  in  the
given   situation  in  the  Czech  democratic  society,   still
necessary.  With  the  exception  of  certain  Acts,  e.g.  no.
483/1991  Coll., on Czech Television, no. 6/1993 Coll.  on  the
Czech  National Bank, no. 335/1991 Coll., on Courts and Judges,
no.  148/1998  Coll., on Protection of Classified  Information,
and   no.  455/1991  Coll.,  on  Licensed  Trades  (the  Trades
Licensing  Act),  access  to elected, appointed  and  nominated
positions specified in the lustration laws is regulated only by
these lustration laws.
     However,  the Constitutional Court does not consider  this
present situation to be optimal. The legislator should speedily
regulate the prerequisites for access to public office  in  the
full  extent  and establish in a generally applicable  law  the
personal  prerequisites directly in relation  to  a  democratic
society, not only through an intermediary and negatively – with
reference to the past excessive loyalty to a totalitarian state
and  its  repressive  components. This is  the  case,  e.g.  in
Germany (art. 7 § 1 par. 2 of the Bundesbeamtengesetz). In this
regard  the  Constitutional Court also points to the background
report to Act no. 422/2000 Coll., under which “the validity  of
the  present  Act no. 451/1991 Coll. was to be terminated  only
upon  passage  of an Act on State Services.” The Constitutional
Court  welcomes  this  promise in the  background  report,  and
considers  approval  of  general prerequisites  for  access  to
public  positions,  in  view of the  temporary  and  subsidiary
nature  of  the  specific prerequisites set by  the  lustration
laws, to be urgent.
      In  view  of  the  argumentation  in  the  petition,  the
Constitutional   Court   considers  it   undoubted   that   the
petitioners did not separately raise the objection of  conflict
with  the  Charter  or with international agreements  on  human
rights  in  the  case of the amended § 20 of Act  no.  451/1991
Coll.  and  the  corresponding § 10a in Act no. 279/1992  Coll.
(citizens  born  after 1 December 1971 are  excluded  from  the
application  of  the lustration laws). These provisions  narrow
the application of both laws, and their purpose thus in its way
pursues a direction which is pursued in a much wider (absolute)
degree  by the petitioners themselves. Therefore, it  does  not
consider it necessary to state any further opinion on §  20  of
the  large  lustration law and on § 10a of the small lustration
law .

                              XI.
     For  all  the foregoing reasons, the Constitutional  Court
annulled  §  3  par.  1 letter d) and § 3 par.  3  of  Act  no.
279/1992 Coll., on Certain Additional Prerequisites for Holding
of  Certain Offices Filled by Nomination or Appointment in  the
Police  of  the  Czech Republic and Members of the  Corrections
Corps  of  the Czech Republic, as amended by later regulations,
due  to their conflict with art. 2 par. 3 and art. 4 par. 1 and
3  of  the Charter and art. 4 of the International Covenant  on
Economic, Social and Cultural Rights, annulled § 3 par. 4 and §
5  par.  2  of  the same Act no. 279/1992 Coll.  due  to  their
conflict  with art. 1 of the Charter, and denied the  remaining
part of the petition.

Instruction:       Judgments  of the Constitutional  Court  can
not be appealed.
Brno 5 December 2001


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