I am making this statement in connection with information that has appeared in some media outlets in recent days. According to them, the Constitutional Court should have confirmed by its ruling that our legal system does not allow in criminal proceedings to prosecute the crime of endangering NATO classified information.

Such a statement is confusing, distorts the ruling of the Constitutional Court that issued in this case and damages the good name of the Czech Republic in the eyes of foreign partners.

An international treaty by which the Czech Republic is bound stipulates that only the holder of the relevant certificate issued by the National Security Authority has access to classified information provided by the Czech Republic to NATO. This commitment to a high level of protection is reflected in the Act on the Protection of Classified Information (Act No. 412/2005 Coll.).

If the defendant’s legal representative does not hold the relevant certificate, he or she may not become acquainted with the classified information even in the exercise of his or her profession, that is to say, in the defence during the criminal proceedings and the trial. It is inadmissible for the authorities in criminal proceedings, including the court, to consider as evidence anything with which the defendant and his lawyer are unable to become acquainted and, therefore, to express their views; This principle is one of the indisputable and unrestricted rights in a democratic state. But is it necessary that the classified information, which the Czech Republic is obliged to protect in such a fundamental way, should always be discussed as evidence?

If a citizen of the Czech Republic is blamed for endangering classified information that the Czech Republic provided to NATO, the classified information itself cannot be the subject of evidence in court.

The essence of the offence of endangering classified information lies in the mishandling of it and in the activity aimed at its disclosure. If it is undisputed that NATO classified information was the subject of such manipulation, it is not necessary to present it as evidence if the court and at the same time the defendant and his legal representative are undisputedly satisfied that the subject of the defendant's activity was precisely NATO classified information. Thus, the actual content of a classified document is not important, but the fact that the document itself is a classified document is important. However, other tools that are commonly used in criminal proceedings, in particular an expert opinion, should be used to make such a finding.

The Constitutional Court also reached this conclusion when it stated in its ruling that it is up to the law enforcement authorities what evidence they will carry out, how they will evaluate it and which ones they will exclude from the proceedings. The prosecuting authority has the option of appointing an expert to assess the professional aspects of the case and the expert’s report is subsequently the subject of a court hearing in which both parties may ask questions to the expert. It is in this way that both the protection of classified information and the right to a fair trial can be ensured. The court itself does not have to assess whether the subject matter of the manipulation of the defendant is indeed classified information, but it has sufficient space to deal with the defendant’s own activities with that information.

Ing. Dušan Navrátil
Director of the National Security Authority