1. A natural person who is:

in the case of classified information, the level of classification reserved by the holder; notifications on the fulfilment of the conditions for access to classified information the level of classification RESTRICTED, valid document the security capacity of a natural person; or Certificate of natural person to the level CONFIDENTIAL, SECRET, Strict SECRET and at the same time its signature confirmed lesson,

(b)) in the case of classified information CONFIDENTIAL, SECRET or Strict SECRET classification by the holder of a valid Certificate of natural person the corresponding or higher degree and at the same time its signature confirmed lesson,

2. a natural person with special access to classified information (Section 58 of the Act),

3. a natural person with access to classified information pursuant to Sections 58a, 58b and 58c of the Act; which is also taught,

4. a natural person who has been recognised by a security authorisation issued by an authority of a foreign power, who is also instructed,

5. a natural person who has been granted consent to one-time access to classified information (Section 59 of the Act), which is also taught,

6. a natural person who has been given consent to access to classified information (Section 59a of the Act), which is also taught,

7. a natural person who does not hold a certificate of a natural person or does not have access to classified information classified as Reserved, in the event that he performs tasks in a period of increasing international tension or in the context of the participation of the Czech Republic in armed conflict abroad or in rescue or humanitarian action abroad, in the event of a declaration of a state of war and in the event of a state of danger, state of emergency or state of threat to the state (Section 60 of the Act),

8. a natural person whose certificate has ceased to be valid on the grounds referred to in Section 56(1)(a) of the Act - upon expiry of the period of validity, until the decision on the application pursuant to Section 94(3) of the Act has been issued, but no later than 12 months after the expiry of the certificate, if the application was submitted at the time when the state of crisis was declared for the entire territory of the Czech Republic or if the state of crisis was declared during the procedure on this application (Section 60a of the Act).

ad 1)

Access to Reserved Classified Information Access to classified information classified as Confidential or Secret or Top Secret
Type of document or authentic instrument Notification of compliance with the conditions for access to classified information
Certificate of natural person Certificate of natural person
Document

Lessons learned

The natural person shall be informed at the latest before the first access to the classified information a certain degree of awareness of their responsibilities for handling and handling classified information and of legal standards in the field – model of instruction; here

The instruction is always signed by the person who made it (usually Responsible person or a person designated by it) and a natural person. For the RESTRICTED level, it is made in two copies, one of which is handed over to a natural person and one is stored by the person who carried out the instruction in a place designated for the storage of these documents within the meaning of Section 68(1) of Act No 499/2004 on archiving and filing services and amending certain acts. For the CONFIDENTIAL, SECRET and TOP SECRET grades, the instruction shall be drawn up in three copies. One shall be handed over to the natural person, one shall be deposited by the person who carried out the instruction in a place reserved for the storage of such documents and a copy shall be sent to the Office. A copy of the information may also be sent to the Office electronically.

The validity of the instruction ends with the expiration of its validity notifications on the fulfilment of the conditions for access to classified information, document or Certificate of natural person and also the termination of a service relationship or an employment, membership or similar relationship in which a natural person has been granted access to classified information, i.e. in cases where a new service relationship or employment, membership or similar relationship subsequently arises, it is the duty of the responsible person or the person designated by him to inform the natural person again.

If a natural person holds a valid national certificate of a natural person and the responsible person knows that the natural person will also have to hold a 'NATO certificate', the responsible person may instruct the natural person and tick in the instruction that the natural person has been acquainted with NATO regulations without the natural person already being a holder of a valid 'NATO certificate', thereby fulfilling, within a single instruction, the obligation laid down both for access to national classified information and for access to NATO classified information. In this case, the instruction shall indicate the number of the national certificate of the natural person. As part of the lessons learned, you can get acquainted at the same time with all legislation in the field of classified information, i.e., with the regulations of NATO, the EU.

If a natural person holds a valid national certificate of a natural person and is briefed, and subsequently a "NATO certificate" is issued to the natural person, the natural person must be re-instructed, stating in the instruction the number of the "NATO certificate" and ticking that the natural person has been acquainted with NATO regulations. This does not apply if, in the first instruction made to the national certificate of a natural person, it has already been ticked that the natural person has been acquainted with NATO regulations (i.e., has been acquainted with them without being issued with a "NATO certificate") – in this case, the natural person is no longer acquainted with them again.

Ad 2) Specific approach (Section 58 of the Act)

They have classified information without a valid Certificate of natural person a lesson access by the President of the Republic, deputies and senators of Parliament, members of the Government, the Ombudsman and his deputy, judges and members of the Supreme Audit Office, including the President and the Vice-President. Such persons shall have access from the date of their election or appointment for the entire duration of their duties and to the extent necessary for the performance of those duties.

Within the framework of criminal proceedings, civil court proceedings, administrative proceedings and administrative court proceedings, persons without a valid Certificate of natural person granted access to classified information for the purpose of exercising their rights and fulfilling their obligations in these proceedings. The conditions and the list of persons concerned by such a possibility are laid down in the Code of Criminal Procedure, the Code of Civil Procedure, the Code of Administrative Procedure and the Code of Administrative Procedure. Access to classified information it is also possible in these cases on the basis of instructions, which must include the file reference of the subject matter of the proceedings and instructions that data on persons with special access are registered by the Office. The information shall be provided by the person for whom the Code of Criminal Procedure, the Code of Civil Procedure, the Code of Administrative Procedure or the Code of Administrative Procedure so provides, and shall be signed by the natural person at the same time. Model of instruction: here

In pre-trial proceedings, one of the stages of criminal proceedings, the instruction of the persons referred to in Section 51b(1) of the Code of Criminal Procedure shall be carried out by the police authority or the public prosecutor and, in proceedings before the court, by the presiding judge. According to a well-established theoretical interpretation of Section 51b(1) of the Code of Criminal Procedure, that person is also a juror in court (another person who must participate in criminal proceedings). A copy of the instruction shall be sent by the person who carried out the instruction no later than 30 days from the date of the instruction to the Office.

A natural person acting for the benefit of an intelligence service, an informant or a natural person who is granted special or short-term protection under a special regulation, or an intelligence officer who is placed in a special reserve or assigned to a special disposition, may be granted access to classified information without a valid certificate from the natural person. The instruction shall be given by the person who allows access to the classified information.

The persons referred to in paragraphs 1, 2, 3 and 4 shall not have access to NATO classified information, with the exception of the President of the Republic, Members and Senators of Parliament, members of the Government and judges dealing with classified information of a foreign power, who shall be informed, prior to first access to classified information of a foreign power, of their rights and obligations with regard to the protection of classified information of a foreign power. In criminal proceedings, jurors adjudicating in cases where classified information of a foreign power is handled, the accused, the person involved, the injured party, their legal representative, guardian, agent, confidant, lawyer, expert and interpreter shall also have access to classified information of a foreign power, subject to the prior consent of the foreign power, to the extent necessary for the exercise of their rights and the fulfilment of their obligations in such proceedings. Prior to first access to classified information of a foreign power in proceedings, the persons referred to in the previous sentence shall be informed of the rights and obligations in the field of protection of classified information of a foreign power. The instruction shall be given in the pre-trial proceedings by the police authority or the public prosecutor and in the proceedings before the court by the President of the Chamber. The instruction shall be signed by the natural person and by the person who carried out the instruction; the person who carried out the instruction shall forward one copy of the instruction to the natural person, enter one copy in the file and send a copy to the Office; a copy of the instructions may also be sent to the Office electronically. 

Ad 3) Access to classified information pursuant to Section 58a of the Act, Section 58b of the Act, Section 58c of the Act

Section 58a of the Act

Persons having access to classified information at security level Reserved without valid notification for the duration of the service or employment relationship and to the extent necessary for its performance shall be:

a) members of the security forces,

b) civil servants,

c) Soldiers in active service a

d) prosecutors,

if they are informed and assigned on the spot or perform a function in which it is necessary to have access to classified information and which are listed in the overview pursuant to Section 69(1)(b) of the Act.

Section 9(1) shall apply mutatis mutandis to the instruction of such persons.

In the event of termination of the service or employment relationship or in the event of a change in the service office of these persons, the natural person shall be deemed not to have been informed and, if he or she had access to classified information, it shall be further proceeded in accordance with Section 11a of the Act, i.e. the person shall be obliged to confirm in writing that he or she is aware of the obligation to keep confidential the classified information to which he or she had access and not to grant access to it to an unauthorised person. The responsible person is obliged to ensure that this action is carried out. 

Section 58b of the Act

Intelligence may grant access to classified information to a natural person who does not hold a natural person's certificate or does not have access to restricted classified information where this is necessary for the performance of an obligation imposed on that natural person by another law or in the context of intelligence operations.

In the case of access to classified information, the procedure under Section 60(2) to (6) of the Act shall apply mutatis mutandis.

Section 58c of the Act

Police may allow access to classified information to a natural person who does not hold a natural person's certificate or does not have access to restricted classified information, if this is necessary for the performance of an obligation imposed on that natural person by another legal regulation in connection with the performance of police tasks in the field of providing special protection and assistance, short-term protection, ensuring the security of protected objects and premises and designated persons and carrying out surveillance of persons and objects. The procedure shall not apply in the case of access to classified information of a foreign power and classified information classified at the level Top Secret. 

In the case of access to classified information pursuant to Section 60(2) to (5) of the Act, the procedure under Section 60(2) to (5) of the Act shall apply mutatis mutandis, provided that neither the written record nor the instructions are sent to the Office, but are deposited with the police.

Ad 4) Recognition of a security authorisation issued by an authority of a foreign power (Section 62 of the Act)

At the request of the security authorisation holder, the Office shall recognise the foreign security authorisation. An application may also be made through an office of a foreign power competent for the protection of classified information. These are cases where this is allowed by an international treaty by which the Czech Republic is bound, or where recognition is in accordance with the Czech Republic's foreign policy and security interests. There is no legal right to such recognition. The application shall be accompanied by an official translation of the security authorisation or a certified copy thereof; such documents shall not be required where the application is made through an office of a foreign power competent for the protection of classified information, provided that the latter confirms on the application that the applicant is in possession of the relevant security authorisation. The application shall also state the reason why recognition is to be given and the period for which recognition is to be given. Model application - here

If a security authorisation is recognised, Responsible person carry out the instruction of the natural person. Model of instruction: here

Ad 5) One-time access to classified information (Section 59 of the Act)

The Office may, in exceptional and justified cases, grant one-off access to classified information at a level higher than that for which a valid natural person certificate is issued, but for a maximum period of 6 months; one-off access shall not be granted to TOP SECRET classified information. One-off access may therefore be granted only for access to classified information classified SECRET.

The request for one-time access is always in writing, it is signed by Responsible person and includes a justification for the need for a one-off approach, an indication of the area classified information, to which access is to be granted and the required one-time access time. A copy must be attached to the application Certificate of natural person. The same person can only be given consent once and is not legally entitled to it. If this is the case, the consent is given within 5 days at the latest.

If consent is given, Responsible person carry out the instruction of the natural person. Model of instruction: here

One-time access to NATO classified information may only be granted in accordance with NATO requirements.

On the basis of a written request from the person responsible, the Office may, in exceptional and justified cases, grant consent for access to classified information up to two times higher than that for which a valid certificate of a natural person is issued, namely a person serving in a police authority, a public prosecutor acting as a law enforcement authority or a public prosecutor performing tasks in criminal proceedings under another legal regulation, unless the person concerned is subject to proceedings for revocation of the certificate of a natural person. The application for a person working for a police authority must be accompanied by the consent of the public prosecutor, who supervises the observance of legality in the pre-trial proceedings, and in the case of classified information classified as Top Secret, it must also be accompanied by the consent of the chief public prosecutor of the closest higher public prosecutor’s office. The request to the public prosecutor in the case of classified information classified at the level Top Secret must be accompanied by the concurring opinion of the head of the public prosecutor’s office closest to the higher public prosecutor’s office, with the exception of the public prosecutor working at the Supreme Public Prosecutor’s Office.

The request referred to in paragraph 1 shall include:

a) justification of access,

an indication of the classified information to which access consent is to be given;

c) file reference of the case, which is the subject of criminal proceedings, and

a copy of the certificate of the natural person to whom consent is to be given.

The Office shall give its consent without delay, no later than within 5 days from the date of delivery of the request, and only for the period necessary for the participation of a natural person in criminal proceedings.

The person responsible or a person authorised by him/her shall instruct the natural person and ensure that a written record of his/her instruction is entered in the criminal file and that a copy of the instruction is sent to the Office within 30 days of the date of the instruction; a copy of the instructions may also be sent to the Office electronically. Consent shall expire on the day following the day on which the natural person’s participation in criminal proceedings ceased, but no later than the date on which the natural person’s certificate ceased to be valid pursuant to Section 56(1) of the Act.

The consent referred to in paragraph 1 may be given to classified information of a foreign power only in accordance with the requirements of that foreign power.

Access to classified information in times of growing international tensions or in the event of the Czech Republic's participation in armed conflict abroad or in rescue or humanitarian action abroad, in the event of a declaration of a state of war and in the event of a state of danger, emergency or state of danger (Section 60 of the Act)

1. Introduction and basic definitions

Exceptional access to classified information pursuant to Section 60 of Act No 412/2005 on the protection of classified information and on security capacity, as amended (‘the Act’), is a tool allowing, in well-defined and exceptional situations, the disclosure of classified information also to natural persons or entrepreneurs who do not hold the appropriate authorisation depending on the classification level of classified information (notifications, certificates). This procedure is intended only for cases where it is necessary to deal quickly and effectively with emergency situations in the interest of the Czech Republic.

The application of Section 60 of the Act does not in any way replace the set system and does not deviate from the set principles and general rules within the protection of classified information. Thus, the Institute of Extraordinary Access to Classified Information under Section 60 of the Act does not serve to replace the general obligations of an entity allowing extraordinary access to classified information under Section 60 of the Act to create conditions for handling classified information, to maintain and establish a list of places and functions where access to AI is necessary, including those where access to AI of a foreign power is strictly necessary. Similarly, it is the duty to ensure the protection of classified information through specific types of ensuring the protection of classified information, depending on how classified information is handled.

2. Conditions for the application of emergency access

2.1 Existence of exceptional circumstances

Exceptional access may only be granted in emergency situations foreseen by law:

  • 1. Period of growing international tensions (graduating international crises, including hybrid activities, intense campaigns by state actors, etc.),

  • 2. Participation of the Czech Republic in armed conflict abroad (but not peacekeeping or observation missions)

  • 3. Rescue or humanitarian operations abroad (in particular under the responsibility of the Ministry of the Interior and the Ministry of Foreign Affairs);

  • 4. Declared state of war, state of danger, state of emergency and state of danger,

  • 5. State of cyber danger.

Section 60 of the Act provides exhaustively for emergency situations in which classified information may be provided to a person who does not have access to classified information pursuant to the Act, subject to the conditions foreseen. This closed list cannot be extended by interpretation. The case of a period of rising international tensions, which we can possibly identify even now, must also be accompanied by certain limits. Specifically, a natural person or an entrepreneur may be provided with classified information under Section 60 of the Act if he/she performs tasks in a period of increasing international tension (e.g. CMX exercises), but it is primarily necessary to set up a management system so that natural persons or entrepreneurs who meet the conditions for accessing classified information under the Act are used to perform such a task. Paragraph 60 can therefore be applied only as an ultima ratio.

Access to classified information within the meaning of Section 60 of the Act may be granted only under cumulatively fulfilled conditions:

1. we are in a period of increasing international tensions or in another emergency situation listed in section 60 of the Act,

2. natural persons or entrepreneurs who have access to classified information on the basis of notices or certificates shall not be primarily involved in the performance of the tasks;

3. access is granted to a natural person or entrepreneur performing tasks related to these extraordinary situations.

2.2 Special status of the entity

Exceptional access may only be granted to a natural person or an entrepreneur who, in a given situation, carries out specific activities necessary to safeguard the key interests of the State.

Typically, these are natural persons or entrepreneurs whose involvement is irreplaceable at a given place and time and without their participation the performance of specific tasks would be jeopardised or rendered impossible.

Individuals need to be assessed for credibility and confidentiality – basic security screening is carried out, e.g. through references or personal knowledge.

3. Procedure for granting emergency access

The provider of classified information will, as a rule, be an authority of the State in the context of an emergency situation foreseen by Section 60 of the Act. As in other situations in normal operation, the tasks of a State authority are carried out by individual natural persons who do so on the basis that they are its employees or on the basis of predetermined roles, but the provider is always a given State authority (region, ministry, etc. see Section 2(d) of the Act).

Access to classified information shall be granted to a natural person to whom the classified document concerned has been assigned in the course of his or her professional activities. While such a person may also carry out screening, this is not a necessity, it may also be carried out by another person from the competent authority of the State. It is not so important who from the national authority will carry out the screening, but how it will be carried out – so that the available resources are used at a given time and place by the means available to the national authority.

However, the final decision to grant access to classified information pursuant to Section 60 of the Act cannot depend on the subjective opinion of one natural person. A natural person who effectively grants access to classified information shall do so in accordance with a decision of an authority of the State as such. The parallel is also given by the current functioning of the State authority in areas other than the protection of classified information, which is also not based on the arbitrary and subjective discretion of each member of staff, regardless of their function or assignment.

Thus, it is not possible to determine strictly which person will be responsible for an individual act if it is necessary to ensure access to classified information under Section 60 of the Act, as the entity as a whole will always be responsible – thus it is not possible to identify a specific person who will be responsible for an individual act (each entity may have a different structure and management). The performance of tasks can be set up in a similar way as in the case of access to classified information in a standard situation, while the application of Section 60 of the Act only does not have to fulfil the condition of possession of a notice or certificate.

TEST OF PROPORCIONALITY

The decision to grant access to classified information pursuant to Section 60 of the Act must be preceded by a proportionality test!!!

If the risk and possible consequences (in the event that a natural person or an entrepreneur who does not hold a certificate would not be used for the performance of the task) clearly exceed (in addition to the risks and possible consequences that would arise if access were granted only to a natural person or an entrepreneur who has access to classified information on the basis of a certificate), then special access may be granted under Section 60 of the Act.

Of particular importance is the time aspect, which will be a decisive factor, as the operative will be crucial for such decisions in crisis situations.

3.1 Assessment of credibility

For natural persons, the provider of classified information must operationally verify credibility (e.g. references from the employer, personal knowledge, assurance from a trusted authority).

Where there is any doubt as to the credibility of a person, access to classified information shall not be granted.

For entrepreneurs, caution is recommended and, in case of doubt about the ability to ensure the protection of information, access should not be allowed.

As regards the scope of the screening carried out, the aim is certainly not to carry out a similar safety procedure. The aim is to verify, from available sources (including public ones) without significant time constraints, whether the entity is an entity for which there is no evident risk factor that could have an impact on the ability to conceal information. As mentioned above, screening does not have to be carried out by a person with access to classified information, but can be any designated natural person within a State authority.

The credibility of a person means, in particular, the absence of facts indicating that a person may benefit from extraordinary access to classified information for purposes other than those foreseen by law.

It is essential that the person who carries out the ‘security screening’ is not obliged to go through all public and non-public sources, to request an extract from the criminal record and to seek the assistance of other administrative authorities or other authorities in order to verify the absence of such facts. It is sufficient for access to be granted if, even after a thorough examination, it is not aware of them by the entity to which access is granted. Such verification may consist of personal knowledge of the examiner, i.e. personal knowledge of the employees working with the examined person, basic search of public resources (internet, insolvency register, business register, etc.), as well as a reference from the employer or a guarantee from a trustworthy authority. Where a State authority concludes, on the basis of the data obtained, that there is doubt as to the credibility and ability to conceal information, access to the classified information shall not be granted.

The person performing the ‘screening’ thus works, in particular, with personal knowledge, basic verification of publicly available sources, references from the employer, a guarantee from a trustworthy authority, etc., when assessing credibility.

In particular, a guarantee from a trusted authority is a confirmation from a person who has a certain qualified relationship with the person to be granted extraordinary access and who can assess their credibility. This includes, in particular, its employer, superior or official.  The guarantee can be a confirmation that the person absent facts that would otherwise indicate its unreliability. At the same time, it must be an authority about which there is no doubt about credibility itself. The authority will therefore ensure that the person who is granted extraordinary access is eligible for such access, or that he or she does not have information about any fact that affects his or her credibility.

The Act treats as entrepreneurs a natural person doing business and a legal person whose main activity is doing business, see Section 15 of the Act for details. Where access to classified information pursuant to Section 60 of the Act is granted to an entrepreneur (i.e. within the meaning of Section 15 of the Act), access must also be granted, under the conditions laid down in that provision, to natural persons who will become acquainted with classified information within that entrepreneur. These will typically be employees performing tasks for entrepreneurs who are to be granted access under Section 60 of the Act. These natural persons must therefore be screened and instructed in accordance with Section 60 of the Act, as the entrepreneur will have access to classified information in real terms through his employees.

Although the law does not explicitly require this, the NSA only recommends screening also to examine entrepreneurs as such and thus exclude the existence of obvious doubts about ensuring the protection of classified information. Such screening is recommended to be carried out in a similar way as for natural persons, i.e. from available sources and available means at a given place and time. For entrepreneurs, it is recommended to carry out screening of some natural persons, especially those involved in the management of such entrepreneurs and acting on their behalf. At the same time, it will be necessary to examine a specific natural person who will acquaint himself/herself with classified information, if he/she will also be granted access under Section 60 of the Act, or he/she will no longer be the holder of a notification or certificate of a natural person.

3.2 Information and documentation

1. Before disclosing classified information, a natural person shall be instructed in accordance with the model of recommended instruction - here or according to the model of instruction referred to in Annex 3 to Decree No. 300/2024 Coll., on personnel security and safety competence.

2. The instruction shall be made in writing, in justified cases (e.g. the risk of delay) it may be replaced by oral acquaintance.

3. A dated written record containing essential circumstances, the identification of persons and classified information, or the fact that oral instruction has been given, shall be required of extraordinary access. The model of the written record is not laid down by law. For your possible use is a sample of the recommended written record - here

4. As soon as circumstances permit, this record, together with the written instruction (unless only oral instruction has been given), must be sent to the NSA.

As a general rule, every time an individual has access to classified information, it is necessary to re-instruct the individual, draw up an access record and send it to the NSA. Each access to an individual ‘new’ classified information constitutes a new access within the meaning of Section 60 of the Act and must therefore be treated in accordance with the Act – that is to say, it must be instructed and recorded in writing and sent to the NSA. If it is a case of providing multiple classified information in the same case to the same individual or entrepreneur, then the alert can be combined for all such classified information (e.g. at the end of the CMX exercise), provided that access is not granted with a significant delay, as the alert should be sent to the NSA without delay.

3.3 Specifics for Entrepreneurs

For entrepreneurs, the responsible person is obliged to make a written record and deliver it to the NSA without delay.

4. Limitations and principles

1. Emergency access is not legally enforceable – it cannot be invoked and any refusal does not need to be justified.
2. The need to know principle also applies in these cases – access is granted only to the extent necessary and only to those who actually need it to perform a specific task.
3. Access pursuant to Section 60 to classified information classified at the level of Top Secret shall not be granted to an entrepreneur.
4. Access pursuant to Section 60 to classified information classified at the level Top Secret may be granted to a natural person only if he or she holds a valid certificate for access to classified information classified at the level Secret and is:      Instructed.
5. Access under Section 60 may not be granted to an entrepreneur to classified information subject to a special handling regime (e.g. KRYPTO, ATOMAL).
6. Under the approach under Section 60 of the Act, sensitive activities cannot be carried out.
7. The responsibility for the correctness and legality of the procedure lies with the person who allows access (typically a state authority).

5. Practical step-by-step procedure

Step Description
1 Identification of the emergency situation (state of crisis, armed conflict, humanitarian action, etc.)
2 Assessment of the necessity of emergency access for a specific natural person/entrepreneur
3 Verification of the trustworthiness of a natural person (screening, references, personal knowledge)
4 Instruction of the natural person on obligations and consequences (in writing, exceptionally orally)
5 Drawing up a written record of emergency access (identification of persons, essential circumstances)
6 Immediate transmission of the record and instructions to the NSA (unless it is an intelligence service)
7 For entrepreneurs: obligatory written record and its sending to the NSA

6. Important comments and recommendations

  • Every case of extraordinary access shall be carefully documented and substantiated, including all steps leading to a decision to disclose classified information.

  • Access to classified information pursuant to Section 60 of the Act is exceptional and may not be misused for normal operational purposes.

  • Responsibility for the correctness of the procedure shall always lie with the authority granting access.

  • In case of doubt, we recommend consulting the NBÚ or the legal department of the competent authority.

Model of recommended written test for emergency access (natural person) - here

Model of recommended instruction for emergency access (natural person) - here