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10. 1. 2014 9:51

Ethics Commission Conclusion no. 3

concerning the term “public” pursuant to Section 3 paragraph 4 of Act No. 262/2011 Coll. in relation to the so-called State Security Agency (StB) “binding interview”, which took place at the security agency’s main office

In terms of the term “public” pursuant to Section 3 paragraph 4 of Act No. 262/2011 Coll. in relation to the so-called StB “binding interview”, which took place at the security agency’s main office, the Ethics Commission states that it understands the term “public” and the public nature of the statement or activity of the participant in anti-communist opposition or resistance pursuant to Section 3 paragraphs 1 and 4 consistently with the legislation of the Czech courts and doctrine, as being discussions in the presence of at least three persons, taking pace in a publicly accessible place, and in the presence of the general public, i.e. people other than those carrying out the discussions, those acting in collaboration with them, or people close to those attending the discussions; this type of public act or demonstration could be described as the behaviour of the Party to the proceedings, aiming to call on others to follow their example, the typical calls for demonstrations, public expressions of disagreement at places open to the public and accessible by larger groups of people, etc.

When examining the term “public” and the related interpretation of the legal term “public political and social stands”, the Ethics Commission also investigates how the public nature of the stand, or the behaviour, adopted by the individual was understood at a time when the Party to the proceedings refused to collaborate with the s StB.

According to the facts available to the Ethics Commission from StB activities, which are confirmed by generally accepted practice, the so-called “binding interview” with the StB took place in private, or in secret, and the officers present could not be considered to be a public within the meaning of Section 3 paragraphs 1 and 4 of Act No. 262/2011 Coll., even given their “official” presence.

Pursuant to Section 76 paragraph 3 of Act No. 86/1950 Coll., the Criminal Code, a criminal act was committed in public if it was committed through the contents of printed matter, a distributed file, a film, radio or other similarly effective manner, or at least in front of two people, to 31 December 12 1956 and also if it was committed in a place that was accessible to the public and could be witnessed by at least two people.

In terms of the interpretation of the term “publicly committed criminal act” pursuant to Section 76 paragraph 3 of Act No. 86/1950 Coll., as “before at least two people”, the Ethics Commission states that a refusal to collaborate with the StB, which was expressed before two StB officers, cannot be considered to be public, because it was said before officials at a location that is not accessible to the public and as part as “official proceedings”, which were, and still are, basically private and have never been, and cannot be, open to the general public.

(Ethics Commission CR Decision of 1 August 2012, ref.no. 9719/2012-EKO)

The reasoning:

The activities of the Party to the proceedings consisting of a refusal to join the Czechoslovak communist party and a refusal to collaborate with the StB were undoubtedly laudable, but, on the one hand they were not made “publicly” within the meaning of Section 3 paragraph 4 of Act No. 262/2011 Coll., and on the other hand their intensity does not satisfy the requirements stipulated by law …….

The Ethics Commission understands public speech or actions by a participant in anti-communist opposition or resistance in accordance with Section 3 paragraphs 1 and 4 of Act No. 262/2011 Coll. consistently with the Czech courts and judicial doctrine, in other words as behaviour in the simultaneous presence of at least three persons, carried out in a publicly accessible place and in the presence of a public, i.e. of people different from those carrying out the behaviour, from those acting in cooperation with them or people close to those carrying out the behaviour; behaviour by the Party to the proceedings intended to call on others to follow their example, the typical call for demonstrations, public expressions of disagreement at places open to the public and accessible to larger groups of people could be described as this type of public behaviour or expression. According to the documentation submitted (which is also confirmed by generally accepted practice) the StB “binding interview” was carried out in private, or in secret, and the officers present were unlikely to be influenced by the courageous act of the Party to the proceedings and, given their “official” presence, they cannot be considered to represent the general public.

When examining the public nature of the position adopted by the Party to the proceedings, and the related interpretation of the legal term “public political and social stand”, the Ethics Commission also addressed the issue of how the public nature of the position, or the behaviour, of a person was understood during the period when the Party to the proceedings refused to cooperate with the StB. According to Section 76 paragraph 3 of Act No. 86/1950 Coll., the Criminal Code, a criminal act has been committed in public if it was committed through the contents of printed matter, a distributed file, a film, radio or other similarly effective manner, or at least in front of two people, to 31 December 12 1956 and also if it was committed in a place that was accessible to the public and could be witnessed by at least two people. As regards the interpretation of the expression “publicly committed criminal acts” pursuant to Section 76 paragraph3 of Act No. 86/1950 Coll., defined by the words “before at least two people”, we also point out that, although the refusal to collaborate with the StB was made by the Party to the proceedings in 1957, this behaviour cannot be considered to be public because, as has already been pointed out above, it was carried out in front of officials in a place that is not accessible to the public as part of an “official meeting”, which was, and still remains, fundamentally private, and was not and cannot be open to the public. The Ethics Commission therefore concludes that even in 1957, when the Party to the proceedings refused to collaborate with the StB, her action would not have been considered to be an action carried out in public, even with regard to the case law relating to previous criminal acts or to the Criminal Code of 1950.

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