Exemption from Judicial Review in the Case of the Decision Refusing the Grant of Citizenship due to State Security Reasons
Abstract
The paper analyses the issue of disputed constitutionality of the rule contained in § 26 in conjunction with § 22(3) of the Act No. 186/2013 Coll., on Citizenship, pursuant to which decisions refusing the grant of citizenship because of the threat to the security of the state may not be subject to judicial review. Employing the relevant case-law of the Supreme Administrative Court and the Constitutional Court, the paper argues that - should the Constitutional Court be called upon to assess the issue of constitutionality - it is probable that the judicial exemption would be held unconstitutional, most presumably because of the violation of the second sentence of Art. 36(2) of the Charter of Fundamental Rights and Freedoms (""Judicial review of decisions affecting the fundamental rights and freedoms listed in this Charter may not be removed from the jurisdiction of courts."").
Two possible approaches towards the interpretation and application of this Charter's prohibition are provided and the issue of constitutionality is analysed in light of both of them. The paper further proposes an alternative way of how to assess constitutionality of the statutory rule in question, i.e. by testing the proportionality of the exemption from judicial review vis-a-vis the first sentence of Art. 36(2) of the Charter (""Unless a law provides otherwise, a person who claims that her rights were curtailed by a decision of a public administrative authority may turn to a court for review of the legality of that decision."").
The latter alternative is considered preferable; inter alia because of its better ability to adapt to changing circumstances.