CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 mai 2024

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display:inline-block } .s8D17D8A5 { width:127.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } FIFTH SECTION CASE OF MIRZOYAN v. THE CZECH REPUBLIC (Applications nos. 15117/21 and 15689/21)   JUDGMENT Art 8 • Family life • Refusal of applicant’s applications to extend his long-term residence permit for business purposes and long-term residence permit for family purposes on grounds he was considered to pose a threat to national security and public order based on classified documents made partly accessible to applicant’s lawyer but not disclosed to applicant himself • Lack of expulsion order or withdrawal or revocation of valid residence permit meant Court’s case-law for assessing compatibility of such measures with Art   8 could not automatically be transposed to situation of the applicant • Domestic court proceedings offered sufficient guarantees counterbalancing limitation of applicant’s procedural rights in proceedings before the administrative authorities • Applicant not deprived of opportunity to effectively challenge executive’s assertions that national security and public order were at stake • Domestic authorities gave sufficient consideration to applicant’s family ties and, with reference to case-law of the Court, carried out balancing of relevant interests at stake • Margin of appreciation not overstepped   Prepared by the Registry. Does not bind the Court.   STRASBOURG 16 May 2024   FINAL   16/08/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mirzoyan v. the Czech Republic, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Georges Ravarani , President ,   Lado Chanturia,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   María Elósegui,   Mattias Guyomar,   Kateřina Šimáčková , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the applications (nos.   15117/21 and 15689/21) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Artur Mirzoyan (“the applicant”), on 15 March 2021; the decision to give notice of the applications to the Czech Government (“the Government”); the parties’ observations; Having deliberated in private on 13 February and 2 April 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the refusal of the Czech administrative authorities and courts of the applicant’s application to extend his long-term residence permit for business purposes and his application for a long-term residence permit for family purposes on the grounds that he was considered to pose a threat to national security and public order, a conclusion which was based on classified documents made partly accessible to the applicant’s lawyer but not disclosed to the applicant himself. The applicant, relying on Article 8 of the Convention and Article   1 of Protocol No.   7 to the Convention, argued that the dismissal of his applications had adversely affected his right to respect for his family life and the corresponding right of his wife and their children, whose best interests had not been sufficiently considered. THE FACTS 2.     The applicant was born in 1966 and lives in Karlovy Vary. He was represented by Mr P. Václavek, a lawyer practising in Prague. 3.     The Government were represented by their Agent, Mr V. A. Schorm, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. 5 .     The applicant has lived in the Czech Republic since 2006, initially on the basis of a visa for a stay of more than ninety days and then on the basis of a long-term residence permit issued in connection with his business activities in the country. On 26 August 2009 he was granted a long-term residence permit for business purposes, which was valid until 25 August 2011. He lived there with his wife, an Armenian national, and four children, all Russian nationals, born in 1995, 2002, 2007 and 2010 respectively. The applicant’s wife and the children born in 2002, 2007 and 2010 have had permanent residence in the Czech Republic since 2013. His eldest son, born in 1993, also lived in the Czech Republic on a long-term residence permit granted for business purposes. On 28 May 2020, the applicant’s daughter born in 2002 acquired Czech citizenship (see paragraph 33 below). 6 .     It appears from the case file that throughout all the proceedings described below, the applicant was represented by a lawyer of his choice. THE APPLICANT’S APPLICATION TO EXTEND HIS RESIDENCE PERMIT FOR BUSINESS PURPOSES 7.     On 3 June 2011 the applicant applied to the Department for Asylum and Migration Policy of the Ministry of Interior (“the Ministry”) to extend his long-term residence permit for business purposes (see paragraph 5 above). 8 .     After interviewing the applicant about his business activities and the place of residence of his family members, but not about any other issues relating to his family life, on 5 March 2012 the Ministry dismissed his application, concluding that his residence in the country was not in the interests of the Czech Republic. 9.     Following a review by the Commission for Matters of Residence of Aliens (“the Commission”), the Ministry’s decision was annulled and the matter was returned to it for reconsideration. 10.     On 31 October 2012 the Ministry issued a second decision, dismissing the applicant’s application on the same grounds. The conclusion that his residence in the country was not in the security interests of the Czech Republic was based on classified information dated 1 March 2012 (identified as V2-V/2012-UOOZ/OSAI) submitted to the Ministry by the police organised crime unit. According to the Ministry, the information had its source in the applicant’s personal activities and actions and conduct over a relatively long period of time and could be considered credible. On 6   March   2013 that decision was upheld by the Commission. 11 .     Following an administrative action by the applicant, in which he argued that the dismissal of his application would adversely affect his right to respect for his family life and the corresponding right of his wife and their children, on 22 May 2013 the Commission’s decision was annulled by the Plzeň Regional Court (“the Regional Court”). It considered that the classified information underlying the Ministry’s decision did not meet the qualitative requirements laid down in the relevant case-law. The court stated, inter alia , as follows: “It is not clear how that information was obtained, it is not specified why the police considered it credible and as regards the reasons given, namely [the applicant’s] contact with the individuals specified in the classified information, these cannot be verified by the Regional Court in any way. The Regional Court was therefore unable to assess whether the information was sufficiently credible as to allow it to affect the life of [the applicant] (and his entire family) by preventing him from obtaining a permit to continue residing in the Czech Republic.” On 30 January 2014 that judgment was upheld by the Supreme Administrative Court. 12.     On 7   April 2014, after the Ministry’s decision dated 31 October 2012 had been annulled by the Commission, the Ministry issued a third decision, again dismissing the applicant’s application on the grounds that his residence in the country was not in the interests of the Czech Republic. It relied on a piece of classified information dated 14 November 2013 (identified as V83/2013-OAM, later V211-5/2016-OAM) submitted by the police. On 27   July 2014 that decision was upheld by the Commission. 13 .     Following an administrative action by the applicant, on 23   September   2015 the Regional Court annulled the decisions of the Commission and the Ministry. It held that the relevant classified information still did not meet the qualitative requirements laid down in the relevant case-law and stated, among other things, as follows: “The classified information dated 14 November 2013 supplemented the original classified information dated 1 March 2012, and its content shows efforts by the police to provide more details ... However, the content and nature of the latter classified information still do not enable the Regional Court to state anything other than the fact that it had been submitted by the [police organised crime unit] and that it describes meetings or contact between [the applicant] and persons regarded negatively by the provider of the information. The information does not mention any specific subversive or criminal activity by [the applicant], nor does it refer to any evidence of [the applicant’s] collaboration with the identified individuals in their criminal activities. Although it is clear that the source of the classified information is the [police organised crime unit], it is not clear how this information was obtained; it is not specified why the police considered it credible and, in so far as reasons are given, namely the [applicant’s] contact with the individuals specified in the classified information, these cannot in any way be verified by the Regional Court.” On 17 June 2016 that judgment was upheld by the Supreme Administrative Court. 14.     On 4 July 2016 the Ministry issued its fourth decision, again dismissing the applicant’s application on the grounds that his residence in the country was not in the interests of the Czech Republic. It relied on another piece of classified information, dated 7 June 2016 (identified as V117/2016 ‑ OAM and V118/2016-OAM, later V211-6/2016-OAM and   V211-7/2016-OAM), submitted by the police organised crime unit. That decision was upheld by the Commission on 17 October 2016. 15 .     Both the above-mentioned decisions were again successfully challenged by the applicant before the Regional Court, which annulled them on 24 October 2017. Having reviewed and assessed the content of the classified information, the court concluded that, despite having been supplemented, it still did not provide sufficient grounds for dismissing the applicant’s application. On 26 April 2018 that decision was upheld by the Supreme Administrative Court. 16 .     In its fifth decision, issued on 1 March 2018, the Ministry again dismissed the applicant’s application on the grounds that his residence in the country was not in the interests of the Czech Republic, namely the interest of preserving national security ( vnitřní bezpečnost ), referring in particular to sections 37(2)(a) and 56(1)(j) of the Aliens Act (see paragraphs 36 and 39 below). It relied on several pieces of classified information, those identified as V211-5/2016-OAM and V211 ‑ 6/2016 ‑ OAM describing the applicant’s activities generally, and those identified as V211 ‑ 7/2016-OAM and V5/2018 ‑ OAM containing more specific details. According to the Ministry, that information had its source in the applicant’s personal activities and conduct over a relatively long period of time and could therefore be considered credible and sufficient to establish the true state of facts, without it being necessary – as suggested by the applicant’s representative – to hear the individuals named in the classified information, the applicant and the provider of the information. It appears from that decision that on 19 January 2018 the applicant’s representative was able to consult the classified information identified as V211-5/2016-OAM and V211 ‑ 6/2016 ‑ OAM, but not the classified information identified as V211 ‑ 7/2016-OAM and V5/2018-OAM, submitted by the police organised crime unit and the National Office for Combating Organised Crime ( Národní centrála proti organizovanému zločinu – “NCOZ”), which contained a description of the operational activities of those units that could be compromised if disclosed. The Ministry concluded that the applicant’s conduct represented a sufficiently serious risk to the fundamental interests of a democratic society, which included preserving security and preventing the potential commission of the most serious criminal activity, while it was in the public interest that only aliens whose residence was not contrary to the State’s interests in preserving national security should be allowed to remain on the territory. In response to the applicant’s argument that he had never been prosecuted and had no criminal record, the Ministry held that it was immaterial in that context whether he himself had committed a crime. 17.     On 31 May 2018 the decision was upheld by the Commission. It noted, referring to the case-law of the Supreme Administrative Court, that a “State interest” was an indefinite legal concept and that it was for the administrative authority to assess whether the specific factual circumstances of the case could be subsumed under that term. 18 .     On 23 July 2019, following an oral hearing, the Regional Court allowed the applicant’s administrative action and annulled the Commission’s decision, holding that the supplemented classified information still did not provide sufficient grounds for dismissing the applicant’s application. In the court’s view, the courts also had to be provided with specific evidence, namely the results of operational investigative activities (such as intercepted communications) in order to verify conclusions made by a provider of the classified information. 19 .     On 12 March 2020 the Supreme Administrative Court quashed the Regional Court’s judgment and sent the matter back to it. It acknowledged that the limitations placed on a procedural party to whom information was not disclosed had to be proportionate to the aim pursued, and that the specific role of a full ‑ jurisdiction review was to also review the substantive correctness of the findings of fact and conclusions of law. In this regard, it was crucial that classified information be as credible and verifiable by the courts as possible. In the present case, the Supreme Administrative Court found the information contained in the classified part of the administrative file to be sufficient in terms of conclusiveness, accuracy and reliability, despite the fact that it consisted of metainformation reproducing the content of specific evidence (interception of communications, video-recordings of specific individuals and events, statements of police officers and so forth) gathered in the criminal proceedings against other individuals, which also gave an account of the presence and activities of the applicant. In the instant case, this information provided a vivid, long-term and relatively consistent picture of the development of the applicant’s activities and his contact with a criminal community in the Czech Republic since 2011, not relating to an isolated fact or event, but containing a mosaic of facts having occurred over an extended period of time. 20 .     On 2 June 2020 the Regional Court examined the applicant’s case at an oral hearing and dismissed his action, referring to the above-mentioned conclusions of the Supreme Administrative Court. In relation to his family life, the court emphasised, inter alia , that the fact that his children had been living in the Czech Republic for a long time and had developed social ties in the country was not a specific feature which would distinguish his case from other cases routinely considered; it was therefore unnecessary to hear the applicant’s family members, namely his wife, about their family situation. Indeed, the applicant did not state any exceptional circumstances likely to lead to the conclusion that the dismissal of his application was not proportionate (for example, his inability to return to the Russian Federation, health problems and so forth). The court also stated that the applicant’s family could continue to reside in the Czech Republic and that they were financially independent of him. 21 .     On 17 August 2020 the Supreme Administrative Court dismissed a cassation appeal by the applicant and upheld the Regional Court’s judgment. As to the existence of an interference with his private and family life, it pointed to the fact that during his stay in the Czech Republic the applicant had established a number of economic, social, cultural ties, as well as family ties which could be disrupted or completely limited as a result of the refusal to extend his stay. The court further endorsed the conclusion that such an interference, resulting in the present case from the dismissal of the applicant’s application on the grounds that his residence in the country was not in the interests of the Czech Republic, was proportionate and did not breach Article 8 of the Convention or Article 3 § 1 of the Convention on the Rights of the Child. It was also of the view that his children’s situation had been sufficiently taken into account, reiterating that his family members could remain in the Czech Republic and that the minor children could be cared for by their mother, who was also a businesswoman and able to provide for the family. The public interest in preserving security and preventing criminal activity therefore prevailed in the applicant’s case. 22 .     The applicant lodged a constitutional complaint, relying on Article 8 of the Convention and Articles 3 § 1 and 12 of the Convention on the Rights of the Child. By decision no. III. ÚS 2880/20 of 16 February 2021 the Constitutional Court dismissed that complaint. It found that the administrative courts had sufficiently dealt with the applicant’s complaint that the interference with his right to respect for his private and family life was disproportionate. The court also acknowledged the importance of considering the best interests of a child, even in cases where the impact was indirect, and admitted that dismissing the applicant’s application would limit his contact with his children. It found, nevertheless, that the children’s situation had been sufficiently considered, based on the information available to the authorities, and that their interests had been duly taken into account. As regards the inability to challenge the content of the classified information, the Constitutional Court endorsed the conclusions of the Supreme Administrative Court. It emphasised that the procedural limitations placed on the applicant, who had been unable to examine the classified information and challenge it effectively, had been counterbalanced by the judicial review carried out. THE APPLICANT’S APPLICATION FOR A NEW LONG-TERM RESIDENCE PERMIT FOR FAMILY PURPOSES 23 .     On 12 May 2014 the applicant applied to the Ministry for a new long ‑ term residence permit for family purposes, submitting that his wife, an Armenian citizen, had held a permanent residence permit in the Czech Republic since 24 August 2013. 24.     The applicant’s application was dismissed on 26 August 2014, but that decision was later annulled by the Commission. 25 .     On 14 February 2018 the Ministry dismissed the applicant’s application again, on the grounds that there was a reasonable risk that he could seriously disrupt public order during his residence in the Czech Republic, referring in particular to sections 9(1)(h) and 56(1)(g) of the Aliens   Act (see paragraphs 34 and 40 below). It relied on the same classified information as in his application to extend his long-term residence permit for business purposes (identified as V211-5/2016-OAM, V211 ‑ 6/2016-OAM, V211-7/2016-OAM and V5/2018-OAM), submitted by the police’s organised crime unit and NCOZ, which had its source in the applicant’s personal activities and conduct over a relatively long period of time and could therefore be considered credible. It was apparent from that information that the applicant had repeatedly and over a long period behaved immorally, which had seriously disrupted public order, even if that had not in itself amounted to a criminal offence or a breach of the provisions of domestic law. Referring to Article 8 of the Convention, the Court’s case-law and Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, the Ministry took the view that the interference with an alien’s right to respect for family life stemming from the refusal to grant him or her a long-term residence permit for family purposes was comparable to that stemming from the expulsion of a EU citizen and that the best interests of minor children had to be taken into account. As to the applicant’s situation, the Ministry stated that he had repeatedly travelled to Russia from the Czech Republic, so his ties with his home country could not have been disrupted. His wife and minor children (born in 2002, 2007 and 2010) had permanent residence in the Czech Republic but also had Russian citizenship, which allowed them to enter Russian territory without restrictions and to develop their family life there. Moreover, the applicant’s wife was a businesswoman and had an income that enabled her to provide for the family. The Ministry concluded that in the present case the public interest clearly outweighed the applicant’s interest and that the refusal to grant him a residence permit did not exclude him from his children’s care, since it was entirely up to him to decide where he would exercise his parental rights and obligations. 26 .     In its decision of 31 May 2018 upholding the Ministry’s decision the Commission stated that the Ministry had duly examined the impact of its decision on the residence permits of the applicant’s family members and on the applicant’s ties to his home country. It also stated that, according to the administrative courts’ case-law (judgments of the Supreme Administrative Court nos. 9 As 142/2012 of 29 November 2012 and 9 Azs 12/2015 of 12   March 2015), an administrative authority could not be asked to collect evidence in favour of an alien exclusively on its own initiative. In proceedings brought by a party, it was up to that party to submit all the relevant facts and information it considered important and to adduce evidence in support. Section 174a(1) of the Aliens Act had recently been amended accordingly (see paragraph 46 in fine below). 27.     On 23 July 2019 the Regional Court annulled the Commission’s decision, finding that the classified information did not provide sufficient grounds for dismissing his application (see, similarly, paragraph 18 above). 28 .     On 12 March 2020 the Supreme Administrative Court quashed the Regional Court’s judgment and returned the case to it. It found the relevant classified information sufficient and credible in that it provided more than a convincing picture of the general and long-term characteristics of the applicant’s way of life. In the court’s view, there was no doubt that there was a reasonable risk that he could seriously disrupt public order in the Czech Republic. That risk was of such a nature and gravity that the applicant or his representative could not be given access to even part of the classified information assessed by the court. 29 .     On 2 June 2020 the Regional Court examined the applicant’s case at an oral hearing and dismissed his action on the same grounds as in its other decision of 2 June 2020 (see paragraph   20 above). The court added to the considerations concerning the interference with the applicant’s family life that, while the departure of the applicant was likely to have an impact on the family, that fact was not imputable to the Czech Republic but only to the applicant himself. 30 .     On 19 August 2020 the Supreme Administrative Court dismissed a cassation appeal by the applicant and upheld the Regional Court’s decision, endorsing the finding that the interference with his right to respect for his private and family life was proportionate. In that connection, it held that it was not necessary to assess all the criteria set out in section 174a of the Aliens   Act (see paragraph 46 below) and in the Court’s case-law, but only those which were specific to each case and came to light during the proceedings, the burden of proof being primarily on an applicant, who was the only one in possession of the relevant information. As such information could be of a private or even intimate nature (such as that concerning health), it was entirely at an applicant’s discretion whether or not to share it with the authorities. It was only in cases of doubt or where there was a need to supplement such information that the administrative authority could be required to take procedural steps in this regard. Although the administrative authority was bound by the duty to establish facts beyond reasonable doubt, it could not be expected to actively seek details about an applicant’s private life or to invite an applicant to supplement his submissions. In the present case, the applicant had not submitted, either in his action or in his cassation appeal, any information likely to overturn the administrative authorities’ decisions, nor had he specified any important facts from his private or family life which would outweigh the public interest in his no longer residing in the Czech Republic. The same applied to his argument concerning the best interests of his children, as he had never indicated what kind of care he provided to his minor children and how they would be affected by being separated from him. In this regard, the Supreme Administrative Court held that the present case fell within the fourth category of cases defined by the Constitutional Court in its decision no. IV. US 950/19 (see paragraph 53 below). The administrative authorities could therefore not be blamed for the applicant’s passivity or the procedural strategy he had chosen. 31.     By decision no. I. ÚS 2879/20 of 19 January 2021 the Constitutional Court dismissed a constitutional complaint by the applicant for the same reasons as in its decision of 16 February 2021 (see paragraph 22 above). OTHER PROCEEDINGS CONCERNING THE APPLICANT’S RESIDENCE IN THE CZECH REPUBLIC 32 .     On 21 October 2011 the applicant applied to the Ministry for a permanent residence permit on the grounds that he had been residing in the Czech Republic for at least five years. On 1 March 2018, in the fourth round of the proceedings, the Ministry dismissed his application, stating that there was a reasonable risk that he could seriously disrupt public order. It further stated that its decision to dismiss the application meant that the applicant would have to leave the territory of the Czech Republic. On 17 May 2018 that decision was upheld by the Commission. On 23 June 2020 an administrative action brought by the applicant was dismissed by the Regional Court, and the Supreme Administrative Court later dismissed a cassation appeal lodged by him. By decision no. I. ÚS 2027/22 of 6   December 2022 the Constitutional Court dismissed a subsequent constitutional complaint. 33 .     On 5 June 2020 the applicant applied to the Ministry for a temporary residence permit for a family member of an EU citizen, his adult daughter born in 2002, who had acquired Czech citizenship. On 3 March 2021 the Ministry dismissed the applicant’s application, stating that there was a reasonable risk that he could endanger State security ( bezpečnost státu ) and setting a deadline for him to leave the territory of the Czech Republic (thirty ‑ five days from the date on which the decision came into force), pursuant to section 87e(4) of the Aliens Act (see paragraph 41 below). This dismissal was subsequently upheld by the Commission. After the Regional Court’s first decision dismissing the applicant’s action was quashed by the Supreme Administrative Court on the grounds that it was not clear whether the Regional Court had had all the classified information at its disposal and/or whether all the members of the relevant chamber had examined the content of all the classified information, on 29 June 2022 the Regional Court annulled the Commission’s decision. It found that the classified information did not provide sufficient grounds for dismissing the applicant’s application. According to the latest information available to the Court, the proceedings were still pending before the Commission. RELEVANT LEGAL FRAMEWORK AND PRACTICE ALIENS ACT (LAW NO. 326/1999 ON ALIENS’ RESIDENCE IN THE CZECH REPUBLIC) 34 .     Under section 9(1)(h) of the Aliens Act, the Ministry will not issue an alien with a long-term residence permit if there is a reasonable risk that during his or her residence in the country he or she could endanger State security, seriously disrupt public order or endanger the international relations of the Czech Republic. 35 .     Section 33(1)(d) provides that the Ministry will grant a visa for a stay of more than ninety days in order to tolerate the stay of an alien who has brought an administrative action (with a request for its suspensive effect), inter alia , against the decision of the Ministry not to extend his or her long-term residence permit. 36 .     Section 37(2)(a) provides that the Ministry will annul a visa for a stay of more than ninety days for any of the reasons specified in section 56(1) (a), (c), (d), (g), (h) and (j) to (l) or section 56(2), provided that the consequences of the decision are proportionate to the reason for annulment of the visa. When assessing proportionality, the Ministry gives particular consideration to the impact that the decision would have on the alien’s private and family life. Section 37(3) provides that if the Ministry decides to annul a visa, it will set a deadline for the alien concerned to leave the territory and issue an order to leave. 37 .     Under section 46a(4) (and other sections relating to the annulment of other types of residence permits), if the Ministry decides to annul a long-term residence permit granted for family purposes, it will set a deadline for the alien concerned to leave the territory, which the alien must comply with. 38 .     Section 47(2), as in force until 17 December 2015, provided that if the period of validity of a visa for a stay of more than ninety days expired before a decision was taken on a timely request for the extension of a long-term residence permit, the visa was deemed valid until the decision on that request became final. 39 .     Under section 56(1)(j), the Ministry will not issue a long-term residence permit if an alien’s residence in the country is not in the interests of the Czech Republic. 40 .     Under section 56(1)(g), the Ministry will not issue a long-term residence permit for the reasons specified in section 9(1)(a),(b), (g), (h), (i) or (j). 41 .     Section 87e(4) provides that if the Ministry dismisses an application for a temporary residence permit, it will set a deadline for the alien concerned to leave the territory and issue an order to leave, which the alien must comply with. 42 .     Section 87y provides that a family member of an EU citizen who is not him or herself an EU citizen and who is staying on the territory with the EU citizen is authorised to stay on the territory until the decision on his application for the relevant residence permit becomes final; during that period, his stay on the territory is considered temporary. 43.     Under section 169m(1), documents or records containing classified information must be kept separately from the case file put together in the proceedings under the Act and cannot form part of it. 44.     Under section 169m(2), if documents forming the basis of the decision contain classified information, the decision must only contain a reference to that information and its classification level. The considerations followed by the administrative authority in its assessment and the reasons for issuing the decision are only stated to the extent that they are not classified information. 45.     Under section 169m(3), if it becomes clear in the proceedings, on the basis of classified information provided by the police or the intelligence service of the Czech Republic, that an alien concerned poses a threat to the security of the State, its sovereignty, territorial integrity, democratic foundations, the lives or health of persons, or if this information leads to a reasonable suspicion that the alien could endanger those values during his or her stay on the territory, the information on the reasons for not granting a long-term visa or in justification of a decision under the Act will only state that the visa or permit was not granted on account of a threat to national security. If the administrative authority is, in proceedings under the Act, obliged to assess the proportionality of the impact of its decision, the reasoning of its decision must also state the considerations used for that assessment. 46 .     Under section 174a(1), when assessing the proportionality of the impact of a decision under the Act, the administrative authority must take into account, in particular, the seriousness or the nature of the alien’s unlawful conduct, the length of his or her stay or residence in the country, his or her age, state of health, the nature and stability of family ties, financial situation, any social and cultural ties established in the country and the strength of the alien’s ties to the State of which he or she is a citizen, or, in the case of a stateless person, to the State of his or her last permanent residence. On 15 August 2017 that section was amended to also provide that the party to the proceedings must provide the Ministry with all relevant information necessary to assess the proportionality of the decision. CODE OF ADMINISTRATIVE PROCEDURE (LAW NO.   500/2004) 47.     Article 17 § 3 provides that, in order to protect classified information or other information subject to a statutory duty of confidentiality, part of the documents or records must be kept separately from the case file in the cases specified by law. 48.     Under Article 36 § 3, unless otherwise provided by law, the parties must have the opportunity to comment on the material underlying the decision prior to its adoption; this does not apply to an applicant if his or her application is granted in full or to a party who has waived this right. Where the decision is based on documents and records which, pursuant to Article   17   § 3, are kept separately from the case file, the party whose claim is being decided in the proceedings may consult these documents, but only in a way that does not jeopardise the purpose of their classification. If this is not possible, that party will be informed, at least in general terms, of the facts stemming from those documents. Before allowing the party to consult the documents, the administrative authority will request the opinion of the authority that provided them. 49.     The first sentence of Article 38 § 6 provides that the parts of the file containing classified information or facts subject to a duty of confidentiality are excluded from consultation. This does not apply to the parts of the file which have been or will be used as evidence, and which only a party or his or her representative can consult. CODE OF ADMINISTRATIVE JUSTICE (LAW NO. 150/2002) 50 .     Article 45 § 3 provides that, when submitting a case file to the court, the administrative authority must always identify the parts of the file containing classified information protected by a “special law” (the Protection of Classified Information Act (Law no. 148/1998)). The presiding judge excludes these parts of the case file from consultation. This also applies to documents or records which have been kept separately from the case file in the proceedings before the administrative authority. It also applies, where appropriate, to court files. 51 .     Under Article 45 § 4, the parts of the case file referred to in Article   45   § 3 which have been or will be used as evidence by the court cannot be excluded from consultation. Similarly, the parts of the case file which a party was allowed to consult in the proceedings before the administrative authority cannot be excluded from consultation. Documents or records which have been kept separately from the case file in the proceedings before the administrative authority, and which are not subject to the provisions on consultation of the case file, may be made available for consultation only if the presiding judge decides that this cannot jeopardise or seriously disrupt the work of the intelligence services or the police. Before issuing such a decision, the presiding judge must request the opinion of the authority that provided the information contained in those documents or records. RELEVANT DOMESTIC CASE-LAW The Constitutional Court’s case-law 52 .     In its decision no. III. ÚS 2116/21 of 19 October 2021, the Constitutional Court stated as follows with regard to the existence of grounds for the classification of information: “22.     There must, however, be clear legal grounds for the classification of such information. Law no. 412/2005 on the protection of State classified information and access thereto ... divides classified information into individual categories depending on the severity of the potential damage or threat to the interests of the Czech Republic. The criterion is the significance of the interference with the interests of the Czech Republic; the terms used in this provision to define the individual categories of classified information, i.e. the degree to which they are contrary to the interests of the Czech Republic, namely ‘harm’, ‘serious harm’ and ‘very serious harm’ to these interests, are defined in section 3 of that Law. ... 25.     At the same time, however, under the conditions of the rule of law, the principle must apply that classified information can only be information whose disclosure could lead to one of the consequences defined by law. It does not make any reasonable sense for information that is publicly available to be listed as classified. However, this is exactly what happened in the case under consideration, and it was in this regard that the Constitutional Court found a violation of the complainant’s right ... ... 27.     However, the situation that arose in this matter is similar to target shooting while blindfolded. The Ministry rejected the complainant’s request, but did not inform her of the reasons why she was not successful in the proceedings; however, it did so in a situation where it based its decision solely on circumstances for which there is no legal or reasonable reason for concealment, as they are well known and publicly available to the complainant ...” 53 .     In its decision no. IV. ÚS 950/19 of 14 April 2020, the Constitutional Court stated as follows with regard to the best interests of a child in the context of the Czech constitutional order: “52.     It is therefore necessary to distinguish between the various categories of legal proceedings according to the type of impact on the child: – the first category consists of proceedings whose purpose is to directly regulate the rights or obligations of the child as a child (typically proceedings concerning care of the child and contact); – the second category consists of proceedings whose purpose is to regulate the rights and obligations of the child, but which do not directly affect his or her status as a child (e.g. proceedings concerning obligations in private law, criminal proceedings against a juvenile offender, etc.); – the third category consists of proceedings whose purpose is not to directly affect the legal status of the child (to decide directly on his or her rights and obligations), but which have an indirect legal impact on the child, as their outcome is necessarily and unavoidably linked to a subsequent change in the child’s legal status (e.g. proceedings for the expulsion of the child’s caregiver, followed either by proceedings for a change in the child’s care or the child’s departure to the caregiver and a change of his or her permanent residence); – the fourth and final category consists of proceedings whose purpose is not to directly affect the legal status of the child, nor do they have an indirect legal impact on the child, but only affect the child in factual respects (e.g. the above-mentioned proceedings for termination of the employment of the parent caring for the child, where the legal status of the child does not change as a result, even though the financial situation of his or her family may change, for example). 53.     In the first category of proceedings, the best interests of the child are almost always the decisive criterion to be considered by the decision-making body. In the second and third categories, the best interests of the child are an absolutely fundamental criterion, but these may be outweighed by a competing interest, typically the legitimate interest of another individual also enjoying the protection of fundamental human rights and freedoms (e.g. in a civil dispute between a child and a third party), or a sufficiently important public interest (e.g. the imposition of a punitive measure on a juvenile offender who has committed an extremely serious offence). In the third category, a wider scope for overriding another competing interest opens up than in the second category, as here the conflict concerns not only the child’s interest on the one hand and a different interest on the other, but the child’s interest is only one, albeit undoubtedly significant, of a number of different interests of various other subjects that need to be balanced and which may be equally or even more significant. In the fourth category, the decision-making body is, in principle, not obliged to take into account the best interests of the child unless the relevant legal provisions explicitly provide for the protection of the child’s interests.” The Supreme Administrative Court’s case-law 54 .     In its decision no. 5 Azs 46/2016 of 31 May 2018, the Supreme Administrative Court stated as follows regarding the obligation of public authorities and courts to consider proportionality of the interference with the appellant’s private and family life and the violation of Article 8 of the Convention with regard to the best interests of the appellant’s children in the circumstances of the case: “38.     The Supreme Administrative Court notes that if the appellant objected in the administrative proceedings that the interference with his private and family life was not proportionate, in breach of Article 8 of the Convention with regard to his specific family and personal situation, the administrative authority sh