FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57986/00 by Ivan TUREK against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 14 December 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 15 April 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ivan Turek , is a Slovakian national, who was born in 1944 and lives in Prešov . He was represented before the Court by Mr M. Benedik , a lawyer practising in Bratislava . The respondent Government were represented by Mr P. Kresák , their Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows .

1. The applicant ' s “security clearance” and its effects

The applicant worked in the State administration of the school system. He occupied a leading post that fell within the purview of s ection 1 of Act No. 451/1991 Coll. ( “ the Act”) which defined some supplementary requirements for holding certain posts in public administration.

In January 1992 the applicant ' s employer requested , pursuant to s ection 6 of the Act , that the Ministry of the Interior of the Czech and Slovak Federal Republic (“the Federal Ministry”) issue a c learance ( lustračné osvedčenie ) under s ection 9 of the Act concerning the applicant (see below) .

On 19 March 1992 the Federal Ministry issued a negative security clearance . It stated that the applicant was registered in the files of the [former] State Security Agency ( Štátna bezpečnosť , “ StB ”) as belonging in the relevant period to one of the six categori es of collaborators defined in s ection 2 (1) (b) of the aforesaid Act. The document was served on the applicant on 26 March 1992 .

The information about who was registered in the StB files in the categories referred to in s ection 2 (1) (b) of the Act has been made public in newspapers and on the internet.

The applicant resigned from h is post and, in 1994, he had to change his employer. His new job is remote from the place of his residence and he has to commute.

2. The action for protection of the applicant ' s good name

On 2 5 M ay 1992 the applicant lodged an action under Article 11 et seq. of the Civil Code for protection of his good name and reputation against the Federal Ministry with the Praha (the Czech Republic ) City Court ( M ěstský soud ). He cla imed that his registration as a collaborator of the StB was wrongful and unjustified. He requested that the Federal Ministry issue a new c learance to the effect that he was not registered as a person referred to in s ection 2 (1) (b) of the Act.

The City Court subsequently sent a copy of the action to the defendant , invited the applicant to pay the court fee and listed a hearing for 6 August 1992 .

On 23 July 1992 the applicant filed a request under Article 12 §§ 2 and 3 of the Code of the Civil Procedure for a transfer of his action to the Košice Regional Court ( Krajský súd ). On 29 July 1992 he demanded that the hearing scheduled for 6 August 1992 be cancelled in view of his request for transfer of the action .

On 7 August 1992 , after the applicant had paid the court fee, the City Court sent a copy of t h e request of 23 July 1992 to the defendant for comments . On 23 September 1992 the latter objected to the transfer .

On 24 September 1992 the City Court submitted the case ‑ file to the Supreme Court ( Najvyšší súd ) of the Czech and Slovak Federal Republic for a determination as to which court was to entertain the action at first instance.

On 4 November 1992 the Supreme Court ruled that the act ion fell to be determined by the Regional Court . The case ‑ file was sent to it on 13 October 1992 .

On 16 November 1992 the Regional Court requested the defendant ' s observations in reply. In a letter of 25 November 1992 the defendant replied that it had already filed its observations with the City Court. On 10 December 1992 the City Court transferred th ose observations to the Regional Court .

On 18 February 1993 the Regional Court invited the applicant to specify which public body possessed the powers conferred by the Act in the area of security screening after the dissolution of the Czech and Slovak Federal Republic on 1 January 1993 . On 26 February 1993 the applicant responded that the body currently responsible for security screening in Slovakia was the Ministry of the Interior of the Slovak Republic (“the Slovak Ministry”) . It was thus understood that the action was directed against the said M inistry.

On 9 March and 8 April 1993 the Regional Court invited the applicant to submit within 10 days a second copy of , respectively, the action and the submission of 26 February 1993 .

On 21 April 1993 the Regional Court invited the Slovak Ministry to present its observations in reply to the action . In its response of 6 May 1993 the M inistry above all contested its standing to be sued in the case , arguing that it had not assumed the authority of the Federal Ministry under the Act. Relying on R esolution of the Government of Slovakia N o . 276 of 20 April 1993 (“Resolution 276”) , the defendant asserted that the body which had taken over the powers under the Act was the Slovak Intelligence Service ( Slovenská informačná služba – “the SIS” ). The Ministry also maintained that under the said resolution the Prime Minister of Slovakia was entrusted with the task o f prepar ing jointly with the Minister of Justice of Slovakia a petition to the Slovak Constitutional Court ( Ústavný súd ) for a review of the constitutionality of the Act.

On 4 October 1993 the applicant amended his submission of 26 February 1993 on the grounds that the Federal Ministry ' s powers under the Act had passed on the SIS against which the action was accordingly directed .

On 21 October 1993 the Regional Court invited the SIS to present its observations in reply. The defendant submitted the observations on 16 November 1993 and on 9 December 1993 the Regional Court sent their copy to the applicant.

On 9 May 1994 the Regional Court held a hearing at which the applicant modified the subject ‑ matter of t h e action in that he sought a judicial ruling declaring that his registration as a person referred to in s ection 2 (1) (b) of the Act was wrongful. The applicant further informed the court that he wished to call e x ‑ StB agents P. , K. and M. as witnesses. He submitted the addresses of P. and K. and stated that he would submit the address of M. l ater. The defendant consented to the modification of the action and maintained that the relevant ex ‑ StB documents were held in the archives of the Federal Ministry. T he hearing was adjourned with a view to obtaining the se documents.

On 10 June 1994 the Regional Court sent a letter to the Federal Ministry inviting it to submit copies of the relevant ex ‑ StB documents. The letter returned unanswered as “ non- réclamé ” .

On 12 September 1994, on the basis of a treaty between the Slovak Republic and the Czech Republic on mutual legal assistance of 29 October 1992 (“the mutual legal assistance treaty of 1992”) , the Regional Court sen t a letter rogatory to the City C ourt requesting that it obtain from the Ministry of the Interior of the Czech Republic (“the Czech Ministry”) copies of all ex ‑ StB documents in its possession concerning the applicant.

On 27 September 1994 the City Court advised the Regional Court that the request had been submitted to the Czech Ministry which would reply directly to the Regional Court .

In a letter of 3 October 1994 the Czech Ministry informed the Regional Court that all ex ‑ StB documents concerning Slovakia had been transmitted to the Slovak Ministry and that, accordingly, the documents concerning the applicant had to be searched for there .

On 12 October 1994 the Regional Court requested that t he Slovak Ministry submit within 15 days copies of all ex ‑ StB documents concerning the applicant.

The request of 12 October 1994 was answered on 2 November 1994 by the S IS in that , apar t from a database in which the applicant wa s listed as an ex ‑ StB agent , t here were no ex ‑ StB materials concerning him in its possession. The defendant relied on a treaty between the governments of the Slovak Republic and the Czech Republic on joint usage of information and archives generated by ministries of the interior in the area of internal order and security which had been signed on 29 October 1992 and promulgated in t he Collection of Laws under No. 201 /1993 (“the treaty of 1992”) . The SIS submitted that under this treaty the relevant documents were with the Czech Ministry. The SIS again contested its standing to be sued in the case arguing that the powers in the area of security screening which had been conferred o n it under Resolution 276 were temporarily limited to 9 months . As this period had already expired, there was presently no official body entrusted with th ese powers in Slovakia .

On 21 Decembe r 1994 the Regional Court reiterated its request to the Czech Ministry for copies of ex ‑ StB documents concerning the applicant. On the same day it also addressed a request to the Office of the Government of the Slovak Republic for information as to which authority was currently endo wed with the powers under the Act as regards security screening. As no answer had been received, the Regional Court repeated the requests in May 1995.

On 22 May 1995 the Office of the Government informed the Regional Court that the question of legal succession in respect of the powers under the Act w as not currently addressed in the existing legislation. However, per analogiam , the powers of the Federal Ministry had been assumed by the Slovak Ministry.

In a letter of 24 May 1995 the Czech Ministry informed the Regional Court that there were no documents concerning the applicant in its archives. C onsider ing the relevant part of the letter of the S I S of 2 November 1994 to be confused, it relied on the Protocol to the treaty of 1992 and maintained that the documents searched for were stored in Slovakia .

On 9 August 1995 the Regional Court ordered that the SIS deliver within 20 days copies of all ex ‑ StB documents concerning the applicant which were in it s possess ion . The SIS complied on 24 August 1995 and proposed that the proceedings be discontinued on the grounds of its lack of standin g to be sued. The SIS also pointed out that the documents submitted were top secret and that the applicable confidentiality rules had to be observed.

Another hearing was he ld on 11 December 1995 . T he applicant extended the action by directing it also against the Government of the Slovak Republic . The hearing was adjourned in order for the applicant to re ‑ submit the extended action in writing. H e did so on 13 December 1995 .

On 15 December 1995 the SIS fil e d its observations in reply to the extended action.

A t an unspecified later time the Vice ‑ President of the Regional Court exercised his power under s ection 2 § 2 of the State Administration of Justice Act of 1992 a nd assigned the case to another Chamber of that court on the ground that the original Chamber had an excessive workload.

On 9 September 199 6 the Regional Court allowed the extension of the action against the Government of Slovakia. On the same day it invited the applicant to disclose the address of witness M.

In a written submission of 19 September 1996 the Office of the Government asserted that the Government was not a legal successor of the Federal Ministry and possessed no powers under the Act. It was thus not the correct defendant to the action .

On 28 October 1996 the applicant informed the Regional Court that he had no information as to the address of M. and demanded that the court make an ex officio inquir y as to the address .

Th e h e aring summoned for 15 January 1997 had to be adjourned as the representatives of the applicant and the Government did not appear.

On 21 April 1997 the Regional Court held another hearing . It made a formal ruling allowing the modific ation of the subject ‑ matter of the action , as sought by the applicant on 9 May 1994 . The Regional Court then heard the par ties and examined the StB file concerning the applicant.

On 21 May 1997 the S I S i nformed the Regional Court of M. ' s address.

On 2 July 1999 the applicant made a written submission in which he commented on the documentary evidence submitted by the defendant .

By letters of 9 September, 20 November and 10 December 1997 the Regional Court requested that the Slovak Ministry discharge witnesses P., K. and M. from the obligation of confidentiality in respect of the subject ‑ matter of the proceedings. The M inistry agreed o n 29 June 1998 .

On 13 August 1998 the Regional Court held another hearing at which witnesses P., K. and M. failed to appear. The hearing was adjourned until 24 August 1998 with a view to calling the m again.

At the hearing of 24 August 1998 the Regional Court heard M . and K. The witness P. did not appear and the court observed that it had been impossible to deliver the summons to him. In response to the court ' s request, the parties stated that they intended to adduce no further evidence a part from hearing P. and examining the relevant I nternal G uideline of the Federal Ministry of 1972 (“the guideline of 1972”) concerning secret collaboration.

On 10 September 1998 the Regional Court ordered that the summons for the forthcoming hearing be served on P. by the Police. No service was however actually e ffected.

At a hearing held on 24 September 1998 the SIS submitted the guideline of 1972. As this document was classified, the applicant had no access to it. Apart from hearing P. the parties adduced no other evidence.

The Regional Court listed a hearing for 24 February 1999 and ordered that the summons be served on P. by the Police. At this hearing P. finally appeared and gave evidence .

On 19 May 1999 , following another hearing held on the same day, the Regional Court dismissed the action.

First of all the Regional Court found that the Government of the Slovak Republic had no standing to be sued in the proceedings and that the correct entity to defend the action was the SIS . The Regional Court considered that the crucial criterion for establishing standing w as who de facto possessed the ex ‑ StB archives.

On the basis of the StB file pertaining to the applicant the Regional Court established that since 1983 the applicant had been listed as a “candidate f or secret collaboration” and since 1984 as an “agent” of the StB . For tactical reasons it had been decided not to have the applicant sign a formal undertaking to collaborate. The applicant ' s StB file contained only a n i ndex indicating which reports and documents he h ad provided. The re was a note that the reports and documents themselves had been officially destroyed in the late 1989 when, according to the file, cooperation with the applicant had been terminated.

The Regional Court also noted that the applicant had on thirteen occasions travelled abroad to western Europe at the relevant time and that it was then usual for a person to be interviewed by the StB prior to and after such travel. The applicant himself acknowledged having met the StB in connection with his travelling. He also admitted having been in contact with K., M. and P. and having unwillingly met with them. However he categorically denied ever having given them any intelligence information.

The o ther testimonies were c ontradictory. Although w itness K. conceded that he had been in charge of the applicant ' s StB file, he d enied having ever met h im on business. Witness M. confirmed that he had been in charge of acquiring the applicant as a collaborato r . He had the impression that the applicant had not been interested in meeting him. Their co nversation had concerned ordinary affairs and the applicant had not submitted any documents. The reports mentioned in the StB file had been drawn up by M. on the basis of his conversation with the applicant. According to M. , there had been norms as to how many new agents were to be acquir ed . As aresult , new acquisitions had frequently been only formal , with the new “agents” conceivably having no know ledge of them . Witness P. acknowledged that he had been the chief district police officer in the relevant period and that he remembered the applicant . However , he could not recollect clearly the details of their collaboration . P. pointed out that the organisation of StB had been very strict and considered that a s long as anything had been recorded, it must have been true. In contradiction t o M., P . considered that it was not possible that the applicant had not known that he was acting for the StB as an “agent”.

T he Regional Court based its finding on the testimony of P. , holding it credible and co nsistent with the case ‑ file . In the light of all the information in its possession including the applicant ' s intellectual capacity, the Regional Court found that he must have known that he had been meeting StB agents and that their contact had actually amount ed to a formal collaboration. Insofar as the applicant had disputed such conclusion and a sserted that his registration in the StB files had been unjustified, he had failed to prove his case, in particular , by show ing that t h e registration was contrary to the applicable rules.

On 6 July 1 999 the applicant lodged an appeal with the Supreme Court. He challenge d the credibility of witness P., objected that he had had no access to the g uideline of 1972 which was a crucial piece of evidence and objected that the Regional Court had erred in its factual assessment of the case.

On 4 August 1999 the SIS filed its observations in reply to the appeal. On 24 August 1999 the Regional Court transmitted the case ‑ file to the Supreme Court for a decision on the appeal.

On 26 September 1999 , following a hearing held on the same day, the Supreme Court upheld the Regional Court ' s judgment.

It found that the Regional Court had adequately e stablished the facts of the case and found no logical or other errors in the Regional Court ' s assessment of the evidence.

The Supreme Court held that the fact that the applicant was r egistered in the StB files as a person referred to in s ection 2 (1) (b) of the Act did no t by any means evidence that he had been a conscious collaborator of the StB .

I n line with the established judicial practice the Supreme Court pointed out that the procedure concerning the issuance of a security clearance under the Act could not amount to a violation of an individual ' s personal integrity. Only an unjustified registration in the StB files could.

The Supreme Court considered that it was crucial for the applicant to prove that his registration had been contrary to the then applicable rules and concurred with the Regional Court ' s conclusion that the applicant had failed to do so. No appeal l ay against this decision.

B. Relevant domestic law and practice

1. Code of Civil Procedure

Pursuant to Article 6 , as applicable at the relevant time, courts w e re to work together with the parties so that the contentious facts we re established reliably and the protection of the parties ' rights wa s ensured speedily and effectively.

Under Article 100 § 1 once proceedings commence, the court is to act without further motions so that the matter is examined and determined as expeditiously as possible.

In accordance with Article 114 § 1 a hearing is to be prepared by the President of the Ch amber so that the matter can be decided usually ( sprav i dla ) in a single session.

2. Act of the Federal Assembly of the Czech and Slovak Federal Republic of 4 October 1991 No. 451/1991 Coll.

The Act la id down supplementary requirements for the holding of certain important posts and functions in State organs and institutions which w e re filled by election, designation or appointment. The Act prevented persons mentioned in s ection 2 (1) under letters (a) through (h) from exercising the functions enumerated in s ection 1.

According to s ection 2 (1) (b) the functions covered by the Act c ould be exercised only by persons who were not registered in the [former] St B files in the period between 25 February 1948 and 11 November 1989 as “r esident”, “agent”, “holder of a conferred flat”, “holder of a conspiratorial flat”, “informer” or “ideological collaborator of the St B ”.

Under s ection 2 (1) (c) the functions covered by the Act could only be exercised by persons who had not been conscious collaborators of the St B in the above period. O n 26 November 1992 the Constitutional Court of the Czech and Slovak Federal Republic ( Ústavný súd Českej a Slovenskej Federatívnej Republiky ) found that this condition was in contradiction with the Charter of Fundamental Rights and Freedoms ( Listina základných práv a s l obôd ) and with the International Covenant on Economic, Social and Cultural Rights. Accordingly, this condition was repealed as from 15 December 1992 .

The fact that a person met the requirements of s ection 2 of the Act wa s to be prove n by means of a security clearance issued by the Ministry of the Interior under s ection 9 of the Act. Under paragraph 1 of that s ection the security clearance was to be delivered in to the hands of the person concerned alone .

Pursuant to s ection 14 (1) if a person does not meet the requirements of s ection 2 of the Act, the employer is to terminate that person ' s employment by notice within 15 days unless the employment terminates earlier by agreement or otherwise or the person concerned is transferred to another post outside the scope of s ection 1 of the Act.

Under s ection 18 (2) such termination of employment can be challenged before the courts within two months from the date on which the employment purportedly ended.

Section 19 provides that any disclosure of the clearance or of the information contained in it is prohibited save with the consent of the person concerned.

The temporal application of the Act is governed by its s ection 23 under which the Act ceased to have effect in Slovakia on 31 December 1996 .

3 . The relevant practice

It has been established by judicial doctrine and the relevant case ‑ law that persons who consider themselves adversely affected by their registration in the former S tB files can seek redress bef ore civil courts by means of an action for protection of their personal integrity under Article 11 et seq. of the Civil Code.

COMPLAINTS

1. The applicant complain ed that t h e length of his proceedings had been excessive . In substance, he relie d on Article 6 § 1 of the Convention.

2. The applicant further complain ed under Article 8 of the Convention that his registration in the ex ‑ StB files was wrongful , illegal and unjus t ified and that the issuance of the security clearance co mbined with the outcome of his proceedings had constituted an unwarranted interference with his good name and reputation. In this connection he maintained that the dismissal of his action had been arbitrary and unfair. The applicant also asserted that, as a result of the above violations , h is hea l th had deteriorated, his social relations and his professional career had been negatively affected, he had been pre vented f rom taking part in public life and he had thus suffered an interference with his private life.

THE LAW

1. The applicant complained that his proceedings had lasted too long. He relied on Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government maintained that the applicant ' s negative security clearance of 19 March 1992 had in fact and above all damaging repercussions on hi s employment in the public administration where he had occupied a leading position falling within the ambit of the notion of “public service”. Although his action of 1992 formally aimed at the protection of his personal integrity, it de facto concerned his employment in the public service , disputes over which were exclude d from the scope of Article 6 § 1 of the Convention (see, e.g. Pellegrin v. France [GC] , no. 28541/95, § § 65 ‑ 67 , ECHR 1999-VIII) . Th e Government thus primarily a rgued that the proceedings at issue d id not enjoy ratione materiae the protection of Article 6 § 1 of the Convention.

Were the Court to reject this argument, the Government considered that the relevant part of the applicant was manifestly ill-founded. They asserted that the subject ‑ matter of the proceedings was of some complexity. Until the end of 1992 the re were no delays. Then the issue of succession a n d standing to be sued had to be determined. This had proved to be rather difficult but the Regional Court had proceeded with the case efficiently and without delays. The progress of the proceedings had been delayed by complications in o btain ing evidence from the ex ‑ StB archives which had to be requested under the mutual legal assistance treaty of 1992 . Although this part of the proceedings had been marked with some delays, they were not substantial and the proceedings subsequently continued without any delays.

The applicant accepted that the issue of standing to be sued in the case after the dissolution of the Czech and Slovak Federal Republic had been of some complexity. The courts had however not handled it efficiently and there was nothing to justify the overall length of the proceedings. Moreover, the applicant maintained that there had been periods of obvious inactivity or ineffective activity on the part of the courts. In particular, the applicant objected that on 16 October 1992 the Regional Court had in vain invited the Federal Ministry to submit its observations in reply to the action as it had already done so. The fact that the City Court only later sent these observations to the Regional Court was according to the applicant imputable to the State. Moreover, contrary to the principle iura novit curia , the Regional Court invited the applicant on 18 February 1993 and the Office of the Government on 21 December 1994 to specify which entity had assumed authority under the Act and was accordingly to be sued . The first hearing had not been held until 9 May 1994 and it had not been prepared so as the case could be decide d in a single session as envisaged by the applicable procedural rules. The applicant also objected that in 1994 the Regional Court had sent a request for information to the Federal Ministry which at that time no longer existed. Further delays had been caused by an ineffective search for the ex ‑ StB file concerning the applicant which, as it had turned out later, had always been in the possession of the defendants. According to the applicant, therefore, the Government ' s argument concerning the necessity to seek evidence under the mutual legal assistance treaty of 1992 was to be dismissed. The applicant also maintained that all delays which had been caused by the State authorities, judicial or other wise , were imputable to the respondent State . He f inally objected that prior to the hearing of 15 January 1997 the Regional Court had taken no significant procedural steps for more than 1 year and that it took the Slovak Ministry more than 9 months to discharge the witness es from the ir confidentiality obligation.

As regards the Government ' s argument concerning the applicability of Article 6 of the Convention to the present proceedings, the Court observes that they were aimed at the protection of the applicant ' s personal integrity under Article 11 et seq. of the Civil Code. The outcome of these proceedings had no effect on his employment . Ha d the applicant ' s employment in the public service be en at stake, he had other means of asserting his interests, in particular an action under s ection 18 (2) of the Act. The Court therefore concludes that the Government ' s objections cannot be sustained.

As to the merits of the complaint of the length of the proceedings, t he Court considers, in the light of the parties ' submissions, that t he complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founde d within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained that his registration in the StB files, the issuance of h is security clearance and the outcome of his proceedings with the resultant effects on him constituted a violation of his right to respect for p rivate life pursuant to Article 8 of the Convention which, insofar as relevant, provides that:

“1. Everyone has the right to respect for his private ... life ... .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

T he Government asserted in the first place that the primary effect of the applicant ' s negative security clearance was that he no longer qualified for certain leading posts in the public service. Maintaining that the Convention could not be interpreted as guaranteeing a right of access to civil service as such , t hey concluded that the issuance of the clearance fe ll outside the scope of Article 8 of the Convention ratione materiae .

T he Government further maintained that , in any event, the issuance of the clearance had a clear legal basis in the Act and that it was necessary in the interest of national security . They further pointed out that the effects of the Act w ere limited temporarily to the period of political transition of the country and ended on 31 December 1996 . The scope of the A ct was also limited materially , as it applied only to certain leading posts in the public service and personally , in that it applied only to persons who had been registered in the ex ‑ StB files as belonging to the precisely defined categories of collaborator. The Government further maintained that the Act afforded comprehensive safeguards to the person concerned. P ursuant to its s ection 9 (1) the security clearance was to be delivered in to the hands of the person concerned alone . U nder its s ection 19 any disclosure of the clearance or its contents without the consent of the person concerned was prohibited. Even the employer of th at person could not learn about the contents of the clearance unless the employee revealed it. According to the Government the State c o u ld not be held liable for the fact that the applicant chose to unveil the contents of his clearance. The Government further pointed out that a negative security clearance did not automatically mean the termination of the concerned person ' s service and that s ection 14 (1) of the Act specifically envisaged the possibility of transferring such person to a different post that was not covered by the Act. Pursuant to s ection 18 (2) of the Act any dismissal from service under the Act was challenge able before the courts.

The Government also pointed out that the applicant actually s ought protection before courts at two levels of jurisdiction . He however failed to prove his case. The Government finally claimed that they had a wide margin of appreciation in the present matter in view of the national security aim of the Act and the fact that the Act primarily applied to the public service , the right of access to which was not as such guaranteed under the Convention .

Insofar as the applicant complained that the procedural safeguards inherent in Article 8 of the Convention had not been respected in his proceedings, the Government considered that this part of the application rai sed mainly question of the fairness of these proceedings which wa s primarily guaranteed under Article 6 of the Convention. In their view it was therefore crucial to ascertain whether these proceedings had complied with the requirements of fairnes s under the latter provision. In that regard the Government maintained that that the proceedings had been adversarial and pointed out that t he applicant had throughout the proceedings been represented by a lawyer. T h e applicant was p rovided with ample opportunity to state his arguments , to challenge the submissions made by the adversary part ies and to submit whatever he found relevant for the outcome. A lthough admitting that the applicant had had no access to the guideline of 1972 which was top secret, the Government emphasised that the courts had obtained and assessed all the evidence that he had adduced. The Government finally asserted that there was no indication that the factual assessment of the case by the domestic courts had been arbitrary or unfair cont rary to Article 6 § 1 of the Convention and considered that the relevant part of the application was manifestly ill-founded.

The applicant s tated that by his “ registration ” in the former StB files he understood that there continued in existence records at the disposal of the State which linked him to the StB and which he considered unjustified. He asserted that after the dissolution of the Czech and Slovak Federal Republic Slovak there had been no legal basis for any State authority in Slovakia to keep and use the ex ‑ StB file concerning him.

The applicant further maintained that the StB was generally known as an organisation which had been suppressing human rights and that it was commonly seen as discreditable . Labelling somebody as an “ StB collaborator ” was therefore a serious interference with his or her moral and psychological integrity and good name and reputation which fel l within the purview of Article 8 of the Convention and constituted an interference with the interests protected under that provision.

The applicant accepted that the issuing of security clearances pursu ed the legitimate aim of protecting national security. He however argued that the way in which the courts had handled his action, namely how they had assign ed the burden of proof , had made it impossible for him to rebut effectively the basis on which his clearance had been issued . In this connection t he applicant maintained that the Convention should be interpreted and applied according to the principle praesumtio boni viri , t hat is to say that individuals are presumed honest until proven otherwise. Although the State authorities accused him of having been a n StB collaborator , they did not have to prove the accusation. O n the contrary, the domestic courts required that the applicant prove that the accusation against him wa s false. T he domestic courts dismissed the action without even actually se eing t he whole StB file concerning the applicant and were satisfied with its formal remnant , the substantial contents of t he file having allegedly been destroyed in the late 1980s. The applicant further emphasised that throughout the proceedings he had had no a ccess to the g uideline of 1972 which had laid down criteri a crucial for the determination as to whether his registration by the former StB had been justified or not. The courts thus required h im to prove something t hat was o therwise for the defendant to prove. In the circumstances of the case such a burden of proof was excessive and impossible for the applicant t o discharge . According to him the State had thus failed to discharge its positive obligation s inhere nt in Article 8 of the Convention.

The Court observes th at the applicant ' s complaints under Article 8 of the Convention concern the continued existence of the contested files , the issuance of his security clearance on the basis of his registration in such files, the fact that he was unable to rebut that registration and the effects of the above on his private life , rather than the fact that he had to leave a senior post in the public administration. The Court finds that these complaints f all within the scope of Article 8 of the Convention (see , e.g., Leander v.Sweden , judgment of 26 March 1987 , Series A no. 116, p. 22 , § 48 , Amann v. Switzerland [GC], no. 27798/95 , § 65 , ECHR 2000-II , Rotaru v. Romania [GC], no. 28341/95 , § 46 , ECHR 2000-V and, mutatis mutandis , Sidabras and Džiautas v. Lithuania , no s . 55480/00 and 59330/00 , § 49 , 27 July 2004 ) .

As to the substance of this part of the application t he Court considers, in the light of the parties ' submissions, that it raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these r easons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Michael O ' Boyle Nicolas Bratza Registrar President