FIFTH SECTION

CASE OF REGNER v. THE CZECH REPUBLIC

(Application no. 35289/11)

JUDGMENT

STRASBOURG

26 November 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 19/09/2017

This judgment may be subject to editorial revision.

In the case of Regner v. the Czech Republic,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger , President, Boštjan M. Zupančič , Ganna Yudkivska , Vincent A. De Gaetano, André Potocki , Helena Jäderblom , Aleš Pejchal, judges, and Milan Blaško , Deputy Section Registrar,

Having deliberated in private on 20 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 35289/11) 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 Czech national, Mr Václav Regner (“the applicant”), on 25 May 2011.

2 . The applicant was represented by Mr L. Trojan, a member of the Prague Bar. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm.

3 . The applicant alleged that he had been unable to gain access to decisive evidence in the proceedings on the grounds that it was classified as confidential information.

4 . On 6 January 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1962 and lives in Prague.

A. Facts giving rise to the application

6 . On 19 July 2005 the National Security Authority (hereinafter “the Authority ”) issued the applicant with a certificate, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category (hereinafter “security clearance”). That clearance was a precondition for holding the post he then occupied as deputy to a vice-minister of Defence.

7 . On 7 October 2005 the Authority received confidential information, classified as “restricted”, on the applicant from an intelligence service.

8 . Following an internal investigation, the Authority decided on 5 September 2006 to revoke the applicant ’ s security clearance. According to that decision, the applicant posed a national security risk, inter alia on the grounds provided for in section 14(3)(d) of the Protection of State Classified Information Act (Law no. 412/2005). The decision stated that the facts established in respect of his conduct, as documented and substantiated by information received by the Authority on 7 October 2005, cast doubt on his trustworthiness and his ability not to be influenced and not to disclose secret information (preconditions for issuing him with security clearance). It was noted that as the information was classified as “restricted”, section 122(3) of the Act precluded any mention thereof in the decision or any disclosure of the Authority ’ s reasoning regarding its assessment of the facts in question.

9 . According to information supplied by the Government, on 4 October 2006 the applicant asked the Minister of Defence to discharge him, on health grounds, from his post as deputy to the vice-minister. His request was granted on the same day. The ministerial decree discharging him from his duties specified that this did not terminate the applicant ’ s employment contract. That contract did not end until 31 January 2007, following an agreement by mutual consent signed by the parties on 20 October 2006.

10 . In the meantime the applicant challenged the decision of 5 September 2006 before the director of the Authority , who confirmed the decision on 18 December 2006 regarding the risk referred to in section 14(3 )( d) of the Protection of State Classified Information Act. That risk, which had been unknown on 19 July 2005, had transpired from the results of an investigation carried out by the Authority . Those results constituted “restricted” information and the decision could only refer to them and not mention their content.

11 . On 19 January 2007, relying on section 133(1) of the Protection of State Classified Information Act, the applicant lodged a request with the Prague Municipal Court for judicial review of the decision of 18 December 2006. In his submission, that decision had deprived him of acquired rights in that he had been obliged to give up his post as deputy to the vice-minister of the Defence whereas he had adapted his activities within the public service and within the sphere of his private life. Accordingly, he asked the court to assess the lawfulness of that decision which was based exclusively on undisclosed classified information.

12 . On 16 April 2007 the Authority sent the applicant ’ s file to the Municipal Court, including the documents classified as “restricted”, which in its opinion could not be exempted from the obligation of confidentiality laid down in section 133(3) of Law no. 412/2005. It also submitted its comments on the applicant ’ s request. These were sent to the applicant for his reply. In his reply of 14 May 2007 the applicant commented on, inter alia , the necessity alleged by the Authority of protecting the confidentiality of the documents in question.

13 . Subsequently, the applicant and his lawyer were permitted to study the file, except the confidential parts.

14 . At the hearing on 1 September 2009 the applicant was given the opportunity to submit his arguments and to state what he thought were the reasons for revoking his security clearance. He observed that, in his view, the information in question had been provided by a military intelligence service which had sought to punish him for his refusal to co-operate.

15 . Pursuant to section 133(3) of the Protection of State Classified Information Act, the Municipal Court refused the applicant access to the section of the legal file containing the classified information from the Authority ’ s file and in a judgment of 1 September 2009 dismissed his request for judicial review. Referring to section 122(3) of the Protection of State Classified Information Act, the court held that the Authority , which had disclosed to the applicant the source of the classified information and the general conclusions that it had drawn from that information but not the content thereof, had acted neither arbitrarily nor unlawfully. Furthermore, the fact that the impugned decision was amenable to judicial review had enabled the court to examine the information in question and rule on whether it justified the conclusion that the applicant posed a security risk, which was the case here. The court also observed that there was no fundamental individual right to hold a post in the civil service, that the State was authorised to restrict the access of individuals to such posts and that it could also determine the conditions in which those individuals could have access to confidential information necessary for the performance of their duties. The applicant had not satisfied those conditions in the present case. According to that rationale, an individual could not have knowledge of the confidential information on the basis of which his right of access to confidential information had been refused. The court considered, lastly, that the confidentiality of the information that had led to the applicant ’ s security clearance being revoked prevented it from examining his submission that the information in question had concerned his refusal to co-operate, beyond his statutory obligations, with the military intelligence service. In any event that submission was deemed to be speculative because unsupported by verifiable documents.

16 . The applicant appealed on points of law against the Municipal Court ’ s judgment, complaining first about his inability to gain access to the relevant part of the legal file. He submitted that the disclosure of information in the “restricted” category (which was the lowest level of confidentiality) could not constitute a serious threat to the activities of the intelligence services within the meaning of section 133(3) of the Protection of State Classified Information Act. He stated that he was convinced that the revocation of his security clearance was connected with his refusal to co-operate with the military intelligence service, of which he had no written proof. However, as he had no knowledge of the content of the information in question he could not refute its accuracy.

17 . In a judgment of 15 July 2010 the Supreme Administrative Court dismissed the applicant ’ s appeal on points of law as unfounded. It observed that the possibility, provided for in section 133(3) of the Protection of State Classified Information Act, of prohibiting access to part of the file was not limited to a specific category of confidential information. In the present case the conditions for prohibiting access were met because communication of the information in question to the applicant could have led to the disclosure of the intelligence service ’ s working methods, the disclosure of its sources of information or attempts on the applicant ’ s part to influence possible witnesses. Referring to the judgment of the Constitutional Court no. II. ÚS 377/04, the Supreme Administrative Court held that the applicant ’ s complaints of unfairness of the proceedings were unfounded because, having regard to the special nature of the proceedings on account of the nature of the confidential information in question, not all the applicant ’ s procedural rights could be guaranteed. Whilst the executive did indeed, in certain circumstances, have the right not to inform the individual concerned of the reasons for not issuing him or her with security clearance, that restriction was counterbalanced by the guarantee of having that decision examined by the administrative courts, which had unlimited access to the documents contained in the administrative file. In the present case the Supreme Administrative Court observed that the confidential document emanating from the intelligence service contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant ’ s refusal to co-operate with the military intelligence service.

18 . On 25 October 2010 the applicant lodged a constitutional complaint. He complained of the unfairness of the proceedings in his case. He argued, in particular, that the parties had not been treated equally because he had not been allowed to have knowledge of the sole evidence on which the decision against him had been taken and which had resulted in his being declared unsuitable for public office. He also expressed his firm conviction that he should have been able to consult the relevant part of the file.

19 . In a decision of 18 November 2010, which was served on the applicant ’ s lawyer on 26 November 2010, the Constitutional Court dismissed the applicant ’ s complaint as manifestly ill-founded. Referring to its judgment no. Pl. ÚS 11/2000, it observed that, having regard to the special nature and the importance of decisions adopted in connection with confidential information where there was a clear national security interest, it was not always possible to apply all the procedural guarantees of fairness in such proceedings. In the present case the Constitutional Court held that in so far as the courts ’ conduct was duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution and they had not departed from procedural standards and constitutional principles to an inordinate degree, the Constitutional Court was not required to intervene in their decision-making process.

B. Information submitted by the Government

20 . In their observations of 30 April 2014 the Government submitted to the Court a bill of indictment of 16 March 2011 in which the applicant and some fifty co-defendants were formally charged with participating in an organised criminal group between 2005 and 2007 with a view to illegally influencing public tender procedures in the Ministry of Defence. This document shows that investigative measures had been carried out from May 2006. In a judgment of 25 March 2014, which was not final as at 17 July 2014, the applicant was sentenced to three years ’ imprisonment and ordered to pay a fine.

21 . The Government also submitted a letter from the Authority dated 24 March 2014 in which it confirmed that the document in question was still classified “restricted” because disclosure of the information contained in it was liable to disrupt the work of the intelligence service, reveal its methods and sources of information and adversely affect the legitimate interests of third parties. In that context the Authority referred to the above-mentioned criminal proceedings against the applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Law no. 412/2005 on the protection of State classified information and access thereto (version in force until 23 May 2007)

22 . Under section 4, State classified information is divided into the following categories: a) “top secret”, where disclosure to an unauthorised person or unlawful use may very seriously harm the interests of the Czech Republic; b) “secret”, where disclosure to an unauthorised person or unlawful use may seriously harm the interests of the Czech Republic; c) “confidential”, where disclosure to an unauthorised person or unlawful use may harm the interests of the Czech Republic; and d) “restricted”, where disclosure to an unauthorised person or unlawful use may be disadvantageous for the interests of the Czech Republic. In respect of the latter category , section 3(5) provides that the disclosure of confidential information to an unauthorised person or unlawful use thereof may be disadvantageous for the Czech Republic if has the effect of

a) disrupting the activities of the armed forces of the Czech Republic, NATO or one of its Member States or a Member State of the EU;

b) thwarting, complicating or endangering an investigation into criminal offences other than particularly serious offences, or facilitating the perpetration thereof;

c) adversely affecting major economic interests of the Czech Republic or the EU or one of its Member States;

d) disrupting major commercial or political negotiations between the Czech Republic and a foreign power; or

e) disrupting security or intelligence operations.

23 . Sections 11-14 of the Act lay down the conditions of access of individuals to classified information in the “top secret”, “secret” and “confidential” categories (which are stricter than for access to information in the “restricted” category).

Under section 11(1), an individual may be granted access to such classified information where necessary in order to perform his or her professional duties or activities, provided that he or she has obtained valid security clearance for the necessary category of information and has received appropriate instructions.

24 . Section 12(1) defines the conditions for granting security clearance to an individual as follows:

“The Authority shall issue security clearance to an individual who

a) is a national of the Czech Republic, of a Member State of the EU or of NATO;

b) satisfies the conditions laid down in section 6(2) [full legal capacity, aged 18 or over, no criminal record];

c) is of trustworthy character;

d) is trustworthy from the point of view of national security.”

Pursuant to section 12(2), the individual in question must satisfy the conditions laid down in 12(1) throughout the entire period of validity of the security clearance.

25 . Section 13(1) provides that an individual can be deemed to be of trustworthy character if he or she does not suffer from a disorder capable of adversely affecting his or her trustworthiness or ability to keep information secret. In accordance with section 13(2), this shall be certified by a statement that the individual concerned is of trustworthy character and, where required by law, also by an expert report.

26 . Section 14(1) provides that a person who does not pose a security risk shall be deemed trustworthy from the point of view of national security.

Under section 14(2), the following shall be deemed to pose a national security risk:

a) a serious or recurrent activity directed against the interests of the Czech Republic, or

b) an activity consisting in suppressing fundamental rights and liberties, or supporting such an activity.

Section 14(3) lists the factors which can be deemed to pose a national security risk. Under letter (d), this can be conduct which affects a person ’ s trustworthiness and ability not to be influenced and to keep information secret.

27 . Section 89(7) provides that a party to the proceedings under this Act and his or her representative is entitled, prior to adoption of the decision, to consult the file and make notes from it except for the part containing confidential information.

28 . Section 122(3) provides that the reasons given in a decision taken under that Act must state the grounds for reaching the decision, the evidence on which the decision is based and the reasoning adopted by the Authority when assessing that evidence and applying the regulations. Where some of the reasons constitute confidential information, the decision must contain only a reference to the evidence on which it is based and the degree of confidentiality. The reasoning adopted by the Authority in support of its assessment and the reasons for adopting the decision must only be referred to in so far as they do not constitute confidential information.

29 . Under section 133(1), the decision of the director of the Authority may be challenged by bringing an action before a court.

Section 133(2) provides that on a judicial review the court will take the evidence in such a way as to comply with the duty to protect the confidentiality of the information yielded as a result of the investigation or contained in the records of the intelligence services or the police. The information in question cannot be examined at a hearing unless the person bound by the duty of confidentiality is exempted from that duty. An exemption cannot be granted where this may endanger or seriously compromise the activity of the intelligence services or the police. This also applies to evidence yielded other than at a hearing.

In accordance with section 133(3), the Authority specifies the information referred to in sub-section 2 which, in its view, cannot be the subject of an exemption from the duty of confidentiality. Where there is a risk of endangering or seriously compromising the activity of the intelligence services or the police, the President of the Chamber will decide that the parts of the file having a connection with that information shall be kept separately; those parts of the file cannot be consulted by the party to the proceedings or his or her representative.

B. The Constitutional Court ’ s practice

30 . On 12 July 2001 the Plenum of the Constitutional Court adopted judgment no. Pl. ÚS 11/2000 on a law governing confidential information (no. 148/1998), since largely replaced by the aforementioned Act (Law no. 412/2005), ordering the National Security Authority never to communicate to the person concerned the reasons for not issuing security clearance. The court observed that, in the event of a conflict between the interests of an individual and those of the State, the interests of national security, which were fundamental and justified imposing a certain restriction on an individual ’ s private sphere, had to be taken into account and respected. In order to protect national security, the State had to have the appropriate tools, including the ability to protect classified information to which only persons meeting the statutory conditions had access. That did not mean, however, that the State could act arbitrarily towards its citizens and restrict their fundamental rights beyond the necessary extent. The Constitutional Court acknowledged that providing detailed reasons for a decision not to issue security clearance could in some cases seriously endanger the interests of the State or third parties. However, in those specific cases, it was not possible to waive the protection of the individual ’ s fundamental rights. In the Constitutional Court ’ s view, it was moreover not always necessary to withhold from the person concerned the reasons for which he or she was deemed unfit to have access to confidential information, as it was actually exceptional for such disclosure to really endanger the State ’ s interests. Otherwise it would be practically impossible for that person to eliminate the reasons for which they were refused security clearance, even in cases where he or she was in a position to do so and where their disclosure would not compromise the interests of the State or of third parties. It was clear, however, that a decision not to issue security clearance had considerable repercussions for the personal sphere of the person concerned, whether legally (professional disqualification, grounds for dismissal) or factually (negative reactions from colleagues and family). Whilst the law could stipulate the conditions for, and restrictions on, holding certain posts or carrying out certain activities, those conditions had to be transparent and foreseeable and the person whose rights were at stake had to be able to duly defend him or herself against interference.

Where the Authority had a statutory obligation never to communicate the reasons for not issuing security clearance, the person concerned may not know, or even suspect, that he or she was deemed unfit to have access to confidential information and be unaware of the reasons for the decision. Accordingly, a blanket prohibition on communicating the reasons for not issuing security clearance was unacceptable. On the other hand there was a duty to comply with the legitimate public interest in protecting confidential information and not communicate reasons whose disclosure would endanger that interest or affect the legitimate interests of third parties. It was incumbent on the legislature to enact new legislation providing an appropriate means of reflecting and reconciling private and public interests.

It was also noted that Law no. 148/1998 set up special regulations for an administrative procedure that was distinct from the one provided for in the Administrative Code. However, merely excluding that type of administrative procedure from the general rules in the Administrative Code was not contrary to constitutional principles since the only decisive question was whether or not the special procedure protected the constitutional rights of the persons concerned. In the present case the issue was whether the decision (not) to issue security clearance concerned fundamental rights and freedoms , in which case it would be unconstitutional to bring it outside the realm of a judicial review. The fact that a decision not to issue security clearance could lead to the loss of a particular job was a consequence of the provisions of Law no. 148/1998 according to which the ability to hold a post requiring knowledge of confidential information was subject to obtaining security clearance. If the person concerned did not obtain security clearance, he or she could no longer carry on his or her initial profession and could be transferred to another post (where possible), dismissed from his or her post, or even dismissed from the public service. A decision not to issue security clearance therefore represented a substantial interference with the working (or public-service) relationship and, accordingly, with the fundamental right to freely choose one ’ s profession. Accordingly, the guarantees of the right to a fair trial applied even to this quite specific area.

31 . In judgment no. II. ÚS 377/04 of 6 September 2007 the Constitutional Court ruled as follows on the subject of national security clearance, a prerequisite in accordance with Law no. 148/1998 to performing sensitive activities:

“Issuing national security clearance amounts to conferring an extraordinary privilege and the administrative authority alone has the task of deciding, on the basis of and within the limits of its statutory powers and in accordance with its discretion, whether or not to grant that privilege to the person concerned. In each individual case the administrative authority must describe in comprehensible terms how it has assessed the facts established; the conclusions it has reached; the factors to which it has had regard; and what it has deemed to be irrelevant. The discretionary power of the authorities must be amenable to review. ... regard must be had to the fact that, given the special features and the importance of decisions in the area of confidential information – where the State ’ s security interest is very marked – it is not always possible to comply with all the normal procedural guarantees of a fair trial (for ex. a public hearing). However, it has already been pointed out that even in this type of proceedings there is a duty on the legislature to provide for the appropriate guarantees relating to the protection of a court ..., be this – according to the nature of the case and of the function – special and differentiated protection. ... It is certainly not possible to oblige the Authority , on the pretext of fully respecting the procedural rights of a party to the proceedings, to refer in its decisions to facts which could endanger the State ’ s interests, the effectiveness of the work of the intelligence services or the police, or the security of their staff or third parties. Extra special care should be taken to ensure that these aims are not pursued to the detriment of the principles of the rule of law or of the individual ’ s fundamental rights. It can be seen from the Constitutional Court ’ s case-law that ... on a review of a decision having the direct consequence of limiting the possibility of occupying a particular post, the public interest in confidentiality cannot justify excluding that decision from the scope of ... Article 6 § 1 of the Convention guaranteeing the right to judicial protection.”

32 . In judgment no. I. ÚS 828/09 the Constitutional Court held that the right to freely choose one ’ s profession, guaranteed by Article 26 of the Charter of Fundamental Rights and Freedoms, could not be interpreted as stipulating that everyone had a right to a specific profession but rather as allowing every individual the right to choose his or her profession. In order to enter into a specific working relationship or to carry on a specific independent activity he or she must nonetheless satisfy the statutory conditions pertaining to that profession or activity. Nor was it possible to infer from the right to freely choose one ’ s profession the right to obtain security clearance, which was neither guaranteed by the Charter nor by instruments of infra-constitutional rank.

C. The Supreme Administrative Court ’ s practice

33 . In judgment no. 6 As 14/2006 of 31 January 2007 the Supreme Administrative Court observed that issuing security clearance to a particular individual amounted to granting an extraordinary privilege and that the administrative authority alone had the task of deciding, on the basis of and within the limits of its statutory powers and in accordance with its discretion, whether or not to grant that privilege to the person concerned.

34 . In judgment no. 5 As 44/2006 of 30 January 2009 the Supreme Administrative Court held that, in interpreting the expression “risk for national security”, the evidence gathered had to be examined in the light of the possibility of a risk for security. Thus, a mere suspicion of a risk for national security sufficed to conclude that the person was not trustworthy from the point of view of national security.

35 . In judgment no. 7 As 5/2008 of 9 April 2009 the Supreme Administrative Court set out the requirements that had to be met by reports of the intelligence services classified as confidential in order to be the subject of a judicial review. They had to contain specific information or a summary thereof in order for the National Security Authority and, where applicable, the court to be able to actually verify the relevance of facts established by the intelligence services, that is, the credibility of the information established by them, the weight attached thereto and their connection with decisive questions for the security procedure. This was how it was possible to prevent arbitrariness from arising were the Authority , and potentially the court, to merely “believe” the intelligence services without being able to actually have sight of their information.

36 . In judgment no. 7 As 31/2011 of 25 November 2011 the Supreme Administrative Court noted that, in order to achieve a balance between the interest in guaranteeing that the person concerned had the benefit of fair proceedings and the interest in safeguarding the confidentiality of the information necessary for the protection of the public interest, the court carrying out the review must have access to all the information on which the decision in question was based. More than in “classic” proceedings, where the parties had the same information as the court, the latter was here the guarantor of the right to a fair hearing, which required increased vigilance on the part of the court vis-à-vis the public administration. This, moreover, was why the courts had access, throughout the exercise of their functions, to all categories of secret information, without clearance. Thus, a judicial review, which must extend to the information relevant for the outcome of the administrative proceedings, could provide adequate protection against arbitrariness, while protecting to the extent necessary the confidentiality of the information. The court also observed that the facts established must, overall, constitute a convincing basis for concluding that, in a specific case, the facts actually indicated a risk for national security. What was important was the informative value of the facts established, the credibility of which must be assessed and regard had to whether they had been interpreted correctly and did not in reality have a different significance from that which appeared at first sight.

37 . In judgment no. 7 As 117/2012 of 21 December 2012 the Supreme Administrative Court ruled as follows:

“It is the court which guarantees that the reasons for the decision will be duly and fully re-examined. Given that the complainant is limited by his or her ignorance of the reasons for a negative decision, or prevented from submitting effective arguments, the court must examine the proceedings and the reasons for the decision in their entirety, even beyond the points raised by the complainant. ...

The court must also examine whether it is justified to keep the confidential information secret. If it is not, the court will probably be obliged to produce the evidence and to provide an explicit assessment of it in the judgment. ...

If the administrative court were to believe the intelligence services without being able to check that their allegations were based on genuine and apparently truthful information, it would be renouncing its duty of scrutiny of the public administration. ...”

38 . In judgment no. 3 As 63/2012 of 19 June 2013 the Supreme Administrative Court observed that section 133(2) of Law no. 412/2005 was a lex specialis with regard to the general rules in the Code of Administrative Justice relating to consultation of the file, which were therefore inapplicable in this area. It could be seen from the case-law that where the procedural rights of a party to the proceedings were restricted due reasons must be given for not disclosing confidential information to that party and his or her procedural rights must not be restricted to a greater degree than that required by the protection of public interests. Only exceptionally should the parties be deprived of the said procedural rights and of knowledge of the content of the confidential information.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

39 . The applicant complained of the unfairness of administrative proceedings in which a decisive piece of evidence, regarded as classified information, was not communicated to him and yet submitted to the courts by the defendant. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

40 . The Government contested that argument.

A. Admissibility

1. The parties ’ submissions

41 . The Government submitted that the civil limb of Article 6 was inapplicable. They reiterated the Court ’ s case-law according to which the question whether or not the authorities enjoyed discretion in deciding whether to grant the measure requested by a particular applicant could be decisive in concluding that it was not a “right” recognised in domestic law ( Boulois v. Luxembourg [GC], no. 37575/04 , § 93, ECHR 2012 ). They submitted that neither a civil right of access to confidential information, nor to security clearance allowing access to that information nor the exercise of a specific public function could be inferred from the Czech legislation and practice. The highest courts considered that issuing security clearance amounted to granting an extraordinary privilege, which was exclusively a matter for the relevant administrative authority on the basis and within the limits of the power conferred on it by law and within its discretion. In deciding whether or not to issue security clearance, the National Security Authority was thus endowed with a particular discretionary power since that privilege could only be granted, on certain conditions, to a limited number of persons who did not represent a risk for national security (the Government referred, mutatis mutandis , to Ankarcrona v. Sweden ( dec .), no . 35178/97 , ECHR 2000 ‑ VI ). The same considerations applied to the revocation of that security clearance where the person concerned ceased to meet the statutory conditions. At the same time domestic law provided sufficient guarantees against arbitrary interference so that the executive ’ s discretionary power was not unlimited.

42 . The Government noted that the applicant confined himself to observing that security clearance was a prerequisite to holding the public office of deputy to a vice-minister which had been his at the relevant time . He did not argue that the revocation of that security clearance had led to the termination of his employment contract. In fact it could be seen from the materials in the file that he had himself asked to be discharged from the post of deputy to the vice-minister and had left the Ministry following termination of his contract by mutual agreement, a fact of which he had omitted to inform the Court. In that regard the Government left it to the Court ’ s discretion to decide whether this amounted to an abuse of the right of application.

43 . The Government then submitted that Article 6 was not applicable under its criminal head either. They noted that the procedure for revoking security clearance was a specific procedure sui generis , governed by provisions that did not fall within criminal law and concerned only a limited number of individuals who had been granted the privilege of access to classified information. Moreover, that procedure could not result in any penalty being imposed.

44 . The applicant was satisfied that he had fulfilled all the conditions of admissibility. In his submission, the points added by the Government – the termination of his employment contract and his criminal proceedings – were irrelevant to the examination of his complaints and sought merely to discredit him. Moreover, the Government themselves had infringed the principle of equality of arms in the proceedings before the Court by obtaining the bill of indictment against the applicant despite the fact that his criminal proceedings were totally unconnected with the present application.

2. The Court ’ s analysis

45 . The Court observes that the Government dispute the applicability of Article 6 § 1 on the grounds, inter alia , that the procedure followed in the present case cannot be deemed to involve the determination of “civil rights” for the purposes of Article 6 § 1 of the Convention.

46 . According to the Court ’ s established case-law, Article 6 § 1 applies only to the “determination” of “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law. In the present case the Court must first rule on whether the discretionary power of the Czech authorities, as alleged by the Government, excludes the existence of a “right” recognised under domestic law. If it does not, it will have to be determined whether this right was a civil one.

a) Existence of a right recognised under domestic law where the authorities enjoy a certain discretion

47 . In its decision Fodor v. Germany (no. 25553/02, 11 December 2006), the Court observed that the existence of a margin of discretion on the part of the domestic authorities did not necessarily preclude the applicability of Article 6. If the subject of the court proceedings in question was a discretionary decision which interfered with the applicant ’ s rights, the Court has held Article 6 to be applicable (see Pudas v. Sweden , 27 October 1987, § 34, Series A no. 125 ‑ A; Obermeier v. Austria , 28 June 1990, § 69, Series A no. 179 ; and Mats Jacobsson v. Sweden , 28 June 1990, § 32, Series A no. 180 ‑ A ). However, where the national authority had a discretionary power concerning the question whether the applicant should be granted certain advantages or was entitled to request action on the part of the authorities, the Court has held that conferring unlimited freedom or even a wide discretion on a national authority indicated that domestic law did not recognise any “right” to those advantages or actions. Accordingly, Article 6 did not apply to such judicial proceedings (see Masson and Van Zon v. the Netherlands , 28 September 1995, § 51, Series A no. 327 ‑ A, and Ankarcrona v. Sweden ( dec .), no . 35178/97 , ECHR 2000 ‑ VI ).

The Court has also specified that a “right” within the meaning of Article 6 § 1 must be able to be related to tangible criteria , the existence of which can without particular difficulties be examined by the relevant authorities and , subject to appeal , the national courts . This is not the case where the law in question does not contain such applicable criteria and leaves it to the unfettered discretion of the authority in question to decide whether or not to grant a claim brought by an applicant, whose situation and needs are not in any way taken into account (see Ankarcrona , decision cited above ).

48 . It follows that the mere fact that the wording of a legal provision affords an element of discretion does not in itself rule out the existence of a right ( see Camps v. France , no. 42401/98, 24 October 2000, and Ellès and Others v. Switzerland , no. 12573/06 , § 16, 16 December 2010 ). The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned , The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts . The other criteria which may be taken into consideration by the Court include the recognition of the alleged right in similar circumstances by the domestic courts or the fact that the latter examined the merits of the applicant ’ s request (see Boulois v. Luxembourg [GC], no. 37575/04 , §§ 91 and 94, ECHR 2012).

49 . The Court is intended to be subsidiary to the national systems safeguarding human rights and must accordingly concentrate on determining the realities in the State in question before concluding that a discretionary decision concerns a “right” recognised under domestic law. Where the State chooses to make the decision of the national authorities subject to tangible criteria and to provide for a judicial review, the Court must take note of this in its analysis of the applicability of Article 6.

50 . In the present case it is noteworthy that Law no. 412/2005 lays down, in section 12, the preconditions for issuing security clearance, which can be regarded, within the meaning of the above-mentioned case-law, as “tangible criteria”. The law also states that in order to benefit from security clearance throughout the entire period of validity of the relevant decision those conditions must continue to be met. It was precisely to examine whether the applicant still satisfied one of those conditions – trustworthiness from the point of view of national security – that the procedure in question was carried out.

51 . The Court also observes that, whilst a degree of freedom of assessment is necessary in examining the question whether the conditions of eligibility are met, the National Security Authority does not have unfettered discretion in this regard. Moreover, the exercise by that authority of its discretion is amenable to judicial review, whereupon the courts have the task of deciding whether the Authority ’ s conclusions are justified.

52 . Regard must also be had to the Czech Constitutional Court ’ s case-law in this area (see paragraphs 30 and 31 above). According to that case-law, a decision not to issue security clearance represents considerable interference with the working (or public-service) relationship and, accordingly, with the fundamental right to freely choose one ’ s profession. Whilst the law can determine the preconditions for, and restrictions on, performing certain jobs or activities, these must be transparent and foreseeable and the person whose rights are in issue must be able to duly defend him or herself against interference. Where a review is carried out of a decision which has the direct effect of limiting the possibility of occupying a particular post, the public interest in confidentiality cannot justify excluding that decision from the scope of Article 6 § 1 of the Convention.

53 . It may therefore be concluded that Czech law recognises that anyone to whom security clearance has been granted has a special right entitling him or her to obtain a review of any subsequent decision to revoke that clearance, with a view to ensuring that the decision is justified according to the statutory criteria for issuing clearance.

b) Civil nature of the right

54 . The Court observes that this case did not concern a labour dispute which would have been directly decisive for the applicant ’ s employment in the public service (see, conversely, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007 ‑ II). Unlike the applicant in the case of Ternovskis v. Latvia ( no. 33637/02 , 29 April 2014 ), the applicant in the present case was not dismissed from his post on the grounds that he had been refused the necessary security clearance, and the proceedings in issue did not concern his dismissal.

55 . The Government do not dispute the fact, however, that security clearance was necessary for the applicant to be able to occupy the post of deputy to a vice-minister which was his at the time (see paragraph 42 above). Whilst the applicant did indeed leave that post at his own request (see paragraph 9 above), submitted before his application for judicial review of the Authority ’ s decision of 5 September 2006 was decided, there is no doubt that he would not have been able to continue occupying it without valid security clearance and that the only means he had of defending himself was to challenge the Authority ’ s decision revoking his security clearance. Accordingly, even though that revocation did not result in the automatic termination of the applicant ’ s employment contract with the Ministry of Defence , it was decisive for the choice of posts available to him. The direct consequence of that decision was therefore to limit the applicant ’ s possibility of occupying certain posts, particularly in the public service, which, in the Czech Constitutional Court ’ s view (see paragraph 31 in fine ), brings it within the scope of Article 6 § 1 of the Convention.

56 . It should also be noted that, according to the applicant, he had adapted his private life to the post of deputy to a vice-minister (see paragraph 11 above), and the confidential information from the intelligence service necessarily contained information about his private life. Furthermore, the revocation of his security clearance definitely had repercussions for the applicant ’ s reputation, at least in his professional sphere, and was likely to damage his pecuniary interests.

57 . On the basis of the aforementioned considerations, the Court considers that the decision revoking the applicant ’ s security clearance and the subsequent procedure affected his civil rights (see, mutatis mutandis , Užukauskas v. Lithuania , no. 16965/04 , 6 July 2010 ). The parties did not dispute, moreover, that the applicant had access to a court under domestic law and that the courts indeed examined his application. Article 6 § 1 is therefore applicable under its civil head, even if the dispute did not directly concern a dismissal (see, mutatis mutandis , in the context of expulsion from a military college, Topal v. Turkey , no. 3055/04, § 14, 21 April 2009).

3. Conclusion

58 . The Court considers that the proceedings in question fall within the scope of Article 6 § 1 of the Convention. Accordingly, the objection raised by the Government on grounds of incompatibility ratione materiae with the provisions of the Convention cannot be upheld.

59 . Observing that, in its view, there has not been an abuse of the right of application (see paragraph 42 above), that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and that no other grounds for declaring it inadmissible have been established, the Court declares it admissible.

B. Merits

1. The parties ’ submissions

60 . The applicant submitted that it was not possible to uphold the argument that the guarantee of fairness did not apply to certain proceedings, be they sui generis . The right to a fair hearing could only be restricted in exceptional individual cases and in the present case the public interest in national security could not take precedence over his right to judicial protection because the confidential document to which he had not had access was only in the “restricted” category; as provided for in section 4 d) of Law no. 412/2005, its disclosure could therefore at the most be disadvantageous for the interests of the Czech Republic. For a document to be withheld from the parties to judicial proceedings, section 133(3) required a greater risk, namely, that its disclosure be liable to endanger or seriously compromise the activity of the intelligence services. According to the applicant, only disclosure of classified information from the “confidential” category could pose such a risk.

61 . The applicant submitted that the judicial review carried out in accordance with the procedure provided for in section 133 of Law no. 412/2005 was governed by the Code of Administrative Justice (Law no. 150/2002). When reviewing decisions of the administrative authorities, the courts based their decisions on the facts and law existing at the time of adoption of those decisions, and remained within the limits of the application lodged by the complainant.

62 . In the applicant ’ s view, the courts which dealt with his case had failed to provide him with sufficient protection because they had merely reproduced the information contained in the confidential document – the key evidence – which remained unknown to him to this day. He had thus been reduced to speculation, without being able to dispute the authenticity and accuracy of the information in his regard, and without having access to the same evidence as the opposing party and the courts. His case therefore resembled that of the applicants in Užukauskas (judgment cited above) and Güner Çorum v. Turkey (no. 59739/00, 31 October 2006), in which the Court had found a violation of the right to a fair trial.

63 . The Government observed that there was no absolute right to disclose all the relevant evidence to the defendant. Where strictly necessary, that right could be restricted in order to preserve the fundamental rights of another individual or to safeguard an important public interest , on condition that those difficulties were sufficiently counterbalanced by the courts. Where evidence had been withheld from the defence on public interest grounds, it was not the role of this Court to decide whether or not such non-disclosure was strictly necessary, nor to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material . The Court ’ s task was to scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (the Government referred to Fitt v. the United Kingdom [GC], no. 29777/96, § 46, ECHR 2000 ‑ II ) . Furthermore, those principles had been established by the Court essentially in a criminal context, where the Contracting States had a narrower margin of appreciation. While acknowledging that they had sometimes been applied to the non-communication of evidence in non-criminal proceedings ( Užukauskas v. Lithuania , no. 16965/04 , 6 July 2010 and Association de Défense des Actionnaires Minoritaires v. France (dec.), no. 60151/09, 25 May 2010), the Government observed that the proceedings followed in the present case could not be regarded as classic administrative proceedings, as they were specific in nature and closely linked to legitimate questions of national security.

64 . The Government observed that, whilst the grounds for keeping secret the document from the intelligence service establishing that the applicant ’ s conduct posed a risk for national security persisted, the temporal and material connection between the criminal proceedings against him and the revocation of his security clearance could not be ignored. It was only to be expected that if there were plausible grounds for suspecting that the applicant was participating in an organised criminal activity with a view to influencing public tender procedures he had to be deprived of access to confidential information as a matter of urgency without revealing that the authorities were investigating that activity. Any other approach would have endangered or seriously compromised the work of the intelligence services or the police, which section 133(2) of Law no. 412/2005 sought to preclude. The fact that the non-disclosure of the document to the applicant was justified had been confirmed by the courts which had reviewed the Authority ’ s decision.

65 . According to the Government, the approach taken by the Authority , which had prevented the applicant from consulting the part of the file containing confidential documents and had merely referred to those documents in its decision, was compatible with the Court ’ s case-law according to which access to documents containing confidential information could be restricted to persons possessing the appropriate authorisation (they referred to Užukauskas , cited above, § 48). That also applied to the principle enshrined in section 133(2) of Law no. 412/2005 according to which access to confidential information could only be refused, at the stage of judicial review, if its disclosure was liable to endanger or seriously compromise the activities of the intelligence services or the police (they referred to Vereniging Weekblad Bluf ! v. the Netherlands , 9 February 1995, § 40, Series A no. 306 ‑ A). Furthermore, the information had to be specified as confidential by the Authority , whereupon it was incumbent on the President of the Chamber to assess whether the same aim could be achieved by less restrictive means. In no event did the law confine that approach to information of a certain category of confidentiality as affirmed by the applicant. Accordingly, it was only in exceptional cases that procedural rights could be restricted to the point of not communicating even the content of the confidential information to a party to the proceedings, as had been the case here. In that situation the Court had to confine its examination to the question of the existence of adequate safeguards to protect the applicant ’ s interests.

66 . With regard to the scope of judicial review in the proceedings provided for in section 133 of Law no. 412/2005, the Government observed that this was carried out by courts with “full jurisdiction”, required to examine points of fact and of law. Their review was not therefore limited to questions of the lawfulness of the Authority ’ s decision but also concerned the reasons for adopting that decision. Furthermore, the Supreme Administrative Court ’ s case-law showed that in such a situation the courts were not bound by the terms of the claimant ’ s request and had to examine of their own motion the procedure and the grounds for the Authority ’ s decision in their entirety, even beyond the points raised by the complainant. In doing so they examined whether the conclusions stated in the decision were really based on the evidence contained in the Authority ’ s file, including the reports by the intelligence services, and concentrated on the credibility, plausibility and relevance of the information collected by those services. The judges also had to determine whether it was justified to keep the confidential information secret. The case-law had also established numerous requirements that had to be met by the confidential documents underlying the Authority ’ s decisions, failing which those decisions would be set aside. The documents had to contain specific information, so that the courts could duly carry out their review, and mention the sources and the manner in which the information had been obtained. In case of doubt, the courts could set aside the impugned decision and refer the case to the Authority for it to supplement the evidence with a view to substantiating the plausibility of its conclusions.

67 . The Government submitted that, in the present case, the courts had not in any way failed to comply with their duty to carry out a judicial review and that the scope of their review had provided the applicant with sufficient protection against possible arbitrariness on the part of the Authority . The applicant ’ s entire file, including the confidential documents, had been submitted to two levels of administrative court and to the Constitutional Court. All the examining judges had therefore had sight of the documents in question. Furthermore, the applicant had been given the opportunity to submit all the arguments he deemed relevant, including the possible reasons for revoking his security clearance, and to challenge the truth of the information emanating from the intelligence service. His allegation had moreover been refuted by the Supreme Administrative Court, which had observed that the revocation of his security clearance had not in any way been connected to his refusal to cooperate with the military service. The judicial review procedure had thus provided adequate safeguards to protect the applicant ’ s interests, and those safeguards had been reinforced on account of the Constitutional Court ’ s examination of the case.

68 . The Government sought, lastly, to demonstrate the differences between the present application and the case of Ternovskis v. Latvia (cited above), concerning the repercussions of a refusal to grant security clearance on the applicant ’ s ability to occupy his post and on his financial situation. They pointed out in that regard that the applicant had left his post following termination of his contract by mutual agreement, which he had never disputed before the courts, and that his income had remained practically unchanged after his security clearance was revoked.

69 . In reply to the additional question put by the Court, the Government noted that, as at 10 July 2015, 38,274 security clearances had been issued to individuals, of which 21,416 concerned the “confidential” category, 15,953 the “secret” category and 905 the “top secret” category. That figure did not include security clearances issued for the “restricted” category, which were subject to other conditions and were not recorded. The Government observed, further, that security clearance was one of the preconditions for accessing confidential information but did not per se allow access to all information in the given category.

2. The Court ’ s assessment

70 . The Court observes at the outset that its conclusion concerning the applicability of Article 6 is without prejudice to the question of how the various guarantees of that Article should be applied in disputes concerning civil servants (see Vilho Eskelinen and Others , cited above, § 64).

71 . Among those guarantees are the adversarial nature of the proceedings and the equality of arms between the parties.

The right to adversarial proceedings involves the possibility for the parties to learn of the observations or evidence produced by the other party and to make submissions in that regard (see, among other authorities, Fitt v. the United Kingdom [GC], no. 29777/96, § 46, ECHR 2000 ‑ II ; Prikyan and Angelova v. Bulgaria , no. 44624/98, § 40, 16 February 2006 ; and ÄŒepek v. the Czech Republic , no. 9815/10, § 44, 5 September 2013 ). That principle also applies to the observations and documents submitted by the parties, and to those submitted by an independent judicial officer such as the Government Commissioner (now the public rapporteur) (see Kress v. France [GC], no. 39594/98, ECHR 2001 ‑ VI I), by an administrative authority (see Krčmář and Others v. the Czech Republic , no. 35376/97, 3 March 2000 ) or by the court delivering the judgment being appealed against (see Nideröst -Huber v. Switzerland , 18 February 1997, Reports of Judgments and Decisions 1997 ‑ I ).

The Court observes that the principle of equality of arms – one of the elements of the broader concept of a fair trial – requires a “fair balance between the parties”: each party is to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Matyjek v. Poland (dec.), no. 38184/03 , § 55, ECHR 2006 ‑ VII , and Nikolova and Vandova v. Bulgaria , no. 20688/04 , § 91, 17 December 2013 ).

72 . In the present case the Court is required to examine whether the applicant, who was unable to see the document classified as confidential on which the courts based their decision and therefore to dispute the accuracy of the information about him contained in it, benefited from adequate safeguards to protect his interests, so that the above-mentioned requirements of an adversarial trial and equality of arms were satisfied. It should be pointed out that, in the present case, the authorities had the task of assessing the suitability of the applicant regarding access to confidential information. The decision not to let the applicant have sight of the document in question was based on national security grounds, because, according to the authorities, disclosure of the document could have had the effect of revealing the working methods of an intelligence service, revealing their information sources or have led to attempts on the part of the applicant to influence possible witnesses. There is therefore no evidence to suggest that the classification of the documents in question was carried out in an arbitrary or improper manner or with any aim other than the legitimate interest pursued (see, mutatis mutandis, Nikolova and Vandova , cited above, § 73). In their observations, the Government appear, moreover, to suggest (referring to the National Security Authority ’ s letter of 24 March 2014) that the document in question contained information about a criminal investigation in respect of the applicant which was pending at the time and has since given rise to criminal proceedings against the applicant on charges of illegally influencing public tender procedures within the Ministry of Defence.

73 . The crucial question that arises in the present case is whether the applicant ’ s inability to have sight of the document and comment on it was sufficiently counterbalanced by the fact that the document was accessible to all the courts which examined the case and were accordingly able to assess, in the light of its content, the conclusions of the administrative authority regarding whether or not the applicant satisfied the preconditions for obtaining security clearance.

74 . The Court notes in this context that proceedings which, regardless of the framework used, allow a tribunal satisfying the Article 6 § 1 requirements of independence and impartiality to examine in complete cognisance of all relevant evidence, documentary or other, the merits of the submissions of both sides, do indeed serve to enhance public confidence (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , 10 July 1998, § 78, Reports of Judgments and Decisions 1998 ‑ IV).

75 . In that regard the Court finds that the arguments raised by the Government are relevant. It attaches importance to the fact that, in proceedings such as those in issue here, the courts have “full jurisdiction” and are not bound by the terms of the claimant ’ s application. They therefore have to examine the proceedings and the reasons for the Authority ’ s decision in their entirety, and even – as confirmed by the Supreme Administrative Court, albeit after the decisions given in the applicant ’ s case (see paragraphs 37 and 66 above) – beyond the points raised by the complainant.

76 . In the present case the applicant was kept informed and given the opportunity to make observations in his reply of 14 May 2007 and during his oral submissions at the hearing of 1 September 2009. He was accordingly able to take part in the decision-making process as far as possible, without evidence being disclosed to him which the National Security Authority sought to keep secret on public interest grounds (see, mutatis mutandis , Fitt , cited above , § 48) . The Court also considers that the fact that the need to keep the confidential document secret was at all times under assessment by the court, in accordance with section 133(3) of Law no. 412/2005, provided a further, important, safeguard. It can be seen from the file that the municipal court sought to determine whether the evidence could or could not be disclosed (see paragraph 15 above), thus providing an additional level of protection for the applicant ’ s rights (see, mutatis mutandis , Fitt , cited above , § 49 in fine ) .

77 . The present case therefore differs from that of the applicant in Ternovskis (cited above), in which the appeal court had not had before it crucial elements of the confidential documents ( ibid., § 71) to which only the respondent had access. In that case the respondent was able to address the court, unlike the applicant whose absence was considered unjustified and who was unable to benefit, as much as possible, from an adversarial procedure ( ibid. , § 74).

78 . In the case of Güner Çorum v. Turkey (cited above), to which the applicant referred, Mrs Güner Çorum was dismissed, on grounds of heavy disciplinary charges, from her post as a civil nurse working in a military hospital, without the content of the investigation file being disclosed to her. As the Turkish Government had not submitted any argument to justify not disclosing the investigation file during the administrative proceedings concerning the dismissal, the Court considered that “moreover, the file [did] not contain any evidence justifying such a practice on account of national security requirements or the need to protect witnesses from reprisals or to keep investigative methods secret” (§ 28). Such is not the case in the present application, however.

79 . These considerations are sufficient for the Court to conclude that as far as possible the decision-making procedure complied with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the applicant ’ s interests.

80 . It follows that there has been no violation of Article 6 § 1 in the present case.

FOR THESE REASONS, THE COURT

1. Declares , by a majority, the application admissible;

2. Holds , unanimously, that there has not been a violation of Article 6 § 1 of the Convention.

Done in French, and notified in writing on 26 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Bla š ko Angelika Nußberger Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Judge Jäderblom ;

(b) concurring opinion of Judge Pejchal.

A.N. M.B.

PARTLY DISSENTING OPINION OF JUDGE JÄDERBLOM

I ha ve voted with the majority in finding no violation of Article 6 of the Convention, but cannot agree with them as regards the applicability of Article 6.

The applicant lost his clearance to have access to information classified as “secret”. The revocation of his security clearance made it impossible for him to carry out his functions as deputy to a vice-minister in the Ministry of Defence. He resigned from this post on his own initiative, allegedly for health reasons, and his work contract with the Ministry subsequently ended after he and the Ministry agreed to this. In the proceedings instituted by the applicant to have the decision to revoke his security clearance overturned, the applicant was unable to have access to certain information classified as confidential which lay behind the decision. This, he claimed, violated his right to a fair trial under Article 6 of the Convention.

In order for Article 6 to be applicable the Court has to assess whether or not the dispute over the applicant ’ s alleged right to maintain his security clearance was “civil” in nature.

In the majority ’ s view, as the revocation of the security clearance had the direct consequence of limiting the applicant ’ s access to certain jobs, especially within the civil service, and as the applicant had adapted his private life to the function of deputy to a vice-minister, the revocation had repercussions on his reputation and it was possible that it would have pecuniary consequences for him, the decision to revoke his security clearance and the subsequent procedures affected his civil rights.

I do not agree with this conclusion, for the following reasons.

For a right to be recognised as “civil” under Article 6, it is not sufficient that it touches upon other such rights; the proceedings at issue must be directly concerned with a right which is “civil”. The applicant was not dismissed from his job. Nor was his contract cancelled by his employer; instead, it was terminated by mutual agreement. The dispute thus did not concern the applicant ’ s right to an employment contract with the Ministry but a decision in which he had been considered not fit to be trusted with certain information. It is true that security clearance may be valuable for the applicant in obtaining and maintaining other jobs. On the other hand – unlike in cases concerning licensing disputes, where an individual ’ s private rights are directly affected (the authority to practise a certain profession, such as that of a lawyer or a physician) or property rights are at stake (for example, a restaurant owner who is dependent on a licence to serve alcohol) – the applicant in this case has not demonstrated any such consequences, let alone shown that he would be directly affected in the same way. The conclusion by the majority that the applicant ’ s reputation would be affected may well be right, and it may also be true that the decision could have pecuniary effects. However, it is not possible to assess the latter aspect as the applicant left his job voluntarily. As regards the applicant ’ s reputation, it should be noted that the revocation of his security clearance amounted to a statement of distrust as regards his handling of information that concerned State security. Whether or not a State should trust a person employed within its central government offices from a security perspective is one of the prerogatives of the State in question and does not concern that person ’ s “civil” rights for the purposes of Article 6.

CONCURRING OPINION OF JUDGE PEJCHAL

I fully share my honourable colleagues ’ opinion that in this particular case “the evidence is sufficient to allow the Court to conclude that the decision-making procedure satisfied in so far as possible the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the applicant ’ s interests”. I consider this case exceptional in view of the fact that the applicant held the office of Deputy Minister of Defence. On account of his office he had to have access to “State secrets”. Hence, he was obliged to undergo security cross-checks and to tolerate the process described in the judgment.

The problem of Czech security cross-checks consists in their excessiveness. The State authorities require security cross-checks for a countless number of activities, not only in the public sector but also in the private one (for example, when a private company bids for a procurement contract put out for tender in an area for which the law requires security cross-checks). Even the National Security Authority criticised the Government, several years ago, on the grounds that the number of persons who were obliged to ask for security cross-checks was disproportionately high.

These security cross-checks concern tens of thousands of persons. The Czech Government informed the Court that the number of valid security attestations granted to natural persons amounted to 38,274 as at 10 July 2015. Hypothetically, each one of those persons might have had the same problem as the applicant – a lack of knowledge of a number of facts concerning the process of granting security cross-checks, which, in my opinion, jeopardises Czech citizens ’ trust in justice.

It is hard to believe that of the total population of the Czech Republic, amounting to about ten million inhabitants, as many as 38,274 persons have been security cross-checked. I can imagine that 95% of those people never actually needed access to “State secrets” for the exercise of their profession, but despite that they had to undergo the security cross-checks.

I deem this judgment to be applicable only to persons who hold the same office as the applicant or a very similar one. Any generalisation is dangerous, especially when trust in justice is at stake. As Marcus Tullius Cicero said, “ Iustitia sine prudentia multum poterit , sine iustitia nihil valebit prudentia .”