Information Note on the Court’s case-law 210

August-September 2017

Regner v. the Czech Republic [GC] - 35289/11

Judgment 19.9.2017 [GC]

Article 6

Administrative proceedings

Article 6-1

Fair hearing

Adversarial trial

Equality of arms

Lack of access to classified information constituting decisive evidence in judicial-review proceedings: Article 6 applicable; no violation

Facts – In September 2006 the National Secur ity Authority decided to revoke the security clearance that had been issued to the applicant enabling him to hold the post of deputy to the first Vice-Minister of Defence, on the grounds that he posed a risk to national security. The decision did not, howe ver, indicate which confidential information it was based on, as this was classified “restricted” and could not therefore legally be disclosed to the applicant.

On an appeal by the applicant, the director of the Authority confirmed the existence of a risk. An application by the applicant for judicial review of the decision was subsequently dismissed by the Municipal Court to which the documents in question had been forwarded by the Authority. The applicant and his lawyer were not permitted to consult them. Subsequent appeals by the applicant were unsuccessful.

Relying on Article 6 § 1 of the Convention, the applicant complained that the administrative proceedings had been unfair because he had been unable to have sight of decisive evidence, classified as confidential information, which had been made available to the courts by the defendant.

In a judgment of 26 November 2015, a Chamber of the Court held unanimously that there had been no violation of Article 6 § 1 of the Convention, finding that the decision-making procedure had as far as possible complied with th e requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the applicant’s interests.

On 2 May 2016 the case was referred to the Grand Chamber at the applicant’s request.

Law – Article 6 § 1

(a) Applicab ility – The applicant’s ability to carry out his duties had been conditional on authorisation to access classified information. The revocation of his security clearance had therefore made it impossible for him to perform his duties in full and had adversel y affected his ability to obtain a new post in the civil service. In those circumstances the link between the decision to revoke the applicant’s security clearance and the loss of his duties and his employment had been more than tenuous or remote. He had t herefore been able to rely on a right to challenge the lawfulness of that revocation before the courts.

The employment relationship between the applicant and the Ministry of Defence had been based on the provisions of the Labour Code, which had not contained any specific provisions applicable to functions performed within the State administration, so that at the material time there had been no civil service, in the traditional sense of the term, conferring on public servants obligations and privileges outside the scope of the ordinary law. As employment disputes concerned civil rights within the meaning of Ar ticle 6 § 1 of the Convention, the decision withdrawing the applicant’s security clearance and the subsequent proceedings had affected his civil rights.

That being so, even assuming that the applicant had to be regarded as having been a civil servant, he h ad been able to apply to the administrative courts for judicial review of the Authority’s decision. It followed that Article 6 was applicable in the present case under its civil limb.

Accordingly, the applicant could claim to have victim status for the pur poses of Article 34 of the Convention.

Conclusion : preliminary objections rejected (fifteen votes to two).

(b) Merits – In accordance with the requirements of Czech law in the event of legal proceedings challenging a decision refusing to issue or revoking security clearance, the proceedings brought by the applicant had been restricted in two ways with regard to the rules of ordinary law guaranteeing a fair trial: first, the classified documents and information had not been available either to him or to his lawyer, and second, in so far as the decision revoking security clearance had been based on those documents, the grounds for the decision had not been disclosed to him.

The Court noted the powers conferred on the domestic courts. They had unlimited access to all the classified documents on which the Authority had based itself in order to justify its decision; they had power to carry out a detailed examination of the reasons relied on by the Authority for not disclosing the classified documents; and they co uld order disclosure of those that they considered did not warrant that classification. They could also assess the merits of the Authority’s decision revoking security clearance and quash, where applicable, an arbitrary decision. Their jurisdiction encompa ssed all the facts of the case and was not limited to an examination of the grounds relied on by the applicant, who had been heard by the judges and had also been able to make his submissions in writing.

The domestic courts had duly exercised the powers o f scrutiny available to them in this type of proceedings, both regarding the need to preserve the confidentiality of the classified documents and regarding the justification for the decision revoking the applicant’s security clearance, giving reasons for t heir decisions with regard to the specific circumstances of the present case.

Accordingly, the Supreme Administrative Court had considered that disclosure of the classified documents could have had the effect of disclosing the intelligence service’s workin g methods, revealing its sources of information or leading to attempts to influence possible witnesses. It had explained that it was not legally possible to indicate where exactly the security risk lay or to indicate precisely which considerations underlay the conclusion that there was a security risk, the reasons and considerations underlying the Authority’s decision originating exclusively in the classified information. Accordingly, there was nothing to suggest that the classification of the documents in question had been decided arbitrarily or for a purpose other than the legitimate interest indicated as being pursued.

According to the Supreme Administrative Court, it had been unequivocally clear from the classified documents that the applicant no longer satisfied the statutory conditions for being entrusted with secrets. His conduct had posed a national security risk. In that connection, in March 2011 the applicant had been prosecuted for participation in organised crime; aiding and abetting abuse of publ ic power; complicity in illegally influencing public tendering and public procurement procedures; and aiding and abetting breaches of binding rules governing economic relations. It was understandable that where such suspicions existed the authorities consi dered it necessary to take rapid action without waiting for the outcome of the criminal investigation, while preventing the disclosure, at an early stage, of suspicions affecting the persons in question, which would run the risk of hindering the criminal i nvestigation.

Nonetheless, it would have been desirable – to the extent compatible with the preservation of confidentiality and effectiveness of the investigations concerning the applicant – for the national authorities, or at least the Supreme Administrat ive Court, to have explained, if only summarily, the extent of the review they had carried out and the accusations against the applicant. In that connection the Court noted with satisfaction the positive new developments in the Supreme Administrative Court ’s case-law.

Regard being had to the proceedings as a whole, to the nature of the dispute and to the margin of appreciation enjoyed by the national authorities, the restrictions curtailing the applicant’s enjoyment of the rights afforded to him in accordan ce with the principles of adversarial proceedings and equality of arms had been offset in such a manner that the fair balance between the parties had not been affected to such an extent as to impair the very essence of the applicant’s right to a fair trial .

Conclusion : no violation (ten votes to seven).

(See Fitt v. the United Kingdom [GC], 29777/96, 16 February 2000, Information Note 15 ; Ternovskis v. Latvia , 33637/02 , 29 April 2014; Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191 ; and Miryana Petrova v. Bulgaria , 57148/08 , 21 July 2016)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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