Information Note on the Court’s case-law 83

February 2006

Turek v. Slovakia - 57986/00

Judgment 14.2.2006 [Section IV]

Article 8

Article 8-1

Respect for private life

Alleged former collaborator with state security agency unable to challenge his registration in agency files in proceedings guaranteeing equal treatment of both parties: violation

Facts : The applicant held a senior public sector post dealing with the administration of education in schools. In 1992, in response to a request made by his employer under “the Lustration Act”, an Act of 1991 which defined supplementary requirements for holding certain posts in the public sector, the Ministry of the Interior of the Czech and Slovak Federal Republic issued a negative security certificate in respect of the applicant. As a consequence, he felt compelled to leave his job. The document stated that he had been registered by the former State Security Agency (“the StB ”) as one of its collaborators and that he was therefore disqualified from holding certain posts in the public sector. The applicant claimed he had unwillingly met with StB agents before and after trips he had made abroad in the mid-1980s but had never pas sed on to them any confidential information and had not operated as an informer.

The applicant initiated a civil action for protection of his good name and reputation, seeking a ruling declaring that his registration as a collaborator with the StB had been wrongful. In 1995, at the request of a regional court, the Slovak Intelligence Service (“the SIS”) – which had in effect taken over the relevant archives – handed over all ex-StB documents concerning the applicant which were in its possession, with the in dication that the documents were top secret and that the rules on confidentiality were to be observed. The court then held a number of hearings where it heard the testimonies of several former StB agents. At a hearing in 1998 the SIS submitted a copy of th e internal guidelines of the Federal Ministry of the Interior of 1972 concerning secret collaboration. As that document was classified the applicant was denied access to it. In 1999 the applicant's action was dismissed and the Supreme Court upheld that jud gment. It found, in particular, that only unjustified registration in the StB files would amount to a violation of an individual's good name and reputation. It had therefore been crucial for the applicant to prove that his registration had been contrary to the rules applicable at the material time, which he had failed to do.

Before the European Court the applicant alleged that the continued existence of a former Czechoslovak Communist Security Agency file registering him as one of its agents, the issuance o f a negative security clearance, the dismissal of his action challenging that registration and the resultant effects constituted a violation of his right to respect for his private life. He also complained about the length of the proceedings.

Article 8 – W hile this provision contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8. The Court therefore examined whethe r the procedural protection enjoyed by the applicant with regard to the subject-matter had been practical and effective. Particularly in proceedings related to the operations of state security agencies, there might be legitimate grounds to limit access to certain documents and other materials. However, in respect of lustration proceedings, that consideration lost much of its validity, particularly since such proceedings were by their nature orientated towards the establishment of facts dating from the commu nist era and were not directly linked to the current functions of the security services. Furthermore, in lustration proceedings it was the legality of the agency's actions which was in question. The domestic courts had considered it of crucial importance f or the applicant to prove that the State's interference with his rights had been contrary to the applicable rules. As those rules had remained secret the applicant had not had full access to them. On the other hand, the State – the SIS – had had such acces s. In these circumstances the requirement on the applicant had placed an unrealistic and excessive burden on him and had failed to respect the principle of equality. There had therefore been a violation of Article 8 concerning the lack of a procedure by wh ich the applicant could seek protection for his right to respect for his private life. The Court found it unnecessary to examine separately the effects on the applicant's private life of his registration in the StB files and of his negative security cleara nce.

Conclusion : violation(six votes to one).

Article 6(1) – With particular regard to what was at stake for the applicant, the Court found that the length of the proceedings, lasting seven years and some five months for two levels of jurisdiction, had been excessive.

Conclusion : violation (unanimousl y).

Article 41 – The Court awarded EUR 8,000 for non-pecuniary damage and a certain amount for costs and expenses.

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

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