Communicated on 30 September 2020 Published on 19 October 2020

FIFTH SECTION

Application no. 15041/16 Raimonds LAZDIÅ…Å against Latvia lodged on 15 March 2016

STATEMENT OF FACTS

1 . The applicant, Mr Raimonds Lazdiņš , is a Latvian national, who was born in 1972 and lives in B ērzes parish . He is represented before the Court by Mr I. Liepa , a lawyer practising in Riga.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows. Since 2005 the applicant had held the Category I security clearance, which also allowed access to lower, Category II ‑ related material.

3 . Since 8 February 2007 he was employed as a security adviser to the chairman of the board of a state-owned company, the Riga International Airport (the “Airport”).

4 . On 1 January 2011 he became Head of the Security Department of this company. Category II security clearance was necessary to hold this position.

5 . On 6 December 2013 the applicant ’ s employment with the Airport was suspended in connection with alleged unlawful recordings of telephone conversations at the Airport and exceeding of authority on the grounds of section 58(1) and 58(3) of the Labour Law.

6 . On 27 March 2014 the Airport served on the applicant a notice of termination of his employment contract on the grounds of section 101(1 )( 2) of the Labour Law and also instituted proceedings with a view to terminating said employment. On 8 May 2014 the applicant ’ s employment was again suspended on the same grounds as before.

7 . The proceedings brought by the Airport with a view to terminating the applicant ’ s employment contract were unsuccessful. By a final decision of 20 April 2015 the applicant ’ s reinstatement was ordered.

8 . The proceedings brought by the applicant against both suspension orders (6 December 2013 and 8 May 2014) were successful.

9 . By final decisions of 7 and 22 September 2015 both suspension orders were quashed, the applicant ’ s reinstatement and payment of salary arrears was ordered.

10 . On 24 April 2015 the Airport reinstated the applicant to his post as Head of the Security Department. However, he was immediately ordered into “idle time” ( d īkstāve ) without remuneration in accordance with the last sentence of section 74(2) of the Labour Law. A reference was made to “a letter by the Security Police of 26 January 2015” (see paragraph 13 below) and sections 9(1) and 13(3) of the Law on State Secrets. The applicant received this information on 27 April 2015.

11 . The applicant was informed about other employment offers at the Airport, which he refused.

12 . On 16 September 2015 the applicant settled all his disputes with the Airport by signing a confidential settlement agreement.

13 . In the meantime, on 26 January 2015 the Security Police took a decision revoking the applicant ’ s security clearance. That decision was based on section 9(3 )( 6) and 13(1)(3) of the Law on State Secrets. The applicant was not informed of that decision, but he lodged complaints against it.

14 . On an unknown date the applicant was invited for a meeting at the premises of the Constitutional Protection Bureau. O n 7 August 2015 a director of the Constitution Protection Bureau upheld the 26 January 2015 decision. Section 13(1 )( 2) of the Law on State Secrets was added as another basis for that decision. The Constitutional Protection Bureau referred to negative information obtained during the review proceedings, which was classified as containing State secrets and which could not be disclosed.

15 . On 16 September 2015 the Prosecutor General upheld the decisions taken by the Security Police and the Constitutional Protection Bureau. The material revealed that the applicant had breached the procedure for working with, the usage of and the safeguarding of State secrets. Also, there had been doubts about the applicant ’ s reliability and ability to keep State secrets (sections 9(3 )( 6) and 13(1)(2) and 13(1)(3) of the Law on State Secrets).

16 . The Prosecutor General also noted that the applicant could not have access to the material gathered by the Security Police and the Constitutional Protection Bureau. That material was classified in accordance with regulations no. 21(2004) and no. 887 (2004).

17 . On an unknown date criminal proceedings were instituted in relation to alleged unlawful recordings of the telephone conversations at the Airport. There is no further information about those proceedings.

18 . The applicant lodged an individual constitutional complaint with the Constitutional Court to contest the compliance of the legal provisions about the special review proceedings with the Constitution.

19 . On 15 April 2016 the Constitutional Court instituted proceedings as regards compliance of sections 11(5), 13(3) and 13(4) of the Law on State Secrets with the first sentence of Article 92 ( right to a fair trial), Article 96 (right to respect for private life, home and correspondence) and the first sentence of Article 106 (right to work) of the Constitution. However, the proceedings were not instituted as regards compliance of section 9(6) of the Law on State Secrets and Paragraph 2.10.6. of regulation no. 887(2004) with the Constitution.

20 . On 10 February 2017 the Constitutional Court delivered its judgment in case no. 2016-06-01.

21 . As concerns compliance with Article 96 (right to respect for private life, home and correspondence), the Constitutional Court terminated the proceedings as the alleged interference with the applicant ’ s rights did not emanate from the contested legal provisions.

22 . As concerns compliance with Article 106 (right to work), the Constitutional Court held that the contested legal provision, in so far as it envisaged a transfer to another position or dismissal following revocation of the security clearance, complied with the Constitution, but in so far as it laid down an absolute prohibition to obtain security clearance in the future for those who had seen their security clearances revoked – did not.

23 . As concerns compliance with Article 92 (right to a fair trial), the Constitutional Court held that the special review proceedings did not ensure sufficient procedural safeguards and fully denied access to court.

24 . The contested provisions were held to be unconstitutional and repealed as from 1 July 2018. As from that date, access to a court is available (see paragraph 32-33 below).

25 . Following the Constitutional Court ’ s ruling, the applicant lodged complaints with the relevant authorities seeking to have the decision to revoke his security clearance revoked.

26 . On 9 May 2017 a specialised prosecutor replied that the final decision by the Prosecutor General on 16 September 2015 remained valid and could not be quashed.

27 . On 8 and 15 May 2017 the Constitution Protection Bureau and the Security Police replied that there was no legal basis to quash or review the decision to revoke the applicant ’ s security clearance.

(a) Prior to the Constitutional Court ’ s ruling

28 . The criteria for obtaining access to State se crets were contained in section 9 of the Law on State Secrets. Section 9(3)(6) provided that access could not be granted to any person in respect of whom there were doubts about his or her reliability and ability to keep State secrets.

29 . Section 13 provided for the conditions and consequences of revocation of special permits. Pursuant to section 13(1 )( 2) special permits could be revoked if the person in question had breached the procedures for working with, the usage of and the safeguarding of State secrets. Under section 13(1 )( 3), special permits could be revoked if the person in question fell into one of the categories listed in section 9(3).

30 . Pursuant to section 13(4) after revocation the person concerned was deemed unfit to continue working in a position in connection with State secrets. Such persons were to be immediately transferred to another position not requiring access to State secrets or dismissed. Such persons could not obtain security clearance in the future.

31 . In accordance with sections 11(5) and 13(3), an appeal from a decision to revoke special clearance lay with the director of the Constitutional Protection Bureau. That decision could then be appealed to the Prosecutor General, whose decision was final.

(b) Following the Constitutional Court ’ s ruling

32 . Following the Constitutional Court ’ s ruling of 10 February 2017, the Parliament amended the relevant provisions of the Law on State Secrets. Those amendments were effective as of 1 July 2018, but did not apply to the applicant as his clearance had been revoked on 26 January 2015.

33 . Those amendments provided for: ( i ) access to court to contest a decision taken by the Prosecutor General in connection with the special review proceedings; (ii) a possibility to obtain a security clearance in future for those who had seen their security clearances revoked; and (iii) an obligation to give reasons for which security clearance had been denied in so far as it was possible – by not disclosing private, sensitive, secret or otherwise classified information.

34 . The relevant sections of the Labour Law read as follows:

Section 58 – Suspension from Work

“(1) Suspension from work is a temporary prohibition, imposed by a written order of an employer, for an employee to be present at the workplace and to perform work, without disbursing remuneration to the employee during the period of suspension.

...

(3) An employer has the right to suspend an employee from work if the employee, when performing work or being present at the workplace, is under the influence of alcohol, narcotic or toxic substances, as well as in other cases when failure to suspend an employee from work may be detrimental to his or her safety or the health or safety of third parties, as well as to the substantiated interests of the employer or third parties.

...”

Section 101 – Notice of Termination by an Employer

“(1) An employer has the right to give a written notice of termination of an employment contract only on the basis of circumstances related to the conduct of the employee, his or her abilities, or of economic, organisational , technological measures or measures of a similar nature in the undertaking in the following cases:

...

2) the employee, when performing work, has acted unlawfully and therefore has lost the trust of the employer;

...”

Section 74 – Remuneration in Cases where the Employee does not Perform Work due to Justifiable Reasons

“...

(2) Employee ’ s obligations shall be deemed to be fulfilled, and the employer has the obligation to disburse the remuneration specified in Paragraph three of this Section also if the employer does not provide work to an employee or does not perform the activities necessary for the acceptance of employee ’ s obligations (idle time). An employee shall not receive remuneration for idle time due to the fault of the employee.

...”

COMPLAINT

35 . The applicant complains that he was denied the right of access to court in a procedure regarding security clearance that was decisive for his employment. In particular, he could not challenge the decision by the Prosecutor General of 16 September 2015 before the domestic courts and the special review proceedings did not sati sfy the requirements of Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. In view of the Constitutional Court ’ s ruling of 10 February 2017 and/or the amendments effective as of 1 July 2018, can the applicant still claim to be a victim of a violation of Article 6 § 1 of the Convention, within the meaning of Article 34 of the Convention?

2. Was the applicant ’ s security clearance a condition sine qua non for the exercise of his duties at the Riga International Airport and, therefore, for the determination of the civil law disp ute between him and the Airport ?

3. Was there a breach of Article 6 § 1 on account of the lack of access to a court to contest the revocation of the applicant ’ s security clearance?