Information Note on the Court’s case-law 196

May 2016

Regner v. the Czech Republic (referral) - 35289/11

Judgment 26.11.2015 [Section V]

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: case referred to the Grand Chamber

In September 2006 the National Security Office (“the NSO”) decided to revoke the security clearance which the applicant had been granted to perform his duties as deputy to a Vice-Minister of Defence, on the grounds that he was a risk to national security. However, the decision made no reference to the confidential information on which it was based; the information in question was classified as “restricted” and, in accordance with the law, could not be disclosed to him.

On an appeal by the applicant, the NSO confirmed the existence of th e risk. An application by the applicant for judicial review was subsequently rejected by the City Court, to which the documents in question had been transmitted by the NSO. The applicant and his lawyer were not authorised to consult them. The Supreme Admin istrative Court rejected his subsequent appeal, holding that the disclosure of the information would result in exposure of the intelligence service’s working methods, disclosure of sources of information or attempts by the applicant to influence potential witnesses. The applicant then lodged a complaint with the Constitutional Court, arguing that the proceedings had been unfair. The Constitutional Court dismissed his complaint, finding that it was not always possible to ensure all the procedural guarantees of fairness where confidential information relating to national security was at stake.

Relying on Article 6 § 1 of the Convention, the applicant complained that the administrative proceedings in his case had been unfair in that it had been impossible to have access to a decisive piece of evidence, classified as confidential, which had been made available to the courts by the defendant.

In a judgment of 26 Nov ember 2015, a Chamber of the Court concluded unanimously that there had been no violation of Article 6 § 1 of the Convention, holding that the decision-making process had complied as far as possible with the requirements to provide 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.

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

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