DISSENTING OPINION OF JUDGE MARUSTE

The Chamber has found a violation of Article 8 of the Convention on the ground that there was no procedure by which the applicant could seek effective protection of his right to respect for his private life. The Chamber has also found that the domestic proceedings were unfair because the principle of equality was not respected and an unrealistic burden was placed on the applicant.

The Chamber pointed out that if a party to whom classified materials relate is denied access to “all or most of the materials in question, his or her possibilities to contradict the security agency ’ s version of the facts would be severely curtailed” (see paragraph 115). I agree with that statement of principle and regard it as correct in general. However, I disagree with its application in this particular case since, as I understand them, the facts of this case do not support such a general conclusion. It is clearly not the case that “all or most of the materials in question” were classified and inaccessible to the applicant. Only one document was not ultimately disclosed, namely the 1972 Guidelines, which the applicant invokes and relies upon as the ground for his allegations of inequality. I do not believe that the failure to disclose one old Act renders all the available proceedings unfair and incompatible with the Convention requirements. In my opinion, the domestic courts were right not to take a formalistic approach, and to choose instead to address the substance of the case rather than rely on the Guidelines, which were only distantly related to the particular circumstances of the applicant ’ s case and to the assessment of his conduct at the material time. Having said that, I share the Chamber ’ s view that there should be no limitations on access to materials classified as confidential or even secret under the former totalitarian communist regimes. Certainly, it must not be a security agency itself that decides what materials should or should not remain classified, and for how long.

But to return to the facts of this case: on 19 March 1992 the Federal Ministry issued a negative security clearance, stating that the applicant was registered as a person referred to in section 2 (1) (b) of the Lustration Act. Under that provision, such an individual could have been registered as a ‘ resident ’ , ‘ agent ’ , ‘ holder of a conferred flat ’ , ‘ holder of a conspiratorial flat ’ , ‘ informer ’ or ‘ ideological collaborator of the StB ’ . The applicant initiated court proceedings, which were not without difficulties but eventually resulted in a Supreme Court ruling in which the Regional Court judgment of 19 May 1999 was upheld. The Regional Court had held, inter alia , that the applicant must have known that he had been meeting StB agents and that their contacts had actually amounted to formal collaboration. This was not denied by the applicant himself and was substantiated by some other evidence. Thus, after several sets of proceedings, the fairness of which was not as such disputed, it was confirmed that this particular individual

belonged to a certain category (set out above), and nothing more. It must also be noted that the efficacy of the procedure does not mean the right to obtain a decision in one ’ s favour and that the assessment of facts is primarily a matter for the domestic courts.

Although the difficulties faced by the applicant in the early stages of the procedure are to be regretted and some signs of unwillingness to cooperate on the part of the authorities are to be avoided in future, I consider that the proceedings as such were in conformity with the need for procedural protection of Article 8 rights in such cases.