PARTLY DISSENTING OPINION OF JUDGE JÄDERBLOM

I ha ve voted with the majority in finding no violation of Article 6 of the Convention, but cannot agree with them as regards the applicability of Article 6.

The applicant lost his clearance to have access to information classified as “secret”. The revocation of his security clearance made it impossible for him to carry out his functions as deputy to a vice-minister in the Ministry of Defence. He resigned from this post on his own initiative, allegedly for health reasons, and his work contract with the Ministry subsequently ended after he and the Ministry agreed to this. In the proceedings instituted by the applicant to have the decision to revoke his security clearance overturned, the applicant was unable to have access to certain information classified as confidential which lay behind the decision. This, he claimed, violated his right to a fair trial under Article 6 of the Convention.

In order for Article 6 to be applicable the Court has to assess whether or not the dispute over the applicant ’ s alleged right to maintain his security clearance was “civil” in nature.

In the majority ’ s view, as the revocation of the security clearance had the direct consequence of limiting the applicant ’ s access to certain jobs, especially within the civil service, and as the applicant had adapted his private life to the function of deputy to a vice-minister, the revocation had repercussions on his reputation and it was possible that it would have pecuniary consequences for him, the decision to revoke his security clearance and the subsequent procedures affected his civil rights.

I do not agree with this conclusion, for the following reasons.

For a right to be recognised as “civil” under Article 6, it is not sufficient that it touches upon other such rights; the proceedings at issue must be directly concerned with a right which is “civil”. The applicant was not dismissed from his job. Nor was his contract cancelled by his employer; instead, it was terminated by mutual agreement. The dispute thus did not concern the applicant ’ s right to an employment contract with the Ministry but a decision in which he had been considered not fit to be trusted with certain information. It is true that security clearance may be valuable for the applicant in obtaining and maintaining other jobs. On the other hand – unlike in cases concerning licensing disputes, where an individual ’ s private rights are directly affected (the authority to practise a certain profession, such as that of a lawyer or a physician) or property rights are at stake (for example, a restaurant owner who is dependent on a licence to serve alcohol) – the applicant in this case has not demonstrated any such consequences, let alone shown that he would be directly affected in the same way. The conclusion by the majority that the applicant ’ s reputation would be affected may well be right, and it may also be true that the decision could have pecuniary effects. However, it is not possible to assess the latter aspect as the applicant left his job voluntarily. As regards the applicant ’ s reputation, it should be noted that the revocation of his security clearance amounted to a statement of distrust as regards his handling of information that concerned State security. Whether or not a State should trust a person employed within its central government offices from a security perspective is one of the prerogatives of the State in question and does not concern that person ’ s “civil” rights for the purposes of Article 6.

CONCURRING OPINION OF JUDGE PEJCHAL

I fully share my honourable colleagues ’ opinion that in this particular case “the evidence is sufficient to allow the Court to conclude that the decision-making procedure satisfied in so far as possible the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the applicant ’ s interests”. I consider this case exceptional in view of the fact that the applicant held the office of Deputy Minister of Defence. On account of his office he had to have access to “State secrets”. Hence, he was obliged to undergo security cross-checks and to tolerate the process described in the judgment.

The problem of Czech security cross-checks consists in their excessiveness. The State authorities require security cross-checks for a countless number of activities, not only in the public sector but also in the private one (for example, when a private company bids for a procurement contract put out for tender in an area for which the law requires security cross-checks). Even the National Security Authority criticised the Government, several years ago, on the grounds that the number of persons who were obliged to ask for security cross-checks was disproportionately high.

These security cross-checks concern tens of thousands of persons. The Czech Government informed the Court that the number of valid security attestations granted to natural persons amounted to 38,274 as at 10 July 2015. Hypothetically, each one of those persons might have had the same problem as the applicant – a lack of knowledge of a number of facts concerning the process of granting security cross-checks, which, in my opinion, jeopardises Czech citizens ’ trust in justice.

It is hard to believe that of the total population of the Czech Republic, amounting to about ten million inhabitants, as many as 38,274 persons have been security cross-checked. I can imagine that 95% of those people never actually needed access to “State secrets” for the exercise of their profession, but despite that they had to undergo the security cross-checks.

I deem this judgment to be applicable only to persons who hold the same office as the applicant or a very similar one. Any generalisation is dangerous, especially when trust in justice is at stake. As Marcus Tullius Cicero said, “ Iustitia sine prudentia multum poterit , sine iustitia nihil valebit prudentia .”