SEPARATE PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot agree with the finding of a violation of Article 6 § 1 as proposed by the majority, and consequently likewise cannot agree with the third head of the operative part of the judgment (the award of just satisfaction).

2. While there is something that could possibly be said in terms of some provisions of the Convention as regards the law and the administrative procedure for obtaining “security clearance” (see paragraphs 11 to 13 and 21 to 28 of the judgment) and the applicant ’ s dismissal from the Border Guard Service, the majority ’ s decision hinges on one particular aspect of the proceedings before the Riga Regional Court, namely that court ’ s dismissal of a request for an adjournment because of the alleged inability of the applicant to appear in court (see paragraphs 16 to 18). This is clear from paragraphs 69 and 70, and then again from paragraph 74, where it is stated that “the appeal court ’ s failure to determine the validity of the reasons given for the applicant ’ s absence from the hearing and the subsequent decision to declare the applicant ’ s absence unjustified and to hold the hearing in his absence rendered the proceedings as a whole unfair, in that the applicant was unable to benefit, as much as is [ recte : was] possible in the specific context of access to State secrets, from an adversarial procedure”.

3. There is a synecdochic element in this line of reasoning. It suggests that, had the Riga Regional Court adjourned the hearing of 23 January 2002, thereby allowing the applicant to be present at some subsequent hearing, then in that case there would have been no violation of Article 6 § 1. However, as is rightly pointed out in paragraph 71, it is highly speculative to suggest that the applicant ’ s presence on 23 January 2002 would have made any difference. In other words, even if one takes into consideration the fact that that court, at the hearing of 23 January 2002, “was the last instance with full jurisdiction to examine all questions of fact and law” (see paragraph 70), the problem did not really lie with the procedural decision not to adjourn; if – which I do not believe to be the case – there was a problem of fairness or of access to a court, this lay elsewhere.

4. As pointed out in paragraph 42 of the judgment, the Civil Procedure Law as then in force contained provisions on the non-appearance of parties and on adjournment of proceedings which are similar to those found in many other jurisdictions. If the court considered the reason for the absence of a party justified, then, in accordance with section 209(2), it was obliged to postpone the hearing. It was therefore up to the party alleging that he or she was not able to attend the hearing to prove to the satisfaction of the court that there was a valid reason for staying away – otherwise parties could deliberately delay proceedings on the flimsiest of excuses. Not only did the certificate provided by the applicant fail to give any reasons why he could not attend the hearing on 23 January 2002, but there was also nothing to support the applicant ’ s claim (presumably made in the application for adjournment, to which the certificate was attached) that he had been told “to stay in bed” for a number of days (see paragraph 16). It is true that what was at stake for the applicant in the case before the Riga Regional Court was of considerable importance, but that in itself, if anything, increased the burden upon the applicant to explain properly to the court why he could not attend the hearing – it was a burden that he could have easily discharged by submitting a medical certificate detailing his medical condition(s) instead of the pre-typed form presumably used for obtaining or registering for sick leave from one ’ s place of work. There is nothing in the majority judgment to suggest that this was not procedurally possible.

5. In short, I am unable to find anything wrong with the way in which the Riga Regional Court proceeded in dismissing the applicant ’ s application for an adjournment on 23 January 2002. Moreover, even taking the proceedings as a whole, I cannot detect any procedural unfairness. Before the Riga Regional Court the applicant ’ s arguments “had been fully expressed in his written appeal” (see paragraph 17); that court had re-examined the arguments of both parties (see paragraph 19) and the same had been done by the Senate of the Supreme Court (albeit within the limited competence of this latter court) (see paragraph 20). The applicant, therefore, had been “heard” in the sense that “his observations [had been] properly examined by the courts” (see paragraph 66).