SPŪLIS AND VAŠKEVIČS v. LATVIA
Inadmissible
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant in the first case, Mr Andris Spūlis, is a Latvian national, who was born in 1969 and lives in Riga. He is represented before the Court by Ms A. Mazapša, a lawyer practising in Babīte. 2. The applicant in the second case, Mr Vladimirs Vaškevičs, is a Latvian national, who was born in 1960 and lives in Riga. He is represented before the Court by Ms L. Cakare, a lawyer practising in Riga. 3. The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce. 4. The applicant worked from 1 September 2002 until 5 August 2009 at the Ministry of Foreign Affairs and was posted as a diplomat to Latvian embassies in Belarus and Ukraine. On 29 August 2007 he had been issued Category I security clearance. 5. On 11 July 2008 the director of the SAB invited the applicant to a meeting. The applicant was asked questions about his work in the embassy in Ukraine and about his contacts there. Later on the same day one of the staff members invited the applicant to another meeting. In the course of that second meeting the applicant was accused of having received money or diamonds. 6. On 15 August 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on sections 9(3)(6) and 13(1)(3) of the Law on State Secrets (see paragraphs 20 and 22 below). The decision referred to “facts established during an inquiry which constitute grounds for doubting your reliability and your ability to refrain from disclosing State secrets”. On 20 August 2008 the applicant’s employment with the SAB was suspended on the basis of section 18(2)(6) of the Law on State Security Establishments and section 13(4) of the Law on State Secrets and he was informed that his employment contract would be terminated pursuant to section 101(1)(6) of the Labour Law and section 13(1)(3) and 13(4) of the Law on State Secrets. 7. In response to the applicant’s complaint about the revocation of his security clearance, on 15 September 2008 the Prosecutor General upheld “the decision of the director of the [SAB] of 25 July 2008 [sic]”. In response to the applicant’s request for a review of the information in the possession of the SAB by an independent law-enforcement agency, the Prosecutor General pointed out that under the Law on State Security Establishments the system of protection of State secrets was subject to the supervision of the Prosecutor General’s Office. Accordingly, that Office was to be considered an independent authority. 8. The applicant then brought proceedings in the District Administrative Court, complaining about the de facto actions of the Prosecutor General and the director of the SAB. On 16 June 2009 that court refused to uphold the applicant’s complaint, finding that the lex specialis with regard to the procedure for revoking security clearance was contained in the Law on State Secrets which provided that decisions in that respect were not subject to review by the courts. Considering that the Senate of the Supreme Court had come to identical conclusions in a comparable case on 24 March 2009, the applicant did appeal against the said decision. 9. On 5 August 2009 the applicant applied to the director of the SAB to be discharged from the service on grounds of health, specifying that earlier that year the Medical Board for the Assessment of Fitness for Work had certified that he was suffering from a category-two physical disability. 10. On 11 August 2009 the applicant lodged a complaint with the Constitutional Court, alleging that sections 9(3)(6) and 11(5) of the Law on State Secrets (see Relevant Domestic Law, below) were unconstitutional. On 9 September 2009 the Constitutional Court refused to initiate proceedings, since it considered that the question of the constitutionality of section 11(5) had been decided in its earlier judgment of 23 April 2003 (see Relevant Domestic Law, below) and that the claim concerning 9(3)(6) lacked the requisite legal substantiation. 11. The applicant had been working in Customs and subsequently in the State Revenue Service since 1988. In 2008 he held the position of director of the Customs Criminal Investigation Department of the State Revenue Service (Valsts ieņēmumu dienesta Muitas kriminālpārvaldes direktors) and Deputy General Director of the State Revenue Service (Valsts ieņēmumu dienesta ģenerāldirektora vietnieks). In 2002 he had been issued security clearance. In 2007 the SAB reduced the applicant’s security clearance to Category II security clearance. That clearance was reviewed and upheld on average every three months. 12. On 24 July 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on section 13(1)(3) and (4) of the Law on State Secrets (see paragraph 22 below). 13. As a result the applicant was dismissed from the position of director of the Customs Criminal Investigation Department of the State Revenue Service, whereas he continued to work in the State Revenue Service as Deputy Director General in the areas of personnel, strategic development and internal audit. Following an internal reorganisation the applicant was appointed director of the Administrative Board of the State Revenue Service. In October 2009, in the context of rotation of civil servants, the applicant accepted a proposal of appointment as Deputy Director of the Tax and Customs Administration Policy Department of the Ministry of Finance. 14. Following the applicant’s complaint about the revocation of his clearance, on 11 September 2008 the Prosecutor General upheld the decision of the director of the SAB. The decision of the Prosecutor General indicated that the applicant’s clearance had been revoked because of facts established during “an inquiry” which constituted grounds for “doubting a person’s reliability and his or her ability to refrain from disclosing State secrets”. Furthermore, the inquiry had disclosed that in his application to obtain security clearance the applicant had provided false information. The Prosecutor General pointed out that the materials contained in the inquiry case-file were confidential and thus unavailable to the applicant. However, the reply contained a reference to a meeting between the applicant and a staff member of the SAB on 24 July 2008 during which the staff member had heard the applicant’s submissions concerning the facts established during the inquiry. In the course of the inquiry the SAB had also requested information from the Security Police and the Bureau for the Prevention and Combating of Corruption. 15. The applicant then submitted a complaint to the District Administrative Court, requesting it to quash the decision of the Prosecutor General and to declare the de facto actions of the director of the SAB and the Prosecutor General unlawful. By a decision of 25 September 2008 that court refused to uphold the applicant’s complaint on similar grounds to those relied on in the first application (see paragraph 8 above). 16. The proceedings in the administrative courts were terminated by a final decision of the Senate of the Supreme Court on 24 March 2009. The Senate upheld and expanded the reasoning contained in the decisions of the lower courts, relying on the Constitutional Court’s judgment of 23 April 2003 (see paragraph 28 below). 17. The applicant then submitted an application to the Constitutional Court, alleging, inter alia, that sections 9(3)(6) and 11(5) of the Law on State Secrets and paragraph 2.10.6. of the “List of State secret information” (see Domestic law part below) were incompatible with the Constitution. 18. On 13 October 2009 the Constitutional Court refused to initiate proceedings, considering that the question of the constitutionality of section 11(5) had already been decided by that court in its judgment of 23 April 2003 and that the remainder of the applicant’s claims lacked the requisite legal substantiation. 19. The Law on State Secrets came into force on 1 January 1997. At the time of revocation of the applicants’ security clearance it provided, in so far as relevant, as follows. 20. The criteria for obtaining access to State secrets were contained in section 9. Section 9(3)(6) provided that access could not be granted to any person “in respect of whom during the course of an inquiry facts have been determined that constitute grounds for doubting his or her reliability and ability to refrain from disclosing State secrets”. 21. Pursuant to sections 11(5) and 13(3) of the Law, an appeal from a decision to revoke special clearance lay to the director of the SAB. The director’s decision could then be appealed to the Prosecutor General, whose decision was final. The Law did not contain any further details concerning the appeal procedure. 22. Section 13 provided for the conditions and consequences of revocation of special permits. Under section 13(1)(3), special permits could be revoked if it had become apparent that the person in question fell into one of the categories listed in section 9(3). Section 13(1)(4) provided that special permits were revoked in respect of persons who had knowingly provided false information about themselves. After revocation the person concerned was to be immediately dismissed or transferred to a position not requiring access to State secrets. Such persons could not obtain security clearance in the future. 23. On 26 October 2004 the Cabinet of Ministers adopted regulations entitled “List of State secret information” (Ministru kabineta 2004. gada 26. oktobra noteikumi Nr. 887 “Valsts noslēpuma objektu saraksts”). Paragraph 2.10.6. of that list designated as “confidential” the “means, methods and inspection measures for special protection ... of State secret information ... (for example, pages of questionnaires)”. 24. Section 101(1)(6) of the Labour Law gave employers a right to terminate employment contracts in cases where the employees concerned lacked the professional competence to perform their contractual duties. 25. Lastly, the internal organisation of the SAB and other security agencies was governed by the Law on State Security Establishments. Section 18(2)(6) of the Law provided that the agencies concerned could not employ persons who had been denied access to State secrets. Section 26(1) provided that the Prosecutor General and prosecutors with particular authorisation were to have a supervisory role over the work of State security agencies (including the system of protection of State secrets). In their supervisory role, the Prosecutor General and the authorised prosecutors had a right to access documents and information in the possession of security agencies. 26. In a judgment of 23 April 2003 in case no. 2002-20-0103 the Constitutional Court declared, by five to two votes, inter alia, section 11(5) of the Law on State Secrets constitutional. The case originated in an application from an individual who had not been issued with security clearance. 27. The majority of the court observed that the interests of national security required that access to State secrets be granted only to persons whose character references precluded the risk of disclosure of State secrets and that in the NATO member states the threshold of eligibility for security clearance was high. They concluded that such restrictions were necessary in a democratic society and provided a fair balance between the competing interests of the individual and of the community as a whole. The majority conceded, however, that the above restrictions had to be sufficiently substantiated and that the competent authority had to assess the degree of risk in each particular case in order to decide whether to grant clearance or not. 28. The Constitutional Court emphasised that the right of access to a court did not equate to a right to resolve in a court any question of importance to an individual. It further noted that even if the dispute in question was of a nature that in principle fell to be examined in the courts, the right of access to court could nevertheless be curtailed if curtailment served a legitimate aim and the means employed were reasonably proportionate to that aim. In that regard the Constitutional Court held that even though the Prosecutor General could not be considered to be “a court” for the purposes of the right of access to court, nothing in the Law on State Secrets prevented him from implementing certain procedural guarantees in the process of reviewing a refusal to issue security clearance. Furthermore, the court considered that the Prosecutor General had a duty to interpret the applicable provisions in the light of the Constitution and to implement such guarantees. Accordingly, the Constitutional Court considered that section 11(5) of the Law on State Secrets, which, in its opinion, was capable of being applied in a manner compatible with the Constitution, was not contrary to the Constitution. Two judges dissented, considering that in practice the audiatur et altera pars principle was not applied by the Prosecutor General and that in the absence of any procedural guarantees set down in the Law on State Secrets the Prosecutor General’s decision making was inherently arbitrary.