CASE OF REGNER v. THE CZECH REPUBLIC
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano
5. The applicant was born in 1962 and lives in Prague. 6. On 19 July 2005 the National Security Authority (hereinafter “the Authority”) issued the applicant with a certificate, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category (hereinafter “security clearance”). That clearance was a precondition for holding the post he then occupied as deputy to a vice-minister of Defence. 7. On 7 October 2005 the Authority received confidential information, classified as “restricted”, on the applicant from an intelligence service. 8. Following an internal investigation, the Authority decided on 5 September 2006 to revoke the applicant’s security clearance. According to that decision, the applicant posed a national security risk, inter alia on the grounds provided for in section 14(3)(d) of the Protection of State Classified Information Act (Law no. 412/2005). The decision stated that the facts established in respect of his conduct, as documented and substantiated by information received by the Authority on 7 October 2005, cast doubt on his trustworthiness and his ability not to be influenced and not to disclose secret information (preconditions for issuing him with security clearance). It was noted that as the information was classified as “restricted”, section 122(3) of the Act precluded any mention thereof in the decision or any disclosure of the Authority’s reasoning regarding its assessment of the facts in question. 9. According to information supplied by the Government, on 4 October 2006 the applicant asked the Minister of Defence to discharge him, on health grounds, from his post as deputy to the vice-minister. His request was granted on the same day. The ministerial decree discharging him from his duties specified that this did not terminate the applicant’s employment contract. That contract did not end until 31 January 2007, following an agreement by mutual consent signed by the parties on 20 October 2006. 10. In the meantime the applicant challenged the decision of 5 September 2006 before the director of the Authority, who confirmed the decision on 18 December 2006 regarding the risk referred to in section 14(3)(d) of the Protection of State Classified Information Act. That risk, which had been unknown on 19 July 2005, had transpired from the results of an investigation carried out by the Authority. Those results constituted “restricted” information and the decision could only refer to them and not mention their content. 11. On 19 January 2007, relying on section 133(1) of the Protection of State Classified Information Act, the applicant lodged a request with the Prague Municipal Court for judicial review of the decision of 18 December 2006. In his submission, that decision had deprived him of acquired rights in that he had been obliged to give up his post as deputy to the vice-minister of the Defence whereas he had adapted his activities within the public service and within the sphere of his private life. Accordingly, he asked the court to assess the lawfulness of that decision which was based exclusively on undisclosed classified information. 12. On 16 April 2007 the Authority sent the applicant’s file to the Municipal Court, including the documents classified as “restricted”, which in its opinion could not be exempted from the obligation of confidentiality laid down in section 133(3) of Law no. 412/2005. It also submitted its comments on the applicant’s request. These were sent to the applicant for his reply. In his reply of 14 May 2007 the applicant commented on, inter alia, the necessity alleged by the Authority of protecting the confidentiality of the documents in question. 13. Subsequently, the applicant and his lawyer were permitted to study the file, except the confidential parts. 14. At the hearing on 1 September 2009 the applicant was given the opportunity to submit his arguments and to state what he thought were the reasons for revoking his security clearance. He observed that, in his view, the information in question had been provided by a military intelligence service which had sought to punish him for his refusal to co-operate. 15. Pursuant to section 133(3) of the Protection of State Classified Information Act, the Municipal Court refused the applicant access to the section of the legal file containing the classified information from the Authority’s file and in a judgment of 1 September 2009 dismissed his request for judicial review. Referring to section 122(3) of the Protection of State Classified Information Act, the court held that the Authority, which had disclosed to the applicant the source of the classified information and the general conclusions that it had drawn from that information but not the content thereof, had acted neither arbitrarily nor unlawfully. Furthermore, the fact that the impugned decision was amenable to judicial review had enabled the court to examine the information in question and rule on whether it justified the conclusion that the applicant posed a security risk, which was the case here. The court also observed that there was no fundamental individual right to hold a post in the civil service, that the State was authorised to restrict the access of individuals to such posts and that it could also determine the conditions in which those individuals could have access to confidential information necessary for the performance of their duties. The applicant had not satisfied those conditions in the present case. According to that rationale, an individual could not have knowledge of the confidential information on the basis of which his right of access to confidential information had been refused. The court considered, lastly, that the confidentiality of the information that had led to the applicant’s security clearance being revoked prevented it from examining his submission that the information in question had concerned his refusal to co-operate, beyond his statutory obligations, with the military intelligence service. In any event that submission was deemed to be speculative because unsupported by verifiable documents. 16. The applicant appealed on points of law against the Municipal Court’s judgment, complaining first about his inability to gain access to the relevant part of the legal file. He submitted that the disclosure of information in the “restricted” category (which was the lowest level of confidentiality) could not constitute a serious threat to the activities of the intelligence services within the meaning of section 133(3) of the Protection of State Classified Information Act. He stated that he was convinced that the revocation of his security clearance was connected with his refusal to co-operate with the military intelligence service, of which he had no written proof. However, as he had no knowledge of the content of the information in question he could not refute its accuracy. 17. In a judgment of 15 July 2010 the Supreme Administrative Court dismissed the applicant’s appeal on points of law as unfounded. It observed that the possibility, provided for in section 133(3) of the Protection of State Classified Information Act, of prohibiting access to part of the file was not limited to a specific category of confidential information. In the present case the conditions for prohibiting access were met because communication of the information in question to the applicant could have led to the disclosure of the intelligence service’s working methods, the disclosure of its sources of information or attempts on the applicant’s part to influence possible witnesses. Referring to the judgment of the Constitutional Court no. II. ÚS 377/04, the Supreme Administrative Court held that the applicant’s complaints of unfairness of the proceedings were unfounded because, having regard to the special nature of the proceedings on account of the nature of the confidential information in question, not all the applicant’s procedural rights could be guaranteed. Whilst the executive did indeed, in certain circumstances, have the right not to inform the individual concerned of the reasons for not issuing him or her with security clearance, that restriction was counterbalanced by the guarantee of having that decision examined by the administrative courts, which had unlimited access to the documents contained in the administrative file. In the present case the Supreme Administrative Court observed that the confidential document emanating from the intelligence service contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service. 18. On 25 October 2010 the applicant lodged a constitutional complaint. He complained of the unfairness of the proceedings in his case. He argued, in particular, that the parties had not been treated equally because he had not been allowed to have knowledge of the sole evidence on which the decision against him had been taken and which had resulted in his being declared unsuitable for public office. He also expressed his firm conviction that he should have been able to consult the relevant part of the file. 19. In a decision of 18 November 2010, which was served on the applicant’s lawyer on 26 November 2010, the Constitutional Court dismissed the applicant’s complaint as manifestly ill-founded. Referring to its judgment no. Pl. ÚS 11/2000, it observed that, having regard to the special nature and the importance of decisions adopted in connection with confidential information where there was a clear national security interest, it was not always possible to apply all the procedural guarantees of fairness in such proceedings. In the present case the Constitutional Court held that in so far as the courts’ conduct was duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution and they had not departed from procedural standards and constitutional principles to an inordinate degree, the Constitutional Court was not required to intervene in their decision-making process. 20. In their observations of 30 April 2014 the Government submitted to the Court a bill of indictment of 16 March 2011 in which the applicant and some fifty co-defendants were formally charged with participating in an organised criminal group between 2005 and 2007 with a view to illegally influencing public tender procedures in the Ministry of Defence. This document shows that investigative measures had been carried out from May 2006. In a judgment of 25 March 2014, which was not final as at 17 July 2014, the applicant was sentenced to three years’ imprisonment and ordered to pay a fine. 21. The Government also submitted a letter from the Authority dated 24 March 2014 in which it confirmed that the document in question was still classified “restricted” because disclosure of the information contained in it was liable to disrupt the work of the intelligence service, reveal its methods and sources of information and adversely affect the legitimate interests of third parties. In that context the Authority referred to the above-mentioned criminal proceedings against the applicant.