CASE OF TERNOVSKIS v. LATVIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
5. The applicant was born in 1956 and lives in Dobele. He was employed by the State Border Guard Service as a border guard from 1992. 6. On 20 January 1997 the applicant was promoted to head of the Jelgava section. On 5 October 1998 a certification commission (atestācijas komisija) deemed him suitable for his new position. 7. After the Law on State Secrets (see paragraphs 30 to 34 below) came into force on 1 January 1997 and the adoption of Regulation no. 225 of the Cabinet of Ministers, entitled “Regulations for the Protection of State Secrets” (see paragraph 36 below) on 25 June 1997, the applicant was invited to apply for security clearance for work with State secrets. He filled in a questionnaire on 23 September 1997. According to a letter sent to the Government Agent by the Constitution Protection Bureau (Satversmes aizsardzības birojs, hereinafter “the SAB”), one of the Latvian intelligence services responsible, inter alia, for issuing security clearances, he had been invited to attend a “discussion” (pārrunas) on 20 April 1998 in respect of his application. The Government provided a copy of additional written explanations submitted by the applicant the same day. Therein he had explained that he had been a reserve lieutenant in the Soviet Army and a member of the Latvian Communist Party until approximately 1990. He denied having had any links with foreign secret services, and in that regard referred to a prior interview he had apparently had with the Security Police. 8. On 19 January 1999 the head of the Border Guard Service showed the applicant a letter from the SAB, which indicated that he had been refused the first category security clearance. The letter did not contain any motivation of the refusal apart from a reference to section 9(3)(4) of the Law on State Secrets (see paragraph 32 below). 9. The applicant presumed that clearance had been refused because he had been suspected of past collaboration with the State Security Committee of the former USSR (Комитет государственной безопасности in Russian, hereinafter – “the KGB”). He accordingly made use of the remedy available under the domestic system to have the question of his alleged collaboration adjudicated in court. As a result, in a judgment of 19 May 1999, the Dobele District Court established that the KGB archives contained a document which indicated that on 30 July 1991 the applicant had been recruited as a KGB “agent” and given a codename. His recruiter had been a KGB operative, V.P. The court, however, went on to note that there was no indication that the applicant had ever submitted any reports in his alleged capacity as a KGB agent. Moreover, the court considered that there was no evidence to suggest that the applicant had been aware that he had been an “informer” of the KGB. Accordingly, the court concluded that the applicant had not knowingly collaborated with the KGB. That judgment was not appealed against and became final on 30 May 1999. 10. However, prior to the completion of the inquiry into the applicant’s alleged collaboration with the KGB, and after he had refused to leave his job voluntarily, an order was made by the head of the Border Guard Service on 11 March 1999 to dismiss him from service with effect from 16 March 1999. The reasons given for the termination of his employment were the letter of the SAB and section 39(1)(8) of the Law on Border Guard Service (Robežsardzes likums), which provided that border guards were to be retired from service if they were deemed unsuitable for their duties. Another border guard, Major G.K., was appointed to fill the applicant’s position. 11. In July 1999 the applicant wrote to the SAB, seeking a review of the decision concerning his clearance. On 8 September 1999 the SAB responded, refusing to change the “findings of the Security Police of the Ministry of the Interior, in accordance with which it is impossible to issue Andris Ternovskis the first category special clearance on the basis of section 9(3)(6) of the Law on State Secrets”. Section 9(3)(6) provided that clearance would not be issued to persons suffering from alcoholism, drug addiction, mental illness or who were otherwise deemed unsuitable for work with State secrets (see paragraph 32 below). It was some two years later that the applicant discovered that on 16 December 1999 the director of the SAB had changed the legal basis of the refusal of the clearance from section 9(3)(4) to section 9(3)(6) of the relevant law. 12. The applicant then appealed against the SAB’s decision to the Prosecutor General. On 21 December 1999 the latter issued a decision, upholding the refusal to issue him clearance on the basis of section 9(3)(6) while referring to: “circumstances that attest to [the applicant’s] personal and professional characteristics which give rise to legitimate doubts as to [his] ability to preserve State secrets – [the applicant’s] frequent contact with the former ... KGB employee [V.P.], his hiding of information concerning the involvement of officers of the Jelgava section of the State Border Guard Service in illegal activities and needless and dangerous brandishing of a firearm in the presence of other employees of the Border Guard Service while intoxicated.” 13. Section 11(5) of the Law on State Secrets provided that the Prosecutor General’s decision was final and not amenable to further appeal, either in court or elsewhere. 14. The applicant then attempted to obtain access to the materials in the investigation file on the basis of which he had been refused clearance. On 23 February 2001 he was informed by the SAB that the materials were confidential (in accordance with the regulation no. 226 of the Cabinet of Ministers; see paragraph 35 below) and not accessible to the person subject to the investigation. However, on 14 June 2004 the applicant received permission to access some parts of the file and obtained copies of several documents contained therein. One of the documents contains excerpts from a report by a border guard, officer G.K. (who was promoted to head of the Jelgava section following the applicant’s dismissal, see paragraph 10 above) to the deputy director of the SAB containing intimations that the information the applicant had disclosed about his former collaboration with the KGB had been inaccurate. Another report (which did not contain any indication of its source) indicated that the applicant, while intoxicated, “had behaved aggressively with a service weapon, threatening to either shoot himself or [G.K.]”. The third document was a report by G.K. reciting information supposedly provided by third parties concerning the applicant’s former collaboration with the KGB and concerning “the covering up of extraordinary incidents of alcohol use and smuggling in the Jelgava section”. 15. The applicant complained about his dismissal from service to three levels of courts of general jurisdiction. In a judgment of 19 September 2001 the Riga City Latgale District Court noted the change that had been made to the legal basis on which refusals of clearance had been made; however, it did not find it necessary to analyse that issue, since the judgment of the Dobele District Court had not refuted the fact that the applicant had been an “agent” of the KGB, and that section 9(3)(4) of the Law on State Secrets provided that clearance should not be issued to former “agents” of, inter alia, the KGB, irrespective of how active their involvement had been. The applicant had also asked the first-instance court to renew the procedural time-limit for appealing against the refusal to issue him security clearance. The court rejected this request by noting that the applicant had already made use of the procedure for appealing against the refusal. 16. An appeal hearing took place on 23 January 2002 at the Riga Regional Court but the applicant did not attend. Two days prior to the hearing, he had informed the court that he was ill and that a doctor had ordered him to stay in bed (“gultas režīms”). The case file contains a copy of a medical certificate, dated 21 January 2002, which states that the applicant had been put on sick leave until 25 January 2002. The certificate is made out on a pre-typed form and contains no specific details of the applicant’s medical condition. Under the heading “the reason for a temporary inability to work” the doctor preparing it has ticked “other reasons”, as opposed to being infected with tuberculosis, having an occupational disease or having had an accident at the workplace. The court considered that the applicant had not submitted any evidence in support of his claim that his health condition had prevented him from attending the hearing. Neither had he substantiated his claim that he had been ordered to stay in bed. 17. The court considered that his arguments had been fully expressed in his written appeal and on that basis had decided to proceed with the hearing in his absence. The applicant was not fined for failure to attend the hearing without a justified reason. As summarised by the appeal court, the applicant in his appeal had complained, among other things, that he had been dismissed from service even before the appeal procedure against the refusal to issue security clearance had been completed. 18. The applicant was not represented by counsel. A representative of the State Border Guard Service, the respondent in the proceedings, was present at the hearing and in his oral observations before the court endorsed the validity of the judgment of the first-instance court and disagreed with the applicant’s claim and appeal. 19. As to the merits of the appeal, the appellate court in its judgment of 23 January 2002 indicated that the first-instance court had not adequately analysed the arguments of the parties and had exceeded the scope of its competence. It nevertheless decided to dismiss the applicant’s claim. It held that the order of 11 March 1999 discharging the applicant from service could not be deemed to be a restriction of his rights, since he had already been aware of the SAB’s refusal to issue him security clearance since January of that year. In any event, the court considered that it was impossible to reinstate the applicant to his position, since the position required him to obtain security clearance, which had been refused by a final decision of the Prosecutor General, which was not amenable to appeal. The appeal court also held that there were no legal grounds to renew the time-limit for appealing against the decision to refuse the applicant a security clearance and that in any case the applicant had exhausted the appeal procedure legally available to him. 20. The applicant lodged an appeal on points of law. On 10 April 2002 the Senate of the Supreme Court adopted a judgment dismissing his appeal. It dismissed his complaint concerning the fact that the appellate court had conducted the hearing in his absence. The Senate noted that the appellate court had regarded the applicant’s reason for having failed to appear at the hearing as unjustified, but said that it was a question of fact which the Senate, being a level of jurisdiction which deals with alleged violations of procedural and substantive law and not with the re-evaluation of facts, was not competent to review. As regards the merits of the case, the Senate agreed with the conclusions of the appellate court. 21. The applicant then submitted a complaint to the Human Rights Bureau (Cilvēktiesību birojs, the predecessor of the Ombudsman). On 10 October 2002 he received a response, in which the Bureau expressed doubts as to the constitutionality and compatibility with the Convention of the process for appealing refusals of security clearance, given that such appeals could only be made to the director of the SAB and to the Prosecutor General. 22. The applicant then lodged a complaint of unconstitutionality with the Constitutional Court, alleging firstly that there had been no opportunity for him to address his complaint concerning a refusal of security clearance to a court, and secondly that he had been denied access to the investigation file on the basis of which the refusal had been made. On 23 April 2003 the Constitutional Court adopted a judgment in which it declared the legal provisions in question constitutional. Two of the seven judges dissented (see paragraphs 27 and 28 below). 23. The majority considered that the right of access to a court guaranteed by the Constitution did not include a right to resolve in a court every issue that might be of importance to an individual. Accordingly it started its analysis by questioning whether the disputed legal norms concerned the applicant’s rights or lawful interests. Firstly, it was noted that the freedom to obtain information did not incorporate access to State secrets, since there were legitimate grounds for restricting access to such information. Secondly, refusing the applicant security clearance had restricted his right to employment and equal access to employment in public service. Nevertheless, it concluded that such a restriction had been legitimate, since it had occurred for reasons related to national security. 24. Despite finding that the refusal did not impinge upon the applicant’s constitutional rights, the majority of the Constitutional Court proceeded to analyse the question whether the appeal process involving the director of the SAB and the Prosecutor General was sufficient to satisfy the requirement of access to a court. In that regard it was firstly pointed out that the Prosecutor General could not be understood to be a “court” for the purposes of the right of “access to a court”. Secondly, the court referred to the Strasbourg Court’s judgments in the cases of Golder v. the United Kingdom (21 February 1975, § 38, Series A no. 18) and Fogarty v. the United Kingdom ([GC], no. 37112/97, § 33, ECHR 2001XI), in which it was held that the right to access to a court was not absolute and was subject to limitations. The court then went on to analyse whether the impossibility of disputing the validity and legality of a refusal of security clearance before a court pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It considered that the legitimate aim was the need to protect the confidentiality of materials contained in the investigation file regarding the person in question’s suitability for security clearance. As concerns the issue of proportionality, the Constitutional Court took into account the fact that the legislation provided at least one possible method of disputing a refusal of clearance before an independent authority, namely by way of an appeal to the Prosecutor General. 25. With regard to the adequacy of the appeal process, the court noted that the domestic legislation did not contain any details of the decision-making process involved in refusing clearance or of the subsequent appeal procedure. In particular, the observance of the audiatur et altera pars principle was not guaranteed. That led the Constitutional Court to conclude that: “in a country governed by the rule of law it is possible to provide for a more thought-out mechanism which would permit, in the course of deciding upon whether to issue a special clearance, to take into account, in so far as is possible, both interests of State security and the individual interests of each person under consideration.” To illustrate that point, the court referred to the system in Germany as an example, where security clearance candidates were given an opportunity to make representations concerning facts relevant to the decision and to be represented by a lawyer, save in cases where a personal interview could significantly harm State security. The Constitutional Court then went on to conclude that Latvian legislation did not, in principle, prevent the competent authorities from implementing the audiatur et altera pars principle, particularly if the legislation were to be interpreted in the light of the Constitution. It followed that the limitation of the rights of security clearance candidates was proportionate to the legitimate aim of protecting State security. 26. As regards the fact that the applicant had been denied access to the investigation file, the Constitutional Court viewed it as a restriction of the right to respect for private life. Referring to the European Court of Human Rights’ judgment in the case of Leander v. Sweden (26 March 1987, § 59, Series A no. 116), it noted that interests of national security could justify such an interference with private life and concluded that in the applicant’s particular situation such an interference had been justified. 27. Judge Anita Ušacka in her dissenting opinion focused on the fact that the process for appealing a refusal of security clearance to the director of the SAB and the Prosecutor General did not ensure an adequate implementation of the audiatur et altera pars principle. She criticised the majority’s reliance on the assumption that the applicable legislation would be interpreted broadly and in accordance with the Constitution so as to implement the principle of hearing both parties’ arguments because “the practice shows that in transitional legal systems, such as Latvia, the principle of hearing all parties is not implemented unless it is provided for in the law, which is a fact borne out by the present case”. 28. Judge Andrejs Lepse 29. After gaining partial access to his investigation file (see paragraph 14 above), and acting on the advice of the Human Rights Bureau, the applicant, relying on new information, applied for the proceedings concerning the alleged illegality of his dismissal to be reopened. On 13 October 2004 the Supreme Court dismissed his application, finding that the new information related to the reasons for the refusal of security clearance, the illegality of which had not been the subject matter of the original proceedings. The applicant then missed the time-limit for submitting an ancillary complaint against the Supreme Court’s decision. In a final decision of 12 January 2005 the Senate of the Supreme Court refused to accept the applicant’s belated ancillary complaint.