CYIL Vol. 7, 2016

VÍT ALEXANDER SCHORM

CYIL 7 ȍ2016Ȏ

2. Right to adversarial proceedings and equality of arms The case of Regner v. the Czech Republic (no. 35289/11, judgment of 26 Novem- ber 2015, referred to the Grand Chamber) concerns the two above mentioned aspects of the right to a fair trial, safeguarded in Article 6 § 1 of the Convention. The applicant occupied a high post in the Ministry of Defence. The National Security Agency, responsible for issuing security clearances which entitle their holders to accede to classified information, decided, on the basis of a report by the Military Intelligence, one of the Czech Republic’s secret services, indicating that the applicant ceased to be reliable, to withdraw the applicant’s security clearance. As a result, the applicant lost his post in the Ministry, but his employment relationship was terminated later upon mutual agreement, so not in a unilateral manner and not in clear causal link with the invalidation of the clearance. Although he filed an administrative appeal and asked for judicial review at three levels of jurisdiction and all the institutions involved had the knowledge of the report, the applicant could not consult it since the report in question was also classified, and was only allowed to explain why he thought his security clearance could have been invalidated. In other terms, the protection of his interests was ensured ex officio by the administrative and judicial authorities that pointed to the report and endorsed the National Security Agency’s conclusion that he did pose a security risk. The Government first disputed the applicability of Article 6 of the Convention to the case and highlighted that the applicant did not enjoy any “right” to have a security clearance. In the opinion of the majority of the Chamber, however, the Czech legal order did confer a right on a security clearance holder to request verification that the criteria laid down by law for the invalidation of the clearance have been fulfilled. 4 The Court also found that the withdrawal of the clearance had had repercussions on the enjoyment of Mr Regner’s other civil rights. On the merits, the Court unanimously held that the refusal of access to the report had been motivated by the interests of national security since the national authorities had singled out that revealing the report ultimately risked uncovering the methods of work of intelligence services, their sources of information or could lead to unduly influencing witnesses. As to the protection of the applicant’s interests within the framework of the judicial review by administrative courts, the Court underlined that these courts had 4 This seems to be a rather problematic argument because the existence of a “right” in the context of the civil limb of Article 6 § 1 of the Convention is usually established by reference to the substantive, and not just procedural legal status of an applicant. The repercussions of the withdrawal of a security clearance are not direct in the circumstances of this case since the decision of the National Security Agency, in spite of its immediate effect, did not automatically mean the applicant’s dismissal from his job. The applicant occupied a high position from which, at least at the relevant time, he could have been dismissed in any event and even without the statement of any particular reason.

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