468 / 536
454
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.