ECtHR / Application no. 35289/11 / Judgment Regner v. the Czech Republic

Key facts of the case:

  1. The applicant was born in 1962 and lives in Prague.
  2. On the basis of a contract signed on 2 November 2004 and governed by the provisions of the Labour Code, the applicant became an employee of the Ministry of Defence.
  3. On 27 December 2004, the Ministry’s authorised representative requested the National Security Authority (Národní bezpečnostní úřad – “the Authority”) to issue the applicant with security clearance (osvědčení) giving him access to State classified information in the “secret” category (tajné) in accordance with the duties to be carried out by him.
  4. On 1 January 2005 the applicant took up his duties as director of the Department of administration of the Ministry’s property (Sekce správy majetku Ministerstva obrany).
  5. On 19 July 2005 the Authority issued the applicant with security clearance, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category.
  6. During the year 2006 the applicant was appointed deputy to the first Vice-Minister of Defence (zástupce Prvního náměstka ministra obrany), while continuing to carry out his duties as director of the Department of administration of the Ministry’s property.
  7. On 7 October 2005 the Authority received confidential information from the intelligence service, classified “restricted” (vyhrazené) and dated 5 October 2005. It started an investigation in order to verify the information received. In the course of that investigation the intelligence service provided the Authority with other information, dated 21 March 2006, classified “restricted” and annexed to the security file (bezpečnostní spis) under number 77. On the basis of that information the Authority revoked the security clearance on 5 September 2006. There were two unrelated reasons for that decision: firstly, the applicant had failed to indicate, as he should have done when applying for security clearance, that he held directorships in a number of companies and accounts in foreign banks; and secondly, the applicant was considered to pose a national security risk, within the meaning of section 14(3)(d) of Law no. 412/2005. With regard to that risk, the decision did not however indicate which confidential information it was based on, as this was classified “restricted” and could not therefore legally be disclosed to the applicant. The decision indicated that the facts established in respect of his conduct, as documented in the information received by the Authority on 7 October 2005, cast doubt on his suitability for security clearance and his ability not to be influenced and to keep sensitive information secret, and thus indicated that he was no longer trustworthy.
  8. On an administrative appeal (rozklad) by the applicant, the director of the Authority, after obtaining an opinion from the appeals board, confirmed on 18 December 2006 the Authority’s decision of 5 September 2006, but on partly different grounds. He dismissed as unfounded the complaint that the applicant had failed to disclose certain information prior to being issued with security clearance. However, he agreed with the Authority’s conclusions regarding the existence of a security risk, which had transpired from the investigation carried out by the Authority and from the classified documents.
  9. In the meantime, on 4 October 2006, the applicant had asked to be discharged, for health reasons, from his duties as deputy to the first Vice-Minister of Defence, and from those of director of the Department of administration of the Ministry’s property. He was removed from office on the same day under Article 65 § 2 of the Labour Code (see paragraph 26 below). On 20 October 2006 he signed an agreement, under Article 43 of the Labour Code, terminating his contract by mutual consent with effect from 31 January 2007.
  10. On 19 January 2007 the applicant lodged an application with the Prague Municipal Court (městský soud) for judicial review of the decision revoking his security clearance. He and his lawyer were permitted to consult the file, but the parts classified as confidential were excluded. However, the documents containing information about the existence of a risk, including the confidential documents, had been sent by the Authority to the court, which had access to them. At the public hearing the applicant was given the opportunity to make his submissions and to state what he thought were the reasons for revoking his security clearance. He stated that he believed the information in question had been provided by a military intelligence service which had sought to take revenge on him for his refusal to accept a proposal to co-operate in a manner exceeding his statutory obligations.
  11. In a judgment of 1 September 2009 the court dismissed the application for judicial review. It observed that in a procedure revoking security clearance the relevant authority could only disclose reasons for revoking clearance that were based on non-classified documents and that as regards grounds based on classified documents it had to confine itself to referring to the relevant documents and their level of confidentiality. It found that the approach taken by the Authority, which had not disclosed to the applicant the contents of the information on the basis of which the security clearance had been revoked, had not been illegal as disclosure of such information was prohibited by law. It added that the applicant’s rights had been sufficiently respected because the court had power to obtain knowledge of the classified information and assess whether it justified the decision taken by the Authority.
  12. In a judgment of 15 July 2010 the Supreme Administrative Court (Nejvyšší správní soud) dismissed an appeal on points of law (kasační stížnost) lodged by the applicant as unfounded. It considered that the classified documents in question had shown beyond any doubt that the applicant did not satisfy the statutory conditions to be entrusted with secret information. It observed that the risk in his regard concerned his conduct, which affected his credibility and his ability to keep information secret. The Supreme Administrative Court added that disclosure of the classified information could have entailed the disclosure of the intelligence service’s working methods, the revelation of its information sources or the risk of influencing possible witnesses. It explained that there was a statutory prohibition on indicating where exactly the security risk lay and on specifying the considerations underlying the conclusion that such a risk existed, the reasons and considerations underlying the Authority’s decision being based exclusively on classified information. Accordingly, the reasons for the decision had to be limited to a reference to the documents on which it was based and the level of confidentiality of the information used. It went on to observe that, owing to the special nature of proceedings where classified information was concerned, not all the applicant’s procedural rights could be guaranteed but that the non-disclosure of the exact reasons underlying the decision to revoke security clearance was counterbalanced by the guarantee that the administrative courts had unlimited access to the classified documents. The Supreme Administrative Court pointed out that the report on the result of the investigations carried out by the intelligence service, included in the file under no. 77, 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.
  13. On 25 October 2010 the applicant lodged a complaint with the Constitutional Court (Ústavní soud), complaining of the unfairness of the proceedings. In a judgment of 18 November 2010 the court dismissed his complaint as manifestly ill-founded. Referring to its earlier case-law on the subject, it observed that given the special nature and the importance of decisions adopted in respect of classified information where national security interests were manifest, it was not always possible to apply all the guarantees relating to fairness of proceedings. It considered that in the present case the courts’ conduct had been duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution; that they had not departed from procedural standards and constitutional rules to an inordinate degree; and that the Constitutional Court was not therefore required to intervene in their decision-making procedure.
  14. On 16 March 2011 the prosecution service lodged a bill of indictment against the applicant and 51 other persons on charges of influencing the award of public contracts at the Ministry of Defence from 2005 to 2007. The applicant was indicted for participation in organised crime (účast na zločinném spolčení); aiding and abetting abuse of public power (pomoc k trestnému činu zneužívání pravomoci veřejného činitele); complicity in illegally influencing public tendering and public procurement procedures (pomoc k trestnému činu pletich při veřejné soutěži a veřejné dražbě); and aiding and abetting breaches of binding rules governing economic relations (pomoc k trestnému činu porušování závazných pravidel hospodářského styku).

In a judgment of 25 March 2014 the České Budějovice Regional Court (krajský soud) found the applicant guilty and sentenced him, inter alia, to three years’ imprisonment. In a judgment of 27 May 2016 the Prague High Court (Vrchní soud) upheld the first-instance judgment convicting the applicant, but suspended execution of his prison sentence for a two-year probationary period. That judgment became final.

Results (sanctions) and key consequences of the case:

FOR THESE REASONS, THE COURT

  1. Rejects, by fifteen votes to two, the preliminary objections raised by the Government;
  2. Holds, by ten votes to seven, that there has been no violation of Article 6 § 1 of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 September 2017.

Paragraphs referring to EU Charter: 
  1. By virtue of Article 26 § 2 of the Charter (Listina základních práv a svobod), which has the rank of constitutional law, the right to exercise certain professions or activities may be subject to certain conditions or restrictions.
  1. In judgment no. I. ÚS 828/09 of 22 September 2009 the Constitutional Court observed, in particular, that the right to freely choose one’s profession did not include the right to obtain security clearance or the right to practise a specific profession, the exercise of which was moreover strictly limited in the interests of the State. It rejected the complainant’s argument that a decision revoking security clearance for the “secret” category had infringed his fundamental right to freely choose his profession, within the meaning of Article 26 of the Charter. It observed that that right could be construed not as enshrining everyone’s right to a specific profession but only the right to choose the profession one wished to practise. It added that in order to enter into a particular employment relationship or to carry on a specific independent activity, the person concerned had to satisfy the detailed statutory conditions for exercising that profession or activity, in accordance with Article 26 § 2 of the Charter.
  2. In judgment no. 5 As 44/2006 of 30 January 2009 the Supreme Administrative Court held that, in interpreting the expression “risk for national security”, the evidence gathered had to be examined in the light of a possible security risk. Thus, a mere suspicion of a national security risk sufficed to conclude that the person concerned was not trustworthy from a national security point of view.
  1. The Supreme Administrative Court also referred to the connection between holding a particular post and issuing security clearance. Referring to the drafting history of the Law, it observed that access to classified information must only be granted to persons necessarily requiring access for the purposes of exercising their profession or function. That was also the position taken by the Constitutional Court, which, in judgment no. I. ÚS 828/09 of 22 September 2009, held that it was not possible to infer from the right to freely choose one’s profession the right to obtain security clearance, which was neither guaranteed by the Charter of Fundamental Rights and Freedoms nor by the instruments of infra-constitutional rank.
  1. On 4 June 2013 the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case ZZ v. the United Kingdom (case C-300/11). The request for the ruling concerned the interpretation of Article 30(2) of the amending Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in particular in the light of Article 47 of the Charter of Fundamental Rights of the European Union. The context was a dispute between a person with dual French and Algerian nationality and the United Kingdom immigration authorities regarding the latter’s decision refusing him admission, on public security grounds, to the United Kingdom. The CJEU replied, in substance, that where, in exceptional cases, a national authority refused, on grounds of State security, to provide precise and full disclosure to the person concerned of the grounds which constituted the basis of a decision refusing entry, it was necessary for a court to be entrusted with verifying whether those reasons stood in the way of precise and full disclosure of the grounds on which the decision in question was based and of the related evidence. With regard to proof that State security would in fact be compromised by disclosure to the person concerned of those grounds, it observed that there was no presumption that the reasons invoked by a national authority existed and were valid (§ 61 of the judgment). It observed, further, that if the court in question concluded that State security did not preclude disclosure to the person concerned of the precise and full grounds on which a decision refusing entry was based, it gave the competent national authority the opportunity to disclose the missing grounds and evidence to the person concerned. If that authority did not authorise their disclosure, the court proceeded to examine the legality of such a decision on the basis of solely the grounds and evidence which had been disclosed (§ 63) and if it turned out that State security did stand in the way of disclosure of the grounds to the person concerned, judicial review of the legality of a decision taken must be carried out in a procedure which struck an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which was strictly necessary. It held in particular:

“65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry ... is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress ineffective ... .

66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision ... is based are such as to affect the evidential value of the confidential evidence.

68. Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.”

  1. Those considerations were of even greater application, in the Government’s submission, if, under Article 26 § 2 of the Charter of Fundamental Rights and Freedoms, for the performance of a specific public office, the law stipulated special requirements that the official concerned had ceased to satisfy. The Government therefore shared the view of the Supreme Administrative Court that there was no right to hold such public office because the person concerned could not have any legitimate expectation of not being removed from office if he or she no longer satisfied the requirements for the proper performance of that office (see paragraph 59 above).