CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2017 clearance indeed had repercussions on the applicant’s personal and professional situation. Although he had not been immediately dismissed for that reason, the impugned decision had adversely affected his ability to obtain a new post within the State administration. It went on to add that, according to its case law ( Vilho Eskelinen and others v. Finland , no. 63235/00, judgment [GC] of 19 April 2007), Article 6 is applicable to employment disputes between the State and its agents unless two conditions are met: the State must have excluded access to a court for the post or category of staff in question, and this exclusion must be justified on objective grounds in the State’s interest. However, in the case at hand, the Czech legal order allowed judicial review of the legality of the NSA’s decision. 4 As to the merits, the Court pointed out in general terms that the rights stemming from the principles of adversarial proceedings and equality of arms are not absolute and that competing interests, such as national security, can be weighed against the rights of a party to the proceedings. Unlike in its previous case law which required that the limitation of these rights must be strictly necessary ( Ternovskis v. Latvia , no. 33637/02, judgment of 29 April 2014, § 67), it admitted that Article 6 § 1 would allow measures restricting the rights of the party which do not affect the very essence of those rights; for that to be the case, any difficulties caused to the individual concerned by a limitation of their rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities. The applicant was limited in the proceedings under scrutiny in two ways compared to the rules of ordinary law guaranteeing a fair trial: evidence in the form of the classified report of an intelligence service was not made available to him nor to his lawyer, and he was not provided with the exact grounds for revocation of his security clearance. At the same time, however, a number of counterbalancing procedural safeguards existed. The case was reviewed by independent and impartial courts. These had unlimited access to all the classified documents on which the NSA had based its decision. Courts, and ultimately not the NSA, decided whether the reasons for non-disclosure of the contents of the classified piece of evidence, as set out by law, truly existed. Finally, courts are empowered to assess the merits of the impugned decision without being bound by the extent of the applicant’s action and they can also quash, where applicable, an arbitrary decision of the NSA. The Court was of the opinion that the Czech courts had duly exercised the available powers of scrutiny. It referred in particular to the reasoning formulated by the Supreme Administrative Court with respect to the need to preserve confidentiality of the classified report, explaining that it unequivocally followed from that document that the applicant had ceased to satisfy the statutory conditions for being entrusted with secrets. The Court also noted that “it would have been desirable – to the extent compatible with the preservation of confidentiality and effectiveness of the investigations concerning the applicant – for the national authorities, or at least the Supreme Administrative Court, to have explained, if only summarily, the extent of the review they had carried out and the accusations against the applicant”. 5 However, it went on to conclude that “[h]aving regard to the proceedings as a whole, to the nature of the dispute and to the margin of appreciation 4 The question was submitted to the constitutional scrutiny and the Constitutional Court in its plenary judgment no. Pl.ÚS 11/2000 of 12 July 2001, published in the Collection of Laws under no. 322/2001 Sb., concluded that the exclusion from judicial review was contrary to various provisions of the Constitution, the Czech Charter of Fundamental Rights and Freedoms as well as to Article 6 § 1 of the Convention. 5 Regner v. the Czech Republic , judgment cited above, § 160.

395