CYIL vol. 9 (2018)

VÍT ALEXANDER SCHORM CYIL 9 ȍ2018Ȏ enjoyed by the national authorities, […] the restrictions curtailing the applicant’s enjoyment of the rights afforded to him in accordance with the principles of adversarial proceedings and equality of arms were offset in such a manner that the fair balance between the parties was not affected to such an extent as to impair the very essence of the applicant’s right to a fair trial”. 6 The Grand Chamber thus held by ten votes to seven that there had been no violation of Article 6 § 1 of the Convention. In a series of separate, and sometimes very extensive, opinions some of the judges pointed to the lack of clarity or correctness in the reasoning of the majority with respect to the applicability of Article 6 of the Convention, but also, and far more importantly, to the fact that the complete non-disclosure of the grounds for the adoption of the impugned decision on revocation of the applicant’s security clearance paralysed his defence and this handicap could not have been counterbalanced by the courts’ activity deployed by their own motion. On one hand, they, as independent third actors in the dispute, are not called on to supplement one of the parties to the proceedings; it would otherwise cast objective doubts on their independence and impartiality. On the other hand, they could not check the veracity of information at the basis of the report of the intelligence service as they were not given access to its files. Last but not least, the test of impairment of the very essence of the rights, used with respect to the right of access to court, was applied for the first time by the Court in the context of the principles of adversarial proceedings and equality of arms. As to the last element of the criticism, the Grand Chamber of the Court indeed apparently curtailed the standards used so far in connection with the right to adversarial proceedings and the equality of arms since it resorted to a different test with a lower threshold. The Court may be seen as pressed by its own case law. It admitted that Article 6 § 1 of the Convention applied to the case at hand; this was not a necessary conclusion deriving from the circumstances. Then, under Vilho Eskelinen and others v. Finland , there was a binary choice: either judicial review is excluded (national security could be a good reason for doing that), or, if it is not, it must fulfil all the standards of the fair trial. The present case showed that the Czech legal order and case law in reality strived to carry out a proscribed third option in the specific context of security proceedings, since that solution in all likelihood provided a party to the proceedings with much better safeguards than the option of exclusion. In other words, while the permissible exclusion of access to court would impair the very essence of the right to a fair trial – there would be no trial at all –, the fact that independent judges look into the case is a valuable guarantee in itself which definitely reduces the risks of abuse. We can only speculate that the Grand Chamber, in deciding to admit after all in some form the third option, might have been influenced by the fact that the revocation of the applicant’s security clearance had objectively been justified by him being a suspect of a criminal activity of a certain scale in which he was involved at the material time. In any event, the Court must have been well aware of the sensitive nature of national security. It is indeed a field where States enjoy a large amount of discretion and which can be scrutinised by an international court only with a big dose of inherent difficulties. This is also true when it comes to national courts. (We will not discuss another aspect which is related to the existence and observance of security protocols in handling classified information. While this can be fully ensured at the national level, the Strasbourg Court cannot be said to be

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Ibidem , § 161.

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