EHRM, 19-09-2017, nr. 35289/11

In reply to a question put to them by the Grand Chamber regarding the victim status of the applicant, the Government submitted that the outcome of the domestic proceedings had not been directly decisive for the applicant's right to continue carrying out his duties. They pointed out that it was the applicant himself who had asked to be removed from office and that he had not said that his request was motivated by the revocation of his security clearance or otherwise connected with that revocation. Moreover, removal from office had not terminated his employment relationship as such. In other words, there was nothing to suggest that the measure in question, namely, the revocation of the applicant's security clearance, had had any bearing on his employment relationship with the Ministry of Defence. Accordingly, the applicant could not be regarded as a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a fair trial.

The Government did not contest the fact that the present case concerned a ‘dispute’ between the applicant as a former holder of security clearance and the National Security Authority, a central authority responsible for decisions regarding security clearance. They agreed with the Chamber that the main subject of the dispute had been the reliability of the applicant from a security point of view (see paragraph 50 in fine of the Chamber judgment).

However, unlike the Chamber, which had considered that the subject of the dispute had been the applicant's right to obtain a review of the decision revoking his security clearance (see paragraph 53 of the Chamber judgment), the Government submitted that the present dispute concerned the question whether the applicant should continue to be regarded as reliable from a security point of view, that is, whether he had a substantive right, or rather a privilege, allowing him to keep the security clearance that gave him access to classified information.

The Government added that in the present case the dispute did not concern the right not to be unfairly dismissed, as the applicant had himself asked to be removed from office and had agreed to the termination of his employment relationship.

With regard to the question whether the dispute concerned a right recognised under domestic law, the Government noted first of all that no right of access by individuals to classified information could be inferred from the relevant provisions of domestic law. They pointed out that, according to the case-law of the higher domestic courts, Czech law did not provide for a ‘right’ to be issued with security clearance. They referred in that connection to domestic case-law according to which issuing security clearance to a particular individual was an extraordinary privilege granted by the Authority and the decision whether or not to grant that privilege to the person concerned was left to the full discretion of that authority.

According to the Government, the above-mentioned considerations applied, mutatis mutandis, to revocation of a person's security clearance.

They observed that the Authority enjoyed a wide margin of appreciation in determining the conduct or activities that could raise suspicion regarding a security risk and thus cast doubt on a person's reliability from a security point of view. Relying on the general principles established by the Court, the Government submitted that where the subject of the domestic proceedings was a decision as to whether the applicant should continue to enjoy a certain privilege, an unfettered discretion or even a wide margin of appreciation on the part of the Authority was a factor indicating that no ‘right’ to such a privilege was recognised under the domestic law (they referred to Mendel v. Sweden, no. 28426/06, § 44, 7 April 2009).

They added that once a doubt regarding a person's reliability from a national security point of view had been established, the Authority had no further discretion, the law then imposing immediate measures requiring the revocation of that person's security clearance. The Government stressed in that regard that as a reasonable doubt or a mere suspicion constituted reasonable grounds for revoking security clearance, the Authority had hardly any leeway in its decision-making (they referred to Wolff Metternich v. the Netherlands (dec.), no. 45908/99, 18 May 1999).

With regard to the civil nature of the right in question within the meaning of Article 6 § 1 of the Convention, the Government maintained that the question whether or not a State should regard as reliable from a national security point of view a person working within its central administration concerned the core of public authority prerogatives and State sovereignty.

The Government also pointed out that a tenuous connection between the dispute and the civil rights in issue or remote consequences for those rights did not suffice for Article 6 § 1 to be applicable. A civil right or obligation had to be the subject of the ‘dispute’ and, at the same time, the outcome of the proceedings had to be directly decisive for that right (they cited the case of Smagilov v. Russia (dec.), no. 24324/05, § 54, 13 November 2014).

In the present case the Government stressed that, apart from stating that he was no longer allowed to continue in his post, the applicant had never claimed that the Authority's decision or the subsequent proceedings had had an impact on any of his civil rights; nor had he in any way demonstrated the slightest adverse effect on his civil rights. The Government also pointed out that the applicant's monthly income during the period prior to the revocation of his security clearance had in fact been almost identical to the income received subsequently.

The Government observed that no ‘civil right’ of a public servant to be authorised to hold a certain public office in the State administration could be inferred from the Convention (they cited the case of Houbal v. the Czech Republic, no. 75375/01, § 70, 14 June 2005). Likewise, at the relevant time it had not been possible to infer the existence of a subjective right to the undisturbed performance of public office where a person had already been appointed to the post in question because, by law, a public servant could be removed from office at will by the person empowered to appoint him or her, which did not mean, however, that the employment relationship with the employer was thus terminated, as only the job position changed.

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).

The Government concluded that the present dispute mainly concerned the question whether the applicant had remained reliable from a security point of view and could accordingly keep the security clearance which gave him access to State secrets. That prerogative could hardly be considered as a ‘right’, still less a civil right. Accordingly, in their submission, Article 6 § 1 of the Convention did not apply in the present case.

The applicant submitted that his removal from office and the subsequent termination of his employment relationship had been the consequences of prior unlawful measures and erroneous decisions taken by the National Security Authority which he had challenged in administrative and judicial proceedings and before the Constitutional Court.

Considering the psychological pressure that had been exerted on him, he had had no choice but to leave his post and then his employment as well.

The applicant submitted that a decision granting or revoking the security clearance giving access to classified information had not then and did not now depend on an assessment by the Authority but had to be granted where the statutory conditions were met and that, accordingly, Czech law provided for a right of access to classified information where the statutory conditions were satisfied.

He stated that his application did not only concern the revocation of his security clearance as such, but also the procedural measures taken by the administrative authorities and the courts which had led to his clearance being revoked.

The applicant also indicated that the revocation of his security clearance had had the effect of making it impossible for him to continue carrying out his duties. As deputy to a vice-minister of Defence and director of the Department of administration of the Ministry's property, the applicant had regularly dealt with classified information, which had become impossible without security clearance. Therefore, he had had to stop working at the Ministry of Defence. He added that he had been unable to carry out other duties requiring security clearance. He concluded that the case had concerned his civil rights and that, consequently, Article 6 § 1 of the Convention applied in the present case.

The Court reiterates that for Article 6 § 1 to be applicable under its ‘civil’ limb, there must be a ‘dispute’ regarding a ‘right’ which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play.

With regard firstly to the existence of a right, the Court reiterates that the starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327-A; Roche v. the United Kingdom [GC], no. 32555/96, § 120, ECHR 2005-X; Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012; Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, ECHR 2016, and further references cited in the judgment; Baka v. Hungary [GC], no. 20261/12, § 101, ECHR 2016; and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 71, ECHR 2016 (extracts), and further references cited in the judgment). Article 6 § 1 does not guarantee any particular content for ‘rights and obligations’ in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B; Roche, cited above, § 119; and Boulois, cited above, § 91).

In that connection the Court observes that the rights thus conferred by the domestic legislation can be substantive, or procedural, or, alternatively, a combination of both.

There can be no doubt about the fact that there is a right within the meaning of Article 6 § 1 where a substantive right recognised in domestic law is accompanied by a procedural right to have that right enforced through the courts. The mere fact that the wording of a legal provision affords an element of discretion does not in itself rule out the existence of a right (see Camps v. France (dec.), no. 42401/98, 24 October 2000, and Ellès and Others v. Switzerland, no. 12573/06, § 16, 16 December 2010; and, conversely, Boulois, cited above, § 99, and Miessen v. Belgium, no. 31517/12, § 48, 18 October 2016). Indeed, Article 6 applies where the judicial proceedings concern a discretionary decision resulting in interference in an applicant's rights (see Pudas v. Sweden, 27 October 1987, § 34, Series A no. 125-A; Obermeier v. Austria, 28 June 1990, § 69, Series A no. 179; and Mats Jacobsson v. Sweden, 28 June 1990, § 32, Series A no. 180-A).

However, Article 6 is not applicable where the domestic legislation, without conferring a right, grants a certain advantage which it is not possible to have recognised in the courts (see Boulois, cited above, § 90, which concerned a prison board's refusal to grant a prisoner prison leave, with no possibility of appeal to an administrative court). The same situation arises where a person's rights under the domestic legislation are limited to a mere hope of being granted a right, with the actual grant of that right depending on an entirely discretionary and unreasoned decision of the authorities (see Masson and Van Zon, cited above, §§ 49–51; Roche, cited above, §§ 122-25; and Ankarcrona v. Sweden (dec.), no. 35178/97, ECHR 2000-VI.

There are also cases where the domestic legislation recognises that a person has a substantive right without at the same time, for one reason or another, there being a legal means of asserting or enforcing the right through the courts. This is the case, for example, of jurisdictional immunities provided for in the domestic law. Immunity is to be seen here not as qualifying a substantive right but as a procedural bar on the national courts' power to determine the right (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 48, ECHR 2001-XI, and Cudak v. Lithuania [GC], no. 15869/02, § 57, ECHR 2010-III).

In some cases, lastly, national law, while not necessarily recognising that an individual has a subjective right, does confer the right to a lawful procedure for examination of his or her claim, involving matters such as ruling whether a decision was arbitrary or ultra vires or whether there were procedural irregularities (see Van Marle and Others v. the Netherlands, 26 June 1986, § 35, Series A no. 101, and, mutatis mutandis, Kök v. Turkey, no. 1855/02, § 36, 19 October 2006). This is the case regarding certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which, where they find that the decision was unlawful, may set it aside. In such a case Article 6 § 1 of the Convention is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right.

With regard to the civil nature of the right in question, the Court observes first of all that an employment relationship under the ordinary law, based on an employment contract concluded between an employee and an employer, gives rise to civil obligations for both parties, which are, respectively, to carry out the tasks provided for in the contract and to pay the stipulated salary.

An employment relationship between a public-law entity, including the State, and an employee may be based, according to the domestic provisions in force, on the labour-law provisions governing relations between private individuals or on a body of specific rules governing the civil service. There are also mixed systems, combining the rules of labour law applicable in the private sector with certain specific rules applicable to the civil service.

With regard to public servants employed in the civil service, according to the criteria established in Vilho Eskelinen and Others, cited above, the respondent State cannot rely before the Court on the applicant's status as a civil servant to exclude the protection embodied in Article 6 unless two conditions are fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State's interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists a special bond of trust and loyalty between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent State to demonstrate, first, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (ibid., § 62, and Baka, cited above, § 103).

The Court reiterates further that the criteria set out in the Vilho Eskelinen and Others judgment have been applied to many types of dispute concerning civil servants, including those relating to recruitment or appointment (see Juričić v. Croatia, no. 58222/09, §§ 54–58, 26 July 2011), career or promotion (see Dzhidzheva-Trendafilova (dec.), no. 12628/09, § 50, 9 October 2012), transfer (see Ohneberg v. Austria, no. 10781/08, § 24, 18 September 2012) and termination of service (see Olujić v. Croatia, no. 22330/05, §§ 33–34, 5 February 2009, and Nazsiz v. Turkey (dec.) no. 22412/05, 26 May 2009). More explicitly, the Court held in Bayer v. Germany (no. 8453/04, § 38, 16 July 2009), which concerned the removal from office of a State-employed bailiff following disciplinary proceedings, that disputes about ‘salaries, allowances or similar entitlements’ were only non-exhaustive examples of ‘ordinary labour disputes’ to which Article 6 should in principle apply under the Eskelinen test. In the Olujić judgment (cited above, § 34) it held that the presumption of applicability of Article 6 in the Eskelinen judgment also applied to cases of dismissal (see Baka, cited above, § 105).

Specifically, the Court applied Article 6 § 1 in a case concerning refusal to issue security clearance to the applicant, who was thus dismissed from his post as border guard (see Ternovskis v. Latvia, no. 33637/02, §§ 9 and 10, 29 April 2014). It noted that although a right of access to State secrets was not guaranteed by the Convention, the refusal to issue security clearance had led to the applicant's dismissal, resulting in clear pecuniary repercussions for him. Indeed, the link between the decision not to grant the applicant security clearance and his loss of income was ‘certainly more than tenuous or remote’ (ibid., § 44). The Court concluded that Article 6 was applicable, adding that domestic law had not excluded access by the claimant to a court (ibid., §§ 46–50).

Article 6 of the Convention was also held to be applicable in two cases concerning revocation of a licence to carry firearms, the applicants having been listed in a database containing information on persons deemed to be a potential danger to society (see Pocius v. Lithuania, no. 35601/04, § 40, 6 July 2010, and Užukauskas v. Lithuania, no. 16965/04, § 34, 6 July 2010). The applicants had brought legal proceedings challenging the listing of their names by the police and had sought to have their names removed from the database. The courts had rejected their request, basing their decision on evidence produced by the police and classified secret that it was thus impossible to disclose to them. The Court concluded that Article 6 was applicable, on the grounds that the inclusion of the applicants' names in the database had affected their reputation, their private life and their job prospects (see Pocius, §§ 38–46, and Užukauskas, §§ 34–39, both cited above).

The Court also concluded that Article 6 was applicable in a case concerning judicial review of the appointment of a court president (see Tsanova-Gecheva v. Bulgaria, no. 43800/12, §§ 84–85, 15 September 2015). Whilst recognising that Article 6 did not guarantee the right to be promoted or to occupy a post in the civil service, the Court observed, however, that the right to a legal and fair recruitment or promotion procedure or to equal access to employment and to the civil service could arguably be regarded as rights recognised under domestic law, in so far as the domestic courts had recognised their existence and had examined the grounds submitted by the persons concerned in this regard.

Lastly, Article 6 of the Convention was applied recently in a case in which the applicant complained of having been unable to challenge before the courts her dismissal from the National Security Service (see Miryana Petrova v. Bulgaria, no. 57148/08, §§ 30–35, 21 July 2016). In that case the Court found that what was at stake was not access to State secrets, which was not guaranteed by the Convention, but rather the applicant's rights which had been affected as a consequence of the refusal to issue her security clearance. In the Court's view, that refusal had had a decisive impact on the applicant's personal situation as in the absence of the required clearance, she had been unable to continue to work in the position in which she had served for years, and this had had clear pecuniary repercussions for her. The link between the decision not to grant the applicant security clearance and her loss of income had therefore been ‘more than tenuous or remote’ (ibid., § 31).

The applicant argued that it was not possible for the courts to properly examine the justification or non-justification of the Authority's decision to refuse to grant or to revoke security clearance on the basis of indirect and inauthentic evidence, namely, a report submitted by an intelligence service. He observed that the report on which the courts had based their decision in the present case had amounted only to indirect and incomplete information emanating from a third party which they had been unable to verify or compare with his own statements, given that the report had not been disclosed to him at any stage in the proceedings. In his submission, the only means of verifying that information was to assess the facts referred to in it, and a court was unable to do this if a party targeted in the report was absent. Domestic case-law authority according to which a judicial review must also, in order to comply with the provisions of section 133 of Law no. 412/2005, be carried out beyond the grounds relied on by one of the parties to the proceedings, did not alter anything in this respect as the courts could not verify the truth and accuracy of the contents of the evidence. He referred in this context to judgment no. 4 As 1/2015 of 1 March 2016 of the Supreme Administrative Court, sitting as an extended chamber.

The applicant submitted that the principle of equality of arms was infringed where one of the parties to administrative proceedings had not had an opportunity to fully acquaint him or herself with all the evidence that had served as the main basis for an unfavourable decision. He conceded that in some circumstances State security interests defined by law took precedence over the interests of a person seeking protection from the courts in proper adversarial proceedings. He observed that in the present case, however, his right to a fair trial or to a position of equality before the law should not have been restricted because the statutory conditions under Czech law for such a procedure to be followed had not been met. The author of document no. 77, which the applicant had not been allowed to consult, had classified the report and the information contained in it in the lowest category of secrecy, namely, ‘restricted’. In the light of section 3(5)(e) of Law no. 412/2005, the author of the report had considered that information thus classified compromised certain intelligence operations in progress. However, under section 133(3) of that Law, in order for the courts to be able to exclude part of a document from examination by a party, there had to be a risk of interference in the activities of the intelligence services and that interference had to pose a major risk, as evidenced by the terms ‘endanger or seriously compromise’, which, by virtue of the law, required it to be classified at least in the ‘secret’ category. According to the applicant, the legislature had sought to limit the application of the special procedure strictly to situations in which facts were referred to that had to be kept secret. In his view, the statutory conditions for limiting his procedural rights indicated in section 133(3) of Law no. 412/2005 had not been met because the information appearing in the report could not be such as to justify recourse to the special procedure.

He observed in this context that the courts had not had the documents in the intelligence service's file or even part of those documents in their possession as these had not even been disclosed to the Authority or the administrative courts. He concluded that the only basis for the courts' decisions had therefore been the report in which the contents of the file had been summarised. According to him, the courts and their decisions could not be deemed to be independent and impartial where they were not in a position to verify the authenticity and accuracy of evidence produced by the parties. Even if the courts reviewed the facts of the case exercising their ‘full jurisdiction’, that did not in itself guarantee a fair hearing because even the most unbiased judge could be manipulated in a situation where he could not objectively assess the relevant evidence. Consequently, in his view, the balance between his right to a fair trial and the State's interest in keeping certain information confidential had not been maintained, contrary to section 133(3) of Law no. 412/2005, in so far as the report that had served as the basis of the unfavourable decision had been classified in the lowest category of confidentiality.

The Government submitted that the overwhelming majority of domestic laws allowed the parties access to classified documents, irrespective of their security level and without the need to declassify them, where they were to be used as evidence. A different approach had been adopted for certain very specific proceedings whose salient feature was a close link to the vital interests of national security. That approach applied to judicial review proceedings in such fields as cross-border trade with military equipment, entrance to aerodrome premises subject to increased protection and to proceedings issuing and revoking security clearance. For those proceedings the principles concerning a party's access to confidential documents applied mutatis mutandis. Only exceptionally, as a last resort, where intelligence services' or the police's activities could otherwise be jeopardised or seriously disrupted, did the law permit the application of more restrictive rules providing that, in extreme cases, a party could be completely denied access to such evidence. Moreover, in those exceptional cases the judicial authorities were required to be particularly vigilant and compensate effectively any disadvantage caused to the opposing party by their own course of action so as to forestall any arbitrariness or abuse of process in the authorities' decision-making.

The Government submitted that the States enjoyed greater latitude regarding restrictions on parties' procedural rights in respect of proceedings concerning civil rights and obligations than those concerning criminal proceedings (they referred to the case of Gillissen v. the Netherlands, no. 39966/09, § 50(d), 15 March 2016). Whilst it was clear that the present case needed to be judged according to different standards of protection from those applicable in criminal cases, the proceedings in question could not be treated as conventional administrative proceedings either. Rather, they were sui generis proceedings whose legal framework, characteristics, object and purpose were necessarily factors preventing any such comparison.

The fact that there were legal grounds in the present case justifying the Authority's decision not to disclose the contents of the intelligence service's report to the applicant had been confirmed by all the domestic courts dealing with the case. Accordingly, the Government were fully satisfied that the non-disclosure of evidence, in the special circumstances of the present case, had not been an arbitrary decision.

The Government were also convinced that the judicial proceedings had provided as many safeguards as practicable to protect the applicant's interests. Firstly, the applicant's security file, including the classified documents, had been submitted to the administrative courts at two levels of jurisdiction and to the Constitutional Court. Given that the judges had ex lege access to classified information, regardless of the security level, the nine judges who had been called upon at the different stages of the proceedings to protect the applicant's interests had been duly apprised of the contents of the intelligence service's report. The Government added that the applicant had not called into question the independence and impartiality of the judges.

The Government also noted that limiting the courts' powers to addressing only the points raised by the complainant did not apply in such cases because the party to the proceedings could not effectively claim that the findings were unlawful when he or she did not even know their contents. Since in such a situation the position of the party to the proceedings and his or her ability to argue against the decision effectively was necessarily weakened, the courts were obliged proprio motu to ‘stand in’ for the party's procedural activity and duly examine the procedure followed and the grounds for the decision being challenged in their entirety, that is, over and above the points raised by the complainant.

In performing their supervisory function in relation to the Authority's decisions, the administrative courts were called upon to assess whether the legal grounds relied on for implementing an exceptional procedure allowing access to confidential documents to be refused to the defendant party were justified. The Government submitted that in the present case the two administrative courts, which had had full jurisdiction, had proceeded as outlined above when they had concluded that the disclosure of the confidential part of the applicant's security file would endanger or seriously compromise the activity of the intelligence services or of the police and, accordingly, they had considered that the decision to exclude that part from the consultation was justified.

The Government added that the file kept by the intelligence service or documents from it were not directly sent to the Authority and subsequently to the courts, but rather the relevant contents of the file were summarised in the report. However, the domestic courts' settled case-law set out numerous requirements that had to be met by the classified documents underlying the Authority's decisions, in particular the reports on the outcome of the investigations carried out by the intelligence services, in order to be used in the subsequent judicial review. They had to contain very specific information, or a summary thereof, enabling the court to verify effectively the relevance and information value of the intelligence services' conclusions, and in particular that the information established by them was credible, balanced and related to issues that were decisive for the security vetting procedure. Moreover, the intelligence service had to indicate, in abstract terms, from which source the information had been obtained, including a description of the circumstances and the reasons why the intelligence services regarded the information as credible. The courts' function in the security proceedings was not to re-examine the authenticity and veracity of the reference documents kept by the intelligence services, but to verify whether there existed a well-founded suspicion of a possible security risk. To that end, the assessment of the credibility, plausibility and relevance of the information gathered was, in the Government's submission, an appropriate criterion.

With regard to the applicant's submission regarding whether the conditions of application of section 133(3) of Law no. 412/2005 had been satisfied, the Government considered that that provision did not make the possibility of denying access to classified evidence conditional on a high security level. Nor did the law confine that procedure to situations where there was a greater risk of jeopardising or disrupting the activities of the intelligence services or the police.

The Government submitted that in the present case there was no reason to doubt that if the courts had considered the information in the report on the outcome of the investigation to be incomplete, irrelevant, insufficiently detailed or not credible, they would have set aside the decision in question and ordered the Authority to supplement its factual findings by further evidence.

In the light of the Court's case-law, the Government argued that there had been a significant subsidiary guarantee of protection of the applicant's interests, namely, that he had been given the opportunity to provide the court with a detailed description of the events preceding the report on the outcome of the intelligence service's investigation, its presumed contents as well as the possible motivation of its author to seek revocation of the applicant's security clearance. They submitted that the applicant had thus had an opportunity to challenge the credibility of the report in the eyes of the judges who had protected his interests in the proceedings. That had also ensured that the judges made their decision in full knowledge of the matter, taking into account the applicant's concerns and objections. The Government added that the fact that the Constitutional Court had also examined the applicant's case constituted an additional guarantee that his interests were protected.

The Government were convinced that in the present case the right to a fair hearing and, in particular, the principle of adversarial proceedings and equality of arms, for the purposes of Article 6 § 1 of the Convention, had not been infringed since there had been no arbitrariness or abuse of process in the limitation of the applicant's procedural rights and that limitation had been sufficiently counterbalanced by the procedures followed by independent and impartial judicial authorities which had played an active role in the proceedings and thus provided not only adequate safeguards to protect the applicant's interests but also struck a fair balance between the State's interests and those of the applicant.

The Slovak Government argued that where secrecy on grounds of national security was concerned the State enjoyed a broad margin of appreciation in determining which information was so sensitive that its disclosure would threaten the fundamental rights of persons or the protection of an important public interest. The disclosure of classified information concerning the internal workings and methods of the security services or law-enforcement bodies could seriously disrupt the activities of those services. The authorities therefore had a legitimate interest in keeping that information secret.

The Slovak Government observed that the right to disclosure of all relevant evidence was not absolute and could be subject to restrictions designed to protect the rights of third parties or an important public interest such as national security. They noted that the Slovakian legal regulations were, in substance, similar to the Czech legal regulations: security clearance issued by the National Security Authority or by another security department — the Slovak intelligence service or military intelligence service — was a prerequisite to gaining access to classified information. Classified information was also excluded from court files and neither the parties to the proceedings nor their legal representatives could claim access to it unless they had the appropriate authorisation.

The National Security Authority or any other security department had the power to revoke the security clearance of a person failing to meet the relevant statutory conditions. Such a decision was amenable to appeal before a committee of the National Council of the Slovak Republic, established by a special law. Subsequently, an appeal lay against the final decision of that appeal body to the administrative courts. In the judicial proceedings the Authority was required to provide the court with all the administrative files concerning the case in question, including all classified information. The judges thus had unlimited access to the classified information contained in those files.

Both the Slovak Republic and the Czech Republic had made provision for the decision in question to be examined by courts having full jurisdiction. The courts were therefore required to examine of their own motion not only the lawfulness of the decision and of the conduct of the security department, but also the factual and legal assessment of the matter by the security department, over and above the objections raised during the proceedings. The Slovak Government submitted that those legal regulations were justified and adequately satisfied the requirements of adversarial proceedings and the equality of arms.

The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a ‘fair hearing’ within the meaning of Article 6 § 1 of the Convention. They require a ‘fair balance’ between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see Avotiņš v. Latvia [GC], no. 17502/07, § 119 and other references, ECHR 2016).

However, the rights deriving from these principles are not absolute. The Court has already ruled, in a number of judgments, on the particular case in which precedence is given to superior national interests when denying a party fully adversarial proceedings (Miryana Petrova, cited above, §§ 39–40, and Ternovskis, cited above, §§ 65–68) The Contracting States enjoy a certain margin of appreciation in this area. However, it is for the Court to determine in the last instance whether the requirements of the Convention have been complied with (see, for example, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 72, Reports of Judgments and Decisions 1998-IV; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII; and Devenney v. the United Kingdom, no. 24265/94, § 23, 19 March 2002).

The Court reiterates, moreover, that the entitlement to disclosure of relevant evidence is not an absolute right either. In criminal cases it has found that there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the party to the proceedings. However, only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1. For that to be the case, any difficulties caused to the applicant party by a limitation of his or her rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis, Fitt v. the United Kingdom [GC], no. 29777/96, § 45 with other references, ECHR 2000-II, and Schatschaschwili v. Germany [GC], no. 9154/10, § 107, ECHR 2015).

In cases where evidence has been withheld from the applicant party on public interest grounds, the Court must scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the person concerned (see Fitt, cited above, § 46).

In the instant case the Court observes that, in accordance with the requirements of Czech law in the event of legal proceedings challenging a decision refusing to issue or revoking security clearance, the proceedings brought by the applicant were restricted in two ways with regard to the rules of ordinary law guaranteeing a fair trial: first, the classified documents and information were not available either to him or to his lawyer, and second, in so far as the decision revoking security clearance was based on those documents, the grounds for the decision were not disclosed to him. The Court accordingly has the task of examining whether those restrictions infringed the very essence of the applicant's right to a fair trial.

In carrying out that examination the Court will have regard to the proceedings considered as a whole and will determine whether the restrictions on the adversarial and equality-of-arms principles, as applicable in the civil proceedings, were sufficiently counterbalanced by other procedural safeguards.

In that connection the Court notes the powers conferred on the domestic courts, which have the necessary independence and impartiality; this is not disputed as such by the applicant who rather limits himself to calling into question the capacity of the judges to adequately assess the facts of the case, given that they did not have full access to the relevant documents (see paragraph 130 above).

First, the courts have unlimited access to all the classified documents on which the Authority has based itself in order to justify its decision. They then have power to carry out a detailed examination of the reasons relied on by the Authority for not disclosing the classified documents. They can assess the reasons given for not disclosing classified documents and order disclosure of those that they consider do not warrant that classification. Moreover, they are empowered to assess the merits of the Authority's decision revoking security clearance and to quash, where applicable, an arbitrary decision of the Authority.

Moreover, the jurisdiction of the courts examining the dispute encompasses all the facts of the case and is not limited to an examination of the grounds relied on by the applicant, who has been heard by the judges and has also been able to make submissions in writing. It is true that, on this point, Czech law could have made provision, to the extent compatible with maintaining the confidentiality and proper conduct of investigations regarding an individual, for him to be informed, at the very least summarily, in the proceedings, of the substance of the accusations against him. In the present case the applicant would thus have been able to mount a clear-sighted and focused defence and the courts dealing with the case would not have had to compensate for the lacunas of the defence.

However, the Court observes that the courts duly exercised the powers of scrutiny available to them in this type of proceedings, both regarding the need to preserve the confidentiality of the classified documents and regarding the justification for the decision revoking the applicant's security clearance, giving reasons for their decisions with regard to the specific circumstances of the present case.

Accordingly, the Supreme Administrative Court considered, having regard to the need to preserve the confidentiality of the classified documents, that their disclosure could have had the effect of disclosing the intelligence service's working methods, revealing its sources of information or leading to attempts to influence possible witnesses. It explained that it was not legally possible to indicate where exactly the security risk lay or to indicate precisely which considerations underlay the conclusion that there was a security risk, the reasons and considerations underlying the Authority's decision originating exclusively in the classified information. Accordingly, there is nothing to suggest that the classification of the documents in question was carried out arbitrarily or for a purpose other than the legitimate interest indicated as being pursued.

Regarding the justification of the decision revoking the applicant's security clearance, the Supreme Administrative Court held that it was unequivocally clear from the classified documents that the applicant no longer satisfied the statutory conditions for being entrusted with secrets. It observed that the risk in his regard concerned his conduct, which affected his credibility and his ability to keep information secret. It noted further that the confidential document emanating from the intelligence service 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 (see paragraph 20 above).

In this connection the Court notes that in March 2011 the applicant was prosecuted for participation in organised crime; aiding and abetting abuse of public power; complicity in illegally influencing public tendering and public procurement procedures; and aiding and abetting breaches of binding rules governing economic relations (see paragraph 22 above). It finds it understandable that where such suspicions exist the authorities consider it necessary to take rapid action without waiting for the outcome of the criminal investigation, while preventing the disclosure, at an early stage, of suspicions affecting the persons in question, which would run the risk of hindering the criminal investigation.

It would appear, moreover, in the light of the information in the Court's possession, that the domestic courts did not make use of their power to declassify certain documents. Whilst they did examine the classified documents, they expressly stated that these could not be disclosed to the applicant. It is therefore not possible for the Court to rule on the thoroughness of the review carried out by the domestic courts. They did not make a distinction in that respect regarding the level of classification — confidential, secret, top secret — of the documents produced, as the Supreme Administrative Court expressly found (thus rejecting a ground raised by the applicant) that the degree of classification was irrelevant as concerned the scope and thoroughness of the review to be carried out by the court. That being said, having regard to the confidentiality of the documents, recognised as such by the various judicial bodies examining the case, the latter could hardly, in their respective decisions, have explained in detail the extent of the review they had carried out without compromising the secrecy of the information in their possession.

The Court acknowledges that the intelligence service's report, which served as a basis for the decision revoking the applicant's security clearance, had been classified in the lowest category of confidentiality, namely, the ‘restricted’ category (see paragraphs 15 and 38 above). However, it considers that that fact did not deprive the Czech authorities of the right not to disclose the contents to the applicant. It can be seen from the Supreme Administrative Court's case-law, although it postdates the judgment in the present case (see paragraph 65 above), that, contrary to the applicant's submission, Law no. 412/2005, and particularly section 133(3) of that Law, is applicable to any information classified as confidential and not limited to data of a higher degree of confidentiality. Accordingly, the application of section 133(3) of Law no. 412/2005 by the domestic courts does not appear to be arbitrary or manifestly unreasonable.

Nonetheless, 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. In that connection the Court notes with satisfaction the positive new developments in the Supreme Administrative Court's case-law (see paragraphs 63-64 above).

Having regard to the proceedings as a whole, to the nature of the dispute and to the margin of appreciation enjoyed by the national authorities, the Court considers that 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.

Consequently, there has been no violation of Article 6 § 1 of the Convention.

In paragraph 86 of his written observations, the applicant's complaint concerning the procedural injustice he had suffered is presented as follows:

Undoubtedly, the right to a fair hearing under Article 6 § 1 of the Convention guarantees the absence of arbitrariness in the administration of justice and due process of law, which, by definition, ought to be proper and just. In procedural justice, fairness is equated in my mind with procedural equality as well as with natural justice (see, on this topic, David J. Mullan, ‘Natural Justice and Fairness — Substantive as well as Procedural Standards for the Review of Administrative Decision-Making’ [1982] 27, Revue de Droit de McGill, 250 et seq.).

In Malone v. the United Kingdom (2 August 1984, § 67, Series A no. 82), the Court rightly observed that ‘[e]specially where a power of the executive is exercised in secret, the risks of arbitrariness are evident …’ That was what happened, in my view, in the present case. The absolute refusal of the authorities to inform the applicant of the accusations against him was not only arbitrary, but also unjust, as it adversely affected his defence, violating, as has been argued, also the principle of adversarial proceedings and the principle of equality of arms. So, with due respect, I am in total disagreement with the view submitted by the Government (see paragraph 141 of the judgment) that ‘there had been no arbitrariness or abuse of process in the limitation of the applicant's procedural rights’.

Since a fair trial cannot be envisaged other than in the context of adversarial proceedings and equality of arms, an applicant should have the liberty to handle and present his case or to defend himself, either in person or with the assistance of his lawyer, without the court acting on his behalf in any way. Only then will there be procedural equality with the opposing party, the Government. Although the minimum rights provided for in Article 6 § 3 (b), (c) and (d) of the Convention, namely, the right to have adequate facilities for the preparation of one's defence, the right to defend oneself and the right to examine or to have examined witnesses respectively, apply whenever someone is charged with a criminal offence, they may nevertheless also apply, mutantis mutandis, in civil or administrative cases, since these minimum rights are aspects of the right to a fair hearing and therefore inevitably come under the same general umbrella of protection of Article 6 § 1 of the Convention, which covers inextricably and inseparably all civil, administrative and criminal cases. Nuala Mole and Catharina Harby argue, rightly in my view, in favour of the view that ‘guarantees similar to those detailed in Article 6 §§ 2 and 3 may under certain circumstances also apply to civil proceedings’, and that the right under Article 6 § 3 (b) to have adequate time and facilities for the preparation of one's defence ‘also applies in some civil cases as part of the general fairness requirement’ (see N. Mole and C. Harby, The Right to a Fair Trial — A guide to the implementation of Article 6 of the European Convention on Human Rights — Human Rights Handbooks, No. 3, 2nd edition, Strasbourg-Belgium, 2006, pp. 5 and 59 respectively).

However, even without paragraphs 2 and 3 of Article 6, those guarantees would be included in the provisions of Article 6 § 1 of the Convention.

One must not forget that although the applicant in the proceedings before the national administrative courts was a complainant and not a defendant, he nevertheless, due to the sui generis nature of the case, was in a way acting as a defendant or accused, since he was trying to defend himself against the allegedly unlawful withdrawal of his security clearance. The authorities withdrew that clearance without informing him of the reasons for their decision. Of course this implied that there was something reprehensible about his behaviour, thus stigmatising him in some way which he wanted to fend off by having the withdrawal of his security clearance set aside by a court judgment. So, by analogy, Article 6 § 3 (a) of the Convention could also apply in the present case since the applicant had a right to know the nature and cause of the accusations against him (see, by analogy, Directive 2012/13/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings, § 29 of the preamble and Article 7 § 3).

Professor Eva Brems and Laurens Lavrysen, in their article entitled ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’ in Human Rights Quarterly, 35 (2013) 176 et seq., deal with the benefit of exploring procedural justice criteria, namely ‘participation’, ‘neutrality’, ‘respect’ and ‘trust’, with frequent references, among other authors, to the work of Tom R. Tyler (namely, his article ‘Procedural Justice and the courts’ (2007) 44 Court Review, 26, at pp. 30–31) and to some joint articles written by him and other authors. Brems and Lavrysen remark: ‘In human rights cases, the stakes are by definition very high. When human rights are invoked, a fundamental sense of (in)justice is involved’ (ibid, at p. 184). They rightly explain how closely connected human dignity is to procedural justice (ibid., at pp. 184 and 188) and that ‘by providing procedural justice human-rights bodies can create a ‘reservoir of good will’’ (ibid., at p. 183). What is extremely important in their article and relevant in the present case is what they say about the Court and the need to address procedural justice (ibid., at p. 185):

See also a very recent article by Professor Eva Brems: ‘The ‘Logics’ of Procedural-Type Review by the European Court of Human Rights’ in (eds) J. Genards and E. Brems, Procedural Review in European Fundamental Rights Cases, Cambridge, 2017, p. 17 et seq.

Professor Tom R. Tyler (cited above, at p. 31) rightly argues that ‘[a]uthorities can provide evidence that they are listening to people and considering their arguments by giving people a reasonable chance to state their case, by paying attention when people are making their presentation, and by acknowledging and taking account of people's needs and concerns when explaining their decisions’. For me, this would be the duty of all authorities in a democratic State. But in the present case the applicant was not given a reasonable chance to state his case, because he was not provided with the evidence against him, and nor did the judicial authorities explain their decisions to him.

Professor Michael S. Moore considers ‘procedural fairness’ to be one of the rule of law virtues. What he says about ‘procedural fairness’, which is cited below, may specifically apply to the facts of the present case and strongly support my argument (see Michael S. Moore, ‘A Natural Law Theory of Interpretation’ in: Southern California Law Revie, 58, p. 277 et seq. at pp. 317-18; the same also in Fernando Atria and D. Neil MacCormick (ed), Law and Legal Interpretation, Ashgate/Dartmouth, 2003, Part I, [5], p. 113 et seq., at pp. 153-4):

An applicant's hearing cannot be ‘fair’ if he has to present his case in complete blindness or a blackout as regards the accusations against him. It is clear from the judgment of the Supreme Administrative Court that the applicant's defence was based on his suspicion that the withdrawal of his security clearance related to his earlier refusal to cooperate with the military intelligence service because he considered their actions illegal. As is also clear from the judgment of the court, replying to its comment that he had not presented any evidence in support of that contention, the applicant argued that, since he did not know the contents of the confidential report, he could not even challenge its veracity with evidence to refute the facts stated therein. Yet again the court did not give the applicant any information about the report. This, with all respect, reminds me of the game ‘hide and seek’ where one player hides and has to be found by one or more seekers. But a fair trial should not take this form. I agree with what the applicant says in paragraph 21 of his request for referral, namely that ‘[i]t is easy to make an accusation, and it is very difficult to refute it, especially in the situation when the participant does not have knowledge of evidence, because in this case it is impossible in effect’. In his oral submissions, which are available on the Court's website, the applicant very vividly and persuasively presented his case by telling a hypothetical story endeavouring to show how easily, arbitrarily and for reasons that are irrelevant or entirely non-existent the National Security Authority may withdraw a person's security clearance.

It did not help his blindness about the issue that the applicant had not ever been warned or had his attention drawn to any reprehensible conduct of his. What was said in the above extract from the article by Michael S. Moore, namely ‘[s]ecret or hidden materials are worse, on such a view, because they deny the access litigants need to argue their case’, is absolutely relevant and applicable in the present case.

The national administrative courts in the present case were aware of the accusations against the applicant and it was not their place or task to assume the role of the applicant's advocate. Even if they were not to be perceived as assuming the role of the applicant's advocate, and yet the applicant was unable to defend his case, again there would be a procedural injustice. But the judicial authorities, by acting as they did, and not informing the applicant of the accusations against him, I am afraid to say greatly impaired, if not fully extinguished, his right. To put it in a more general way, where the national judicial authorities cause a party to suffer a ‘procedural handicap’ (if I may use this expression) regarding the defence at trial, that party's right to a fair hearing is in essence eliminated.

Furthermore, the national Court's knowledge of the accusations against the applicant did not assist him in conducting his defence; nor did it help the court to be assisted by submissions from the applicant putting forward his arguments in the knowledge of at least the gist of those accusations. Only if he knew the evidence against him could the applicant prepare his case and decide which witnesses to call and examine. Hence, I do not subscribe to the view of my eminent colleagues that this did not ‘impair the very essence of the applicant's right to a fair trial’ (see paragraph 161 of the judgment).

Absolute, blanket and secret restrictions on rights, as was the nature of the restriction in the present case, disrespect the human dignity which is behind every human right, including the right to a fair hearing, as in the present case (see also paragraph 24 above on this point).

The procedural injustice that occurred as a result of the deprivation of the applicant's rights to equality of arms and adversarial proceedings was exacerbated by the ineffective procedure used by the domestic courts to examine the evidence before them and which was not compatible with the principle of adversarial proceedings (see also paragraph 104 below). The rule affirmanti, non neganti, incumbit probatio (see Wharton's Law Lexicon, 30, 9 Cushing's Mass. Reports 535), meaning he who affirms, not he who denies, must bear the burden of proof, which is used in several instances in the case-law of the Court (see, inter alia, Hassan v. the United Kingdom [GC], no. 29750/09, § 49, ECHR 2014), found no application in the present case, since this maxim applies only in adversarial proceedings.

In the present case there is no complaint as such of a violation of the applicant's right of access to court, but the Court's case-law regarding this right may also apply regarding the applicant's right to participate effectively at the hearing and handle his case properly, which of course implies access to the court. Both of those rights are based on the principle of effective protection or principle of effectiveness. According to the Court's case-law, for the right of access to a court to be effective, an individual must have a clear and practical opportunity to challenge an act that is an interference with his or her rights (see, inter alia, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, ECHR 2016 (extracts); Nunes Dias v. Portugal (dec.), nos. 2672/03 and 69829/01, ECHR 2003-IV; and Bellet v. France, 4 December 1995, Series A no. 333-B). Also according to the case-law, the right of access to a court includes not only the right to institute proceedings, but also the right to obtain a determination of the dispute by a court (see, inter alia, Lupeni Greek Catholic Parish and Others, cited above, § 86; Fălie v. Romania, no. 23257/04, §§ 22 and 24, 19 May 2015; and Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II). In the present case the deprivation of the applicant's rights to equality of arms and adversarial proceedings deprived him of a clear and practical opportunity to challenge the withdrawal of his security clearance, an act which was an interference with his right under Article 6 § 1 of the Convention.

Procedural fairness may operate as a shield for substantive fairness; so when a litigant, due to procedural unfairness, is prevented from presenting and arguing his or her case properly, his or her right under Article 6 § 1 of the Convention may not have the required shield to protect it and the case may also end in substantive unfairness. I believe that if the procedural means to pursue a right are taken away, this unavoidably destroys the end result, namely, the protection of its essence — qui adimit medium dirimit finem (see Coke on Littleton, 161.a), meaning ‘he who takes away the means destroys the end’. T. R. S. Allan said that ‘we insist on fair procedures because we attach importance to the fair treatments of individuals, in terms of … burdens imposed by the state …’ (see T. R. S. Allan, ‘Procedural Fairness and the Duty of Respect’, [Autumn, 1998] 18, Oxford Journal of Legal Studies, 497 at p. 511). He ended his article as follows: ‘The value of fair procedures finally consists in the combination of our commitment to substantive justice and our uncertainty about what that means in the circumstances of any particular case, a matter on which the person or persons most closely affected can often cast valuable light, and also, and above all, in our desire to commend the outcome to a fellow-citizen who must suffer for the common good.’ (ibid., at p. 515)

In my view, the administrative trial was flawed on account of a grave procedural error which was detrimental to the applicant and accordingly affected the overall fairness of the trial. This could, in my humble view, have been ascertained by the two higher administrative courts and our Court, but a finding of no violation of Article 6 § 1 of the Convention was made instead.

The principle of effectiveness, which is inherent in the Convention system and is the most defining element of its DNA, requires that a right under the Convention, and of course Article 6 § 1, be given its proper weight and effect according to its object and purpose, and that it be construed widely and any limitations or exceptions to it construed strictly and narrowly. This is all the more true where the exception is implied and not expressed, such as when dealing with Article 6 § 1. Otherwise, the level of protection of the right to a fair trial would not be maintained. In what follows I will endeavour to support, by citing authorities, what I consider to be self-evident and obvious.

In the case of Delcourt v. Belgium (17 January 1970, § 25, Series A no. 11), the Court held:

Likewise, in Perez v. France ([GC], no. 47287/99, § 64, ECHR 2004-I), the Court held:

The above is supported by the words of Professor Rudolf Bernhardt, a former President of the Court (see Rudolf Bernhardt,‘Evolutive Treaty Interpretation, Especially of the European Convention of Human Rights’, German Yearbook of International Law, 42 (1999), 11 at p. 14):

Arguing in favour of the strict interpretation of the exceptions to rights guaranteed in the Convention, Dr Gerhard van der Schyff (see Gerhard van der Schyff, Limitations of Rights — A study of the European Convention and the South Africa Bill of Rights, Nijmegen, the Netherlands, 2005, at pp. 169-71, § 136) said the following:

Any restrictive interpretation of a right guaranteed by the Convention contradicts the principle of effectiveness and is not part of international law (see Hersch Lauterpacht, ‘Restrictive Interpretation and Effectiveness in the Interpretation of Treaties’, XXVI, BYIL (1949), 48 at pp. 50–51, 69, and Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, Oxford 2008, repr. 2013, at p. 414).

The wider the interpretation given to a right and the stricter the interpretation of any exceptions to it, the wider will be the extent of its protection. The same should apply to the right guaranteed by Article 6 of the Convention, the purpose of which does not allow a restrictive interpretation.

Furthermore, taking into account that Article 6 § 1 of the Convention does not expressly provide for exceptions, if there was an implied exception in the present case this could have been neither strict nor of course absolute in the sense of not giving any details of the investigations and the reasons for revoking his security clearance and therefore making it impossible for the applicant to defend himself.

No implied exceptions should have been allowed to apply, in my view, in the form of an absolute prohibition invading the core of the right to a fair trial with the effect of negating it completely and rendering the principle of equality of arms and principle of adversarial proceedings completely ineffective. It would be against the nature and scope of the Convention as a human rights treaty to allow absolute restrictions to impeach rights protected therein.

According to the Court's case-law, there may be implied exceptions to the right of access to a court. But this right is an implied or ancillary or secondary right deriving from the right to a fair trial, which is expressly provided for in the Convention (see Golder v. the United Kingdom, 21 February 1975, Series A no. 18). Regarding that right of access to a court, the Court's case-law recognises that there may be implied exceptions since by its very nature the right calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Yabansu and Others v. Turkey, no. 43903/09, § 58, 12 November 2013; Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, § 71, 11 March 2014; and Urechean and Pavlicenco v. the Republic of Moldova, nos. 27756/05 and 41219/07, § 13, 2 December 2014). This is a reasonable explanation.

However, I do not personally hold the view that the Convention does allow implied exceptions to the rights specifically mentioned in the Convention. I nevertheless respect and feel bound by the case-law of the Court, which considers that Article 6 § 1 is not an absolute right.

With all due respect, I do not share the Court's approach in taking it for granted in the present case that there was an implied exception under Article 6 § 1 of the Convention applied in absolute terms, thus accepting the Government's submission (see paragraph 98 of the Government's observations) that ‘Article 6 § 1 of the Convention is not applicable to security proceedings’. Where it was the intention of the drafters of the Convention to provide an exception to the right in question they did so expressly, and, what is more, some of the exceptions contained in Articles 8 to 11 of the Convention, in paragraph 2 of each of these Articles, make provision for issues which are similar to those usually sought to be kept secret and protected in security proceedings, namely the ‘interests of national security, public safety … of the country … prevention of disorder or crime’. Although, as I have said, I follow the case-law of the Court, I am not prepared to accept that the right to a fair hearing, which, according to the wording of Article 6 § 1 of the Convention, is not subject to any exceptions (unlike the rights under Articles 8 to 11 of the Convention), can be extinguished by an implied restriction taking the form of absolute national secrecy, and yet argue that there is no violation of that provision. In other words, I do not share the view that the right to a fair trial can be undermined to the extent of being abolished, contrary to the wording and aim of the said provision of the Convention and contrary to the principle of effectiveness which is inherent in the Convention system.

With due respect, such an approach appears to contradict the three principles of logic well described by Professor Mireille Delmas-Marty in ‘The Richness of Underlying Legal Reasoning’ in M. Delmas-Marty — C. Chodkiewicz, The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions, Dordrecht-Boston-London, 1992, 319, at p. 320:

By following the case-law of this Court, in accordance with which ‘only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1 of the Convention’ (see paragraph 148 of the judgment), an absolute restriction directed and applied to the very essence of a right may inevitably, as happened in the present case, eliminate it and render unfair the proceedings as a whole.

Under no circumstances is the role of an exception to a right under the Convention to render the right ineffective, still less to extinguish it, and no one, including the State, can invoke an exception in order to destroy a right. This is prohibited by Article 17 of the Convention, which provides:

Article 18 of the Convention, which provides as follows, may also be relevant:

It is obvious that Article 18 deals with express restrictions and that its wording leaves no room for implied restrictions. However, it is very difficult to imagine how an implied exception, the context and purpose of which are unknown to an applicant and the present Court, as in the present case, can be in line with Article 18 which emphasises the prescribed and limited purpose of exceptions.

Lastly, it follows from the wording of Article 1 of the Convention, which entrusts the members States with an obligation to secure ‘to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’, and particularly from the phrase ‘defined in’, that the determination of the ambit of the rights and freedoms is exclusively and exhaustively made in Section 1 (and, of course, the additional Articles in the Protocols). It is not the aim of an express exception to a right provided in the Convention to intervene with its core or essence; its aim is rather to limit or restrict the realisation of that right in certain cases, by following the proportionality test. Two legal Latin maxims are relevant in this respect: exceptio probat regulam (see 11 Coke's Reports, 41), meaning ‘an exception proves the rule’; exceptio quæ firmat legem, exponit legem (see 2 Bulstrode's Reports 189), meaning ‘an exception which confirms the law, expounds the law’. On the other hand, an absolute or blanket exception or restriction or ban goes right to the core of a right. So, it cannot be said that it confirms or expounds the right, but it merely annihilates it and renders it ineffective by removing the foundation on which it lies. Here the general Latin maxim sublato fundamento cadit opus (Jenkin's Centuries or Reports 106), meaning ‘remove the foundation, the work falls’ may also be relevant. Were the proceedings criminal rather than civil or administrative, such a blanket and absolute restriction would probably violate the presumption of a person's innocence.

At paragraph 26 of his request for referral to the Grand Chamber the applicant complained that the Chamber had not examined, and therefore had not followed Užukauskas v. Lithuania (no. 16965/04, 6 July 2010), although that case had been referred to and presented to the Court very emphatically by the applicant. His submission was that the present case was ‘factually and legally quite similar’ to Užukauskas. My view is that he is right in saying this. In that case a firearms licence was seized from the applicant on the basis that he was listed in a police database. In the ensuing proceedings the applicant unsuccessfully contested that fact. The courts obtained information recorded in the police database in confidence, but as that information was a State secret the applicant did not have access to it. The applicant complained under Article 6 § 1 of the Convention that the proceedings before the administrative courts had been unfair in that the principles of equality of arms and adverse proceedings had not been respected. The Court in that case held as follows:

The judgment in the present case merely cites Užukauskas, without any discussion of the case. It refers to it in paragraph 110 of the judgment together with another judgment, namely Pocius v. Lithuania (no. 35601/04, 6 July 2010, to which it briefly alludes. The reference made to Užukauskas is to paragraphs 34–39, which deal with the admissibility of the application and not its merits. The relevant paragraphs on the merits of Užukauskas are those cited above. The reference to Pocius is to paragraphs 38–46, which also deal with admissibility and not with the merits of the case. It is noteworthy that in section C of the judgment dealing with the merits of the case there is no reference to the above two cases. The reference to those cases in paragraph 110 of the judgment is in section B dealing with the preliminary objections raised by the Government and in the subsection containing the Court's assessment of the applicability of Article 6 § 1 of the Convention.

With due respect, I believe that the judgment in the present case departs from the ratio decidendi of Užukauskas without giving any reasons. To my mind, and for the reasons stated in this opinion, the precedent of Užukauskas is sound and just and should have been followed by my learned colleagues in the majority.

Furthermore, the Court in the present case did not follow Dağtekin and Others v. Turkey (no. 70516/01, §§ 32–35, 13 December 2007), where it was held that the non-disclosure of the security investigation report had infringed the applicants' right to a fair trial:

Jacobs, White & Ovey, in their book The European Convention on Human Rights, 4^th edition, Oxford, 2010, pp. 261-62, say the following, also referring to Dağtekin:

Also of relevance is F.R. v. Switzerland (no. 37292/97, §§ 36–39, 28 June 2001), where the importance of the right of the litigants to have knowledge of and comment on all evidence was stressed:

In Al-Nashif v. Bulgaria (no. 50963/99, §§ 119–123, 20 June 2002), the Court held, inter alia, that the national authorities must not be granted unfettered power in areas affecting fundamental rights since this is against the rule of law:

(emphasis added).

…

(emphasis added).

Al-Nashif is the only case I have come across in which the Court speaks about procedural limitations on the use of classified information. But this does not run counter to the approach of the present opinion because the above-cited passage deals only with the case where national security is at stake (which did not seem to be the case here) and yet says that measures affecting human rights must be subject to some form of adversarial proceedings (which did not happen in the present case) and any procedural limitations on the use of classified information must be necessary (‘if need be’) and ‘appropriate’ (and not arbitrarily absolute as in the present case). In any event, in Al-Nashif the Court found a violation of Article 8. After examining whether the deportation of the three applicants had been ‘in accordance with the law’, it decided that ‘… deportation [had been] ordered pursuant to a legal regime that [did] not provide the necessary safeguards against arbitrariness. The interference with the applicants' family life [could not] be seen, therefore, as based on legal provisions that me[t] the Convention requirements of lawfulness’ (§ 128).

In Rotaru v. Romania ([GC], no. 28341/95, § 59, ECHR 2000-V), to which the Court referred in Al-Nashif, clarifies the position as follows:

According to the case-law of the Court (see, inter alia, Saadi v. Italy [GC], no. 37201/06, §§ 137–149, ECHR 2008), under no circumstances may a person be ill-treated, even on the suspicion that he or she is a terrorist. Although this case-law does not concern the right to a fair trial but the right to be free of ill-treatment under Article 3 of the Convention, it is, nevertheless, important, because it shows that if the fight against terrorism cannot justify reduced guarantees of rights guaranteed in the Convention, then nor can State secrets.

Owing to its decisively destructive impact on the essence of the right, the restriction in the present case operated, in effect, by way of derogation from Article 6 § 1 of the Convention.

However, it is clear from Article 15 of the Convention that, whatever the public danger or threat is, whether it be terrorism or another risk from which a State may wish to protect the public by way of secrecy of proceedings, one cannot derogate from any of the Convention provisions, unless Article 15 is applicable and its strict requirements — procedural and substantive — are satisfied. But in the present case Article 15 was not applicable and therefore no issue arose in that regard.

Of relevance in this respect are the profound words of Benjamin Franklin in his Reply to the Governor in the Pennsylvania Assembly on 11 November 1755, namely, that ‘those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety’. The same words, expressed differently, are also attributed to him as follows: ‘He who would put security before liberty deserves neither’. In the same vein, Nicolas Hervieu is on record as having said: ‘To pursue the fight against terrorism while upholding fundamental rights is not a luxury, but a condition of effectiveness and compelling necessity. Any renouncement of our democratic values would only lead to defeat. And terrorists would be the winners’ (referred to by the former President of the European Court of Human Rights, Dean Spielmann, in his speech given on the occasion of the opening of the judicial year, 30 January 2015 — see Annual Report 2015 prepared by the Registry of the Court (Strasbourg 2016), 30, at p. 36).

Having said that, Article 6's aim was not to contain or imply a restriction which would amount to a derogation from the right to a fair hearing outside the provisions of Article 15 of the Convention or to a blind and blanket restriction or ban amounting to deprivation of the right per se.

It is clear from the case-law of the Court that it does not accept absolute restrictions which could have a disproportionate effect on the right which they counterbalance. Just two examples will suffice.

The first example is Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, §§ 72–85, ECHR 2005-IX), in which the Court decided that a blanket ban on prisoners' rights to vote amounted to a violation of Article 3 of Protocol No. 1 to the Convention, which guarantees the right to free elections.

The other example consists of a group of similar cases, including Katikaridis and Others v. Greece, 15 November 1996, §§ 44–51, Reports of Judgments and Decisions 1996-V, and Tsomtsos and Others v. Greece, 15 November 1996, §§ 35–42, Reports 1996-V, in which the Court held that a provision of Greek legislation — providing that whenever a major road is widened there is an irrebuttable presumption of benefit to the owners of property bordering the road and subject to partial expropriation — was contrary to Article 1 of Protocol No. 1 to the Convention. Due to this irrebuttable presumption of benefit, the owners of the properties bordering the road were prevented from obtaining compensation for the part of their land which was expropriated. This presumption was held by the Court to be manifestly without reasonable foundation. The national courts had not had the power to examine the particular circumstances of each case and to decide whether there had indeed been a benefit to the owners of the remaining land, and, if there was, to offset that benefit against the compensation to which the owners were entitled.

In view of the above, I humbly propose that the case-law should not have changed direction in the present case, thus giving too much legal status to an absolute restriction at the expense of the effective protection of the right to fair hearing. Otherwise, our reading and understanding of the Convention would be different. Until now we have known that the Convention makes provision for some absolute rights, but not for absolute restrictions. An absolute restriction leads to the death of a right or to no right at all.

In the concluding paragraph 161 of the judgment, the Court refers to ‘the margin of appreciation enjoyed by the national authorities’, and considers that ‘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.’ With due respect, I disagree with this conclusion for the following reasons.

A blanket and absolute application of security restrictions does not provide guarantees and transparency for the balancing test and the application of the principle of proportionality, a prerequisite for a fair trial. In the present case the contents of the restriction were secret and neither the applicant nor the Court had knowledge of the factual basis of the restriction. So it is not possible for this Court to carry out any transparent balancing test between the individual and general interest in the present case, in which the general interest is unknown to the applicant, the public and the Court and the applicant did not have the opportunity to challenge it. That happened because, regrettably, the margin of appreciation of the national authorities was unfettered. In the words of F. Matscher, ‘[t]he principle of proportionality thus acts as a corrective and restriction of the margin of appreciation doctrine’ (see F. Matscher, ‘Methods of Interpretations of the Convention’ in The European System for the Protection of Human Rights, ed. R. St. J. Macdonald, F. Matscher, H. Petzold, Dordrecht-Boston-London, 1993, 63 at p. 79). This is absolutely correct, but that principle was not applied in the present case.

Hence, in the present case there has been only one transparent side of the judicial scale: the applicant's right to a fair trial; the other side, the supposed general interest, being unknown. I therefore believe that the Court should not have accepted the need for a restriction, supposedly serving the general interest, without knowing its context. The secrecy of the restriction precluded the Court from properly fulfilling its judicial task, namely carrying out a balancing test and applying the principle of proportionality. It was unfortunate to sacrifice the procedural rights of the applicant on the altar of a blanket and mysterious ‘general interest’. The principle of proportionality and the balancing test in terms of Article 6 § 1 of the Convention are based on the notion of equality and of course are democratic principles. Furthermore, the domestic courts could not have been in a position to carry out a proper balancing test and exercise their discretion fairly, without following an adversarial procedure and applying the principle of equality of arms.

An overarching disagreement I have with the majority is, lastly, what we consider to be the ‘very essence’, or very substance or core of the right to a fair trial, which of course needs protection. And this is because the majority decided that there had been no impairment of the ‘very essence of the applicant's right to a fair trial’ whereas I consider that there has been complete destruction of the right to a fair trial. I must of course reiterate that I agree with the majority that the applicant had a right within the meaning of Article 6 § 1 of the Convention. Dr Jonas Christoffersen (see J. Christoffersen, Fair Balance: Proportionality, and Primarity in the European Convention on Human Rights, Leiden-Boston, 2009) observes that ‘[t]the traditional description of the proportionality principle includes protection of the very essence of the rights of the ECHR’ (ibid, at p. 135), and that ‘[i]n order to understand the proportionality principle, the crucial question is how the very essence is delimited, and how the means of delimitation interact with the other elements inherent in the proportionality assessment’ (ibid, at p. 137). I cannot see in the judgment any explanation as to why the very essence of the right of the applicant to a fair trial has not been impaired. As I have explained, in my opinion, there has been an impairment of the very essence of this right, since the applicant was stripped of his rights to equality of arms and adversarial proceedings and was left in the dark as to all the evidence against him and the reasons on which the judgments against him were based.

A trial cannot be fair, in my view, without the just and transparent exercise of a balancing test. As Ioannis Sarmas, a Greek Supreme Court judge and former Member of the European Court of Auditors, rightly observed ‘[j]ustice can prevail only within order and order cannot be built without equilibrium as one of its components’ (see I. Sarmas, The Fair Balance — Justice and Equilibrium Setting Exercise, Athens-Thessaloniki, 2014, p. 106). He also made the following profound comment (ibid., at p. 285) on reflective equilibrium and transparent and non-arbitrary reasoning, which was lacking in the present case:

Judge Giovanni Bonello, as he was then, in his concurring opinion in Van Geyseghem v. Belgium ([GC], no. 26103/95, ECHR 1999-I) said: ‘In practice, I cannot foresee any case where, in a search for equilibrium between society’s interests and this particular fundamental right of the accused (even were any balancing legitimate), the latter should ever succumb to the former’. Although the issue was different in that case the same comment applies in the present case and in any case where the Court is in search of an equilibrium between the general and the individual interest.

Although the Czech Supreme Administrative Court and the Czech Constitutional Court acknowledged that in the present case not all the procedural guarantees had been met — because according to them that was not possible — they nevertheless decided that the availability of an administrative review of the impugned administrative decision before independent courts provided sufficient guarantees of the right to a fair trial. With due respect, I do not share that view; nor, of course, do I agree with the Government's submission (see paragraph 141 of the judgment) that ‘the limitation of the applicant's procedural rights had been sufficiently counterbalanced by the procedures followed by independent and impartial judicial authorities which had played an active role in the proceedings and thus provided not only adequate safeguards to protect the applicant's interests but also struck a fair balance between the State's interests and those of the applicant’.

In my view, for the right to a fair hearing under the Convention to be protected it is not sufficient that there merely be a legislative provision enabling a person to request a review of an administrative decision. There must also be a procedure which does not deprive an applicant of his or her right to equality of arms and to an adversarial trial. Where those two rights are not respected there cannot be a fair balance between the State's interests and the individual's interests.

I submit that the principle of democracy was not respected in the present case.

Democracy requires effective guarantees of human rights and the Preamble to the Convention rightly acknowledges that fundamental freedoms are best maintained by an effective political democracy. Though not dealing with the right under Article 6 § 1 of the Convention, but with the right to vote, Gerhard van der Schyff (‘The Concept of Democracy as an Element of the European Convention’, Comparative and International Law Journal of Southern Africa, vol. 38, no. 3 (November 2005), 355, at 362), appropriately said that ‘[t]he value in democracy lies in participation …’ The same applies to all rights, however, including of course Article 6 on the basis of which participation in the judicial proceedings is extremely important; otherwise the principles of equality of arms and adversarial proceedings would have no meaning.

Where express restrictions are provided for, as in paragraph 2 of Articles 8 to 11 of the Convention, these, as stipulated, must be necessary in a democratic society and pursue a legitimate aim specifically provided for in the said provision. So, restrictions which are in no way meant to be absolute are imposed with respect for democratic values and only when necessary in a democratic society, and certainly not when the exception is implied and the provision in question, as in the case of Article 6 § 1 of the Convention, does not contain even one express restriction on fair trial. So, with due respect, it would not be a sound or reasonable interpretation to apply an implied exception to the right under Article 6 § 1 of the Convention and for that exception not to be deemed necessary in a democratic society in terms of the proper participation of the applicant in the judicial proceedings.

In paragraph 157 of the judgment, under the section dealing with the principles applied to the instant case, the Grand Chamber notes that ‘in March 2011 the applicant was prosecuted for organised crime, aiding and abetting abuse of public power …’ and ‘finds it understandable that where such suspicions exist the authorities consider it necessary to take rapid action without waiting for the outcome of the criminal investigation, while preventing the disclosure, at an early stage, of suspicions affecting the persons in questions which would run the risk of hindering the criminal investigation.’ The judgment also refers to the subsequent criminal proceedings against the applicant in the facts section, and more specifically under the section on the circumstances of the case (see paragraph 22). This ex post facto argument was raised emphatically by the Government in paragraphs 13–15, 95 and 124 of their written observations and in their address at the oral hearing, but it was answered by the applicant in his oral address in saying, inter alia, that the ‘criminal proceeding absolutely does not relate to this proceeding before the Court’. He also said that ‘the criminal proceeding has not yet been finalised and it can be anticipated that it will be reviewed by the European Court of Human Rights.’

I respectfully disagree with making any connection at all between the guarantees of Article 6 § 1 of the Convention in the national proceedings in the present case and other subsequent national proceedings which may or may not have taken place and addressing these in the judgment under the section dealing with the principles applied to the instant case. Had the subsequent criminal proceedings against the applicant ended with an acquittal, would that have made a difference as regards any correlation with the present case? I do not believe so, since that would also not be relevant. By the same logic, a person cannot be arrested and detained indefinitely without being informed of the reasons for his arrest and detention and without being tried and able to have a proper defence. Hence, whatever the outcome of a subsequent set of proceedings, one should avoid the post ergo propter hoc fallacy, meaning ‘after this therefore because of this’.