TrustHLT/LaCour huggingface dataset:
GR1 (Government): In support of this position, I will give you the voice three main points.
GR1 (Government): The object of the dispute was exclusively the applicant's security reliability, no right to be trusted from security perspective can be derived from check law, and a privilege to hold clearance is not civil in nature.
GR1 (Government): Admittedly, there was a dispute between the applicant and the NSA.
GR1 (Government): But what precisely constituted its subject matter, in similar cases such as Sternovskis versus Latvia or Miljana Petrova versus Bulgaria, the decision not to grant or to withdraw clearance directly resulted in the applicant's dismissal, not in the present case.
GR1 (Government): The chamber confirmed this by observing that it is not confronted with the labor dispute.
GR1 (Government): In reality, the withdrawal of the applicant's clearance had no bearing on his employment.
GR1 (Government): I beg your pardon for repeating myself.
GR1 (Government): It was solely the applicant's own and voluntary decision which affected his employment.
GR1 (Government): Regrettably, I cannot equally share the chamber's finding that instead there was a dispute over a procedural right to have a decision in validating one's clearance scrutinized by courts.
GR1 (Government): Neither the NSA nor the government has ever attempted to question the existence of such a procedural right, because they deem it unquestionable.
GR1 (Government): The judicial review was the realization of this otherwise undisputed right.
GR1 (Government): But what was clearly and exclusively at stake in the proceedings, and here comes my answer, was the applicant's security reliability.
GR1 (Government): My second point concerns a delicate matter.
GR1 (Government): As a rule, the court should refrain from creating by way of interpretation a substantive right that has no legal basis in the domestic legal order.
GR1 (Government): The check law, however, does not provide for a right to be trusted in terms of security.
GR1 (Government): Accordingly, there is no right to be granted clearance so as to enjoy a privilege of accessing confidential information.
GR1 (Government): Both the Constitutional Court and the Supreme Administrative Court have repeatedly confirmed this.
GR1 (Government): In their opinion, and now I quote, the assurance of a clearance is a grant of an extraordinary privilege by the NSA, and it is exclusively up to its discretion to consider whether or not to grant this privilege to the person concerned, unquote.
GR1 (Government): I would deem it illogical to draw the opposite conclusion as regards the withdrawal of one's clearance.
GR1 (Government): The grant of this privilege is made on conditional basis only.
GR1 (Government): Once a holder fails to satisfy requirements prescribed by law, he can no longer enjoy it.
GR1 (Government): Still, the chamber held that check law sets out a relative certain criteria to be satisfied throughout the validity of a clearance.
GR1 (Government): To my mind, it ignores the legislation intention to couch these requirements in highly vague terms so as to provide the NSA with a wide discretion.
GR1 (Government): By way of example, we may take a look at the requirement of security reliability.
GR1 (Government): A person is not reliable when he presents a security risk.
GR1 (Government): This indefinite notion is interpreted very broadly by domestic courts.
GR1 (Government): It covers any reasonable doubts about one's reliability, or even a mere suspicion, if it is not manifestly unsubstantiated, that the security risk obtains.
GR1 (Government): Why is it so important?
GR1 (Government): Because the court's case law admits, and now I quote again, not only unfettered discretion, but even a wide one indicates that no right is recognized under domestic law, unquote.
GR1 (Government): If the NSA enjoys latitude in assessing which conduct constitutes a security risk, in fact, it exercises an extensively wide discretion to decide whose clearance shall be invalidated.
GR1 (Government): This only supports my submission that check law does not recognize the right to keep a clearance once it has been issued.
GR1 (Government): As a next step, I wish to explain why the criteria developed in Vilho Eskerinen versus Finland are not relevant in our case.
GR1 (Government): The recent case of Baca versus Hungary may be of a particular inspiration.
GR1 (Government): While the Green Chamber interpreted labor disputes broadly as including issues such as recruitment, transfer, or dismissal from service, it still affirmed the Eskerinen criteria are applicable to civil servants' labor disputes only.
GR1 (Government): However, as the chamber acknowledged, this case is not a labor dispute, nor even in disguise.
GR1 (Government): The applicant's clearance had not been invalidated by his employer, but by the NSA, not involved in their employment relationship.
GR1 (Government): Thus, it remains to discuss the nature of the right or, more appropriately, the privilege concern.
GR1 (Government): Was it civil or not?
GR1 (Government): I'm in agreement here with the opinion your colleague Judge Ederbronge expressed in her partly dissenting opinion annexed to the chamber's judgment.
GR1 (Government): Whether a state should trust a person employed within central administration touches upon the hard core of public authority prerogatives and state sovereignty.
GR1 (Government): The special bond of trust and loyalty, how the court called it recently in Spuris and Vaskevic versus Letnia, may hardly have a civil nature.
GR1 (Government): I also share Judge Ederbronge's opinion that it has no relevance if any civil rights could have been indirectly or hypothetically affected by the result of the proceedings.
GR1 (Government): Only those civil rights that constituted their object may bring them within the scope of Article VI.
GR1 (Government): The court's case law supports her opinion.
GR1 (Government): For instance, in Bourouilly versus Luxembourg, the Green Chamber reminded us that a tenuous connection or remote consequences for civil rights do not suffice.
GR1 (Government): The outcome of the proceedings must be directly decisive for these rights.
GR1 (Government): In my humble opinion, the chamber failed to respect these principles.
GR1 (Government): It did not examine whether the privilege to be trusted so as to keep a clearance is either civil or public nature.
GR1 (Government): Instead, it dealt with civil rights that were not central to the proceedings, like the right not to be dismissed unfairly.
GR1 (Government): In this regard, it rightly held that it is not confronted with the labor dispute having direct impacts on the applicant's employment.
GR1 (Government): But still, it found Article VI applicable because the result of those proceedings was likely to have negative repercussions on his financial interests, professional reputation, and limited his possibility to occupy certain public posts.
GR1 (Government): However, the applicant has never claimed, let alone prove, that the invalidation of his clearance would have anyhow affected his rights.
GR1 (Government): It is not for this Court to speculate whether the result of these proceedings might have hypothetically affected such rights.
GR1 (Government): If the opposite logic was upheld today, I'm afraid that Article VI would have to be applied by analogy also to other proceedings falling traditionally outside its scope.
GR1 (Government): In particular, I have in mind the disputes over taxation, asylum, or political rights.
GR1 (Government): In all these, despite their public nature, it could be argued that their outcome may negatively affect civil rights of those concerned.
GR1 (Government): Admittedly, a tax-related dispute will often have perceptible repercussions on a taxpayer's financial interests.
GR1 (Government): A decision ordering expulsion of an alien may interfere with his private sphere or even family ties.
GR1 (Government): So it could provoke conflicts with various provisions of the Convention, but not to make Article VI applicable.
GR1 (Government): Likewise, a politician who was prevented from taking part in elections may naturally sustain damage if he already invested considerable means into his campaign.
GR1 (Government): Moreover, he loses a reasonable chance for increased income if elected.
GR1 (Government): Without prejudice to all this, the Green Chamber has explicitly rejected the applicability of Article VI to these proceedings.
GR1 (Government): Obviously, it was not enough that civil rights could have been indirectly and especially, if only hypothetically, affected.
GR1 (Government): So for the first time, the Green Chamber may consider excluding these types of proceedings entirely from the scope of Article VI.
GR1 (Government): Their purely public nature, as I believe, would justify such an exception to be made.
GR1 (Government): To summarize her position concerning admissibility, I will repeat its essentials.
GR1 (Government): In our submissions, the applicant is not a direct victim of a violation claimed, so the application should be regarded in compatibile razione persone.
GR1 (Government): In the alternative, it may be rejected for being in compatibile razione materie, because the direct object of the proceedings was not a right recognized under the domestic law, let alone a civil one.
GR1 (Government): Turning to the merits of the case, I will gradually address the following issues, the specific nature of the security proceedings, the grounds justifying the non-disclosure of evidence, and the procedural safeguards available to perfect the applicant's interest.
GR1 (Government): So both the principle of adversarial proceedings and the right to equality of arms do not have an absolute nature.
GR1 (Government): Accordingly, their extent may vary depending on the nature of the proceedings concerned.
GR1 (Government): Whereas once guilt and punishment are at stake, as in cases cited in our written observations, it makes perfect sense to insist on their complete adherence, but not in the security proceedings.
GR1 (Government): In Spuris and Vaskevic, the court applied the Eskelian test to similar proceedings in which two state employees were involuntarily dismissed after losing their clearances.
GR1 (Government): Under those circumstances, I can understand that approach.
GR1 (Government): But what I dare regard as highly controversial is the following.
GR1 (Government): The court observed that in response to the Ternovsky's judgment, the Latvian legislator, according to the first Eskelian criterion, excluded access to courts in these matters.
GR1 (Government): It also conceded that such exclusion was reasonable and objectively justified, given the specific nature and subject matter of these proceedings.
GR1 (Government): Hence, it declared the application incompatible ratione materie with the convention.
GR1 (Government): As a result, we have states, such as Latvia, where the court tolerates the total absence of guarantees of a fair trial against the decisions of the executive.
GR1 (Government): But there are also states, such as the Czech Republic, which did not wish to deprive those concerned of judicial protection en bloc, only if it is deemed strictly necessary.
GR1 (Government): They limit some procedural rights on a case-by-case basis.
GR1 (Government): Correct me if I'm wrong, but I find the latter approach more fair from the human rights perspective.
GR1 (Government): The court should not discourage these states in their efforts to respect procedural rights to the fullest possible extent.
GR1 (Government): Where national security concerns prove to play a vital role in the limitation of parties' rights, the court's examination should be more lenient and lower the standard of protection allowed.
GR1 (Government): By contrast, applying the requirements of Article VI with the traditional rigor and stringency might lead to a domino effect of denying access to courts in these types of disputes to the ultimate detriment of those concerned.
GR1 (Government): The proceedings under review are not designed to sanction previous illicit conduct, casting doubt on one's reliability.
GR1 (Government): Their purpose is purely preventive, to eliminate any potential risk to state secrets with effects pro futuro.
GR1 (Government): The time factor is cardinal.
GR1 (Government): Any delays increase risk that confidential information may be abused.
GR1 (Government): They are also built on a lower standard of proof.
GR1 (Government): The commencement of most types of other proceedings may be postponed until sufficient evidence has been gathered and facts reliably ascertained.
GR1 (Government): Not here.
GR1 (Government): When intelligence services find out that a holder of a clearance is engaged in illegal activities, there is no room for gathering enough evidence to prove his guilt beyond reasonable doubts.
GR1 (Government): This task is for the prosecuting authorities, and it may take time to them.
GR1 (Government): However, the NSA must adopt an immediate preventive measure to protect classified information from irreversible harm.
GR1 (Government): This explains why a mere suspicion of a security risk, if it is not manifestly unsubstantiated, suffices under the domestic case law to invalidate one's clearance.
GR1 (Government): Should it later prove unreasonable, the person concerned may again ask for a clearance.
GR1 (Government): In his further considerations, the court should be mindful of these special characteristics inherent to the security proceedings.
GR1 (Government): In his submissions, the applicant contends that these proceedings permit the non-disclosure of evidence whenever it was designated as confidential.
GR1 (Government): I cannot agree.
GR1 (Government): As a general rule, the authorities are required by law to disclose all classified material in their position intended to be used as evidence.
GR1 (Government): The party's right to consult such evidence may be denied only under strictly exceptional circumstances if its disclosure could, and I quote, jeopardize or seriously disrupt the intelligence services or police's activities, unquote.
GR1 (Government): Contrary to what the applicant suggests, the provision I have cited does not tie the possibility of denying access to classified piece of evidence to a minimum security level.
GR1 (Government): He was informed of this by both the Supreme Administrative Court and the Constitutional Court.
GR1 (Government): The statutory condition for non-disclosure of evidence was indeed satisfied in the applicant's case.
GR1 (Government): Aware of his suspicious activities, the authorities must have acted with utmost caution and in a manner not endangering the ongoing investigations.
GR1 (Government): This was particularly true when they were monitoring activities of a large organized crime group.
GR1 (Government): The report in question does contain a description of these activities.
GR1 (Government): If information about investigations leaked, it could easily frustrate their results, for instance, by way of collusion amongst members of the group.
GR1 (Government): In the words of law, the disclosure of the report to the applicant could jeopardize or seriously disrupt the intelligence services and police's activities.
GR1 (Government): Under those circumstances, the non-disclosure of the report must be regarded as completely justified, proportionate, and devoid of arbitrariness.
GR1 (Government): The existence of a solid legal basis permitting the non-disclosure of evidence distinguishes the present case from the one invoked by the applicant.
GR1 (Government): In Ushukauskas versus Lithuania, the domestic law proscribed the use of classified material as evidence in absolute terms.
GR1 (Government): And yet, the authorities resorted to its use to the applicant's detriment.
GR1 (Government): Not surprisingly, the court was not insensitive to such gross disrespect of domestic law.
GR1 (Government): Well, in the remaining time, I will attempt to make an overview of various procedural safeguards incorporated into Czech law that, as I believe, sufficiently counterbalanced any difficulties posed to the applicant.
GR1 (Government): First, a judicial review itself constitutes a significant safeguard.
GR1 (Government): As the Green Chamber acknowledged in Rotaru versus Romania, judicial control affords the best guarantees of independence, impartiality, and proper procedure.
GR1 (Government): Needless to remind, the applicant's case was considered at three levels of jurisdiction by nine judges in total.
GR1 (Government): Secondly, the domestic law provides for unrestricted access of all judges to any classified information needed.
GR1 (Government): Unlike in Tarnowskis, where the appellate court did not have the classified report at its disposal, the administrative court's judges deciding the applicant's case benefited from full knowledge of the report.
GR1 (Government): Third, if the applicant had any doubts about some judges' impartiality, he could have alleged their bias.
GR1 (Government): In spite of explicit advice to that effect, he did not avail himself of this opportunity.
GR1 (Government): In the fourth place, an ultimate decision as to whether there existed compelling reasons envisaged by law for non-disclosure of evidence was made by the judiciary, not the NSA or the intelligence service.
GR1 (Government): All the judges admitted that the disclosure of the report to the applicant could jeopardize or seriously disrupt intelligence services or policies activities.
GR1 (Government): As the chamber observed, especially the Prague Municipal Court made a thorough assessment of the need to keep the report secret.
GR1 (Government): Fifth, if the statutory grounds for non-disclosure had not been satisfied, the disputed item of evidence would have been adduced so as to fully observe the applicant's procedural rights.
GR1 (Government): In the sixth place, the scope of review carried out by the courts was not limited to complaints raised by the applicant in his statement of claim.
GR1 (Government): Naturally, the party may hardly protect its interests effectively without having knowledge of all relevant evidence.
GR1 (Government): This is why the courts are obliged to act on their own initiative and review duly and critically not only the previous procedure, but also the grounds for the decision-making.
GR1 (Government): In the seventh place, the administrative courts can review not only the questions of law, but also those related to facts.
GR1 (Government): In its judgment, the chamber fittingly marked it as full jurisdiction.
GR1 (Government): Indeed, the scope of review administered in the judicial stage of these proceedings goes beyond a mere test of legality.
GR1 (Government): It also covers a scrutiny of grounds behind the decision in validating one's clearance.
GR1 (Government): The Supreme Administrative Court requires these grounds to be always examined entirely, thoroughly, and with great caution.
GR1 (Government): The courts must make a complex assessment of whether the conclusions reached by the NSA can be truly derived from the evidence gathered.
GR1 (Government): In practice, the case file kept by the NSA, including all classified material, is commonly being provided to judges.
GR1 (Government): The applicant claims that judicial review cannot be considered objective, independent, and unbiased unless the court can test the evidence in terms of its authenticity and accuracy.
GR1 (Government): He suggests that courts should have access also to case files kept by the intelligence services.
GR1 (Government): Primarily, I have to voice objection, since the applicant has never come up with such a specific demand before the administrative courts.
GR1 (Government): It would run counter the principle of subsidiarity if the court enabled him to introduce new complaints which were not raised at the domestic level.
GR1 (Government): It is true that the intelligence services case files or their relevant parts are usually not submitted to courts.
GR1 (Government): The rationality behind this practice lies in an effort to protect the secrecy of methods, techniques, and sources used by the intelligence services.
GR1 (Government): However, the contents of the files are summarized in details in the reports on the outcomes of the investigations.
GR1 (Government): Importantly, domestic courts are aware that if they blindly trusted these reports without verifying that their contents are based on real and probably true information, it could equal resignation on their supervisory function.
GR1 (Government): Hence, the case law enumerates very specific requirements for these reports.
GR1 (Government): In particular, the courts critically examine credibility, balance, relevance, and coherence of information gathered.
GR1 (Government): Precisely this complex assessment has been carried out in the applicant's case, especially by the Supreme Administrative Court.
GR1 (Government): You may find a detailed analysis in our written submissions.
GR1 (Government): Another important safeguard, already eighth in turn, is the opportunity to provide judges with the presumed version of events.
GR1 (Government): It ensures that they have full knowledge of all concerns of the party.
GR1 (Government): The applicant did so.
GR1 (Government): He elaborated extensively about possible motivation of the intelligence service for invalidating his clearance.
GR1 (Government): Against this background, the Supreme Administrative Court assured him that in no case did the withdrawal relate to his vision of events.
GR1 (Government): And finally, the Constitutional Court's review was an additional guarantee protecting the applicant's interests.
GR1 (Government): It was primarily the cumulative effect of all these safeguards which is a major factor distinguishing the present case from otherwise similar cases, be that Ushukov's, Sternovsky's, and the like.
GR1 (Government): Mr. President, honorable judges, in conclusion,
GR1 (Government): I should like to reiterate that the applicant is not a poor victim of procedural injustice.
GR1 (Government): The application of exceptional measure denying the access to key piece of evidence was instigated by his own criminal conduct.
GR1 (Government): It pursued a legitimate aim and was wholly proportionate to secure the effectiveness of ongoing investigations.
GR1 (Government): Moreover, his interests were still protected by numerous procedural safeguards.
GR1 (Government): And for all these reasons, I respectively propose you holding that there was no violation of Article VI of the Convention.
Guido Raimondi (JudgeP): Merci beaucoup, monsieur Schorm.
Guido Raimondi (JudgeP): Maintenant, j'invite mes collègues juges de la grande chambre qui le souhaitent, à poser leurs questions au parti.
András Sajó (Judge): I would like to ask the government regarding the evidence in front of the Court of First Instance.
András Sajó (Judge): The judgment of the Court of First Instance refers to a document marked with sequential number 77, which contains the report, I quote from the judgment, the report in the result of the investigation, which consists, among other things, of Part H and I containing information about the plaintiff.
András Sajó (Judge): I would like to ask you whether you can disclose anything about the content of this security file 77, and if you are in the position to explain whether this was a summary of an investigation or it contained original reports which were part of the investigation.
András Sajó (Judge): In other words, was this a secondary summary information or was it an information file that contained the full dossier regarding reports, et cetera, et cetera?
András Sajó (Judge): My second related question is that you did show us a document.
András Sajó (Judge): Is this document the one that is referred to under number 77 in its totality?
András Sajó (Judge): You also were kind enough to mention that with certain understandable restrictions, this document can be made available to the Court.
András Sajó (Judge): So may I assume that this is now part of the file?
András Sajó (Judge): And if so, is it accessible to the applicants' lawyers?