TrustHLT/LaCour huggingface dataset:
András Sajó (Judge): If not, could you explain the legal reasons why this is not accessible to the Court?
Guido Raimondi (JudgeP): Judge Wojtyczek, please.
Krzysztof Wojtyczek (Judge): Thank you. I have two questions to both parties.
Krzysztof Wojtyczek (Judge): The first one concerns the details of the labour law contract between the applicant and the ministry. What was the description of the position of the applicant in this contract?
Krzysztof Wojtyczek (Judge): What were his duties and has there been in the contract a clause providing for the obligation to get a security clearance to fulfil those duties?
Krzysztof Wojtyczek (Judge): And has there been any specific clause concerning determination of this contract included in the labour law contract?
Krzysztof Wojtyczek (Judge): And then the second question. There are positions within the Ministry of Defence which require
Krzysztof Wojtyczek (Judge): a security clearance. How this issue is regulated in domestic law? Is there a general regulation
Krzysztof Wojtyczek (Judge): within the ministry which lists those positions or is this decided on an ad hoc basis but individual decisions?
Krzysztof Wojtyczek (Judge): I would like to have more details on this issue of internal regulation within the ministry.
Krzysztof Wojtyczek (Judge): How is the list of these positions requiring security clearance established?
Robert Spano (Judge): I have also two questions, which mainly go to the government, but I invite the representatives for the applicant to comment if they so wish.
Robert Spano (Judge): The first one is as to the government's pleadings on admissibility.
Robert Spano (Judge): It's prompted by argumentation made by the agent before us today, which echoes paragraph 67 of your written brief, where you state that the present case does not concern a labor dispute having direct impacts on the applicant's employment at the Ministry of Defense.
Robert Spano (Judge): And it is, I think, an argument inviting the court not to apply the VO Escaline and presumption of Article VI applicability.
Robert Spano (Judge): I would like a bit of a clarification on this.
Robert Spano (Judge): On 5th September 2006, the National Security Authority withdraws the security clearance.
Robert Spano (Judge): Now, I see from this decision, which is in the file, that it is explicitly stated that as to its legal effects, it did not have suspensive effect were the applicant, as he did to administratively appeal the decision to the director of the agency.
Robert Spano (Judge): And I assume, therefore, judicial review proceedings did not have suspensive effect.
Robert Spano (Judge): So may I ask, on that date, 5th September 2006, when the decision took immediate effect, what impact did it have on the applicant's position?
Robert Spano (Judge): I appreciate that he resigned himself a month later.
Robert Spano (Judge): But was he able, de facto, to exercise his post in the ministry due to the fact that the security clearance was revoked?
Robert Spano (Judge): The reason I also ask this, and I want to draw the attention of the government to the Prague Municipal Court's decision in the case, the judgment of 1st December 2009, where it states, and this is on page 4, and this is an argument by the applicant, the applicant objected that he exercised the office of deputy defense minister and director of the property administration department of the Ministry of Defense, and as a consequence of the annulment of the certificate, he had to resign from his office.
Robert Spano (Judge): May I ask the government to comment that this is a pleading made by the applicant at domestic level and on the next page, the Prague Municipal Court views and examines this argument on the merits, referring to your constitutional provision on the right to exercise a profession, and states that but that right is subject to limitations under domestic law.
Robert Spano (Judge): May I ask you to comment on the context of these factual elements and the domestic court's assessment on your claim that it did not have an impact on the applicant's employment situation?
Robert Spano (Judge): My second question is on the merits.
Robert Spano (Judge): Just a clarification, under domestic law, I appreciate the National Security Authority was unable under domestic law in its decision to give reasons, but was under domestic law the administrative courts, were they, would it have been a possibility for them, assuming that they accepted that disclosure of the actual physical document was not possible, could they have obliged the National Security Authority to furnish the applicant with at least the gist or the essence of the reasons upon which the revocation of the certificate was based on?
Robert Spano (Judge): I make there a distinction between the actual document itself and the reasons so as to give the applicant an opportunity to present this case.
Guido Raimondi (JudgeP): Now President López Guerra, please.
Luis López Guerra (Judge): Yeah, my question is this, both parties.
Luis López Guerra (Judge): The applicant became an employee of the Ministry of Defense by a labor contract.
Luis López Guerra (Judge): And then within this labor contract, first he was director of the administration of the ministry's assets, and then later, afterward, he was appointed deputy to the first vice minister of defense.
Luis López Guerra (Judge): Now, my question is concerning this last appointment, I would appreciate to know whether it was, this appointment was a free decision, that is to say, a decision at will of the appointed authority.
Luis López Guerra (Judge): I don't know whether it was the minister or the vice minister.
Luis López Guerra (Judge): Was it a free decision?
Luis López Guerra (Judge): And consequently, he was appointed for a fixed term in months or years, or could he be dismissed at will by this appointed authority?
Luis López Guerra (Judge): I say that because I would appreciate some clarification on the affirmation made by the government in paragraph 70 of his observation, because the government says, in accordance with the law, a public official could be removed from such an office at will by the holder of the power to appoint him or her.
Luis López Guerra (Judge): So this was a political appointment, that's my question.
Guido Raimondi (JudgeP): Maintenant, Monsieur le Juge Sicilianos.
Linos-Alexandre Sicilianos (Judge): I have two questions, one to both parties, in relation to the question raised before by judges Wojtyczek, Spano, and López Guerra.
Linos-Alexandre Sicilianos (Judge): And I would like to know what was the exact status of the applicant under the law applicable at the relevant time.
Linos-Alexandre Sicilianos (Judge): Was he a civil servant, technically speaking?
Linos-Alexandre Sicilianos (Judge): The relevant report of the intelligence service was classified as reserved.
Linos-Alexandre Sicilianos (Judge): So apparently, it had a low level of classification.
Linos-Alexandre Sicilianos (Judge): So in view of this, I am wondering whether it was possible to disclose the report in a redacted form, so as to protect the interests of the national security, while at the same time give a sense to the applicants, so as for him to prepare his defense.
Guido Raimondi (JudgeP): Le juge Ravarani.
Georges Ravarani (Judge): J'ai des questions qui doublent les cas échéants, celles déjà posées par mes collègues, et c'est des questions et aussi des demandes de clarification parce que les représentants ont déjà abordé les questions.
Georges Ravarani (Judge): Ma première question s'adresse plutôt au gouvernement.
Georges Ravarani (Judge): Est-ce que le gouvernement peut préciser la relation entre le retrait de l'attestation de sécurité et les poursuites pénales engagées dans la suite contre le requérant?
Georges Ravarani (Judge): Et plus précisément, ces poursuites sont-elles la conséquence de l'enquête menée par les services secrets ayant donné lieu au retrait de l'attestation de sécurité?
Georges Ravarani (Judge): J'ai une question ensuite aux deux partis, et qui sont dans la ligne de ce que mes collègues ont chaque fois abordé.
Georges Ravarani (Judge): Est-ce que les partis peuvent confirmer que sous l'empire de la législation, en vigueur au moment des faits ayant donné lieu aux présents litiges, il n'existait pas un droit de chèque de fonction publique au sens traditionnel ou technique du terme, avec des droits et obligations particuliers pour les fonctionnaires, et que le statut des agents travaillant dans la fonction publique relevait du droit privé?
Georges Ravarani (Judge): Y avait-il néanmoins des obligations particulières pesant sur les agents travaillant pour des entités de droit public, et notamment découlant des spécificités de leurs fonctions?
Georges Ravarani (Judge): La troisième question s'adresse au requérant.
Georges Ravarani (Judge): Est-ce que le requérant peut fournir, et elle est aussi dans la ligne de ce que mon collègue Spano a dit, est-ce que le requérant peut fournir des détails sur l'évolution de la carrière, et surtout la fin de celle-ci?
Georges Ravarani (Judge): Peut-il en particulier livrer des explications sur ses soucis de santé qui l'ont empêché de continuer à travailler dans la fonction publique?
Georges Ravarani (Judge): Peut-il confirmer ou infirmer qu'après le retrait de l'attestation de sécurité, le ministère a cherché à lui trouver un autre emploi dans l'administration gouvernementale?
Georges Ravarani (Judge): Et que s'est-il passé au juste entre le retrait de l'attestation de sécurité et la résiliation d'un commun accord de la relation de travail?
Georges Ravarani (Judge): Car il y a eu une certaine période entre ces deux événements.
Guido Raimondi (JudgeP): maintenant monsieur le juge Pastor Vilanova.
Pere Pastor Vilanova (Judge): Tout d'abord, 2 questions adressées au gouvernement.
Pere Pastor Vilanova (Judge): Le gouvernement a insisté à maintes fois en relation avec la gravité du comportement de M. Regner.
Pere Pastor Vilanova (Judge): Ma question est la suivante.
Pere Pastor Vilanova (Judge): Pourquoi est-ce qu'il n'a jamais été suspendu, voire licencié?
Pere Pastor Vilanova (Judge): 2e question, également destinée au gouvernement.
Pere Pastor Vilanova (Judge): Est-ce que le juge instructeur ou l'autorité juridictionnelle compétente en République tchèque, est-ce qu'il a jamais déclaré le secret de l'instruction?
Pere Pastor Vilanova (Judge): Et 3e question, donc dirigée aux 2 partis.
Pere Pastor Vilanova (Judge): Quel est l'état actuel de la procédure pénale?
Guido Raimondi (JudgeP): S'il n'y a pas d'autres questions, la Cour va maintenant se retirer pour un peu plus de 20 minutes.
Guido Raimondi (JudgeP): On reprend à 11h moins 10.
Guido Raimondi (JudgeP): Donc après quoi, les partis pourront présenter des brèves observations en réponse aux plaidoiries adverses et répondre aux questions formulées par les juges.
Guido Raimondi (JudgeP): Et je donne la parole à maître Bilej.
AP1 (Applicant): Dear Mr. President, Honorable Judges,
AP1 (Applicant): I'd like to follow what the representative of Czech Republic said.
AP1 (Applicant): He mentioned the criminal proceedings.
AP1 (Applicant): We still do not see any relationship between the criminal proceedings and this proceeding and the withdrawal of the certificate.
AP1 (Applicant): Unless, and I'm not happy I have to say it, unless the representatives of the Czech Republic know the content of the report.
AP1 (Applicant): We don't know the content of the report.
AP1 (Applicant): So we have absolutely no idea if there is any relationship between the report and the criminal proceedings.
AP1 (Applicant): If the representatives of the Czech Republic are repeatedly reminding us there is a criminal proceedings held against Mr. Regner,
AP1 (Applicant): we have doubts if they don't know it.
AP1 (Applicant): We heard that there is no right to get certificate to access to classified information according to national law.
AP1 (Applicant): We do not agree.
AP1 (Applicant): We think once the conditions stipulated in the national law are fulfilled, then the applicant has right to get the certificate, to obtain the certificate to access classified information.
AP1 (Applicant): And it can be, according to national law, subject of a court control.
AP1 (Applicant): We feel that in case the state wants to declare there is no right to a certain right, then it stipulates clearly in the national law.
AP1 (Applicant): And this is not the case.
AP1 (Applicant): Regarding his voluntary termination of the contract, of labor contract and his position, he got in a position when he, regarding his function, regarding his position, he could not work anymore without certificate to access certified information.
AP1 (Applicant): And in that moment, he knew it.
AP1 (Applicant): Mr. Regner knew it.
AP1 (Applicant): And in that moment, I think we all know how life is in these situations.
AP1 (Applicant): And I think it's not relevant whether or not he formally, voluntarily terminated his position or he simply followed what was expected from the state in that moment or what he can expect it from the state.
AP1 (Applicant): So we do not feel any relationship between the voluntary termination and withdrawal of the certificate.
AP1 (Applicant): Regarding the questions, so far we understood, there was nothing in a labor contract regarding the access to the classified information.
AP1 (Applicant): And so far we know this is not praxis in the Czech Republic, that in the labor contract for the state clerks, that there would be something regarding the access to the classified information.
AP1 (Applicant): So far we know there is no national law that specify which information should be classified.
AP1 (Applicant): It's the national security authority that specifies or make a list of information that should be classified.
AP1 (Applicant): And the government of the Czech Republic accept this.
AP1 (Applicant): And in case of Mr. Regner, from his position,
AP1 (Applicant): position of a deputy or representative of the deputy of the Ministry of Defense, he was, I would say, something like a facility manager.
AP1 (Applicant): He got in touch with information of the property of the Ministry of Defense.
AP1 (Applicant): And such information is in itself secret information or classified information, because the state decided to have such information as classified.
AP1 (Applicant): And it means when he got in a position where he was, he simply needed to have the certificate.
AP1 (Applicant): Otherwise, he would not be entitled to be in his position.
AP1 (Applicant): And state would not appoint him.
AP1 (Applicant): But we are not aware that this is somewhere in the national law.
AP1 (Applicant): And one of the, in his position, he was also responsible for the property of Army, when we say Army, Army services.
AP1 (Applicant): I hope you can imagine information on the property of Army services itself is classified information.
AP1 (Applicant): I think nobody would be interested in an employee that would not have certificate to access this classified information in case that he should be dealing as a kind of, let's say, facility manager with the property and that the information on property itself is classified information.
AP1 (Applicant): Regarding the criminal proceeding, the Court of Appeal changed the decision of the Court of First Instance in favor of Mr. Regner.
AP1 (Applicant): But until these days, there is no written decision.
AP1 (Applicant): It means, according to national law, Mr. Regner,
AP1 (Applicant): for the moment, it's not entitled to file an extraordinary appeal to the Czech Supreme Court.
AP1 (Applicant): Well, without that certificate, he could not.
AP1 (Applicant): I think that's the answer for your last question.
AP1 (Applicant): Without the certificate, he could not stay in his position.
AP1 (Applicant): His position or the relationship with the Ministry of Defense in debt would have been or must have been terminated anyway.
AP1 (Applicant): So if it was voluntary or if it was voluntary, we do not think it's that important.
AP1 (Applicant): That's everything.
AP1 (Applicant): you
Guido Raimondi (JudgeP): Merci beaucoup Maître Bilej. Maintenant la parole est à M. Schorm.
GR1 (Government): Well, I would like to thank you for the questions, which are interesting and, in reality, turn around the issue of compatibility, razione, persone, with the convention.
GR1 (Government): I will now try to address all these questions, but I would also refer to my statement.
GR1 (Government): And if you wish to have it in written form, it does exist in written form.
GR1 (Government): So the government can provide it to the case file.
GR1 (Government): As to the contents of the disputed report used as evidence in the judicial review of security proceedings, all I can say today is what I have stated in my speech.
GR1 (Government): That is that the nature of the applicants' activities described in the report corresponds to the description of illegal acts for which he had been found guilty and convicted in the criminal proceedings.
GR1 (Government): But as I have already said also, the government is willing to provide you the report, but it must be kept within the court, not disclosed to the public and to the applicant nor to his lawyers, because Czech law does not allow for that.
GR1 (Government): If we are to provide you that classified information, then of course we have to ensure ourselves that it will be treated with, let's say, equivalent caution as if it would have been treated at national level.
GR1 (Government): And yes, it is a redacted document.
GR1 (Government): It's a secondary source, because you can hardly expect an intelligence service to provide other authorities with original files, with original documents.
GR1 (Government): They always issue reports.
GR1 (Government): They give information, intelligence, but not their files, because the way the files are made has to be kept secret as well.
GR1 (Government): I would like to underline the fact that this situation which occurred in the applicant's case is quite exceptional, because there are hardly a couple of cases a year where classified information plays a role in the subsequent judicial review of the withdrawal of a security clearance.
GR1 (Government): So normally, the normal system is that the person concerned has everything at his disposal.
GR1 (Government): As far as the labor contract is concerned, we do not have it with us.
GR1 (Government): But I can imagine that the contract in itself is relatively short and concise.
GR1 (Government): And the habit is to define the positions within an administration with reference to the usual activities carried out by the person.
GR1 (Government): And it's a matter of internal regulation.
GR1 (Government): Of course, as it has been said by the applicant's party, normally there is a list of types of confidential information which is submitted by the NSA for approval to the government.
GR1 (Government): So there is not a law.
GR1 (Government): But it's not unusual that there are implementing provisions adopted by different sources of law.
GR1 (Government): This is by law in this case.
GR1 (Government): As far as the suspensive effect of the NSA's decision to withdraw the security clearance, I can only refer to the preventive nature of this step.
GR1 (Government): And so it has to be without suspensive effect.
GR1 (Government): And so it has to be immediately applicable.
GR1 (Government): As to the possibility for the applicant to work still in the Ministry of Defense and maybe still in the same position, one has to bear in mind that if you have access to classified information, it does not necessarily mean that you exceed classified information on a day-to-day basis.
GR1 (Government): So you can do some functions.
GR1 (Government): But of course, I don't think, and also with reference to what I said, that there wasn't a linkage between the position and the need to have a clearance.
GR1 (Government): There clearly was a linkage between them.
GR1 (Government): So he needed to have the clearance.
GR1 (Government): As to the municipal court's considerations about the right to the free choice of profession, I can only say that the municipal court dismissed that line of argumentation.
GR1 (Government): And it is supported by the constitutional court's case law, which, and I can quote, says, the right to the free choice of profession does not incorporate the right of all individuals to engage in a specific profession, the performance of which is, moreover, strictly constrained in the state's interest, and for which it is therefore necessary to satisfy, in addition to the other relevant statutory conditions, certain very specific requirements relating to the candidate, such as to hold a security clearance, unquote.
GR1 (Government): I can also respond to the question relating to the nature of the position.
GR1 (Government): At that time, it's different from today.
GR1 (Government): But at that time, it was a nomination, an appointment, and, of course, revocation as well, at free will.
GR1 (Government): Today, we have a law on the loi sur le service public, which fits very well in French.
GR1 (Government): So there is a different status for state employees.
GR1 (Government): And today, it would have been different.
GR1 (Government): But at the time, it was a labor law contract constituted by appointment.
GR1 (Government): And that appointment could have been withdrawn at every moment.
GR1 (Government): So he could have been revoked from his function at every moment without any reasons being given.
GR1 (Government): But this does not mean that the employment in itself is ended.
GR1 (Government): Because instead, the person should normally be offered a substitute employment.
GR1 (Government): But this is for this nature of labor law contract.
GR1 (Government): This was, I believe, but I don't have it in my hand.
GR1 (Government): But usually, it would be a contract at indefinite time, so without limitation, I suppose.
GR1 (Government): If you have such a position, you are appointed without time limitation.
GR1 (Government): But of course, when it is a political nomination, then it can be ended at every moment from political, for political reasons.
GR1 (Government): And as far as the nature of the documents still of the report of the intelligence service used by the NSA, I can say that notwithstanding the relatively low level of confidentiality, it is still a confidential document.
GR1 (Government): And it has to be dealt with in this manner.
GR1 (Government): And as I already also explained in my speech, it would have been difficult for the courts to reveal the nature of the information being given.
GR1 (Government): Because then it would mean that the sources would have to be revealed.
GR1 (Government): Because the sources are what makes the report more or less reliable and is something which can be relied upon as correct.
GR1 (Government): As to the linkage between these investigations by the intelligence service and the criminal proceedings, I have to say that it was probably, or it was triggered by these investigations by the intelligence service.
GR1 (Government): But the nature of these investigations, as I've explained in my speech, is different.
GR1 (Government): It's not together evidence.
GR1 (Government): It's very different from what you need to have in criminal proceedings.
GR1 (Government): And so this means that you have an information about something happening, something wrong, illegal.
GR1 (Government): And you have to investigate on your own.
GR1 (Government): And the fact is that the pre-phase, the investigative phase before the applicant was charged, took quite a while.
GR1 (Government): Because I think he was charged only in November 2007.
GR1 (Government): So you can see that there was a difference in time.
GR1 (Government): And normally, these files in the pre-charging stage are classified or are protected.
GR1 (Government): I cannot say whether that file was protected formally.
GR1 (Government): But I can imagine it was.
GR1 (Government): Because if it is a case of certain importance, and this case was quite important.