TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Why has Mr. Regner's case gone before the Grand Chamber?
AP1 (Applicant): Because Mr. Regner believes that Article VI of the Convention
AP1 (Applicant): was breached.
AP1 (Applicant): Therefore, Mr. Regner's right to a fair trial was breached.
AP1 (Applicant): What happened in Mr. Regner's case?
AP1 (Applicant): In short, Mr. Regner needed a security clearance
AP1 (Applicant): in order to perform his office at the Ministry of Defense of the Czech Republic, and he received such clearance.
AP1 (Applicant): However, this clearance was subsequently withdrawn from him by the security authority.
AP1 (Applicant): The applicant defended Mr. Regner,
AP1 (Applicant): the applicant defended against this order.
AP1 (Applicant): The applicant defended against this withdrawal before the director of national security authority at first, and then before three national courts.
AP1 (Applicant): Despite his repeated petitions, none of these authorities permitted him to learn key evidence on which the decision of the security authority was based.
AP1 (Applicant): Mr. Regner was only informed that key evidence
AP1 (Applicant): was some classified report of the security service not identified in detail.
AP1 (Applicant): Mr. Regner doesn't know the content of this report to date.
AP1 (Applicant): What is the basis of the state's wrongdoing?
AP1 (Applicant): The state's wrongdoing is based on the fact that Mr. Regner was denied defense him
AP1 (Applicant): within the principle of equality of arms and the principle of an adversarial procedure that attributes of the right to a fair trial on at least on two levels.
AP1 (Applicant): The first level, Mr. Regner was not permitted
AP1 (Applicant): to learn the content of the report prepared by the security service that served as a supporting document for the withdrawal of the certificate and not even to see this report, or at least to see the conclusions stated in the said report.
AP1 (Applicant): The second level, another independent entity, and we guess in our case, the state, and we guess in our case, it should be the court, did not sufficiently review the facts decisive for the withdrawal of the security clearance.
AP1 (Applicant): Thus, the court did not provide sufficient defense to the applicant before the arbitrariness of the National Security Authority and intelligence services.
AP1 (Applicant): This poses the following questions.
AP1 (Applicant): Could Mr. Regner have been permitted
AP1 (Applicant): to see the report of the intelligence service?
AP1 (Applicant): We believe it should have been permitted to Mr. Regner
AP1 (Applicant): to see the report while respecting national security.
AP1 (Applicant): Not all information should have been disclosed to him, namely if said information related to operational activities or investigations procedures of intelligence services or the police.
AP1 (Applicant): But nevertheless, he could have been provided with at least the conclusions of the investigation of this mysterious intelligence service.
AP1 (Applicant): Therefore, interests of the state would have been protected and the applicant would be permitted to defend himself within a court review.
AP1 (Applicant): If this has been the case, Mr. Regner would not have felt the injustice experienced
AP1 (Applicant): by Mr. Smith from our story.
AP1 (Applicant): If we accept that the applicant should not have been permitted to see the report, who else should have been there to protect him against the arbitrariness of the intelligence service or National Security Authority and that his rights and position of the applicants would be sufficiently protected?
AP1 (Applicant): As it may be concluded from the previous decision of this court, primarily it should have been the national court that should have acted as an independent supervisor of the public administration.
AP1 (Applicant): We do not identify with this conclusion and we state from the very beginning that if the court should be independent, it may not be Mr. Regner defends counsel at the same time.
AP1 (Applicant): Why do we believe that courts insufficiently protected applicants' interests and thus breached the principle of a fair trial?
AP1 (Applicant): There are several facts that led us to following.
AP1 (Applicant): The first fact is the failure to observe the principle of a review within the framework of full jurisdiction.
AP1 (Applicant): According to case law of the Czech Supreme Administrative Court, in proceedings on the review of decisions of the national security in which one participant, in our case Mr. Regner, is not permitted
AP1 (Applicant): to learn all evidence, courts must review all steps and reasons of the contestant decision in its entirety, including any additional evidence beyond the scope of the claimant's defense.
AP1 (Applicant): And this should outweigh the imbalance of participants.
AP1 (Applicant): However, in the case of Mr. Regner,
AP1 (Applicant): the courts clearly failed to observe this procedure as it follows from the judgment of the municipal court in Prague dated 1st September 2009.
AP1 (Applicant): On page two of this decision, it is expressly stated that, quote, the municipal court in Prague reviewed the contestant decision as well as the proceeding that was held prior to its issue to the extent of plea objections made by Mr. Regner, end quote.
AP1 (Applicant): Therefore, the court itself, the Czech court itself, expressly states that it did not deal with anything else except for objections of Mr. Regner as the claimant.
AP1 (Applicant): However, that they could not have been complete if Mr. Regner, exclaimant, did not
AP1 (Applicant): know key evidence that served as the basis of the contestant decision.
AP1 (Applicant): The very same court, the very same Czech court, denied access to the applicant to this evidence.
AP1 (Applicant): It clearly failed to perform its role as a guarantor of a fair trial pursuant to Article VI of the Convention.
AP1 (Applicant): When the court breached the applicant's right to procedural defense, and the court itself did not ensure such a defense, we are of opinion this fundamental procedural error was not remedied by the Supreme Administrative Court and not even by the Constitutional Court.
AP1 (Applicant): The second fact demonstrating deficiencies in activities of the court is the failure to observe the requirement for increased procedural activities of courts.
AP1 (Applicant): If the courts were to substitute activities of the applicant in a proceeding, they should have tested evidence presented to them with the test of veracity and content accuracy to the same extent as Mr. Regner would do.
AP1 (Applicant): Instead, they believed findings stating just in the report of the intelligence service, despite Mr. Regner's objections, who repeatedly
AP1 (Applicant): warned of potential information rigging by intelligence services, namely regarding the military intelligence.
AP1 (Applicant): We believe that applicants' objections should have and must have cast doubts on the content of the report of the intelligence service.
AP1 (Applicant): Despite this fact, the courts did not request any additional information confirming the accuracy and veracity of this report.
AP1 (Applicant): For example, original documents that served as the basis of the report or information related to the applicant, his employment, his personal life, that would enable them to critically assess the subject of the report in the light of this additional information.
AP1 (Applicant): The passive approach of the court does not correspond to acts made by the applicant if he had such opportunity.
AP1 (Applicant): The third significant fact that leads us to the conclusion that the courts did not sufficiently protect the interest of Mr. Regner
AP1 (Applicant): is simply the fact that at least two documents existed related to the applicant.
AP1 (Applicant): But National Security Authority came to the conclusion of security unfitness of Mr. Regner
AP1 (Applicant): only on the basis of one of them.
AP1 (Applicant): Therefore, the other document dated 7th October, 2005 should have been disclosed.
AP1 (Applicant): But also this did not happen.
AP1 (Applicant): And the final fact or opinion is that the formal repetition of the reasoning and indecision of the municipal court in Prague, Czech Supreme Administrative Court, and the Constitution Court.
AP1 (Applicant): In the reasoning of their decisions, all courts stated only vague formulations and transcribed provisions of the law that are repeated over and over.
AP1 (Applicant): Basically, the only reason given by the courts for the withdrawal of the security clearance is the applicant's behavior, which was not specified in detail.
AP1 (Applicant): And said alleged behavior affects the credibility of a person.
AP1 (Applicant): And it may affect his ability to classify information.
AP1 (Applicant): It means the court merely quoted the section 143D of the Act on Protection of Classified Information and Security Eligibility.
AP1 (Applicant): It is clear that such reasoning is only a formal one.
AP1 (Applicant): And due to the absence of any specific facts, it may not be reviewed at all.
AP1 (Applicant): And this clearly breaches the principle of equality of participants as one of the attributes of the right to a fair trial pursuant to Article VI of the Convention.
AP1 (Applicant): Moreover, the specific reasoning for non-disclosure of some evidence to the applicant is missing in court decision as well, despite the fact that this is also the obligation of the court.
AP1 (Applicant): Therefore, it is clear that while the applicant's rights were restricted, steps of the court that should have been balanced restrictions on the part of the applicant within a court review were only formal.
AP1 (Applicant): And the courts do not even hide this fact at all.
AP1 (Applicant): In relation to the above, we have to ask whether the national court could have taken other steps in this case.
AP1 (Applicant): And we guess the answer is if the court had to guarantee the right to a fair trial to the applicant, it should have taken other steps.
AP1 (Applicant): And what steps could have or should have been taken by the court?
AP1 (Applicant): Regardless of, in our opinion, other mistakes of the court, for example, the breach of the principle of a review in full jurisdiction, the non-critical acceptance of the content of the report, the insufficient reasoning of decisions, we believe the court should have permitted the applicant to learn the content of the report prepared by intelligence service, simply because the courts may not replace procedural activities of one of the participants with their activities.
AP1 (Applicant): If the court came to the conclusion that it is not possible to disclose the report, despite the fact that it is the report classified, on the lowest level, the court should have duly justified this decision and disclosed to the applicant all information, except for information that actually could have jeopardized or seriously disrupted activities of intelligence services.
AP1 (Applicant): Then the court should have objectively assessed evidence presented to court, and in order to protect the applicant's rights, actively verified its veracity and content accuracy, and also find information to the applicant and compare the connection of this information with other evidence, as well as the relevance of individual information in relation to the applicant's security eligibility.
AP1 (Applicant): The decision of the court, including the decision on the classification, should have been duly justified in such a manner that it could have been reviewed.
AP1 (Applicant): Therefore, the court was obliged to state specific facts and considerations on the basis of which it decided.
AP1 (Applicant): Why do we consider that the court should have taken other steps?
AP1 (Applicant): We are of the opinion simply in order to meet requirements of Article 6, Paragraph 1 of the Convention.
AP1 (Applicant): But if we avoid the question whether courts could replace procedural activities of one of the participants to the proceeding without breaching the principle of adversarial procedure or equality of arms.
AP1 (Applicant): And what may happen if the court does not take such steps?
AP1 (Applicant): And with this last question, we are coming back, we get back to our original story of Mr. Smith
AP1 (Applicant): on the walking dog.
AP1 (Applicant): With this example, we wanted to demonstrate that the security clearance could have been also withdrawn for reasons that could not have existed at all and they did not have to affect the applicant's security eligibility at all.
AP1 (Applicant): However, the security authority and the courts could have not found this fact because they did not permit the applicant, Mr. Wagner,
AP1 (Applicant): to make a statement on the content of the report and at the same time, they themselves, the courts, did not do anything in order to verify information provided by intelligence services.
AP1 (Applicant): We believe that if the Czech Republic follows its current practice, as in Mr. Wagner's case,
AP1 (Applicant): activities of intelligence services in relation to the withdrawal of a security clearance will not be de facto subject to any control.
AP1 (Applicant): And the balance of non-disclosure of information to the relevant person through an independent court will not be effectively ensured.
AP1 (Applicant): Therefore, the state could continue with a selective personnel policy if it is not possible to effectively defend people against untrue, distorted, or rigged information demonstrating alleged security risk.
AP1 (Applicant): However, it may result in jeopardizing its own interests.
AP1 (Applicant): Nobody, not even Mr. Wagner, asked for the security
AP1 (Applicant): clearance for his own private need, but in order to ensure the security of the state on the basis of rules stipulated by the state.
AP1 (Applicant): If those rules are not objective, their observance may not be effectively controlled.
AP1 (Applicant): And we feel that this would result in a clear and present threat to national security.
AP1 (Applicant): The disclosure of classified information to an individual clearly represents a lesser risk than the existence of secret service activities which are not subject to any factual, accurate, fair, and reviewed control of the state.
AP1 (Applicant): In brief, we would like to comment on the government's submission that keep repeating an argument on a criminal proceeding held against Mr. Wagner.
AP1 (Applicant): This criminal proceeding absolutely does not relate to the proceeding before this court.
AP1 (Applicant): If it related to it in any manner whatsoever, it would clearly mean that the right to penal defense was not ensured to Mr. Wagner to the full extent
AP1 (Applicant): in the relevant Czech criminal proceeding when alleged information related to the criminal prosecution has not been disclosed to the applicant to date.
AP1 (Applicant): And it is also quite surprising that the Czech Republic is brave enough to present the argument of a criminal proceeding that has lasted more than 10 years.
AP1 (Applicant): And it can be qualified as a breach of the right to a fair trial because this criminal proceeding has not been finalized yet.
AP1 (Applicant): And it can be anticipated that it will be reviewed by the European Court of Human Rights.
AP1 (Applicant): But this is a different story.
AP1 (Applicant): To sum up, the applicants, Mr. Wagner,
AP1 (Applicant): insist that he has deprived of the right to a fair trial for the following reasons.
AP1 (Applicant): The report classified with a lower level of classification reserved was not disclosed to the applicant despite the fact at the time of its disclosure the applicant had the security clearance to a higher level of classification secret.
AP1 (Applicant): Second, the courts did not permit the applicant to assess his report despite the fact its disclosure could have been only disadvantageous to the interest of the Czech Republic.
AP1 (Applicant): And the courts restricted the applicant's procedure rights, and did not observe condition of a review in full jurisdiction.
AP1 (Applicant): And at the end I would like to add one more.
AP1 (Applicant): Maybe the objections we made were presented too much in the light of national law and national case law, and lack of uniqueness and lack of clarity.
AP1 (Applicant): But isn't the non-disclosure of key evidence and insufficient court protection simply enough to conclude that such a state approach is not in accordance with the Article VI of the Convention?
AP1 (Applicant): We believe it.
AP1 (Applicant): Yes, it should be enough.
AP1 (Applicant): Therefore, in view of all stated arguments, Mr. Ragner proposed that after reviewing the above stated facts,
AP1 (Applicant): the Grand Chamber of the Court should decide that Article VI, Paragraph 1 of the Convention, for the protection of human rights and fundamental freedoms may be applied to the case heard, and that this article was breached.
AP1 (Applicant): The Grand Chamber of the Court should award justified satisfaction to Mr. Ragner.
Guido Raimondi (JudgeP): Merci beaucoup, Maître Bilej.
Guido Raimondi (JudgeP): Maintenant, la parole est à M. Schorm.
GR1 (Government): my esteemed colleagues, once again, it's a great honor for me to appear before the Gane Chamber and present my government's position on an application.
GR1 (Government): But before doing so, allow me to remind what precisely lies at the heart of the case awaiting your decision.
GR1 (Government): From the applicant's description of relevant facts, one might easily gain the impression that he must have become a victim of gross procedural injustice.
GR1 (Government): And yet, quite the opposite is true.
GR1 (Government): That is why I would like to supplement this story with other highly relevant circumstances.
GR1 (Government): As a matter of fact, on the 27th of May, 2016, the applicant was convicted by a court of appeal of the following criminal acts.
GR1 (Government): Participation in an organized crime group and aiding in the offenses of abuse of power, skimming in public tendering, and breach of compulsory rules of economic relations.
GR1 (Government): This verdict is the outcome of large-scale criminal proceedings conducted against nearly 50 persons.
GR1 (Government): They systematically influenced the wording of public procurement at the Ministry of Defense between 2005 and 2007.
GR1 (Government): Specifically, and here I will borrow the words of the judgment, the applicant, under pretense of ordinary work activity, directly influenced and managed other members of this crime group in the whole course of criminal events, there is one date which deserves increased attention.
GR1 (Government): On the 3rd of August, 2006, the applicant handed over to other accomplices the list of companies whose bids should have been chosen by lot in a prefix public tender.
GR1 (Government): On the 5th of August, 2006, which is nearly two days later, the applicant's security clearance was invalidated by the National Security Authority, the NSA.
GR1 (Government): Could this temporal linkage be a mere coincidence?
GR1 (Government): This connection not only sheds different light on the overall background to the case, and I will come back to it later, it demonstrates the legitimate aim pursued and the necessity for non-disclosure of the disputed piece of evidence.
GR1 (Government): It also shows that the measure was in no way arbitrary or abusive.
GR1 (Government): The fair balance was struck between the two competing interests.
GR1 (Government): Indeed, the public interest in non-disclosure to ensure smooth investigation of an organized crime group and the protection of methods and sources used by the intelligence service must have outweighed the applicant's procedural rights.
GR1 (Government): I have requested the director of the intelligence service concerned to consider whether its report in question could be nowadays declassified.
GR1 (Government): The reply which I hold in my hand contains three points worth mentioning.
GR1 (Government): Firstly, there is no longer a real threat that the applicant could frustrate ongoing investigations.
GR1 (Government): But other grounds for non-disclosure mentioned also by the domestic courts do persist.
GR1 (Government): The relevant parts of the report contain information about concrete persons who came in contact with the applicant in the past and later provided information about his criminal conduct.
GR1 (Government): To reveal their identities could give rise to a hazardous precedent capable of compromising the intelligence service's primary mission.
GR1 (Government): If they desisted from protecting their agents and people acting on their behalf, they would irreversibly lose their trust.
GR1 (Government): The flow of vital information to prevent and eliminate threats to state security and economic interests in democratic order and civil liberties would be greatly constrained.
GR1 (Government): Hence, a basic precondition for gathering information effectively is to keep the identities of sources secret.
GR1 (Government): Secondly, the intelligence service was willing to disclose, and now I quote, the nature of Mr. Ragner's activities
GR1 (Government): described in the report, mainly in its parts age and die, corresponds to the description of illegal acts for which he had been found guilty and convicted in the criminal proceedings.
GR1 (Government): Specifically, these activities consisted in the influencing and manipulation of public procurement at the Ministry of Defense.
GR1 (Government): After being apprised of its contents, I may personally confirm the verity of this statement.
GR1 (Government): And thirdly, the director of the intelligence service consented that the report or its relevant parts may be provided to the Green Chamber upon its request.
GR1 (Government): To that effect, there are obviously some requirements prescribed by check law, but nothing insurmountable.
GR1 (Government): The most important is the presence of assurances that the report will be made available to judges only.
GR1 (Government): On this proviso, we are in your hands.
GR1 (Government): There is one more essential fact which I would like to put straight.
GR1 (Government): It brings me to a first objection of inadmissibility, which the government has raised in substance already before the chamber.
GR1 (Government): The applicant suggests that both the transfer to other position and termination of his employment were inevitable consequences of the loss of his clearance.
GR1 (Government): Let me now direct your attention to several documents which the government included in the case file.
GR1 (Government): First of them shows that the applicant himself requested to be removed from his office for reasons of poor health.
GR1 (Government): By a letter on his removal, he was informed that, as the law stood, his removal did not automatically terminate his employment.
GR1 (Government): After transfer to a different post, the applicant's salary remained practically unaffected.
GR1 (Government): The attached pay slips illustrate this.
GR1 (Government): And finally, the employment relationship was terminated by a mutual agreement of both parties, so again, with his explicit consent.
GR1 (Government): Importantly, the applicant has never complained of being exposed to mental coercion and thus reacting under duress.
GR1 (Government): Nor did he ever challenge the circumstances surrounding the termination of his employment by effective remedy available, an action for annulment of employment contract termination.
GR1 (Government): Under these circumstances, the applicant can hardly be regarded as a direct victim for the purposes of Article 34 of the Convention.
GR1 (Government): Therefore, the Green Chamber should consider rejecting the application for being incompatible ratione personae with the Convention.
GR1 (Government): I will now move on to our second objection, that of incompatibility ratione materie.
GR1 (Government): It raises a serious question.
GR1 (Government): Should Article 6 under its civil limb be interpreted so extensively as to apply also to proceedings under review?
GR1 (Government): The way I would answer it is not.