Regner v the Czech Republic  ECHR (Application no. 35289/11) (19 September 2017)
The majority of the Grand Chamber of the European Court of Human Rights found that non-disclosure of information revoking a security clearance did not deny the applicant the right to a fair trial.
The applicant was employed by the Ministry of Defence and was granted a security clearance. An investigation by the intelligence service led to the revocation of the applicant’s security clearance, but the information that this was based on was not disclosed as it was classified ‘restricted’. On administrative appeal, the director of the authority agreed to the existence of a security risk. The applicant’s employment contract was terminated by mutual consent.
The applicant lodged an application with the Prague Municipal Court and the Supreme Administrative Court for judicial review of the decision to revoke his security clearance. The applicant was not allowed to see the parts of the file classified as confidential. The reasons justifying the decision to revoke his security clearance only referred to the classified documents but did not disclose the reasons for the revocation contained in the documents. Both courts found that the non-disclosure of the reasons underlying the decision were counterbalanced by the guarantee that the courts had unlimited access to the classified documents. A complaint was lodged in the Constitutional Court complaining about the unfairness of the proceedings, but the complaint was dismissed.
The applicant relied upon Article 6(1) of the European Convention of Human Rights, the relevant section stating:
“In the determination of his civil rights and obligations… everyone is entitled to a fair… hearing… by [a]… tribunal…”
The applicant complained that his right to a fair hearing had been violated as he did not have access to documents which contained reasons for revoking his security clearance at the proceedings which challenged the revocation.
The majority judgment found that Article 6(1) of the Convention was applicable, there being a civil right which could be recognised under domestic law because the revocation of his security clearance prevented the applicant from performing his duties. The partly dissenting opinion of Judges Lazarova Trajkovska and Lopez Guerra stated that Article 6 did not apply to this case.
Merits of the case
The majority stated that fundamental components of a fair trial are the adversarial principle and the principle of equality of arms. This means that ‘each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage’, but that these rights are not absolute. The majority also noted the general principle of European human rights law that States have a margin of appreciation to determine to what extent rights can be restricted. The majority discussed whether not providing the information to the applicant and not disclosing the decision for revoking the security clearance were balanced by the procedural safeguards in place. In this case, the domestic courts had unlimited access to all the classified documents and exercised the power of scrutiny to assess the merits of the case so they could quash any decision which had been made arbitrarily. The court decided that the independent and impartial courts could scrutinise the information to ensure that the decision had been made fairly. This was supported by the concurring judgment.
The majority did note that the domestic law could have allowed for the applicant to be informed of the substance of the accusations against him, at least summarily. It also said that it would have been desirable for the Supreme Administrative Court to have explained the accusations against the applicant and the extent of the review that had been carried out, at least summarily (paragraph 160). Nevertheless, the majority found that there was no violation of Article 6(1) as the essence of the applicant’s right to a fair trial had not been affected.
However, the dissenting and partly dissenting opinions found that there had been a violation of Article 6(1). They found the applicant did not receive a fair hearing as he was unable to defend himself as he did not know what the accusations were. This meant that the essential requirements of a fair hearing, the adversarial principle and the principle of equality of arms were not fulfilled. The joint partly dissenting opinion of Judges Raimondi, Sicilianos, Spano, Ravarani and Pastor Vilanova emphasised that by not disclosing the ‘essence’ of the reasons for the decision to revoke the security clearance, the applicant could not defend himself and so did not have a fair hearing. In the partly dissenting opinion of Judge Serghides, it was stated that the failure to inform the applicant of the ‘substance’ of the reasons for the revocation was a violation of the right to a fair hearing. The dissenting opinion of Judge Sajó found that there was a violation of the right to a fair hearing as there was a violation of the principle of equality of arms.
While Australia is not bound by decisions of the European Court of Human Rights, the judgments are useful for establishing human rights standards. The judgment in Regner v the Czech Republic is particularly relevant to Australia as it addresses the issue of not providing reasons for adverse security checks in the interests of national security. An analogous situation applies in Australia from the adverse security assessments issued by the Australian Security and Intelligence Organisation (ASIO) for over fifty mostly Tamil refugees in 2010 and 2011. Some remained in indefinite detention while others were allowed into the community. A court or tribunal could not review or overturn the adverse security assessment or the detention. The non-reviewable status of ASIO decisions was reinforced with the passing of the Migration Amendment Act 2014 (Cth).
This judgment is likely to reinforce the principle that national security may be prioritised over human rights within the limits of the European Court’s principle of the margin of appreciation. This poses a particular risk for those undergoing security checks, as national security may be used to justify a denial of a fair hearing through non-disclosure of the reasons for an adverse security finding.
The full decision can be found here.
Laura Jennings is a student at the Australian National University College of Law.