Communicated on 27 November 2018
FOURTH SECTION
Application no. 80749/17
Mindaugas BASTYS
against Lithuania
lodged on 21 November 2017
STATEMENT OF FACTS
The applicant, Mr Mindaugas Bastys, is a Lithuanian national, who was born in 1965 and lives in Vilnius. He is represented before the Court by Mr E. Losis, a lawyer practising in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In October 2016 the applicant was elected a Member of the Parliament of Lithuania. In December 2016 the Parliament elected him as Deputy Speaker. As part of the standard procedure, the Speaker of the Parliament asked the State Security Department (hereinafter “the SSD”) to assess whether the applicant could be issued security clearance that would allow him to access classified information, such as State secrets.
On 8 March 2017 the SSD advised the Speaker of the Parliament not to issue the applicant security clearance. In the note sent to the Speaker (hereinafter “the SSD note”), the SSD stated that there were grounds to doubt the applicant’s trustworthiness. The note referred in particular to his relationships with several individuals who had various links to Russia and whose activities were considered contrary to the national security interests of Lithuania, as well as individuals who had been accused or convicted of multiple crimes. According to the SSD, the applicant maintained personal relationships with those individuals and had in the past fulfilled their various requests. The note stated that the applicant himself in an interview with the SSD had acknowledged that some of those individuals might be able to put pressure on him. It further stated that when submitting an application for security clearance the applicant had not disclosed that he knew some of those individuals and had failed to mention certain instances of meeting them, which he had later claimed to have forgotten. The SSD therefore opposed granting him security clearance.
On 9 March 2017 the SSD note was delivered to the applicant. He asked the SSD to provide him with the information on which it had based its findings but the SSD refused.
On the same day the Speaker of the Parliament orally informed the applicant that he had decided not to issue him with security clearance and asked him to resign from the office of Deputy Speaker. The following day the Speaker released the SSD note to the public. On 14 March 2017 the applicant submitted his resignation, which the Parliament approved the same day. He remained a Member of the Parliament.
1. Proceedings before administrative courts
On 13 March 2017 the applicant asked the Prosecutor General to open a pre-trial investigation against the SSD concerning abuse of office. He submitted that the SSD note had not referred to any activity by which the individuals mentioned therein had actually threatened the national interests of Lithuania, nor had it shown how their professional activities or past crimes might have threatened the safety of State secrets. The applicant also argued that while his relationships with those individuals could be considered undesirable from an ethical point of view, they could not be regarded as threatening the confidentiality of State secrets. He further argued that he should not be held responsible for acts of others. In the applicant’s view, the SSD note had been deliberately based on false information and had not complied with the law. He lastly submitted that the note had been made public and had seriously damaged his reputation by showing him as someone who was untrustworthy and who acted contrary to the interests of Lithuania.
On 22 March 2017 the Prosecutor General refused to open a pre-trial investigation and informed the applicant that a complaint against the SSD note should be lodged before an administrative court.
On 6 April 2017 the applicant lodged a complaint against the Parliament and the SSD before the Vilnius Regional Administrative Court. He submitted that the conclusions in the SSD note had been unfounded, and he disputed the nature of his relationships with the individuals mentioned in that note. He also submitted that the Speaker of the Parliament had breached the procedural rules of requesting and assessing the SSD note and had not adopted a written decision on the refusal to issue security clearance. The applicant lastly submitted that the Speaker had made the SSD note public and had thereby seriously damaged his reputation as a politician. He asked the court to annul the SSD note and to order the Speaker of the Parliament to issue him with security clearance.
On 13 April 2017 the Vilnius Regional Administrative Court refused to examine the applicant’s complaint. It stated that the SSD note had not created any legal consequences to the applicant because it had only been an interim document, whereas the final decision to refuse him security clearance had been adopted by the Speaker of the Parliament and not the SSD; such an interim document could not be contested before a court. The court further stated that the applicant had applied for security clearance as a Deputy Speaker of the Parliament but he had since resigned from that office and had not applied for it on any other grounds. Accordingly, the Speaker’s decision to refuse him security clearance no longer created him any legal consequences and thus could not be contested before a court either.
The applicant lodged an appeal against that decision. He submitted that the right to appeal against the SSD’s conclusions regarding security clearances had been established in the case-law of the Supreme Administrative Court. He also argued that the SSD note was not an interim document because it contained a decision to oppose issuing him with security clearance. He further submitted that the refusal to examine his complaint was contrary to the right of access to a court under Article 6 § 1 of the Convention.
On 14 June 2017 the Supreme Administrative Court dismissed the applicant’s appeal. It upheld the lower court’s conclusion that the SSD note had been an interim document and had not created any legal consequences to the applicant. As for the complaint regarding the Speaker’s decision, the court found that it did not have the competence to examine that complaint because it did not concern acts of public administration.
2. Findings of the Parliamentary Committee on National Security and Defence
On 16 March 2017 the Parliament instructed the Parliamentary Committee on National Security and Defence (hereinafter “the Committee”) to conduct an inquiry into whether the applicant might be a threat to national security and to assess whether there were grounds for his impeachment.
On 12 April 2017 the Committee adopted a conclusion that the applicant had maintained close relationships with former or current officials of Russian secret services and had thereby posed a threat to the national security of Lithuania. It considered that there were grounds to begin impeachment proceedings against him. That conclusion was made public.
On 13 April 2017 the applicant asked the Prosecutor General to open a pre-trial investigation against him concerning the assistance to another State to act against the Republic of Lithuania under Article 118 of the Criminal Code. According to the applicant, he did so in order to dispel any doubts regarding his trustworthiness and loyalty to Lithuania.
On 25 April 2017 the Prosecutor General refused to open a pre-trial investigation against the applicant on the grounds that no crime had been committed. The Prosecutor General considered that the Committee’s conclusions had not given sufficient grounds to believe that the applicant had committed the crime under Article 118 of the Criminal Code. The Committee had assessed the applicant’s actions with regard to his political liability and not criminal liability and, while its conclusions had given reasons to doubt the applicant’s trustworthiness, they had not disclosed any criminal acts.
The applicant did not appeal against the Prosecutor General’s decision.
B. Relevant domestic law and practice
1. Constitution
Article 22 § 3 of the Constitution provides that information concerning the private life of an individual may be collected only upon a reasoned court decision and only in accordance with the law.
Article 25 § 5 provides that individuals have the right to receive, in accordance with a procedure established by law, any information held about them by State institutions.
2. Law on State and Service Secrets
Article 18 of the Law on State and Service Secrets lays down the procedure for assessing whether an individual may be issued security clearance. It does not indicate whether the findings of the assessment may be made public. Article 18 § 12 provides that a decision to terminate the assessment may be appealed against in line with the Law on Administrative Proceedings. However, there is no provision concerning the possibility to appeal against the findings of the assessment.
Article 19 § 1 provides that security clearance is issued by the head of the entity which manages the relevant classified information, after taking into consideration the findings of the assessment carried out under Article 18.
Article 17 § 9 provides that decisions to refuse to issue security clearance may be appealed against in line with the Law on Administrative Proceedings.
3. Law on Administrative Proceedings
Article 17 § 1 (1) of the Law on Administrative Proceedings provides that administrative courts examine cases concerning the lawfulness of decisions, acts and omissions of entities of State administration.
Article 18 § 2 provides that administrative courts do not have the competence to examine, inter alia, acts of the President, the Parliament, Members of the Parliament, the Prime Minister and the Government.
4. Case-law of the Supreme Administrative Court
In its decisions of 25 September 2008 in the administrative case no. AS525-540/2008 and of 22 October 2010 in the administrative case no. AS143-560/2010 the Supreme Administrative Court held:
“The subject of a case before an administrative court may only be such decisions, acts or omissions of entities of public or internal administration which objectively create legal consequences to the individuals concerned (breach their rights or legitimate interests). If it is clear [when a complaint is lodged] that the decision or act which is being contested does not create any legal consequences and thus cannot be the subject of a case before an administrative court, the court must refuse to examine it. If the court examined a complaint against acts which do not create legal consequences, it would not be defending the claimant’s rights ... and the proceedings would be essentially meaningless.”
In its decision of 6 April 2012 in the administrative case no. AS143‑241/2012 the Supreme Administrative Court held:
“In the present case, the State Security Department ... asked the Ministry of the Interior to revoke the claimant’s security clearance, the Central Special Expert Commission ... recommended the Minister of the Interior [to do so], and the Minister of the Interior ... adopted a decision revoking the security clearance. It is clear that the request of the State Security Department and the recommendation of the Central Special Expert Commission were procedural decisions (part of the procedure of revoking the claimant’s security clearance) which did not determine the claimant’s rights and obligations. Arguments against those procedural decisions (but not separate claims) may be submitted when contesting the final decision adopted by the Minister of the Interior ... and it would then be possible to examine those decisions and assess their impact on the lawfulness of the final decision. Accordingly, the request of the State Security Department and the recommendation of the Central Special Expert Commission in this case did not create legal consequences to the claimant and thus may not be contested before an administrative court in accordance with the Law on the Administrative Proceedings ...”
COMPLAINTS
The applicant complains under Article 6 § 1, Article 8 and Article 13 of the Convention that he did not have a possibility to defend himself against the allegations presented in the SSD note. He submits that the note has damaged his reputation by alleging that he was untrustworthy and not loyal to Lithuania. Furthermore, the Speaker of the Parliament released the SSD note to the public without any legal grounds, as a result of which the media and the public started regarding the applicant as a “traitor” and “enemy of the State”. The applicant submits that the conclusions made in the SSD note were unfounded and not based on any facts, however, he was unable to contest them either before administrative courts or by way of criminal proceedings.
QUESTION TO THE PARTIES
Did the applicant have at his disposal an effective domestic remedy for his complaint concerning his right to reputation, as required by Article 13 of the Convention taken in conjunction with Article 8?
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