Communicated on 5 March 2018
FIRST SECTION
Applications nos. 37953/13 and 48643/16
Frosina KIPROVSKA LUKIKJ against the former Yugoslav Republic of Macedonia
lodged on 4 June 2013 and 15 August 2016 respectively
STATEMENT OF FACTS
The applicant, Ms Frosina Kiprovska Lukikj, is a Macedonian national who was born in 1971 and lives in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1998 the applicant began working as an employee of the State Intelligence Agency (Агенција за разузнавање, “the Agency”). At the time she was the Assistant to the Director for the fight against international terrorism and organised crime. She held three levels of security clearance which gave her access to different degrees of classified information (hereinafter her “security clearance”).
1. Application no. 37953/13
On 13 July 2007 the Agency asked the Directorate for Security of Classified Information (Дирекција за безбедност на класифицирани информации – “the Directorate”) to provide the applicant with security clearance for another level of classified information, following which the Directorate initiated a security check of the applicant.
On 31 January 2008 the Directorate notified the Agency that the applicant had been refused the requested security clearance on the grounds that she posed a security risk and that the conditions laid down in section 48 of the Classified Information Act (Закон за класифицирани информации – “the Act”) and section 10 of the Regulation concerning security of users of classified information (Уредба за безбедност на лица корисници на класифицирани информации –“the Regulation”) had not been met (see relevant domestic law below).
On 25 February 2008 the Head of the Directorate, relying on its findings in the proceedings concerning the refusal of the requested security clearance, revoked the security clearance which the applicant already possessed on the grounds that she posed a security risk.
The applicant challenged this decision before the Government’s second‑instance Commission, arguing that the Directorate had neither cited any evidence nor stated the reasons for its decision. She asked the Commission to inspect the case file in the Directorate and to review her recent work for the Agency.
On 31 March 2008 the second-instance Commission dismissed the applicant’s appeal and upheld the decision, finding that it had been in accordance with section 54 of the Act.
On 9 February 2010 the Administrative Court dismissed the applicant’s claim, finding that the impugned decision fell within the sphere of discretion of the Head of the Directorate as provided for in section 54 of the Act. The decision had been based on an assessment made by the competent authority and was therefore lawful.
The applicant appealed, arguing that the Administrative Court had failed to adduce any evidence and had reached its decision solely on the basis of the Directorate’s decision and her appeal. She also asserted that neither the second-instance Commission nor the Administrative Court had been given access to the classified information underlying the Directorate’s finding that she posed a security risk. The applicant also complained that her immediate supervisor had not been informed of the security check and had not been asked to submit the reports produced by the applicant concerning her work contacts with foreign intelligence agencies. She maintained that her work had been compliant with section 10 of the Regulation.
On 7 December 2012 the Higher Administrative Court dismissed the applicant’s appeal, endorsing the lower court’s reasoning. It further held that:
“The Head of the Directorate for Security of Classified Information is authorised to assess whether there is a justifiable reason for revoking a person’s existing security clearance before the date of its expiry. The competent authority acted lawfully, in accordance with section 4(2) of the Administrative Procedure Act, which provides that in administrative matters in which the authority is authorised by law to exercise a discretionary right (е овластен да решава по слободна оцена), the decision must be enacted within the statutory limits of the powers conferred and in accordance with the purpose of those powers.
...
In the present case the Higher Administrative Court considers that the Head of the Directorate ... is authorised to assess whether there is a justifiable reason for revoking an existing security clearance before the date of its expiry in accordance with sections 54 and 55 of the Classified Information Act. The authority’s assessment was that the claimant [the applicant] had not used the classified information in accordance with the Act and that the requirements on the basis of which the security clearance had been issued were no longer met. For these reasons, after conducting a lawful procedure, the Head of the Directorate decided to revoke the security clearance before the date of its expiry ...”
2. Application no. 48643/16
On 23 April 2008 the Head of the Agency dismissed the applicant from her post, relying on the administrative decisions concerning her security clearance, which was indispensable for the performance of the duties attached to her post.
The applicant challenged her dismissal before the civil courts. On 24 December 2010 the Skopje Court of First Instance (Основен Суд Скопје) decided to suspend the proceedings and await the outcome of the review proceedings pending before the administrative courts.
In a judgment of 8 January 2014 the first-instance court dismissed the applicant’s claim, finding that possession of security clearance was a prerequisite for her post. Accordingly, her dismissal had been lawful. By decisions of 4 June 2014 and 31 March 2016, the Skopje Court of Appeal (Апелационен суд Скопје) and the Supreme Court, respectively, dismissed the applicant’s appeals and upheld the lower court’s decision and its reasoning.
B. Relevant domestic law and practice
1. The Classified Information Act (Закон за класифицирани информации, Official Gazette no. 09/04)
Section 48 of the Act stipulates that a security check of the third degree is to be conducted to determine whether a person poses a security risk.
Section 54 of the Act provides that in cases when a person does not use the classified information in accordance with the law or when the requirements on the basis of which the security clearance had been issued are no longer met, the Head of the Directorate shall revoke the security clearance before the date of its expiry. The decision to revoke the security clearance shall not reveal the reasoning underlying the grounds for revocation.
Section 55 provides that the Head of the Directorate may decide to refuse security clearance in cases when the requirements defined in sections 46, 47 and 48 have not been met. Such a decision shall not reveal the reasoning underlying the grounds for refusal but is amenable to appeal before the second-instance commission.
2. Regulation concerning security of users of classified information (Уредба за безбедност на лица корисници на класифицирани информации, Official Gazette no. 82/04)
Section 10 of the Regulation stipulates the circumstances taken into account in the course of the security risk assessment. They include, inter alia, an assessment of whether the person had cooperated or might still be cooperating with intelligence officers, international terrorists or persons suspected of being connected with foreign intelligence services which might pose a threat to national security, except when such activity has been undertaken as a function of that person’s official duties.
3. Constitutional Court decision
In 2005 the Constitutional Court decided not to initiate proceedings for review of the constitutionality of sections 54 and 55 of the Classified Information Act, finding that they did not concern individual civil rights (see Decision U.br. 213/2004 from 21 September 2005).
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the unfairness of both the proceedings concerning her security clearance and the dismissal proceedings. She complains that the domestic authorities did not provide any reasons to justify their conclusion that she posed a security risk and that no evidence was adduced in this respect in the administrative proceedings. She also complains that the administrative courts were not provided with the relevant confidential information to enable them to exercise effective judicial review.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, both in the proceedings before the administrative courts concerning her security clearance and in the dismissal proceedings before the civil courts? In particular, was the applicant’s right to participate effectively in those proceedings respected?
2. As to the proceedings before the administrative courts:
(a) Were there any procedural safeguards put in place to counterbalance any possible difficulties faced by the applicant on account of potential limitations of her fair-trial guarantees? Did the judges have access to and review the factual basis for the Directorate’s decision concerning the applicant’s security clearance (see Regner v. the Czech Republic [GC], no. 35289/11, §§ 151-156, 19 September 2017)?
(b) Did the decisions in the applicant’s case contain sufficient reasons, as required under Article 6 of the Convention?
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