FOURTH SECTION
DECISION
Applications nos. 2631/10 and 12253/10
Andris SPŪLIS against Latvia
and Vladimirs VAŠKEVIČS against Latvia
The European Court of Human Rights (Fourth Section), sitting on 18 November 2014 as a Chamber composed of:
Päivi Hirvelä, President,
Ineta Ziemele,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above applications lodged on 16 December 2009 and 23 February 2010 respectively,
Having regard to the decision of 14 December 2010 in the case no. 2631/10,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants in the case no. 2631/10,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Andris Spūlis, is a Latvian national, who was born in 1969 and lives in Riga. He is represented before the Court by Ms A. Mazapša, a lawyer practising in Babīte.
2. The applicant in the second case, Mr Vladimirs Vaškevičs, is a Latvian national, who was born in 1960 and lives in Riga. He is represented before the Court by Ms L. Cakare, a lawyer practising in Riga.
3. The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce.
A. The circumstances of the case
1. Application no. 2631/10 Spūlis v. Latvia
4. The applicant worked from 1 September 2002 until 5 August 2009 at the Ministry of Foreign Affairs and was posted as a diplomat to Latvian embassies in Belarus and Ukraine. On 29 August 2007 he had been issued Category I security clearance.
5. On 11 July 2008 the director of the SAB invited the applicant to a meeting. The applicant was asked questions about his work in the embassy in Ukraine and about his contacts there. Later on the same day one of the staff members invited the applicant to another meeting. In the course of that second meeting the applicant was accused of having received money or diamonds.
6. On 15 August 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on sections 9(3)(6) and 13(1)(3) of the Law on State Secrets (see paragraphs 20 and 22 below). The decision referred to “facts established during an inquiry which constitute grounds for doubting your reliability and your ability to refrain from disclosing State secrets”. On 20 August 2008 the applicant’s employment with the SAB was suspended on the basis of section 18(2)(6) of the Law on State Security Establishments and section 13(4) of the Law on State Secrets and he was informed that his employment contract would be terminated pursuant to section 101(1)(6) of the Labour Law and section 13(1)(3) and 13(4) of the Law on State Secrets.
7. In response to the applicant’s complaint about the revocation of his security clearance, on 15 September 2008 the Prosecutor General upheld “the decision of the director of the [SAB] of 25 July 2008 [sic]”. In response to the applicant’s request for a review of the information in the possession of the SAB by an independent law-enforcement agency, the Prosecutor General pointed out that under the Law on State Security Establishments the system of protection of State secrets was subject to the supervision of the Prosecutor General’s Office. Accordingly, that Office was to be considered an independent authority.
8. The applicant then brought proceedings in the District Administrative Court, complaining about the de facto actions of the Prosecutor General and the director of the SAB. On 16 June 2009 that court refused to uphold the applicant’s complaint, finding that the lex specialis with regard to the procedure for revoking security clearance was contained in the Law on State Secrets which provided that decisions in that respect were not subject to review by the courts. Considering that the Senate of the Supreme Court had come to identical conclusions in a comparable case on 24 March 2009, the applicant did appeal against the said decision.
9. On 5 August 2009 the applicant applied to the director of the SAB to be discharged from the service on grounds of health, specifying that earlier that year the Medical Board for the Assessment of Fitness for Work had certified that he was suffering from a category-two physical disability.
10. On 11 August 2009 the applicant lodged a complaint with the Constitutional Court, alleging that sections 9(3)(6) and 11(5) of the Law on State Secrets (see Relevant Domestic Law, below) were unconstitutional. On 9 September 2009 the Constitutional Court refused to initiate proceedings, since it considered that the question of the constitutionality of section 11(5) had been decided in its earlier judgment of 23 April 2003 (see Relevant Domestic Law, below) and that the claim concerning 9(3)(6) lacked the requisite legal substantiation.
2. Application 12253/10 Vaškevičs v. Latvia
11. The applicant had been working in Customs and subsequently in the State Revenue Service since 1988. In 2008 he held the position of director of the Customs Criminal Investigation Department of the State Revenue Service (Valsts ieņēmumu dienesta Muitas kriminālpārvaldes direktors) and Deputy General Director of the State Revenue Service (Valsts ieņēmumu dienesta ģenerāldirektora vietnieks). In 2002 he had been issued security clearance. In 2007 the SAB reduced the applicant’s security clearance to Category II security clearance. That clearance was reviewed and upheld on average every three months.
12. On 24 July 2008 the director of the SAB took a decision revoking the applicant’s security clearance. That decision was based on section 13(1)(3) and (4) of the Law on State Secrets (see paragraph 22 below).
13. As a result the applicant was dismissed from the position of director of the Customs Criminal Investigation Department of the State Revenue Service, whereas he continued to work in the State Revenue Service as Deputy Director General in the areas of personnel, strategic development and internal audit. Following an internal reorganisation the applicant was appointed director of the Administrative Board of the State Revenue Service. In October 2009, in the context of rotation of civil servants, the applicant accepted a proposal of appointment as Deputy Director of the Tax and Customs Administration Policy Department of the Ministry of Finance.
14. Following the applicant’s complaint about the revocation of his clearance, on 11 September 2008 the Prosecutor General upheld the decision of the director of the SAB. The decision of the Prosecutor General indicated that the applicant’s clearance had been revoked because of facts established during “an inquiry” which constituted grounds for “doubting a person’s reliability and his or her ability to refrain from disclosing State
secrets”. Furthermore, the inquiry had disclosed that in his application to obtain security clearance the applicant had provided false information. The Prosecutor General pointed out that the materials contained in the inquiry case-file were confidential and thus unavailable to the applicant. However, the reply contained a reference to a meeting between the applicant and a staff member of the SAB on 24 July 2008 during which the staff member had heard the applicant’s submissions concerning the facts established during the inquiry. In the course of the inquiry the SAB had also requested information from the Security Police and the Bureau for the Prevention and Combating of Corruption.
15. The applicant then submitted a complaint to the District Administrative Court, requesting it to quash the decision of the Prosecutor General and to declare the de facto actions of the director of the SAB and the Prosecutor General unlawful. By a decision of 25 September 2008 that court refused to uphold the applicant’s complaint on similar grounds to those relied on in the first application (see paragraph 8 above).
16. The proceedings in the administrative courts were terminated by a final decision of the Senate of the Supreme Court on 24 March 2009. The Senate upheld and expanded the reasoning contained in the decisions of the lower courts, relying on the Constitutional Court’s judgment of 23 April 2003 (see paragraph 28 below).
17. The applicant then submitted an application to the Constitutional Court, alleging, inter alia, that sections 9(3)(6) and 11(5) of the Law on State Secrets and paragraph 2.10.6. of the “List of State secret information” (see Domestic law part below) were incompatible with the Constitution.
18. On 13 October 2009 the Constitutional Court refused to initiate proceedings, considering that the question of the constitutionality of section 11(5) had already been decided by that court in its judgment of 23 April 2003 and that the remainder of the applicant’s claims lacked the requisite legal substantiation.
B. Relevant domestic law and practice
1. Law on State Secrets
19. The Law on State Secrets came into force on 1 January 1997. At the time of revocation of the applicants’ security clearance it provided, in so far as relevant, as follows.
20. The criteria for obtaining access to State secrets were contained in section 9. Section 9(3)(6) provided that access could not be granted to any person
“in respect of whom during the course of an inquiry facts have been determined that constitute grounds for doubting his or her reliability and ability to refrain from disclosing State secrets”.
21. Pursuant to sections 11(5) and 13(3) of the Law, an appeal from a decision to revoke special clearance lay to the director of the SAB. The director’s decision could then be appealed to the Prosecutor General, whose decision was final. The Law did not contain any further details concerning the appeal procedure.
22. Section 13 provided for the conditions and consequences of revocation of special permits. Under section 13(1)(3), special permits could be revoked if it had become apparent that the person in question fell into one of the categories listed in section 9(3). Section 13(1)(4) provided that special permits were revoked in respect of persons who had knowingly provided false information about themselves. After revocation the person concerned was to be immediately dismissed or transferred to a position not requiring access to State secrets. Such persons could not obtain security clearance in the future.
2. List of State secret information
23. On 26 October 2004 the Cabinet of Ministers adopted regulations entitled “List of State secret information” (Ministru kabineta 2004. gada 26. oktobra noteikumi Nr. 887 “Valsts noslēpuma objektu saraksts”). Paragraph 2.10.6. of that list designated as “confidential” the “means, methods and inspection measures for special protection ... of State secret information ... (for example, pages of questionnaires)”.
3. Labour Law
24. Section 101(1)(6) of the Labour Law gave employers a right to terminate employment contracts in cases where the employees concerned lacked the professional competence to perform their contractual duties.
4. Law on State Security Establishments
25. Lastly, the internal organisation of the SAB and other security agencies was governed by the Law on State Security Establishments. Section 18(2)(6) of the Law provided that the agencies concerned could not employ persons who had been denied access to State secrets. Section 26(1) provided that the Prosecutor General and prosecutors with particular authorisation were to have a supervisory role over the work of State security agencies (including the system of protection of State secrets). In their supervisory role, the Prosecutor General and the authorised prosecutors had a right to access documents and information in the possession of security agencies.
5. Judgment of the Constitutional Court
26. In a judgment of 23 April 2003 in case no. 2002-20-0103 the Constitutional Court declared, by five to two votes, inter alia, section 11(5) of the Law on State Secrets constitutional. The case originated in an application from an individual who had not been issued with security clearance.
27. The majority of the court observed that the interests of national security required that access to State secrets be granted only to persons whose character references precluded the risk of disclosure of State secrets and that in the NATO member states the threshold of eligibility for security clearance was high. They concluded that such restrictions were necessary in a democratic society and provided a fair balance between the competing interests of the individual and of the community as a whole. The majority conceded, however, that the above restrictions had to be sufficiently substantiated and that the competent authority had to assess the degree of risk in each particular case in order to decide whether to grant clearance or not.
28. The Constitutional Court emphasised that the right of access to a court did not equate to a right to resolve in a court any question of importance to an individual. It further noted that even if the dispute in question was of a nature that in principle fell to be examined in the courts, the right of access to court could nevertheless be curtailed if curtailment served a legitimate aim and the means employed were reasonably proportionate to that aim. In that regard the Constitutional Court held that even though the Prosecutor General could not be considered to be “a court” for the purposes of the right of access to court, nothing in the Law on State Secrets prevented him from implementing certain procedural guarantees in the process of reviewing a refusal to issue security clearance. Furthermore, the court considered that the Prosecutor General had a duty to interpret the applicable provisions in the light of the Constitution and to implement such guarantees. Accordingly, the Constitutional Court considered that section 11(5) of the Law on State Secrets, which, in its opinion, was capable of being applied in a manner compatible with the Constitution, was not contrary to the Constitution. Two judges dissented, considering that in practice the audiatur et altera pars principle was not applied by the Prosecutor General and that in the absence of any procedural guarantees set down in the Law on State Secrets the Prosecutor General’s decision making was inherently arbitrary.
COMPLAINT
29. The applicants complained under Article 6 of the Convention of the inadequacy of the system for disputing a decision to revoke security clearance. They alleged that they had been deprived of the right of access to a court and that the principles of fairness of the proceedings and equality of arms had not been respected.
THE LAW
A. Joinder of the applications
30. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, applications nos. 2631/10 and 12253/10 should be joined, given their similar factual and legal background.
B. Alleged violation of Article 6 of the Convention
31. The applicants complained that the system for disputing a decision to revoke security clearance was inadequate. They alleged that they had been deprived of the right of access to a court and that the principles of fairness of the proceedings and equality of arms had not been respected. They relied on Article 6 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.
1. Arguments of the parties
32. The Government contested that argument. They mainly argued that the applicants’ complaints were incompatible ratione materiae with the provisions of the Convention. In particular, they insisted that the dispute examined by the Regional Court had not concerned the applicant’s “civil rights”, citing the Court’s conclusions in the case of Pellegrin v. France [GC] (no. 28541/95, § 65, ECHR 1999‑VIII).
33. According to the applicants, the State had to observe the right to a fair trial irrespective of whether or not the person worked in the civil service and had a duty to set up a mechanism which would be in accordance with the guarantees of the right to a fair trial and allow litigants to complain of possible violations of their rights.
2. The Court
34. In the light of the Engel criteria (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22), the Court considers that the facts of the present applications do not give grounds for a conclusion that the applicants’ dismissals related to the determination of a criminal charge within the meaning of Article 6 of the Convention. Accordingly, this Article is not applicable under its criminal head.
35. According to the Court’s case-law, for Article 6 § 1 of the Convention to be applicable under its civil limb, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law. The dispute may relate not only to the actual existence of the right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for that right (see, amongst other authorities, Fazliyski v. Bulgaria, no. 40908/05, § 51, 16 April 2013).
36. As concerns the “civil” nature of the right within the meaning of Article 6 § 1 in a dispute raised by civil servants, the Court observes that in its recent judgment in Ternovskis v. Latvia (no. 33637/02, § 48, 29 April 2014) it referred to the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, §§ 50-64, ECHR 2007‑II) in which the criteria deriving from the Pellegrin judgment cited by the Government were developed further. In the Vilho Eskelinen case the Court concluded that two conditions had to be fulfilled in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Article 6. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question, and secondly, the exclusion must be justified on objective grounds in the State’s interest (ibid., § 62).
37. However, the Court notes that in regard to the present two applications the essence of the complaint is the applicants’ inability to challenge in the courts the revocation of security clearance, which was a precondition for the applicants to continue carrying out their current duties as civil servants. The revocation of the clearance in the case of the first applicant resulted in his dismissal and in the case of the second applicant his transfer to another post (see paragraphs 6 and 13 above).
38. The present case should therefore be distinguished from the case of Ternovskis, cited above, where Article 6 § 1 was applicable in relation to civil proceedings in which the applicant sought to challenge the legality of his dismissal from the Border Guard Service owing to the fact that his security clearance had not been granted. In that case it was not argued that the Latvian legislature had excluded access to a court in cases concerning dismissal from service of border guards because the domestic court had examined the applicant’s claim on the merits (see Ternovskis, cited above, § 50). The Court notes that in the case at hand the applicants never brought proceedings challenging either the dismissal from civil service or a transfer to another post (see, mutatis mutandis, Vogt v. Germany, 26 September 1995, § 43, Series A no. 323). Furthermore, the legal situation was clarified after the adoption of the Constitutional Court’s judgment (see paragraph 28 above), which found that the provision of the Law on State Secrets for a review by the Prosecutor General of the decision of a director of the SAB was in compliance with the Constitution. The administrative court seized with the dispute over clearance in the applicants’ case followed the case-law of the Constitutional Court. Even assuming that the applicant had a right under the national law, the Court will nevertheless examine whether Article 6 § 1 is applicable in relation to the domestic proceedings brought by the applicants, and will apply the Vilho Eskelinen test.
39. In relation to the first condition of the test, it is not disputed that in accordance with the domestic law (see paragraph 21 above) the final decision on the revocation of security clearance in both applications was adopted by the Prosecutor General’s Office, which does not qualify as a “court” for the purpose of the first criterion of the Vilho Eskelinen test (see also Ternovskis, cited above, § 72). The exclusion of this category of disputes from the court’s review is explicitly provided by law and demonstrated by the applicants’ unsuccessful attempts to institute administrative proceedings concerning the de facto actions of State authorities (see paragraphs 8, 15-16 above).
40. Accordingly, and even assuming that the applicant had a right under the national law, the Court concludes that the first Vilho Eskelinen criterion was met in that no judicial review is foreseen in case of a negative decision.
41. It must next assess whether the second criterion established in the Vilho Eskelinen case was met, namely, whether the justification was based on objective grounds [for exclusion] in the State’s interest. It is for the State to show that the subject of the dispute in issue is related to the exercise of State power or that it has called into question the “special bond of trust and loyalty” between the civil servant and the State, as employer (see Vilho Eskelinen, cited above, § 62). In applying this condition the Court, inter alia, assesses the nature of the duties carried out (see Cudak v. Lithuania [GC], no. 15869/02, § 44, ECHR 2010).
42. In this connection the Court observes that the first applicant held a post in which he was responsible for intelligence and counter-intelligence tasks, whereas the second applicant held one of the highest posts in the State Revenue Service and was in charge of the Customs Criminal Investigation Department. In this particular case the nature of the duties carried out by the applicants was not merely incidental to the exercise of State power (see, conversely, Sabeh El Leil v. France [GC], no. 34869/05, §39, 29 June 2011). Furthermore, in performing their duties they had to have security clearance and in that respect the State has a wide discretion in establishing the necessary category of security clearance in order to enable the civil servants to perform their particular duties. This reflects the legitimate power of a State to impose on civil servants, on account of their status, a special duty of discretion which is aimed at protecting national security and public order (see Vogt, cited above, §§ 51 and 53). This was also emphasized by the judgment of the Constitutional Court, which observed that it was necessary in a democratic society and provided a fair balance between the competing interests of the individual and of the community as a whole for the State to require that access to State secrets be granted to persons whose character references precluded the risk of divulging State secrets and whose loyalty was not undermined (see paragraph 27 above). Turning back to the two applications here, the Court observes that the duty of discretion imposed on civil servants in the applicants’ cases was impaired in the circumstances on the grounds that during the course of an inquiry facts had been established that constituted grounds for doubting their reliability and ability not to disclose State secrets. The subject matter of the disputes in issue was linked to the very essence of the special duty of discretion that the civil servants owed while at the service of the State. The Court therefore concludes that there was reasonable justification for excluding these disputes from the guarantee of Article 6.
43. It follows that Article 6 is not applicable and the applications are therefore incompatible ratione materiae with the provisions of the Convention and must accordingly be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously
Decides to join the applications nos. 2631/10 and 12253/10;
Declares the applications inadmissible.
Françoise Elens-PassosPäivi Hirvelä
RegistrarPresident
Full & Egal Universal Law Academy