THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2631/10
by Andris SPŪLIS
against Latvia
The European Court of Human Rights (Third Section), sitting on 14 December 2010 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 16 December 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Andris Spūlis, is a Latvian national who was born in 1969 and lives in Rīga. He is represented before the Court by Ms A. Dāce, a lawyer practising in Rīga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant served as an inspector of particularly serious matters in one of the Latvian intelligence services, the Constitution Protection Bureau (Satversmes aizsardzības birojs; further – “the SAB”), from 2000. From 1 September 2002 until 5 August 2009 he also worked at the Ministry of Foreign Affairs and was posted as a diplomat to embassies in Belarus and Ukraine. On 29 August 2007 he had been issued the first category clearance for work with state secrets.
4. On 11 July 2008 the director of the SAB invited the applicant to a meeting which was attended by the applicant, the director and two staff members of the SAB. 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 for another meeting. In the course of that second meeting the applicant was accused of having received money or diamonds from a diplomat from a third country on 4 April 2008. According to the applicant, he was threatened that criminal proceedings would be opened against him in connection with the allegedly accepted bribes. He was further threatened with repercussions for his family and with being set up by planting drugs at his home or in his car. On 8 August 2008 the applicant submitted a complaint concerning the received threats to the Office of the Prosecutor General. To his complaint he attached a recording of a telephone conversation with a staff member of the SAB in which the earlier threats against him had been reiterated and confirmed.
5. On 21 August 2008 a prosecutor of the Office of the Prosecutor General replied to the applicant’s complaint about the alleged threats from the officials of the SAB. The prosecutor explained that what had taken place on 11 July had been an extraordinary inquiry into the question of the applicant’s possible unsuitability for a clearance for work with State secrets. According to the prosecutor, the inquiry had been conducted fully in accordance with an instruction of the Cabinet of Ministers (the instruction is confidential and the applicant is not aware of its contents) and the officials of the SAB had not threatened the applicant with any unlawful activities (such as setting him up by planting drugs). Instead, he had been warned of the possible consequences of giving untruthful answers to questions posed during the course of the inquiry. The prosecutor’s reply was upheld by the Prosecutor General on 10 September 2008.
6. On 15 August 2008 the director of the SAB adopted a decision to annul the applicant’s clearance for work with State secrets. That decision was based on sections 9(3)(6) and 13(1)(3) of the Law on State Secrets (see below, paragraphs 11 and 13). The decision referred to “facts established during an inquiry which constitute grounds for doubting your reliability and your ability to preserve a State secret”. On 20 August 2008 the applicant’s employment with the SAB was suspended (atstādināts no darba pienākumu pildīšanas) 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 on the basis of 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 annulment of his 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 to seek a review of the information in the possession of the SAB by a law enforcement agency independent from the SAB, the Prosecutor General pointed out that the Law on State Security Establishments subjected the system of protection of State secrets to the supervision of the Office of the Prosecutor General. Accordingly, that Office was to be considered an authority independent from the SAB.
8. The applicant then addressed 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 accept the applicant’s complaint, holding that the lex specialis with regard to the procedure for annulling security clearance was contained in the Law on State Secrets which provided that decisions in that respect were not subject to control by courts. Considering that the Senate of the Supreme Court on 24 March 2009 had come to identical conclusions in a comparable case, the applicant did not submit an ancillary complaint against the District Administrative Court’s decision of 16 June 2009.
9. On 11 August 2009 the applicant lodged a complaint with the Constitutional Court, alleging unconstitutionality of sections 9(3)(6) and 11(5) of the Law on State Secrets (see below, paragraphs 11 and 12). 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 the same court’s judgment of 23 April 2003 (see below, paragraph 16) and that the claim concerning 9(3)(6) lacked an adequate legal substantiation.
B. Relevant domestic law and practice
1. Law on State Secrets
10. The Law on State Secrets came into force on 1 January 1997. At the time when the applicant’s clearance for work with State secrets was annulled it provided, in so far as is relevant, as follows.
11. The regulation concerning 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 preserve State secrets”.
12. Pursuant to sections 11(5) and 13(3) of the Law a decision to annul a special clearance could be appealed 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 procedure of appeal.
13. Section 13 provided for the conditions and consequences of annulment of special permits. According to section 13(1)(3) special permits could be annulled if it had become apparent that the person in question belonged to one of the categories listed in section 9(3). After annulment the person concerned was to be immediately dismissed or transferred to a position not requiring access to State secrets. Such persons could not obtain clearance for work with State secrets in the future.
2. Labour Law
14. Section 101(1)(6) of the Labour Law gave employers a right to terminate employment contracts in cases when the employees concerned lacked professional competence for performance of their contractual duties.
3. Law on State Security Establishments
15. Lastly, the internal organisation of the SAB as well as 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.
4.Judgment of the Constitutional Court
16. In a judgment of 23 April 2003 in a case No. 2002-20-0103 the Constitutional Court by five to two votes declared, 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 a clearance for work with State secrets. The majority of the court emphasised that the right of access to a court did not equal a right to resolve in a court any question of importance to an individual. It was furthermore noted that even if the dispute in question was of such nature that in principle fell to be examined in courts, the right of access to court could nevertheless be curtailed if there existed legitimate aim to be achieved by the curtailment and if the means employed were in a reasonable relationship of proportionality with that aim. In that regard the Constitutional Court held that even though the Prosecutor General could not be considered to be “a court” within the meaning of the right of access to court, nothing in the Law on State Secrets prevented him from implementing a certain degree of procedural guarantees in the process of reviewing a refusal to issue a security clearance for work with State secrets. What is more, the court considered that the Prosecutor General had a duty to interpret the applicable provisions in the light of the Constitution and to implement certain procedural guarantees. As a result, the Constitutional Court considered that the 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. The two dissenting judges in their opinions considered that in practice the audiatur et altera pars principle was not being 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.
COMPLAINTS
17. The applicant complains under Articles 6 § 1 and 13 of the Convention that the inquiry concerning his alleged wrongdoings had been carried out in contravention of the applicable law. Since he had not been informed of the nature of any suspicion against him, he was unable to fully utilise his right to appeal against the annulment of his security clearance, since neither the decision of the director of the SAB nor that of the Prosecutor General had been adequately motivated. The applicant’s right to work in positions requiring clearance for work with State secrets in the future was annulled without a court order, only on the basis of decisions of the director of the SAB and the Prosecutor General.
18. With a reference to the same articles of the Convention, the applicant complains that the Office of the Prosecutor General had not adequately reacted to his complaint about the threats that emanated from the SAB on 11 July 2008 and that the potential impact of those threats on the impartiality of the SAB when carrying out an inquiry concerning the applicant’s security clearance was not given any assessment.
THE LAW
19. The Court deems it appropriate to consider the applicant’s complaints concerning the alleged inadequacy of the proceedings pursued by him with regard to disputing the annulment of his clearance for work with State secrets under Article 6 § 1 of the Convention, which provides, in so far as is relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
20. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.
21. The applicant further complained about the events of 11 July 2008 and the adequacy of the reaction of the Office of the Prosecutor General to his complaints in that regard. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant’s complaints in that regard do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the alleged inadequacy of the proceedings pursued by him with regard to disputing the annulment of his clearance for work with State secrets;
Declares the remainder of the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy