October 23, 2017
By Andrea Preziosi, University of Birmingham
On 19 September 2017, the Grand Chamber of the European Court of Human Rights delivered a controversial judgment concerning the extent of fair trial rights in relation to the withholding of information on grounds of national security.
The case began with an application lodged by Mr Regner, a Czech citizen who had worked for the Ministry of Defence in different high-profile posts and had his security clearance revoked on the basis of information provided by the intelligence service. This information indicated that the applicant was no longer able to keep sensitive information secret, and hence posed a risk to national security if his security clearance were not revoked. The decision did not indicate what facts it was based on, as the information provided by the intelligence service could not legally be disclosed to the applicant. The applicant, whose contract had in the meantime been terminated by mutual consent on health reasons, challenged the revocation decision before the Czech courts. During the proceedings, he and his lawyer were denied the opportunity to consult the documents containing the information about the existence of a security risk, which were however fully disclosed to the judges. Both the Prague Municipal Court and the Supreme Administrative Tribunal dismissed the application, ruling that the decision to revoke the security clearance was not invalid and that the applicant’s procedural rights had been sufficiently respected, given that the judges had full access to the restricted material. The Constitutional Court upheld the decision on the same grounds.
Relying on Article 6 § 1 of the Convention, the applicant complained of the unfairness of the administrative proceedings in which he had been unable to have access to the decisive classified information on the basis of which his security clearance had been revoked. The Fifth Section concluded, by a majority, that there had been no violation of Article 6 § 1 of the Convention. The case was referred to the Grand Chamber upon the applicant’s request.
Judgment of the Grand Chamber
The Grand Chamber preliminarily held that the case concerned a dispute over a civil right within the meaning of Art.6 § 1 of the Convention, hence declaring the application admissible.
With regards to the merits, the Court reiterated that the adversarial principle and the principle of equality of arms are fundamental components of a fair trial. However, recalling its previous case law, the Court stressed that the rights deriving from those principles, including the entitlement to disclosure of evidence, are not absolute; there may be competing interests, such as national security, that may be weighed against the procedural rights of the parties. In particular, when evidence has been withheld from one party on public interest grounds, the role of the Court is to review the decision-making process followed by domestic courts in order to ascertain whether adequate safeguards are in place to guarantee that the procedural rights of the applicant are not undermined in their very essence.
The Court, having regard to the administrative proceedings as a whole, stressed that the confidential report of the security intelligence, despite not being disclosed to the applicant, was however fully disclosed to Czech courts, which had the possibility to thoroughly examine both the reasons put forward by the government for not disclosing the documents and the grounds on which the revocation decision was based. The domestic courts were convinced that a disclosure of the information could have had the effect of revealing the intelligence service’s working methods and the source of information. Therefore, they did not make use of the power of declassifying documents as provided in Czech legislation.
As a result, the Court found that the restrictions to the applicant’s rights were counterbalanced by the power of domestic courts to fully examine the documents before them and therefore the very essence of the protection afforded by the right to a fair trial was not impaired. The Court concluded, by ten votes to seven, that there had been no violation of Article 6 § 1 of the Convention.
The present judgment found the Grand Chamber particularly divided, as demonstrated by the number of dissenting opinions appended.
The judgment relies on one main argument: that the fact that Czech courts had full sight of the confidential documents before them was per se a sufficient guarantee of the fairness of the proceedings to such an extent as to counterbalance the non-disclosure to the applicant and his lawyer.
The preconditions of the Court’s reasoning that the guarantees afforded by Article 6 § 1 of the Convention are not absolute and may give way to competing public interests – provided that some safeguards exist to counterbalance the limitations to the rights of the individual concerned – are well established in the Court’s case-law. It is however the application of those preconditions to the case at stake that may cause some to question the outcome.
Regrettably, the reasoning of the Grand Chamber is based on a misconception of the role of judges in adversarial proceedings. For the Court, it is not fundamental that the applicant had no possibility whatsoever to make submissions on the allegations presented by the Government (since he did not know the content) because the Czech judges were in the position of assessing the relevant evidence on behalf of the applicant. In other words, the Court was satisfied that national courts have played the role of both judges and defence lawyers in respect of assessing the probative force of the undisclosed evidence. Clearly the Court has seen this double role as one of those, “techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice” (Dağtekin and Others v. Turkey, § 34; Chahal v. the United Kingdom, § 131).
Admittedly, it is true that the possibility for Czech courts to have access to confidential information provides some procedural guarantees for the rights of the applicant here, but the question is whether this is sufficient for a trial to be called fair under Article 6. Certainly, the answer in some circumstances would be yes. However, where the justification for adjusting ordinary process is national security, the risk of abuse and arbitrariness is heightened. The Court itself accepted this in Malone v. the United Kingdom: “Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident” (§ 67). In such circumstances, it is worrying that a court could base its decision on an intelligence service’s report that remains undisclosed to the defendant, who has no opportunity to refute the claims within it. A blunt limitation of the principle audi alteram partem (“listen to the other side”) may easily lead judges – even in good faith – to uncritically validate the truthfulness of the documents submitted by one party, especially considering the difficulties that judges acting alone will have in thoroughly assessing evidence based on confidential sources without the other party’s fundamental contribution to the proceedings.
Does this mean that the evidence had to be fully disclosed to the applicant, even if disclosure could have endangered national security? Certainly not. As rightly noted by Judge Serghides in his dissent (§§ 87-93), it is hard to believe that a partial disclosure limited to a summary explanation of the Government’s allegations would have necessarily revealed the investigation techniques of the intelligence service and therefore would have not been possible. A partial disclosure could have been one of those techniques referred to by the Court’s case law as being deployed to strike a more effective balance between the interest of national security and the right to a fair trial. In this case, however, excerpts from the documents were never disclosed to him; nor was a summary of the claims contained therein.
Considering the proceedings as whole, it seems surprising that the Court could find compliance with Article 6. Lastly, the Court did not find a violation in the fact that Czech courts had not provided at least a concise motivation to their decisions in order to avoid a disclosure of confidential information. Ironically, the ECtHR found that
“[…] it would have been desirable – to the extent compatible with the preservation of confidentiality and effectiveness of the investigations concerning the applicant – for the national authorities […] to have explained, if only summarily, the extent of the review they had carried out and the accusations against the applicant” (§ 160).
Is the right to a reasoned decision just “desirable”? It is true that – in line with the “fourth instance” doctrine – it is not the Court’s role to assess whether or not the non-disclosure was strictly necessary, its role being limited to “ascertain[ing] whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused” (Rowe and Davis v United Kingdom, § 62). Nevertheless, one may wonder how the same ECtHR managed to discharge its role to review the decision-making procedure followed by domestic courts that do not explain, at least summarily, the extent of the review they have carried out.
An excessive deference of the Court to the Government’s arguments, together with the reluctance to extensively review the decisions of national authorities in the name of subsidiarity and of a more dialogic approach, has been interpreted by some scholars as implying an appeasement intention towards the Governments and the way they counter threats to security. In this context, the protection afforded by the Convention may be unacceptably hindered. Cases such as the present one demonstrate once again that when national security is at stake the Court should not refrain from carrying out a complex and delicate balancing exercise in order not to unacceptably curtail the right to a fair trial. Regrettably, both Czech courts and eventually the ECtHR have denied effective participation, equality of arms and a reasoned decision to the applicant, who was relegated to the role of a “puppet” during the whole proceedings and left in the dark about the content of the revocation decision.
Andrea Preziosi, LLM, is the Global Challenges PhD Scholar at the School of Law of the University of Birmingham, under the supervision of Prof Fiona de Londras and Dr Natasa Mavronicola. His research on security and fundamental rights is funded by the University of Birmingham Global Challenges Research Fund.
 The Grand Chamber itself seems to imply that the possibility of a partial disclosure existed (§ 153).
 Fenwick H, “Post 9/11 UK Counter-Terrorism Cases in the European Court of Human Rights: a ‘Dialogic’ Approach to Rights Protection or Appeasement of National Authorities?” in Fergal F Davis and Fiona de Londras (eds), Critical Debates on Counter-Terrorism Judicial Review (Cambridge University Press 2014).