Concealment of basic case information, classified as confidential! Violation of a fair trial
JUDGMENT
Corneliu Corneschi v. Romania 11.01.2022 ( app. no. 21609/16)
SUMMARY
Access to litigation documents, compensatory factors in case of court denial of access to documents for reasons of national security and right to a fair trial.
The applicant was prosecuted for various misdemeanors while serving in the State Intelligence Service, his license was revoked and he was dismissed from the service. Throughout the criminal proceedings, he could not access essential documents, which were not included in the case file, in order to study and be informed, due to the fact that the documents were classified as confidential. He brought an action for violation of a fair trial.
The Court reiterated that the rights under Article 6 § 1 are not absolute and include the right of free access to evidence. In criminal matters, it found that competing interests such as national security or the need to protect witnesses at risk of retaliation or to maintain secret police methods of investigating crime must be weighed against the rights of the party in the proceedings.
In the present case, the ECtHR found that the national courts had not sufficiently substantiated the national security reasons for not disclosing evidence to the applicant. His lawyer was not in a position to establish charges against his applicant client, nor was he in a position to ensure his effective defense, so that he could adequately compensate for the restrictions which affected him in the performance of his defense duties.
The ECtHR subsequently held that the restrictions imposed on the applicant’s rights in the adversarial proceedings and on equality of arms had not been offset in the internal proceedings and had therefore violated the fair trial.
The Court found a violation of the fair trial (Article 6 par. 1 of the ECHR) and awarded 6,000 euros for non-pecuniary damage and 2,700 euros for costs.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Corneliu Corneschi, is a Romanian national who was born in 1970 and lives in
Botoșani (Romania).
Mr Corneschi had been an officer with the Romanian Intelligence Service (Serviciul român de
informaţii) since 1994. The case concerns the decision to remove his security clearance following
criminal proceedings against him for various non-violent crimes, for which he had ultimately not
been indicted. It also concerns his subsequent sacking.
Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicant complains, in particular, that the proceedings in which his security clearance was
withdrawn and the decision to dismiss him were unfair, as the courts refused him access to the
decisive, classified evidence.
THE DECISION OF THE COURT…
(a) General principles
In the present case, the applicant challenged the revocation of his security clearance on the ground that neither he nor his lawyer had access to the case file or the decision to revoke his security clearance, in so far as it was based on the criminal prosecution against him. The Court has considered the procedure as a whole in order to determine whether restrictions on the principles of competition and equality of arms were adequately offset by other guarantees. Reiterating that the rights under Article 6 § 1 are not absolute and that the Contracting States enjoy a margin of appreciation in this area, the Court has emphasized that the right of free access to evidence is also not an absolute right. In the criminal context, the Court has found that competing interests such as national security or the need to protect witnesses at risk of retaliation or to maintain secret police crime investigation methods must be weighed against the rights of the party in the proceedings.
Finally, the Court emphasized the desirability of the national courts in explaining, albeit briefly, the extent of their review of the charges against the applicant.
In the present case, the national courts applied the relevant legal provisions and ruled from the outset that the applicant could not access essential documents in the file because the documents were confidential. Domestic law, moreover, did not allow the courts to examine of their own motion whether the maintenance of national security required, in a given case, the non-disclosure of evidence or whether the concealment of such information was justified. In addition, they themselves were not responsible for declassifying the confidential data and information made available to them. They could only request from the competent authority the declassification of these documents in order to place them in the file for study by the interested party, according to article 24 of law 182/2002 and article 20 of law 585/2002. In that regard, the courts rejected the applicant’s request that the key elements be declassified, arguing that the confidentiality of this information prevented their dissemination, which would have an impact on “the lawful actions of certain public an entire community ‘, taking into account the actions taken against the applicant and the consequences for the public of that declassification. However, in the absence of any indication as to the precise acts committed against the applicant or the precise actions of “certain public institutions”, or at least what “private or public interests” were actually involved, the Court noted the ambiguity of the national courts referring to any specific national security justification for not showing evidence in the applicant’s file. It could therefore only conclude that the genuine national security reasons which, in the opinion of the authorities, precluded the disclosure of confidential evidence and information concerning the applicant were not in the least justified by the national courts.
The Court also notes that, according to the Government, the applicant had access to the entire file, except for the confidential information that he had nevertheless been informed of the legal reasons governing the decisions taken against him, which indicated certain facts and , therefore, the substance of the case against him, that he had the right to be represented by a lawyer holding an ORNISS certificate, an opportunity which he did not use last and most importantly, that high-level impartial and independent courts had conducted the proceedings and decided on the necessity and the merits of the measures taken against him, in the light of confidential documents.
To the extent that the criminal case against the applicant was finally filed due to lack of evidence, the Supreme Court concluded that the alleged criminal acts were irrelevant to the revocation of the security clearance. The Court therefore did not include any reference to that criminal case in its assessment of whether sufficient information was provided to the applicant.
Referring to exactly what was stated to the applicant as to the substantive allegations, the Court noted that the Government considered that he had either ‘intentionally falsified, misinterpreted or falsified national security information’ or that he had ‘falsely stated in the application form or the duration of the interview for obtaining a security clearance “and that he had” manifested infidelity, dishonesty, lack of discretion or moral dignity “. The Court therefore held that the national authorities had never brought specific charges against the applicant throughout the proceedings challenged by him.
The Court further found that, since no specific information was ever provided to the applicant in court proceedings, this is not a factor which can compensate for the restriction of his procedural rights. The Court therefore had to continue its examination to determine whether other guarantees in favor of the applicant had entered into force. Indeed, the extensive restriction of specific information implies the need for appropriate compensatory safeguards. In the present case, the Court could not have disregarded the applicant’s argument, which was not expressly disputed by the Government, that, in the absence of any possibility, an ORNISS lawyer would disclose the confidential information to his client and actually request it. explanation, any defense, even from an ORNISS lawyer, would be ineffective, as it would be very vague and could not be related to factual events or behavior. The applicant’s lawyer (whether or not holding an ORNISS certificate) before the national courts, without any possibility of establishing charges against his client, was unable to secure his effective defense in order to substantially offset the restrictions which affected him in the conduct of the proceedings.
The Court also observed from the outset that the proceedings in the present case were of a judicial nature and that they had been conducted before national courts enjoying the required independence within the meaning of the case-law of the Court, a question which had not been referred to the applicant. In addition, the national courts’ approach to the relevance of the criminal proceedings against the applicant to the measures challenged by it was variable and contradictory. All of the above, culminating in the courts’ lack of reasoning for rejecting the applicant’s claims, made it difficult for the Court to assess the actual degree of scrutiny exercised by these independent authorities to verify the truth and reliability of the facts submitted by the Government. . In fact, in the absence of a detailed explanation, it cannot be regarded as sufficiently substantiated that in the present case the national courts have sufficiently exercised the powers conferred on them for that purpose.
In view of the above findings in the whole proceedings and in the light of the discretion afforded to States in such matters, the Court found that the restrictions imposed on the applicant’s rights in the adversarial proceedings and on equality of arms were not offset by the internal proceedings in such a way as to preserve the very essence of his right to a fair trial.
The ECtHR found a violation of a fair trial (Article 6 § 1 of the ECHR).
Just satisfaction: The Court awarded € 6,000 for non-pecuniary damage and € 2,700 for costs and expenses (edited by echrcaselaw.com).
