CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 19 septembre 2017

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color:#1f497d } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       GRAND CHAMBER               CASE OF REGNER v. THE CZECH REPUBLIC   (Application no. 35289/11)                     JUDGMENT     STRASBOURG   19 September 2017         This judgment is final but it may be subject to editorial revision.   In the case of Regner v. the Czech Republic, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Linos-Alexandre Sicilianos   Robert Spano Mirjana Lazarova Trajkovska Khanlar Hajiyev Luis López Guerra András Sajó Işıl Karakaş Erik Møse Aleš Pejchal Krzysztof Wojtyczek Egidijus Kūris Mārtiņš Mits Georges Ravarani Pere Pastor Vilanova Alena Poláčková Georgios Serghides, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 19 October 2016 and on 10   May   2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 35289/11) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Václav Regner (“the applicant”), on 25 May 2011. 2.     The applicant was represented by Mr L. Trojan, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice. 3.     Relying on Article 6 § 1 of the Convention, the applicant complained of the unfairness of administrative proceedings in which he had been unable to have sight of decisive evidence regarded as classified information and made available to the courts by the defendant. 4.     On 6 January 2014 the President of the former Fifth Section, to which the application had been allocated (Rule 52 § 1 of the Rules of Court) decided to communicate it to the Government. On 26 November 2015 a   Chamber of that Section composed of Angelika Nuβberger, President, Boštjan Zupančič, Ganna Yudkivska, Vincent De Gaetano, André Potocki, Helena Jäderblom and Aleš Pejchal, judges, and Milan Blaško, Deputy Section Registrar, delivered its judgment in which it unanimously declared the application admissible and concluded, by a   majority, that there had been no violation of Article 6 § 1 of the Convention. The partly dissenting opinion of Judge Jäderblom and the concurring opinion of Judge Pejchal were annexed to the judgment. 5.     On 11 February 2016 the applicant requested, in accordance with Article 43 of the Convention, the referral of the case to the Grand Chamber. On 2   May   2016 the panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed supplementary written observations (Rule 59 § 1) on the merits of the case. Observations were also received from the Government of the Slovak Republic, which had been given leave by the President to intervene in the written procedure (Article   36 § 2 of the Convention and Rule 44   §   3). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 19 October 2016 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mr   V.A. Schorm ,   Agent , Mr   V. Pysk , Office of the Government Agent,   Ministry of Justice, Mrs   L. Zahradnická , Office of the Government Agent,   Ministry of Justice, Mrs   H. Bončková ,   Advisers ; (b)     for the applicant Mr   M. Bilej ,   Counsel , Mrs   D. Káňová , Mrs   A. Kukrálová ,   Advisers .   The Court heard addresses by Mr Bilej and Mr Schorm and replies to the questions from the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1962 and lives in Prague. 10.     On the basis of a contract signed on 2 November 2004 and governed by the provisions of the Labour Code, the applicant became an employee of the Ministry of Defence. 11 .     On 27 December 2004, the Ministry’s authorised representative requested the National Security Authority ( Národní bezpečnostní úřad – “the Authority”) to issue the applicant with security clearance ( osvědčení ) giving him access to State classified information in the “secret” category ( tajné ) in accordance with the duties to be carried out by him. 12.     On 1 January 2005 the applicant took up his duties as director of the Department of administration of the Ministry’s property ( Sekce správy majetku Ministerstva obrany ). 13.     On 19 July 2005 the Authority issued the applicant with security clearance, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category. 14 .     During the year 2006 the applicant was appointed deputy to the first Vice-Minister of Defence ( zástupce Prvního náměstka ministra obrany ), while continuing to carry out his duties as director of the Department of administration of the Ministry’s property. 15 .     On 7 October 2005 the Authority received confidential information from the intelligence service, classified “restricted” ( vyhrazené ) and dated 5   October 2005. It started an investigation in order to verify the information received. In the course of that investigation the intelligence service provided the Authority with other information, dated 21   March 2006, classified “restricted” and annexed to the security file ( bezpečnostní spis ) under number 77. On the basis of that information the Authority revoked the security clearance on 5 September 2006. There were two unrelated reasons for that decision: firstly, the applicant had failed to indicate, as he should have done when applying for security clearance, that he held directorships in a number of companies and accounts in foreign banks; and secondly, the applicant was considered to pose a national security risk, within the meaning of section 14(3)(d) of Law no.   412/2005. With regard to that risk, the decision did not however indicate which confidential information it was based on, as this was classified “restricted” and could not therefore legally be disclosed to the applicant. The decision indicated that the facts established in respect of his conduct, as documented in the information received by the Authority on 7   October 2005, cast doubt on his suitability for security clearance and his ability not to be influenced and to keep sensitive information secret, and thus indicated that he was no   longer trustworthy. 16.     On an administrative appeal ( rozklad ) by the applicant, the director of the Authority, after obtaining an opinion from the appeals board, confirmed on 18   December 2006 the Authority’s decision of 5   September   2006, but on partly different grounds. He dismissed as unfounded the complaint that the applicant had failed to disclose certain information prior to being issued with security clearance. However, he agreed with the Authority’s conclusions regarding the existence of a   security risk, which had transpired from the investigation carried out by the Authority and from the classified documents. 17.     In the meantime, on 4 October 2006, the applicant had asked to be discharged, for health reasons, from his duties as deputy to the first Vice-Minister of Defence, and from those of director of the Department of administration of the Ministry’s property. He was removed from office on the same day under Article   65 § 2 of the Labour Code (see paragraph 26 below). On   20   October 2006 he signed an agreement, under Article 43 of the Labour Code, terminating his contract by mutual consent with effect from 31   January 2007. 18.     On 19 January 2007 the applicant lodged an application with the Prague Municipal Court ( městský soud ) for judicial review of the decision revoking his security clearance. He and his lawyer were permitted to consult the file, but the parts classified as confidential were excluded. However, the documents containing information about the existence of a risk, including the confidential documents, had been sent by the Authority to the court, which had access to them. At the public hearing the applicant was given the opportunity to make his submissions and to state what he thought were the reasons for revoking his security clearance. He stated that he believed the information in question had been provided by a military intelligence service which had sought to take revenge on him for his refusal to accept a proposal to co-operate in a manner exceeding his statutory obligations. 19.     In a judgment of 1 September 2009 the court dismissed the application for judicial review. It observed that in a procedure revoking security clearance the relevant authority could only disclose reasons for revoking clearance that were based on non-classified documents and that as regards grounds based on classified documents it had to confine itself to referring to the relevant documents and their level of confidentiality. It   found that the approach taken by the Authority, which had not disclosed to the applicant the contents of the information on the basis of which the security clearance had been revoked, had not been illegal as disclosure of such information was prohibited by law. It added that the applicant’s rights had been sufficiently respected because the court had power to obtain knowledge of the classified information and assess whether it justified the decision taken by the Authority. 20 .     In a judgment of 15 July 2010 the Supreme Administrative Court ( Nejvyšší správní soud ) dismissed an appeal on points of law ( kasační stížnost ) lodged by the applicant as unfounded. It considered that the classified documents in question had shown beyond any doubt that the applicant did not satisfy the statutory conditions to be entrusted with secret information. It observed that the risk in his regard concerned his conduct, which affected his credibility and his ability to keep information secret. The   Supreme Administrative Court added that disclosure of the classified information could have entailed the disclosure of the intelligence service’s working methods, the revelation of its information sources or the risk of influencing possible witnesses. It explained that there was a statutory prohibition on indicating where exactly the security risk lay and on specifying the considerations underlying the conclusion that such a risk existed, the reasons and considerations underlying the Authority’s decision being based exclusively on classified information. Accordingly, the reasons for the decision had to be limited to a reference to the documents on which it was based and the level of confidentiality of the information used. It went on to observe that, owing to the special nature of proceedings where classified information was concerned, not all the applicant’s procedural rights could be guaranteed but that the non-disclosure of the exact reasons underlying the decision to revoke security clearance was counterbalanced by the guarantee that the administrative courts had unlimited access to the classified documents. The Supreme Administrative Court pointed out that the report on the result of the investigations carried out by the intelligence service, included in the file under no. 77, contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service. 21.     On 25   October 2010 the applicant lodged a complaint with the Constitutional Court ( Ústavní soud ), complaining of the unfairness of the proceedings. In a judgment of 18 November 2010 the court dismissed his complaint as manifestly ill-founded. Referring to its earlier case-law on the subject, it observed that given the special nature and the importance of decisions adopted in respect of classified information where national security interests were manifest, it was not always possible to apply all the guarantees relating to fairness of proceedings. It considered that in the present case the courts’ conduct had been duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution; that they had not departed from procedural standards and constitutional rules to an inordinate degree; and that the Constitutional Court was not therefore required to intervene in their decision-making procedure. 22 .     On 16 March 2011 the prosecution service lodged a bill of indictment against the applicant and 51 other persons on charges of influencing the award of public contracts at the Ministry of Defence from 2005 to 2007. The applicant was indicted for participation in organised crime ( účast na zločinném spolčení ); aiding and abetting abuse of public power ( pomoc k trestnému činu zneužívání pravomoci veřejného činitele ); complicity in illegally influencing public tendering and public procurement procedures ( pomoc k trestnému činu pletich při veřejné soutěži a veřejné dražbě ); and aiding and abetting breaches of binding rules governing economic relations ( pomoc k trestnému činu porušování závazných pravidel hospodářského styku ). In a judgment of 25   March   2014 the České Budějovice Regional Court ( krajský soud ) found the applicant guilty and sentenced him, inter alia , to three years’ imprisonment. In a judgment of 27   May 2016 the Prague High Court ( Vrchní soud ) upheld the first-instance judgment convicting the applicant, but suspended execution of his prison sentence for a two-year probationary period. That judgment became final. II.     RELEVANT DOMESTIC LAW A.     The Charter of fundamental rights and freedoms (Law   no.   2/1993) 23.     By virtue of Article 26 § 2 of the Charter ( Listina základních práv a svobod ), which has the rank of constitutional law, the right to exercise certain professions or activities may be subject to certain conditions or restrictions. B.     Legislation governing the status of public servants and labour law 24.     The Czech State Civil Service was codified for the first time by the Civil Service Act ( zákon o státní službě ) (Law no. 234/2014), which came into force on 1   January 2015. Although, in 2002, Parliament had passed Law no.   218/2002 on State employees in administration offices and their remuneration and that of other employees in the administration (Service Act), that Act had never come into force and was replaced by the aforementioned Act (Law no.   234/2014). 25.     Accordingly, State employees recruited prior to the entry into force of the Civil Service Act were in a private-law relationship with their employer, governed by the Labour Code (Law no.   65/1965, in force until 31   December 2006), with no special status. 26 .     Article 65 § 2 of the Labour Code provides that employees appointed or elected to a post may be removed from office or relinquish their duties. Under Article 65 § 3, removal from office or relinquishment of duties does not have the effect of terminating employment and the employer will reach an agreement with the employee regarding a   future appointment corresponding to his or her qualifications. 27.     The exhaustive list of grounds on which an employee may be dismissed with notice or with immediate effect can be found in Articles   46   and 53 of the Labour Code respectively. 28.     Article 64 of the Labour Code provides that an employee may bring legal proceedings challenging the lawfulness of his or her dismissal within two months of that dismissal. C.     Protection of Classified Information Act (Law no.   148/1998) 29.     Security clearance was issued to the applicant under the Protection of Classified Information Act (Law no.   148/1998 – “the 1998 Act”) ( zákon o ochraně utajovaných skutečností ). 30 .     Section 17 of that Act, which was repealed by Law no.   413/2005 on the amendment of laws in the framework of the enactment of the law on the protection of State classified information and access thereto ( zákon o změně zákonů v souvislosti s přijetím zákona o ochraně utajovaných informací a   o   bezpečnostní způsobilosti ), provided, in particular, that an individual could only have sight of classified information where he or she needed that information in order to carry out his or her activities and was in possession of security clearance, possession of which constituted a prerequisite for exercising a profession that required knowledge of classified information. 31.     Section 7(1) of the 1998 Act set up the National Security Authority. 32.     By virtue of section 41, an employee’s immediate superior could request the Authority to issue security clearance to his or her employee. 33.     Section 5 classified the data as “restricted” ( vyhrazené) , “confidential” ( tajné ), “secret” ( důvěrné ) or “top secret” ( přísně tajné ) information. 34.     Anyone seeking to obtain security clearance for one of those categories of information had to be a Czech citizen, of full legal capacity, an adult, of irreproachable character, and trustworthy both in terms of personality and from the point of view of national security. A   person who had been convicted of a criminal offence related to the protection of State, economic or professional secrets was regarded as untrustworthy. Furthermore, the law regarded as untrustworthy anyone who, following psychological vetting, had character traits, attitudes or personal relations capable of casting doubt on his or her ability to keep secrets. 35.     At the relevant time the 1998 Act did not provide for any judicial review of decisions refusing to grant security clearance. D.     Law no.   412/2005 on the protection of State classified information and access thereto (version in force until 23   May   2007) 36.     Law no.   412/2005 on the protection of classified information and suitability for security clearance ( zákon o ochraně utajovaných informacích a o bezpečnostní způsobilosti ) and Law no. 413/2005, amending Law   no.   148/1998, came into force on 1 January 2006. The conditions for issuing security clearance were identical to those contained in the earlier Act, but with a slight difference in definition. 37.     Under section 4, State classified information was divided into the following categories: a) “top secret”, where disclosure to an unauthorised person or unlawful use could very seriously harm the interests of the Czech Republic; b) “secret”, where disclosure to an unauthorised person or unlawful use could seriously harm the interests of the Czech Republic; c)   “confidential”, where disclosure to an unauthorised person or unlawful use could harm the interests of the Czech Republic; and d) “restricted”, where disclosure to an unauthorised person or unlawful use could be disadvantageous for the interests of the Czech Republic. In respect of the latter category, section 3(5) provided that the disclosure of classified information to an unauthorised person or unlawful use thereof could be disadvantageous for the Czech Republic if it was liable to a)     disrupt the activities of the armed forces of the Czech Republic, NATO or one of its Member States or a Member State of the EU; b)     thwart, complicate or endanger an investigation into criminal offences other than particularly serious offences, or facilitate the perpetration thereof; c)     adversely affect major economic interests of the Czech Republic or the EU or one of its Member States; d)     disrupt major commercial or political negotiations between the Czech Republic and a foreign power; or e)     disrupt security or intelligence operations. 38 .     Sections 6 to 10 of the Law defined the conditions of access of individuals to classified information in the “restricted” category. Under section 6(1), an individual could be granted access to such classified information where absolutely necessary in order to carry out his or her function, professional or other activities, provided that he or she obtained a   document ( oznámení ) certifying that he or she satisfied the conditions for access to classified information in the “restricted” category. That document was issued either by the individual’s hierarchical superior or the National Security Authority according to the case in question. 39.     Sections 11-14 of the Law defined the conditions of access of individuals to classified information in the “top secret”, “secret” and “confidential” categories (which were stricter than for access to information in the “restricted” category). 40 .     Under section 11(1), an individual could be granted access to such classified information where absolutely necessary in order to carry out his or her function, or professional or other activities, provided that he or she had obtained valid security clearance for the necessary category of information and had received appropriate instructions. 41.     Section 12(1) defined the conditions for granting security clearance to an individual as follows:   “The Authority shall issue security clearance to individuals who a)     are nationals of the Czech Republic, of a Member State of the EU or of NATO; b)     satisfy the conditions laid down in section 6(2) [full legal capacity, aged 18 or over, no criminal record]; c)     are of trustworthy character; d)     are trustworthy from the point of view of national security.” 42.     Pursuant to section 12(2), the individual in question had to satisfy the conditions laid down in 12(1) throughout the entire period of validity of the security clearance. 43.     Section 13(1) provided that an individual could be deemed to be of trustworthy character if he or she did not suffer from a disorder liable to adversely affect his or her trustworthiness or ability to keep information secret. In accordance with section 13(2), this was to be certified by a   statement that the individual concerned was of trustworthy character and, where required by law, also by an expert report. 44.     Section 14(1) provided that anyone who did not pose a security risk was deemed trustworthy from the point of view of national security. Under section 14(2), the following were deemed to pose a national security risk: a)     any serious or recurrent activity contrary to the interests of the Czech Republic, or b)     any activity consisting in suppressing fundamental rights and freedoms, or supporting any such activity. 45.     Section 14(3) listed the factors which could be deemed to pose a   national security risk. Under letter (d), this could be conduct which affected a person’s trustworthiness and ability not to be influenced and to keep information secret. 46.     Under section 58(1)(e), taken in conjunction with sub-section 2, from the date of their appointment and throughout the exercise of their functions, and in so far as necessary for the exercise thereof, all judges had access to all categories of classified information, even where they did not have security clearance for individuals. 47.     Law no.   412/2005 introduced a new section IV, entitled “Security vetting procedure” ( bezpečnostní řízení ), which applies to the procedure for both issuing and revoking security clearance, and is divided into two phases: the administrative stage and the judicial stage. The fourth chapter is devoted more particularly to the judicial stage. 48.     Under section 89(7), a party to the vetting procedure for issuing or revoking security clearance and his or her representative are entitled, prior to adoption of the decision, to consult the file and make notes, except for the documents containing classified information. 49.     Pursuant to section 101(1), the Authority must bring proceedings to revoke security clearance in respect of anyone who can reasonably be suspected of no longer satisfying the conditions for issuing the relevant public certificate. In accordance with section 101(2), the Authority will revoke security clearance in respect of anyone who no longer satisfies those conditions. 50 .     Section 107(4) provides that the intelligence services shall, at the Authority’s request, submit a report on the results of the investigation carried out by them. 51.     Section 122(3) provides that the reasons given in a decision taken under the Act must state the grounds for adopting the decision, the evidence on which the decision is based and the reasoning adopted by the Authority when assessing that evidence and applying the regulations. Where some of the reasons constitute classified information, the decision must contain only a reference to the evidence on which it is based and the degree of confidentiality. The reasoning adopted by the Authority in support of its assessment and the reasons for adopting the decision must only be referred to in so far as they do not constitute classified information. 52 .     Under section 133(1), judicial review may be sought of the director of the Authority’s decision. Section 133(2) provides that on a judicial review the court will take the evidence in such a way as to comply with the duty to protect the confidentiality of the information yielded as a result of the investigation or contained in the records of the intelligence services or the police. The information in question cannot be examined at a hearing unless the person bound by the duty of confidentiality is exempted from that duty. An exemption cannot be granted where this may endanger or seriously compromise the activity of the intelligence services or the police. This also applies to evidence taken other than at a hearing. 53 .     In accordance with section 133(3), the Authority specifies the information referred to in sub-section 2 which, in its view, cannot be the subject of an exemption from the duty of confidentiality. Where there is a   risk of endangering or seriously compromising the activity of the intelligence services or the police, the president of the chamber dealing with the case will decide that the parts of the file having a connection with that information shall be excluded; those parts of the file cannot be consulted by the person seeking judicial review or his or her representative. E.     The Code of Administrative Justice (Law no.   150/2002) 54.     In accordance with Article 45   § 3 of the Code of Administrative Justice, whenever a document is filed the administrative authority always indicates the parts of the document that contain classified information. The president of the chamber excludes these parts from consultation. This provision applies, mutatis mutandis , to court files. Under Article 45 § 4, however, consultation of the parts of the file to be used as evidence in court cannot be prohibited. Nor is it possible to prohibit consultation of the parts of the file which a party to the dispute had been authorised to consult before the administrative authority. 55 .     Pursuant to Article 45 § 6, prior to consultation of the file the president of the chamber must inform anyone needing to consult a file containing classified information, as provided for by a special law, of the criminal consequences of breaching the confidentiality of that information. By signing a document certifying that he or she has been informed accordingly, the person thus warned becomes a “designated person”, having a need to know the classified information in question. 56 .     Under Article 77 § 2, subject to a contrary provision in a special law on the scope and method of taking evidence, the courts may re-examine the evidence or, in this context, request evidence in addition to that previously produced by the administrative authority. III.     RELEVANT DOMESTIC PRACTICE 57 .     Law no.   148/1998 and Law no.   412/2005 have given rise to major developments in the case-law. 58 .     On 12 July 2001 the Constitutional Court, sitting in plenary, adopted judgment no. Pl. ÚS 11/2000 on Law no.   148/1998 which in principle prohibited the Authority from communicating to the person concerned the reasons for not issuing security clearance. While acknowledging the legitimate interests of the State in keeping certain information and investigation methods secret, the Constitutional Court nevertheless held that even in those specific cases it was not possible to waive the protection of the individual’s fundamental rights. It concluded that it was incumbent on the legislature to enact new legislation providing an appropriate means of reflecting and reconciling private interests and the general interest. 59 .     The Supreme Administrative Court, in judgment no.   6   As   14/2006 of 31 January 2007, and subsequently the Constitutional Court, in judgment no. II. ÚS 377/04 of 6 September 2007, while observing that the granting of security clearance was an “extraordinary privilege”, considered that the decisions taken by the authorities in this area were amenable to judicial review. They did, however, find that it was “certainly not possible to oblige the Authority, on the pretext of fully respecting the procedural rights of a   party to the proceedings, to refer in its decisions to facts which could endanger the State’s interests, the effectiveness of the work of the intelligence services or the police, or the security of their staff or third parties” and held as follows: “extra special care should be taken to ensure that these aims are not pursued to the detriment of the principles of the rule of law or of the individual’s fundamental rights. According to the Constitutional Court’s case-law ... on a review of a decision having the direct consequence of limiting the possibility of holding a particular post, the public interest in confidentiality cannot justify excluding that decision from the scope of ... Article 6 § 1 of the Convention guaranteeing the right to judicial protection”. 60.     In judgment no.   I.   ÚS   828/09 of 22 September 2009 the Constitutional Court observed, in particular, that the right to freely choose one’s profession did not include the right to obtain security clearance or the right to practise a specific profession, the exercise of which was moreover strictly limited in the interests of the State. It   rejected the complainant’s argument that a decision revoking security clearance for the “secret” category had infringed his fundamental right to freely choose his profession, within the meaning of Article 26 of the Charter. It observed that that right could be construed not as enshrining everyone’s right to a specific profession but only the right to choose the profession one wished to practise. It added that in order to enter into a   particular employment relationship or to carry on a specific independent activity, the person concerned had to satisfy the detailed statutory conditions for exercising that profession or activity, in accordance with Article 26 § 2 of the Charter. 61.     In judgment no. 5 As 44/2006 of 30 January 2009 the Supreme Administrative Court held that, in interpreting the expression “risk for national security”, the evidence gathered had to be examined in the light of a possible security risk. Thus, a mere suspicion of a national security risk sufficed to conclude that the person concerned was not trustworthy from a   national security point of view. 62.     The Supreme Administrative Court also referred to the connection between holding a   particular post and issuing security clearance. Referring to the drafting history of the Law, it observed that access to classified information must only be granted to persons necessarily requiring access for the purposes of exercising their profession or function. That was also the position taken by the Constitutional Court, which, in judgment no.   I.   ÚS   828/09 of 22   September 2009, held that it was not possible to infer from the right to freely choose one’s profession the right to obtain security clearance, which was neither guaranteed by the Charter of Fundamental Rights and Freedoms nor by the instruments of infra-constitutional rank. 63 .     A judgment delivered by the seventh chamber of the Supreme Administrative Court on 9 April 2009 (no. 7 As 5/2008) stated, among other things, that in the particular area in question, where the authorities decided not to disclose to the interested party the specific factual reasons for which he or she was considered untrustworthy from a security point of view, they were nonetheless obliged, in order for their decision to stand up to a judicial review, to make it entirely possible for those reasons to be verified – particularly as to the facts – by a court. In its view, this meant that the information underlying the relevant decision had to be included in the National Security Authority’s file and that the court had to re-examine of its own motion the relevance thereof. The judgment added that accordingly the   National Security Authority could only base its conclusions on the information included in the file. By using the term   “information”, the judgment in question indicated fairly clearly that the file submitted by the National Security Authority necessarily had to include all the information that had served as a basis for an administrative decision, and thus even their sources, but remained silent as to verification of the authenticity and veracity of those sources. 64 .     In a subsequent judgment, of 25 November 2011 (no.   7   As   31/2011), the seventh chamber of the Supreme Administrative Court examined the question of the veracity of the information and its sources. It referred expressis verbis to the judgment delivered in respect of the applicant, stating that in that case the court had not mentioned the specific information on which it had based its decision on grounds of an interest in concealing that information, which meant that the party concerned, not having been advised of its contents, could not make informed submissions on the relevance of the circumstances observed. It concluded that in such a situation the court had to step into the applicant’s shoes and review the relevance of the classified information from every standpoint that appeared to be a priori important for deciding the dispute. The judgment acknowledged that the administrative courts could not examine the authenticity and veracity of the documents and information provided by the intelligence service and that this was an exception to the ordinary powers of the administrative courts in assessing the evidence produced before them. It added that, with regard to information received from the intelligence service, absolute certainty and truth were not required and it was sufficient that the conclusions drawn from the facts set out in the information thus provided constituted the most plausible explanation. It added that this did not mean that the court was thus deprived of the possibility of examining the credibility and force of the information provided by the intelligence service, pointing out that the reports drawn up by the intelligence service should not be limited to reflecting the opinion of their authors without it being possible for the courts to verify the relevant facts set out in the file. 65 .     In a judgment of 30 September 2015 (no. 1 As 146/2015), the Supreme Administrative Court observed, inter alia , that, according to the provisions of section 133 of Law no.   412/2005, the court (the president of the chamber) had the task of deciding whether to remove a document from the file, on condition that it had concluded that the statutory conditions allowing the exclusion of certain information and restriction of access thereto were satisfied. It stated that, in providing thus, Law   no.   412/2005   did not associate the application of the procedure provided for in section 133(3) only with information classified at a   particular level, but that the procedure was generally applicable to any information classified as confidential (from restricted to top secret) yielded by an investigation or contained in the records held by the intelligence services or the police, where its disclosure was liable to endanger or disrupt the activities of the intelligence services or of the police, while being identified by the authorities as requiring that confidentiality be maintained (see judgment no.   9 As 9/2010 of 15   July   2010 of the Supreme Administrative Court). 66.     Sitting in its extended composition, the Supreme Administrative Court held, on 1 March 2016 (no. 4As 1/2015-40), that information did not automatically have to remain inaccessible throughout the judicial proceedings and nor did it have to be automatically excluded from the process of examining evidence. It stated that this was only the case if the judge concluded that the exclusion of such information was legal. It found, on the question of the assessment of the quality of information underlying a decision to revoke clearance and of its sources, that neither the National Security Authority nor the administrative courts verified the truth of information emanating from those services in the same way as in ordinary administrative proceedings. However, it added that information from the intelligence services could not take the form of a mere opinion of the author, without being supported by sufficient evidence included in the file and capable of being verified by the court. In the court’s view, the National Security Authority and the administrative courts should have the possibility of assessing the truthfulness and persuasiveness of intelligence information and its relevance for the security vetting procedure. IV.     COMPARATIVE LAW AND JUDICIAL PRACTICE 67.     In the light of the comparative information available to the Court concerning thirty member States, protection of national security is a   matter of concern in every State whose legislation was examined. Whilst the concept of “national safety” or “national security” is not uniformly defined, the legislation in each member State allows the executive, in particular the authorities responsible for national security, to restrict access to classified information, including in judicial, criminal and administrative proceedings, where this is deemed necessary to protect the State’s interests. The authorities enjoy a wide discretion in this regard. 68.     A large majority of States, however, entrust the courts with a   power of scrutiny concerning justification for the classification of documents. Most of the States entrust the courts with the power to examine not only the formal lawfulness of a decision classifying documents, but also the specific justification for classifying as confidential information gathered by the intelligence services. Certain States invest all judges with this power, while others provide for a   vetting procedure for judges required to examine such information and documents. In some member States the judicial examination is conducted in the absence not only of the public and the press, but also the parties to the proceedings and their lawyers. 69.     The scope of that judicial review is not uniformly regulated. The only consensus is in considering that the non-disclosure of classified information during the judicial proceedings does not in itself constitute a   violation of the fundamental rights of the person. Whilst non-disclosed documents cannot be used in a criminal trial, the use of classified information and non-disclosed documents is allowed in administrative proceedings in certain States. 70.     With regard more specifically to the refusal or the withdrawal of security clearance granting courts access to confidential documents, certain States exclude any judicial review while others provide for a judicial review conferring variable powers on judges, ranging from merely reviewing the formal lawfulness of the relevant decision to examining the justification on the merits with an analysis of the documents underlying the decision. V.     CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 71.     On 4 June 2013 the Court of Justice of the European Union (CJEU) gave a   preliminary ruling in the case ZZ v. the United Kingdom (case C-300/11). The request for the ruling concerned the interpretation of Article   30(2) of the amending Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in particular in the light of Article   47 of the Charter of Fundamental Rights of the European Union. The context was a dispute between a person with dual French and Algerian nationality and the United Kingdom immigration authorities regarding the latter’s decision refusing him admission, on public security grounds, to the United Kingdom. The CJEU replied, in substance, that where, in exceptional cases, a national authority refused, on grounds of State security, to provide precise and full disclosure to the person concerned of the grounds which constituted the basis of a decision refusing entry, it was necessary for a court to be entrusted with verifying whether those reasons stood in the way of precise and full disclosure of the grounds on which the decision in question was based and of the related evidence. With regard to proof that State security would in fact be compromised by disclosure to the person concerned of those grounds, it observed that there was no presumption that the reasons invoked by a national authority existed and were valid (§ 61 of the judgment). It observed, further, that if the court in question concluded that State security did not preclude disclosure to the person concerned of the precise and full grounds on which a decision refusing entry was based, it gave the competent national authority the opportunity to disclose the   missing grounds and evidence to the person concerned. If that authority did not authorise their disclosure, the court proceeded to examine the legality of such a decision on the basis of solely the grounds and evidence which had been disclosed (§ 63) and if it turned out that State security did stand in the way of disclosure of the grounds to the person concerned, judicial review of the legality of a decision taken must be carried out in a   procedure which struck an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which was strictly necessary. It held in particular: “65.     In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating t