CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 janvier 2022

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display:inline-block } .sC39E194 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s1255A1CE { width:26.88pt; display:inline-block } .sD7BCAED3 { width:144.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     FOURTH SECTION CASE OF CORNESCHI v. ROMANIA (Application no. 21609/16)     JUDGMENT   Art 6 § 1 (civil) • Unfair proceedings challenging withdrawal of security clearance and decision to discharge applicant from office, where classified information was not disclosed to him or his lawyer • Limitations on right to adversarial proceedings and equality of arms not counterbalanced by other safeguards   STRASBOURG 11 January 2022   FINAL   11/04/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Corneschi v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Faris Vehabović,   Iulia Antoanella Motoc,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Jolien Schukking,   Ana Maria Guerra Martins, judges, and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   21609/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr   Corneliu Corneschi (“the applicant”), on 13 April 2016; the decision to give notice to the Romanian Government (“the Government”) of the complaint concerning the unfairness of administrative proceedings in which the applicant had been unable to have sight of decisive evidence regarded as classified information and made available to the courts by the defendant, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 30 November 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns a complaint under Article 6   §   1 of the Convention that administrative proceedings had been decided on the basis of classified information, to which the applicant did not have access, in breach of the right to adversarial proceedings and to equality of arms. THE FACTS 2.     The applicant was born in 1970 and lives in Botoșani. He was represented by Mr A. Șimon, a lawyer practising in Bucharest. 3.     The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5.     The applicant had been an active officer with   the Romanian Intelligence Service ( Serviciul român de informaţii –   “the SRI”) since 1994. On account of   the nature of his duties, he   had   held security clearance permitting his access to classified information constituting State secrets; being in possession of   such security clearance   had been   a prerequisite for   him holding his   post. Criminal proceedings initiated against the applicant 6.     On 12 August 2011 a search had been conducted at the applicant’s home; the report noted that no unlawful goods or highly taxable products had been found. 7 .     In a decision by the Suceava Court of Appeal of 9 September 2011, finding that the applicant’s brother, C.C., had to be investigated while in custody, the court held, inter alia , that the evidence indicated that the applicant had ensured relevant training for his brother for his self-protection: the latter’s vigilance and discretion in communication when committing criminal acts (smuggling), as well as his recourse to specialised gadgets to record conversations or to jam other communication devices were hard evidence thereto. 8 .     On 22 September 2011 the applicant was informed that criminal proceedings had been initiated against him on 12 August 2011, on account of charges of aiding and abetting an organised criminal group and of smuggling. In particular, he was accused of providing support since March 2011 to a group of several people, including his brother C.C. and his father R.C., who were smuggling cigarettes from across the border of the European Union; and also of storing highly taxable goods (tobacco, alcohol and fuel) since March   2011 at the house he owned with his parents. 9.     The applicant’s case was heard by the investigative authorities. Audiovisual evidence, including the applicant’s mobile telephone and computer data, was adduced in the file. Several witnesses were heard, including two witnesses with protected identities, one of whom gave information about “other activities performed by the applicant, activities which could not be noted down in the record of the hearing for the protection of the witness”. 10 .     The applicant denied any involvement in the acts he was charged with, and argued that there was no joint ownership with his parents of the house that he lived in, even if his parents lived at the same address; in fact, their houses and gardens were fully separated by a fence. 11 .     On 4 July 2014 the prosecutor decided to terminate the criminal proceedings against the applicant on the charges of aiding and abetting an organised criminal group. The evidence on file did not sufficiently indicate that the applicant had committed the acts that he had been charged with, although there was a reasonable suspicion that some individual smuggling activities had been committed. In that latter respect the investigative file was therefore sent for further investigation to the military prosecutor, in view of the applicant’s former capacity as a military officer. 12.     On 13 August 2014 the military prosecutor decided to send the case back to the civil prosecutor for further investigation. That decision has not been submitted to the Court by the parties. 13 .     In a report of 31 March 2013 by the relevant service for fraud investigation at the Botoșani Police Department, the police officer in charge of the investigation noted that the adduced evidence did not indicate that the applicant had been involved or had intended to be involved in the acts he had been charged with (smuggling). Even if there was an indication that third parties had transported and left some suspect parcels in the garden at the applicant’s residence, there was no clear evidence whether those parcels had reached the applicant’s own garden, or instead that of his father, to which the applicant’s garden was joined but separated from by an interior fence (see paragraph   10 above). Consequently, the police officer proposed the termination ( clasare ) of the criminal proceedings against the applicant. 14 .     On 7 April 2015 the prosecutor decided to terminate criminal proceedings against the applicant in respect of the charge of smuggling, on account of the lack of evidence against him. The prosecutor referred to the arguments set out in the above-mentioned report (see paragraph 13 above), which he considered to be entirely valid. Withdrawal of the applicant’s security clearance and his discharge from office 15.     On 14 November 2011 the applicant was notified orally that his security clearance had been withdrawn ( retragerea autorizației de acces la informații clasificate ). He was not given any reasons or any other information; consequently, he filed a request with the Head of the SRI, asking to be informed of the underlying reasons for the withdrawal of the clearance, and to have that decision re-examined. He received no answer to his request. 16 .     On 15 December 2011 the applicant was notified orally that he had been discharged from office in accordance with the provisions of Article   85   §§   1   (m) and 2 of Law no. 80/1995 on the status of military personnel (hereinafter, “Law no. 80/1995” – see paragraph 61 below). No further explanation or indication as to the concrete facts against him was given at the time. 17 .     On 17 January 2012 the SRI answered two requests by the applicant (mentioned as having been registered on 21   December 2011 and 11   January 2012), and informed him that he had been discharged following the withdrawal of his security clearance; those measures were based on the provisions of Article 43 § 1 (b) and Article 85 §§ 1 (m) and 2 of Law no.   80/1995 (see paragraph 61 below). 18.     On 20 January 2012 the applicant challenged the decision to have his security clearance withdrawn and the discharge decision before the Head of the SRI. 19 .     On 16 February 2012 the SRI responded that, by signing, on 18   February 2008, Annex no. 15 from the national standards for the protection of classified information, as approved by Government Order no.   585/2002 (hereinafter “the GO”, see paragraph 57 below), the applicant had agreed to waive his right to obtain the reasons for the decision not to grant him security clearance ( neacordarea avizului de securitate ). However, it was decided that he should be informed that the impugned decision was well founded and was in accordance with Article 160 (a) and (f) of the GO (see paragraph   56 below), while the discharge decision was based on Article   85   §   1   (m) of Law no. 80/1995 (see paragraph 61 below). 20.     In reply to a further request from the applicant to have the decisions in question reassessed, on 15 March 2012 he was informed that the discharge decision had been taken in view of the fact that there were no positions available at the SRI for a person with the applicant’s qualifications but who did not hold security clearance. A dministrative proceedings lodged by the applicant First round of proceedings 21.     On 20 March 2012 the applicant brought administrative proceedings challenging the SRI’s decisions to withdraw his security clearance and to discharge him from office; he also requested that he be rehired by the SRI and be awarded all salary that was due. Lastly, he asked that the challenged decisions be suspended pending the final outcome of the case. 22.     He argued that his career had been evaluated as “very good” and “exceptional” until the moment when, in very suspect circumstances, his security clearance was withdrawn, following which he was promptly discharged from office. In so far as he was not aware of the reasons underlying the challenged decisions, he was not capable of formulating any defence. However, he argued that if those decisions had a connection with the criminal proceedings which were pending against him, and in which his brother C.C. was incriminated (see paragraphs 7-8 above), those circumstances were not, according to the law, of a nature to justify the measures taken against him. 23.     He asked that all the documents related to the challenged decisions be submitted to the file; and if those documents were classified, he asked for their declassification, so that the court could render justice in his case. 24.     Upon a request from the court, on 22 May 2012 the SRI indicated that the documents referred to by the applicant were classified at the “secret” ( strict secret ) level, and that they could be submitted to the court provided it had the required clearance to access such information. 25 .     The SRI also contended that the withdrawal of the applicant’s security clearance had had regard to certain situations of incompatibility, as prescribed by Article 157 (a) and (b), Article 158, and Article 160 (a), (f) and (g) of the GO (see paragraphs 55-56 below). They also indicated to the court that among the circumstances which had justified the measures against the applicant was the fact that on 12 August 2011 criminal investigations had been initiated against him (see paragraph 8 above). 26.     On 22 June 2012 the Suceava Court of Appeal dismissed the applicant’s claims. Although the SRI had not provided the court with the necessary secret documents, the court considered that the information in the file was sufficient to justify the decisions taken against the applicant. 27 .     In particular, the court considered that by signing Annex no. 15 to the GO (see paragraph 57 below), the applicant had waived his right to obtain any reasons for the decision not to grant him security clearance. Furthermore, the situations of incompatibility set out in Article 160 (a) and (f) (see paragraph   56 below) were relevant to the applicant’s case, in view of the fact that criminal investigations had been initiated against him on 12   August 2011 (see paragraph 8 above). Indeed, the measures taken against the applicant were taken on the basis of those criminal proceedings. Moreover, the court considered that the applicant had been informed of the factual and legal grounds for the measures taken against him, which had allowed him to prepare an appropriate defence. 28.     The applicant appealed against the decision of 22 June 2012, challenging mainly the fact that the classified information had not been accessible either to him, or at least to the court, who could have then referred to it when addressing the applicant in adversarial proceedings. 29 .     On 5 March 2014 the High Court of Cassation and Justice (hereinafter, “the High Court”) allowed the applicant’s appeal and remitted the case to the Suceava Court of Appeal for further examination. The High Court essentially held that in the absence of the classified documents, which had not been submitted to the file, there was no substantiation for the lower court’s conclusions as to the existence of any factual or legal basis for the measures taken against the applicant. The SRI’s failure to submit those documents to the file could be punished by a fine and in any event, rendered the proceedings unfair, in breach of Article 6 of the Convention, as it prevented the court from fully scrutinising the parties’ arguments and evidence. Proceedings after remittal of the case by the High Court of Cassation and Justice 30.     On 1 July 2014 the applicant lodged a request with the Suceava Court of Appeal for the declassification of the classified information relevant to his case. He argued that the decision to withdraw his security clearance and to subsequently discharge him from office were decisions concerning an individual, and thus not susceptible of producing severe damage to national security. Keeping all information classified without any disclosure breached his right to equality of arms. 31.     The SRI reiterated their arguments and relied on the same legal grounds as those that they had relied on before the court in the first round of proceedings (see paragraph 25 above). 32 .     On 4 July 2014 the Suceava Court of Appeal dismissed as ill-founded the applicant’s request to have the impugned decisions suspended. The court held that the withdrawal of the applicant’s security clearance had been “ a measure aiming to protect classified information in case there existed risks or security vulnerabilities, in the context of the provisions set out in Law no. 182/2002 [on the protection of classified information – see paragraphs 52 et seq. below]”. 33 .     The court also held that by signing Annex no. 15 to the GO (see paragraph 57 below), the applicant had agreed not to receive any reasons for the decision not to grant him security clearance, hence, the defendant had acted in accordance with the applicant’s own agreement. Furthermore, the underlying reason for the measure had been the initiation in 2011 of criminal proceedings (see paragraph 8 above) “in which the applicant had been involved”, therefore the measure did not appear as untimely ( intempestivǎ ), but as one which had been previously verified and assessed. The applicant’s discharge from office was the direct consequence of the withdrawal of his security clearance, in accordance with Article 85 § 1 (m) of Law no.   80/1995 (see paragraph 61 below). 34 .     As the applicant had been a military officer, the notification of the measures could also be done on an oral basis, and not necessarily in writing, as provided for by the relevant military discipline rules; nevertheless, written notifications of the nature of the measures and their legal basis were given to the applicant on 17 January and 16 February 2012 (see paragraphs 17 and 19 above). 35 .     On 24 July 2014 a registrar from the Suceava Court of Appeal drew up a report in which it was stated that an envelope with documents containing classified information had arrived at the court; however, because none of the registry employees had had the necessary security clearance to handle and deliver such information, the envelope was sent back to the SRI. 36.     At the hearings of 9 September and 7 October 2014 the court noted that security clearance had not yet been obtained for a registry employee; hence, it held that the case would be adjourned until that clearance had been granted. 37 .     On 7 November 2014 the court acknowledged receipt from the SRI of “a document” containing the requested information classified as secret, which was to be “handled by the court within the relevant legal framework regulating the access to such information”. 38 .     On 25 November 2014 the Suceava Court of Appeal, after consulting the classified information submitted to the file by the SRI, dismissed all the applicant’s requests. 39 .     Concerning the declassification issue, the court held that the request was ill-founded: “the classified information ( documentaţia ) disclosed the gravity of the acts committed by the applicant; to make such information available would have as a consequence its dissemination, with a direct impact on the lawful actions of certain state institutions which aim to ensure a climate of safety and order for an entire community”. 40 .     On the merits of the case, the court reiterated its previous considerations already mentioned in the reasoning for the dismissal of the suspension request (see paragraphs 32-34 above). 41 .     Lastly, the court held that in view of the gravity of the acts committed by the applicant (acts not referred to in the judgment), the severe measures taken against him were lawful and proportionate to the degree of social danger of his acts. 42.     The applicant appealed against the two decisions given by the Suceava Court of Appeal (see paragraphs 32-34 and 38-40 above). He reiterated all his previous arguments, also emphasising that the procedure for not being granted security clearance was different from the one in which security clearance had already been granted and subsequently withdrawn. Consequently, by signing Annex no. 15 to the GO (see paragraph 57 below), he had not agreed to not being provided with reasons for the withdrawal of his security clearance. 43 .     He also argued that, contrary to the instructions of the High Court in its judgment of 5 March 2014 (see paragraph 29 above), there was no clear indication in the file as to what documents the SRI had submitted and consequently as to what information the court had had at its disposal so as to scrutinise the reasons which had constituted the basis for the measures taken (see also paragraphs 35, 37 and 39 above). This lack of clarity had rendered the court’s examination of the case illusory, as reflected by the fact that the decision was not reasoned and only referred to general aspects, without responding in concreto to the applicant’s essential arguments. 44.     On 29 July 2015 the Suceava Court of Appeal transmitted to the High Court “documents classified as secret and which were available for consultation by the court, under the conditions provided for by the relevant law”. 45 .     On 12 October 2015 the applicant filed written submissions in which he reiterated his concern that the classified documents which had been adduced in the file were in fact only the two decisions which he had challenged, without any additional document setting out the underlying reasons thereto (see paragraph 43 above). He therefore asked that the SRI be requested to submit all documents pertaining to the challenged decisions. 46.     On 14 October 2015 the High Court dismissed the applicant’s appeal. 47 .     In connection with the applicant’s request concerning the classified information that had been adduced in the file (see paragraphs 43 and 45 above), the court considered that what was already in the file was sufficient for the purposes of examining the case. 48 .     The court further held that even though the lower court’s reasoning was very brief, it still answered the main issues raised by the applicant, proving that it had properly scrutinised the case. In addition, the declassification request had been correctly dismissed, because the conditions provided for by the law for such a request had not been fulfilled, having regard to the acts held against the applicant and to the consequences to public order or to the private or public interests involved which such declassification entailed. 49 .     The applicant’s incompatibility with his office had been correctly established, which resulted from the fact that he had committed acts which were incompatible with the position he had held and which determined the withdrawal of his security clearance. No further information could be provided thereto, in view of the fact that the relevant information had been classified as secret, and that the applicant had waived his right to be informed of the reasons justifying the refusal of security clearance. Nevertheless, the decisions to withdraw the clearance and to discharge the applicant had been notified to him on an oral basis (see paragraph 16 above), as provided for by the military discipline rules, and the legal basis for the decisions had been notified in writing to the applicant on 17 January and 16 February 2012 (see paragraphs   17 and 19 above). 50 .     While noting the prosecutors’ decisions to terminate criminal proceedings against the applicant on all charges (see paragraphs 11 and 14 above), the High Court pointed out that the withdrawal of the applicant’s security clearance had not been determined by the criminal acts he had been suspected of having committed; and that the withdrawal had been determined by the situations of incompatibility set out in Article 160 (a) and (f) of the GO (see paragraph 56 below), found to be relevant to the applicant’s situation. 51 .     Concerning the right of access to a court, the High Court concluded that the applicant had been made aware of the legal grounds for the decisions taken against him; furthermore, he had had the opportunity to challenge those decisions, and the court had had the opportunity to assess itself the classified information which had been made available by the SRI. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic legal framework Legislation concerning classified information 52 .     The main relevant provisions of Law no. 182/2002 on the protection of classified information, and of the national standards for the protection of classified information in Romania, as approved by GO no.   585/2002, and the procedure for obtaining certificates from the Office of the national register for State secret information (hereinafter, “ORNISS”) are summarised in Muhammad and Muhammad v. Romania ([GC], no. 80982/12, §§ 51 and 53 ‑ 58, 15 October 2020) and they essentially read as follows: Law no. 182/2002 on the protection of secret information 53 .     The relevant provisions of Law no. 182/2002 on the protection of secret information read as follows: Section 15 “The following terms shall be defined as follows, within the meaning hereof: ... (b)     classified information: any information, data, documents having a national security interest, which, in view of their level of importance and any consequences they may have on account of their unauthorised disclosure and dissemination, must be protected; (c)     the categories of classified documents are: State secrets [ secret de stat ] and service secrets; (d)     information [constituting] State secrets: information related to national security, the disclosure of which may harm national security and the defence of the nation; ... (f)     the following levels of classification [ de secretizare ] are attributed to classified information within the category of State secret: – top secret [ strict secret de importanță deosebită ]: information of which unauthorised disclosure is capable of causing harm of exceptional seriousness to national security; – secret [ strict secrete ]: information of which unauthorised disclosure is capable of causing serious harm to national security; – confidential [ secrete ]: information of which unauthorised disclosure is capable of causing harm to national security; ...” Section 20 “Any Romanian person or legal entity has the possibility of objecting to the classification of information, the duration of the classification and the way in which the level of classification was determined, before the authority responsible for classifying it. Such objections are settled in accordance with the laws governing administrative disputes.” Section 21 “(1)     The Office of the national register of State secret information [ORNISS] shall be a subordinate body [ în subordinea ] directly reporting to the Government. (2)     The Office of the national register of State secret information shall keep a record of the lists and information belonging to this category, of the time-frame within which a certain level of classification is maintained, of the staff vetted and approved to work with State secret information, and of the authorisation registers ...” Section 24 “(4)     Classified information under section 15 (f) hereof may be declassified by order of the Government upon a reasoned request of the issuing body ( emitentul ). ... (10)     Declassification or relegation to a lower level of classification shall be carried out by individuals or public authorities with power to approve the classification and level of classification of the information at issue.”... Section 28 “(1)     Access to State secret classified information shall be possible only by written authorisation of the director of the legal entity which holds the information, after giving prior notice to the Office of the national register of State secret information. (2)     Authorisation shall be given depending on the levels of classification provided for in section 15 (f), after vetting of the person concerned, with his or prior written consent. Legal persons, ... shall inform the Office of the national register of State secret information of the issuance of access authorisation. ... (4) The validity of the authorisation shall last for four years; during that period, vetting may be resumed at any time. ...”. Section 36 “(1)     Persons to whom classified information is entrusted shall ensure its protection in accordance with the law and shall comply with the provisions of schemes for the prevention of leaks of classified information. ...” Section 39 “(1)     Any breach of the rules concerning the protection of classified information shall engage disciplinary, administrative, civil or criminal liability, as the case may be. (2)     Any individuals working in the sector of intelligence, in the security services or in the army, or for the department of foreign relations, or those persons who have been specially entrusted with the protection of State secret information, who are found guilty of wilful disclosure or acts of negligence giving rise to the disclosure or leaking of classified information, shall irrevocably be dismissed from their posts [ calitatea ].” Government Order no. 585/2002 54 .     The relevant provisions of the national standards of protection of classified information in Romania, as approved by Government Order no.   585/2002, read as follows: Article 19 “Information [classified] as a State secret may be declassified by order of the Government, upon the reasoned request of the issuing [body].” Article 20 “(1)     [Classified] information shall be declassified where: (a)     the classification time-limit has expired; (b)     the disclosure of the information can no longer cause harm to national security ...; (c)     [the classification] had been carried out by a person without legal authorisation [ neîmputernicită ]. (2)     Declassification or relegation to a lower level of classification of State secret [classified] information shall be decided by authorised persons or senior civil servants entitled by law to attribute different levels of classification, subject to the prior opinion of the institutions which coordinate activities concerning the protection of classified information and the supervision of related measures ...” Article 26 “Classified information may be transmitted to individuals who hold security clearance certificates or access permits corresponding to the level of classification [of the information in question].” 55 .     Articles 157 -158 of GO no. 585/2002 set out the main criteria on the basis of which security clearance may be granted to a claimant ( solicitantul ): Article 157 “The decision concerning the granting of security clearance shall be taken on the basis of all available information and shall have regard to: (a) the unquestionable loyalty of the claimant (b) the claimant’s character, habits, relations and discretion, capable of providing safeguards concerning - the correct behaviour in handling State classified information - the opportunity for unaccompanied access in places where classified information is to be found - respect for the rules concerning the protection of classified information in his or her field of activity.” Article 158 “(a) The main criteria for the assessment of the claimant’s compatibility for the granting of security clearance refer both to character traits and to situations or circumstances which may determine risks and security vulnerabilities. (2) The character of the claimant’s wife, husband or partner, professional or social conduct, opinions and lifestyle will be relevant and will be taken into consideration for the granting of security clearance.” 56 .     Article 160 of GO no. 585/2002 spells out the situations of incompatibility with regard to the right to have access to classified information: Article 160 “Any of the following circumstances constitutes a situation of incompatibility for the claimant’s access to State classified information:       (a)   whether he or she deliberately concealed, misinterpreted or forged information relevant to national security or lied when filling in the standard application for security clearance or during the security clearance interview;   ...       (f)   manifesting [showing proof of] disloyalty, dishonesty, lack of discretion or fairness; (g) breaching the rules concerning the protection of classified information   ...” 57 .     Article 161 § 2 sets out, inter alia , that the request to obtain security clearance must be accompanied by a statement (Annex no. 15) that must be filled in by the claimant; security clearance will be dependent on the veracity of the information thus provided (which essentially relates, according to Annex no. 15, to background data concerning both professional and private aspects of the claimant and of his or her family). In the Annex, the claimant accepts that all data provided may be subjected to further scrutiny and that he or she accepts all the consequences of providing false information or knowingly omitting relevant information. The last sentence of the Annex reads as follows: “I hereby agree that a refusal to grant me security clearance does not need to contain any reasons ( Sunt de acord ca neacordarea avizului de securitate să nu-mi fie motivatǎ ) . ” The procedure for obtaining an ORNISS certificate 58 .     Concerning the procedure for obtaining an ORNISS certificate, the situation since 2010 is that lawyers may ask to be granted a security clearance certificate or access permit delivered by the ORNISS (“the ORNISS certificate”), in order to gain access to classified documents. For that purpose the lawyer must submit his application to the Chair of the Bar of which he is a member, who forwards it to the National Union of Romanian Bars (“the UNBR”). The lawyer must attach to his application, among other documents, a copy of the authority form given to him by the client in order to represent him in a case and a note from the body that is dealing with his client’s case which attests that classified material has been submitted in evidence and that, in order to have access to that material and prepare his client’s defence, the lawyer needs that certificate. The UNBR then initiates the procedure, which involves the competent authority carrying out preliminary checks on the lawyer’s situation. The duration of the vetting procedure for persons who have requested access to “secret” classified information is 60 working days (Article   148 of Government Order No.   585/2002). Following the checks, the competent vetting authority forwards its conclusions to the ORNISS, which will issue its opinion to be forwarded to the UNBR. The latter will then have five days within which to issue the decision on access to classified documents. 59.     Upon receipt of the ORNISS certificate, the lawyer to whom it is issued must sign a confidentiality agreement for the protection of any classified information brought to his knowledge. Once issued, the ORNISS certificate is valid for four years. During the period of validity, vetting of the lawyer may be resumed at any time. 60.     From 6 February 2014 the access of judges to classified information in the files they were required to examine was granted without subjecting them to the procedure for obtaining an ORNISS certificate, but with a simpler procedure deployed at the level of each court. Legislation on the status of military personnel Law no. 80/1995 61 .     Law no. 80/1995 on the status of military personnel set out in its relevant parts: Article 43 “(1) the decision to discharge from office shall be made by ...(b) for military officers, an order of the Minister of Defence; ...” Article 85 “(1) a discharge may take place when ... (m) the application for access to classified information or for security clearance has been refused or has been withdrawn or when those documents are no longer revalidated for reasons attributable to the officer under the law. (2) the discharge from office shall be automatic in the situations described under letters ... (m) ...” Relevant Domestic practice Relevant rulings of the Constitutional Court 62.     The Constitutional Court was seised on various occasions of requests seeking to establish that the criminal procedures whereby relevant information for a trial was classified and/or declassified on a discretionary basis by an administrative authority, and not by a judge, with the consequence that the access of the claimant was arbitrarily, partly or fully restricted, were not in compliance with the Constitution and with Article 6 of the Convention. 63 .     By a decision of 18 January 2018, the Constitutional Court decided that in the context of criminal proceedings against an individual, it should only be for the (preliminary chamber) judge to declassify relevant information which was adduced as evidence in the criminal proceedings. The court considered: “The protection of classified information cannot take precedence over the right of an accused to be informed of the charges against him or her and all the safeguards relating to a fair criminal trial, unless specific and limited restrictions are set out in the law. Such restrictions may be accepted only when they genuinely and justifiably aim to protect legitimate interests in connection with the fundamental rights and freedoms of citizens or national security, the right to decide on any such restriction on granting access to relevant information always belonging to a judge.” This approach was confirmed in a more recent decision of the Constitutional Court on 18 June 2020, similarly in the context of criminal proceedings against an individual. 64 .     Relying on the above-mentioned decision from 2018, the High Court of Cassation and Justice raised, within the context of a criminal case pending before it, an objection to the compliance with the Constitution of the relevant provisions of the Criminal Procedure Code, which still made the access of the accused’s chosen lawyer to classified information conditional on the prior obtaining of an ORNISS certificate (see paragraphs 52 – 58 above). The High Court considered that in the situation when the relevant authority refused to declassify or to lower the classification level of the information which was essential for the examination of the criminal trial, the court itself was entitled to allow the accused’s chosen lawyer access to that information, without subjecting the lawyer to the condition of obtaining an ORNISS certificate, because such a condition was contrary to the Constitution and to the case-law of the European Court of Human Rights. In a decision of 9 June 2020 the Constitutional Court considered that the objection raised by the High Court did not refer to the provisions of the Criminal Procedure Code, but to those of Law no. 182/2002 (see paragraphs   52 ‑ 53 above) and was with regard to the procedure set out therein for the granting of security clearance and access to classified information; hence, the objection was inadmissible. However, the Constitutional Court held: “...the restrictions imposed for the granting of access to classified information [including the condition for the lawyer to obtain an ORNISS certificate] could not be regarded as obstacles to an effective and absolute access to information essential in the examination of the case, but [on the contrary], they create a framework within which the two conflicting interests – the individual interest of the accused, relying on the fundamental right to defence, and the general interest of society, relying on the need to protect national security – coexisted in a fair balance capable of satisfying both interests so as not to harm the substance of either one.” Domestic case-law 65.     Both parties have submitted various judgments given by the domestic courts in cases raising, according to them, similar issues to those that need to be examined in the present case. 66 .     The Government submitted several domestic judgments, notably: (a) a decision of 10 April 2017, in which the Alba-Iulia Court of Appeal stated that with regard to the procedure of granting, revoking or upholding security clearance, national security interests prevailed over any personal interest; (b) a judgment of 25 October 2018, in which the Tulcea County Court decided that the signature given on an Annex no. 15 to the GO statement also implied a waiver of the right to obtain reasons when the refusal of the application for security clearance occurred with regard to a revalidation procedure (a formal procedure whereby the person aspiring to obtain such a clearance is reverified); (c) a summary judgment ( încheiere ) of 21 January 2020, in which the Brașov Court of Appeal decided to postpone the examination of the case until that claimant’s representative’s request to be granted an ORNISS certificate could be examined. However, the representative had subsequently decided to withdraw her request and hence access to the classified information was no longer granted; (d) a decision of 25 February 2020, in which the Brașov Court of Appeal decided, inter alia , that the agreement not to receive any reasons for the decision not to grant security clearance also implied agreement with regard to the decision to have that security clearance withdrawn. 67 .     The applicant submitted two judgments: (a) a judgment given by the Craiova Court of Appeal on 17 June 2015 concerning proceedings relating to the refusal to issue a gun permit to the claimant, based on information classified as secret ( secret de serviciu ); that claimant’s representative had had the certificate allowing him to consult the classified information, but not to use that information, hence he was not allowed to have access to the relevant documents; (b) a judgment given by the Cluj Court of Appeal on 3 November 2016 in civil proceedings brought by the claimant against the SRI, which concerned his discharge based on, inter alia , an annual appraisal report classified as top secret; in that case, the SRI had submitted excerpts of the relevant documents to the case-file, which implied that such a possibility existed and was acceptable to both the SRI and the courts. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 68 .     The applicant complained of the unfairness of the proceedings which he had brought to challenge the decision to withdraw his security clearance, and the decision to discharge him from office. In particular, he argued that the administrative courts had refused him access to evidence classified as confidential by the defendant, which had been decisive in his case. He considered that this had violated his rights to an adversarial hearing, to equality of arms, and to a reasoned decision. He re