FIRST SECTION
DECISION
Application no. 15041/16
Raimonds LAZDIŅŠ
against Latvia
The European Court of Human Rights (First Section), sitting on 13 May 2025 as a Chamber composed of:
Ivana Jelić, President,
Alena Poláčková,
Raffaele Sabato,
Frédéric Krenc,
Alain Chablais,
Artūrs Kučs,
Anna Adamska-Gallant, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to the above application lodged on 15 March 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
Introduction
1. The case concerns the right of access to a court to challenge a decision revoking a security clearance issued in respect of the applicant, who was Head of the Security Department of a State-owned company, Riga International Airport (“the Airport”), and the compliance of special review proceedings with the requirements of Article 6 § 1 of the Convention.
THE FACTS
2. The applicant was born in 1972 and lives in Bērzes parish. He was represented by Mr I. Liepa, a lawyer practising in Riga.
3. The Government were represented by their Agents, Ms K. Līce and, subsequently, Ms E. L. Vītola.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Since 2005 the applicant had held Category I security clearance, which also allowed him access to lower, Category II-related material.
6. Since 8 February 2007 he had been employed as a security adviser to the chairman of the board of the Airport.
7. On 1 January 2011 he became Head of the Security Department of the same company. It followed from the relevant internal documents, including the applicant’s job description, that Category II security clearance was necessary to hold that position.
8. On 6 December 2013 the applicant’s employment with the Airport was suspended under section 58(1) and (3) of the Labour Law (Darba likums – see paragraph 43 below) in connection with allegedly unlawful recordings of telephone conversations at the Airport and the exceeding of authority.
9. On 27 March 2014 the Airport served notice on the applicant of its intention to terminate his contract of employment under section 101(1)(2) of the Labour Law (see paragraph 43 below). It also instituted proceedings with a view to terminating the employment. On 8 May 2014 the applicant’s employment was again suspended on the same grounds as before.
10. The proceedings brought by the Airport with a view to terminating the applicant’s contract of employment were unsuccessful. By a final decision of 20 April 2015, the applicant’s reinstatement was ordered.
11. The proceedings brought by the applicant against both suspension orders dated 6 December 2013 and 8 May 2014 were successful.
12. By final decisions of 7 and 22 September 2015, both suspension orders were set aside, and the applicant’s reinstatement and payment of salary arrears were ordered.
13. On 24 April 2015 the Airport reinstated the applicant in his post as Head of the Security Department. However, he was immediately ordered into “idle time” (dīkstāve) without remuneration in accordance with the last sentence of section 74(2) of the Labour Law. Reference was made to “a letter by the Security Police of 26 January 2015” (see paragraph 16 below) and sections 9(1) and 13(3) of the Law on State Secrets (Likums “Par valsts noslēpumu” – see paragraphs 37 and 40 below). The applicant received that information on 27 April 2015.
14. The applicant was informed about other employment offers at the Airport, which he refused.
15. On 16 September 2015 the applicant settled all his disputes with the Airport by signing a confidential settlement agreement. According to the applicant, he received monetary payments from the Airport in that regard.
16. In the meantime, on 26 January 2015 the Security Police (Drošības policija, since 1 January 2019 renamed the State Security Agency – Valsts drošības dienests) took a decision revoking the applicant’s security clearance. That decision was based on sections 9(3)(6) and 13(1)(3) of the Law on State Secrets (see paragraphs 37-38 below). The applicant was not officially informed of the decision, but, having learned of it, he lodged complaints against it first with the Constitution Protection Bureau (Satversmes aizsardzības birojs) and subsequently with the Prosecutor General.
17. On an unknown date the applicant was invited for a meeting at the premises of the Constitution Protection Bureau. On 7 August 2015 the director of the Constitution Protection Bureau upheld the decision of 26 January 2015. Section 13(1)(2) of the Law on State Secrets (see paragraph 38 below) was added as another basis for that decision. The Constitution Protection Bureau referred to negative information obtained during the review proceedings, which was classified as containing State secrets and could not be disclosed.
18. On 16 September 2015 the Prosecutor General upheld the decisions taken by the Security Police and the Constitution Protection Bureau. The material revealed that the applicant had breached the procedure for working with, using and safeguarding State secrets. There had also been doubts about the applicant’s reliability and ability to keep State secrets (sections 9(3)(6), 13(1)(2) and 13(1)(3) of the Law on State Secrets – see paragraphs 37‑38 below).
19. The Prosecutor General also noted that the applicant could not have access to material gathered by the Security Police and the Constitution Protection Bureau. That material was classified in accordance with Regulations nos. 21(2004) and 887(2004) issued by the Cabinet of Ministers.
20. On an unknown date criminal proceedings were instituted in relation to allegedly unlawful recordings of telephone conversations at the Airport that had taken place while he held the post of Head of the Security Department at the Airport (see paragraphs 7-8 above). The parties have not provided any further information about those proceedings.
21. On 15 March 2016 the applicant lodged an individual constitutional complaint with the Constitutional Court (Satversmes tiesa) to contest the compatibility with the Constitution (Satversme) of the legal provisions concerning the special review proceedings. He did not make a request for the court to strike down the contested provisions retroactively (ex tunc) with respect to him.
22. On 15 April 2016 the Constitutional Court instituted proceedings as regards the compatibility of sections 11(5), 13(3) and 13(4) of the Law on State Secrets (see paragraphs 39-40 below) with the first sentence of Article 92 (right to a fair trial), Article 96 (right to respect for private life, home and correspondence) and the first sentence of Article 106 (right to work) of the Constitution. However, proceedings were not instituted in respect of the compatibility of section 9(6) of the Law on State Secrets and paragraph 2.10.6 of Regulation no. 887(2004) with the Constitution (see paragraph 37 below).
23. On 10 February 2017 the Constitutional Court, following three public hearings held on 13 December 2016, 3 and 11 January 2017 where the applicant was represented by two qualified lawyers, delivered its judgment in case no. 2016-06-01. Before addressing the issue on its merits, it examined whether there were grounds to terminate the proceedings given that it had already examined, in its judgment in case no. 2002-20-0103, whether section 11(5) of the Law on State Secrets was compatible with the right to a fair trial, and had concluded that it was, if interpreted in the light of the Constitution (see paragraph 52 below). The court concluded that the issue raised by the present case had not previously been decided by it and therefore it continued the proceedings. It noted as follows:
“17.4. In the judgment in case no. 2002-20-0103, the Constitutional Court held that [section 11(5) of the Law on State Secrets] was compatible with Article 92 of the Constitution. However, [it noted] that [section 11(5) of the Law on State Secrets] complied with the Constitution only if interpreted in accordance with it. The Constitutional Court also noted: ‘In particular, if a person is denied the right to access a court, the alternative procedure should be considered carefully and should afford the person the opportunity to secure his or her rights at as high a level as possible. ... The procedure for granting, or refusing to issue, a special permit or special guarantees for a person under investigation is not established by law. Such a procedure imposes disproportionate restrictions upon the rights of the person under investigation, creates doubts as to the objectivity of the decision, and is not necessary in a democratic society. ... In a State governed by the rule of law, it is possible to provide for a more thought-out mechanism which would allow, in the course of deciding on whether to issue a special permit, account to be taken, in so far as possible, both of the interests of State security and of the individual interests of each person under consideration.’
...
17.6. ... The applicant [in the present case] points out that the contested provisions continue not to be applied in accordance with the Constitution. Some invited parties – the Ombudsman and [A.L.] – point out possible deficiencies in the application of the contested provisions. The Ombudsman [notes] that problems in the application of legal provisions might be indicative of the unlawfulness of the provisions themselves. However, Parliament and other invited parties – the Office of the Prosecutor General and national-security authorities – note that following delivery of the judgment in case no. 2002-20-0103, the relevant provisions have been applied in accordance with the Constitution. Therefore, more than ten years after case no. 2002-20-0103 was examined, there are still divergent opinions about the scope of the contested provisions and the constitutionality of their application.
...
17.8. ... Since the judgment in case no. 2002-20-0103 was adopted, the legal system has significantly changed; however, the legal regulations, notwithstanding those changes and the findings in that judgment, have remained unchanged.”
24. As concerns compatibility with Article 96 of the Constitution (right to respect for private life, home and correspondence), the Constitutional Court terminated the proceedings, as the alleged interference with the applicant’s rights had not emanated from the contested legal provisions.
25. As concerns compatibility with Article 106 (right to work), the Constitutional Court held that the contested legal provision (section 13(4) of the Law on State Secrets) complied with the Constitution in so far as it envisaged a transfer to another position or dismissal following the revocation of security clearance, but not in so far as it laid down an absolute prohibition on obtaining security clearance in the future for employees who had had their security clearance revoked (see paragraph 39 below).
26. As concerns compatibility with Article 92 (right to a fair trial), the Constitutional Court held that the revocation of security clearance directly affected the person’s employment and that it might cause an interference with the person’s fundamental rights. It held that if there was an interference with rights protected by Article 106 a person should be able to defend his or her interests in accordance with Article 92, which was accordingly applicable. On the merits, the Constitutional Court held that the procedure for appealing against a decision to revoke a security clearance did not ensure sufficient procedural safeguards and denied access to a court.
27. The contested provisions were held to be unconstitutional. In particular, sections 11(5) and 13(3) of the Law on State Secrets were held to be unconstitutional in so far as they provided that the decision taken by the Prosecutor General was final. Section 13(4) was held to be unconstitutional in so far as it provided that a person in respect of whom security clearance was revoked could not obtain security clearance in the future. Those provisions were struck down with effect from 1 July 2018. The Constitutional Court noted as follows:
“36. In accordance with section 32(3) of the Law on the Constitutional Court, a legal provision that has been found ... to be incompatible with a provision of a superior legal force is struck down on the date when the judgment of the Constitutional Court is published, unless the Constitutional Court has decided otherwise. That provision ... grants a broad discretion to the Constitutional Court [in that regard]. In deciding on the date upon which the contested provision will become invalid, the rights and interests of other persons, and not only those of the applicants, should be taken into account. Moreover, recognition of a contested legal provision as being invalid should not lead to new restrictions on fundamental rights enshrined in the Constitution (see case no. 2015‑19-01, judgment of 29 April 2016, paragraph 17).
In the present case, the Constitutional Court considers that for the sake of protecting the interests of State security it would be impermissible to recognise the contested provisions as being invalid from a certain point in the past or as of the date when the Constitutional Court’s judgment is published.
The applicant has not requested that the contested provisions be recognised as invalid retroactively. The Constitutional Court finds that in this case it is necessary and permissible for the legal provisions that are incompatible with the Constitution to remain in force for a certain period, to give the legislature an opportunity to adopt new legal regulations and introduce relevant amendments to the Law on State Secrets and, if necessary, other laws. Given that the legislature needs a reasonable period of time to adopt new legal regulations, the contested legal provisions cannot be repealed retroactively or even from the date of entry into force of the judgment of the Constitutional Court (compare, for example, case no. 2002-04-03, judgment of 22 October 2002, paragraph 3, and case no. 2015-19-01, judgment of 29 April 2016, paragraph 17).
Until Parliament has eliminated the restrictions on fundamental rights emanating from the contested legal provisions referred to in this judgment, the findings of this judgment shall be [directly] applicable in proceedings leading to the revocation of special permits, including the findings to the effect that a person has to be heard and informed of the circumstances that were the grounds for the decision to revoke the special permit.”
28. As from 1 July 2018, access to a court is available and a decision taken by the Prosecutor General is subject to review by the Administrative Regional Court (see paragraphs 41‑42 below).
29. Following the Constitutional Court’s ruling, the applicant sought to have the decision to revoke his security clearance set aside by lodging complaints with the relevant authorities. In his applications, he relied on the Constitutional Court’s judgment (see paragraph 27 above) and its binding force, as well as section 86(1) of the Administrative Procedure Law (see paragraphs 35-36 below).
30. On 8 May 2017 the director of the Constitution Protection Bureau replied, stating that the Constitutional Court had declared the contested provisions unconstitutional with effect from 1 July 2018. In his view, provisions concerning State secrets were lex specialis. He concluded that there were no legal grounds to set aside or review his decision of 7 August 2015 at that time. If, in the future, the applicant’s official duties required access to State secrets, the matter would be assessed accordingly.
31. On 9 May 2017 a specialised prosecutor replied, stating that the Constitutional Court had declared the contested provisions unconstitutional with effect from 1 July 2018. Until Parliament adopted the necessary changes, the findings made in that judgment, including those relating to the right to be heard and informed, had to be applied. In her view, previously adopted decisions to revoke security clearances remained lawful and could not be set aside.
32. On 15 May 2017 the director of the Security Police replied, stating that the Constitutional Court had declared the contested provisions unconstitutional with effect from 1 July 2018. He emphasised that the contested provisions had not been set aside with retroactive effect. In his view, previously adopted decisions to revoke security clearances remained lawful.
33. Following the entry into force of legislative amendments on 1 July 2018, the applicant did not lodge any further complaints with the domestic authorities.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
34. The relevant provisions of the Constitution read as follows:
Article 92
“Everyone has the right to defend his or her rights and lawful interests in a fair court ...”
Article 96
“Everyone has the right to inviolability of his or her private life, home and correspondence.”
35. Section 86(1) of the Administrative Procedure Law (Administratīvā procesa likums) provides that a negative, unlawful administrative act can be set aside at any time. Sections 87 and 88 provide for circumstances when administrative proceedings may be instituted de novo (uzsākt no jauna) at the request of a person or institution concerned if, inter alia, it is necessary to enforce a judgment of the Constitutional Court in the case. Section 353 provides for reopening of administrative proceedings in view of newly discovered circumstances (jaunatklāti apstākļi); the latter comprises a situation when a legal provision applied in the case is incompatible with a provision of superior legal force (section 353(1)(5)). The time-limit for lodging such an application is three months (section 354(2)) and it runs from the date when the Constitutional Court’s judgment has taken effect (section 355(1)(4).
36. Section 32(2) of the Law on the Constitutional Court provides that its judgments, and the interpretation of a legal provision provided therein, are binding on all State and municipal institutions and authorities, including the courts, and also on natural persons and legal entities. Section 32(3) provides that any legal provision or act which the Constitutional Court has found incompatible with a legal provision having superior legal force is invalid from the date of publication of the Constitutional Court’s judgment, unless it rules otherwise.
37. The criteria for obtaining access to State secrets were set out in section 9 of the Law on State Secrets. Section 9(1) allowed access to State secrets only to persons who required it for the fulfilment of their official duties and who had obtained a special permit. Section 9(3)(6) provided that access could not be granted to any person in respect of whom there were doubts about his or her reliability and ability to keep State secrets. Section 9(6) provided that refusal to issue a person with a special permit was sufficient grounds to refuse that person employment in a position connected with State secrets. Regulation no. 887(2004) set out what type of information contained State secrets.
38. Section 13 provided for the conditions and consequences of revocation of special permits. Under section 13(1)(2), special permits could be revoked if the person in question had breached the procedures for working with, using and safeguarding State secrets. Under section 13(1)(3), special permits could be revoked if the person in question fell into one of the categories listed in section 9(3).
39. Pursuant to section 13(4), following revocation the person concerned was deemed unfit to continue working in a position connected with State secrets. Such persons were to be immediately transferred to another position not requiring access to State secrets, or dismissed. Furthermore, such persons could not obtain security clearance in the future.
40. In accordance with sections 11(5) and 13(3), an appeal against a decision to revoke special clearance lay with the director of the Constitution Protection Bureau. An appeal could subsequently be lodged against that decision with the Prosecutor General, whose decision would be final.
41. Following the Constitutional Court’s judgment of 10 February 2017, Parliament amended the relevant provisions of the Law on State Secrets. Those amendments came into effect on 1 July 2018 but did not apply to the applicant, as his clearance had been revoked on 26 January 2015. The relevant transitional provision reads as follows:
“An individual shall, in accordance with section 7(5) or 11(5) of [the Law on State Secrets], be entitled to lodge an appeal with the Administrative Regional Court against any decision of the Prosecutor General taken before 30 June 2018, within fourteen days of the date of notification [of that decision].”
42. The amendments provided for: (i) access to a court, namely the Administrative Regional Court (as a bench of three judges), to contest a decision taken by the Prosecutor General to revoke security clearance, such an application to be made within fourteen days of the date of notification of the decision in accordance with the procedure laid down in the Administrative Procedure Law unless the Law on State Secrets provided otherwise; (ii) the possibility of obtaining security clearance in future for certain individuals who had had their security clearance revoked, that is, after five years (from the date of the Constitutional Court’s judgment); and (iii) an obligation to give reasons in writing for security clearance being denied in so far as this was possible without disclosing private, sensitive, secret or otherwise classified information.
43. The relevant provisions of the Labour Law read as follows:
Section 58 – Suspension from work
“(1) Suspension from work shall be a temporary prohibition, imposed by written order of an employer, on an employee being present at the workplace and carrying out work; no remuneration shall be disbursed to the employee during the period of suspension.
...
(3) An employer shall have the right to suspend an employee from work if the employee, when performing work or while present at the workplace, is under the influence of alcohol, drugs or toxic substances, as well as in other cases when failure to suspend an employee from work may be detrimental to his or her safety or the health or safety of third parties, as well as to the substantiated interests of the employer or third parties.
...”
Section 101 – Employer’s notice of termination
“(1) An employer shall have the right to give written notice of termination of a contract of employment only on grounds relating to the conduct of the employee or his or her abilities, or on grounds of economic, organisational or technological measures or measures of a similar nature in the entity in the following cases:
...
2) the employee, when performing work, has acted unlawfully and has therefore lost the trust of the employer;
...”
Section 74 – Remuneration in cases where the employee does not perform work for justifiable reasons
“...
(2) An employee’s obligations shall be deemed to be fulfilled, and the employer shall also have an obligation to disburse the remuneration specified in subsection three of this section, if the employer does not provide work to an employee or does not perform the activities necessary for the acceptance of the employee’s obligations (idle time). An employee shall not receive remuneration for idle time arising from his or her own fault.
...”
44. The Constitutional Court has a broad discretion to strike down contested provisions either from the date of publication of the judgment (ex nunc), with retroactive effect (ex tunc) or from a specified future date. The Constitutional Court is not bound by an opinion expressed by the applicant (case no. 2012-23-01, judgment of 24 October 2013), but a request to have the contested provision struck down ex tunc must be duly reasoned (cases nos. 2005-02-0106, judgment of 14 September 2005, and 2016-09-01, judgment of 18 January 2017).
45. As a general rule, a legal provision found to be incompatible with a provision of a superior legal force is struck down on the date of publication of the Constitutional Court’s judgment. However, the Constitutional Court may rule otherwise (see section 32(3) of the Law on the Constitutional Court, quoted in Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 110, 25 November 2014). According to the Government, when determining the date when the contested provisions are to be struck down, the Constitutional Court might consider such elements as: (i) whether it is necessary to find the contested provisions invalid ex tunc for the protection of the rights of the particular applicant; and (ii) whether there are any considerations requiring it to strike down ex tunc the contested provisions with respect to the particular applicant only (they relied on case no. 2009‑43‑01, judgment of 21 December 2009). In respect of other persons, the date when the contested provisions are struck down might be different (see, for example, S.N. and T.D. v. Latvia (dec.), no. 5794/13, § 55, 6 December 2016).
46. At the material time, the Constitutional Court had struck down the contested provisions ex tunc in at least thirty cases brought by private individuals. In the majority of those cases, the Constitutional Court had done so at the request of a particular applicant. The Government referred to cases nos. 2016-13-01 (judgment of 23 May 2017), 2017-10-01 (judgment of 11 October 2017), 2017-16-01 (judgment of 15 March 2018), 2017-21-01 (judgment of 6 June 2018) and 2019-08-01 (judgment of 23 December 2019) in that regard. The Constitutional Court has also struck down the contested provision ex tunc in respect of a particular applicant at his or her request in other cases – for example, cases nos. 2009-76-01 (judgment of 31 March 2010), 2013-12-01 (judgment of 24 April 2014) and 2013-20-03 (judgment of 6 November 2014). In five of the above-mentioned cases, the Constitutional Court struck down the contested provisions in respect of other persons with effect either from the date of publication of its judgment or from a specified future date because the legislature needed a reasonable period of time to develop a new legal framework.
47. In some other cases, the Constitutional Court has refused requests to strike down the contested provision with retroactive effect. The applicant referred to cases nos. 2010-57-03 (judgment of 6 May 2011), 2016-12-01 (judgment of 18 May 2017), 2010-71-01 (judgment 19 October 2011), 2016‑14-01 (judgment 19 October 2017) and 2019-09-03 (judgment of 20 February 2020).
48. In the applicant’s view, his case was similar to another case decided by the Constitutional Court (case no. 2004-14-01, judgment of 6 December 2004). Given that the contested provision’s legitimate aim was the protection of State security, the Constitutional Court held that the legislature had to be given a reasonable period of time to develop a specific legal framework and struck down the contested provision with effect from a specified future date (see, for more details, Sharma v. Latvia, no. 28026/05, § 55, 24 March 2016, and S.N. and T.D. v. Latvia, cited above, § 53).
49. The Constitutional Court traditionally decides whether to strike down a provision retroactively at the request of the applicant, but it also has competence to do so of its own motion (ex proprio motu). According to the Government, it has used that competence only in a handful of cases. They referred, inter alia, to cases nos. 2017-23-01 (judgment of 14 June 2018) and 2018-23-03 (judgment of 24 October 2019) in that regard. In those cases, the Constitutional Court set different dates to strike down the contested provisions: on the one hand, as regards the particular applicant, and, on the other hand, other persons.
COMPLAINT
50. The applicant complained that he had been denied the right of access to a court in a procedure regarding security clearance that was decisive for his employment. In particular, he could not challenge the decision by the Prosecutor General of 16 September 2015 in the domestic courts, and the special review proceedings did not satisfy the requirements of Article 6 § 1 of the Convention.
THE LAW
51. Article 6 § 1 of the Convention in so far as relevant reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”
52. The Constitutional Court in its judgment of 23 April 2003 in case no. 2002-20-0103 examined the compatibility of section 11(5) of the Law on State Secrets with Article 92 of the Constitution. It found section 11(5) to be compatible if interpreted in the light of the Constitution (see, for a summary of that judgment, Ternovskis v. Latvia, no. 33637/02, §§ 22‑25, 29 April 2014, and Spūlis and Vaškevičs v. Latvia (dec.), nos. 2631/10 and 12253/10, §§ 26-28, 18 November 2014).
Admissibility
53. The Government raised several objections. They argued, first of all, that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. Given that his complaint concerned a lack of procedural guarantees which had hindered his access to a court, they pointed out that as a result of the Constitutional Court’s judgment of 10 February 2017 and the subsequent legislative amendments to the Law on State Secrets (including the possibility of reapplying for security clearance in future), he had not suffered a significant disadvantage. Furthermore, the Government referred to the Constitutional Court’s established practice of striking down a provision retroactively (see paragraph 54 below for more details of their argument). They also argued that there was no causal link between, on the one hand, the lack of procedural guarantees in the special review proceedings and, on the other hand, the termination of the applicant’s employment by mutual agreement. The Government argued that respect for human rights did not require the examination of the present case on the merits since there was extensive case‑law on the issues at stake (they referred to, among other authorities, Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017; Ternovskis v. Latvia, no. 33637/02, 29 April 2014; and Spūlis and Vaškevičs v. Latvia (dec.), nos. 2631/10 and 12253/10, 18 November 2014). Moreover, the applicant’s grievances had been duly considered by a domestic tribunal – that is, the Constitutional Court – which amounted to an effective remedy if the alleged violation stemmed from the domestic law (they referred to, among other authorities, Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003-II (extracts)).
54. Secondly, the applicant had lodged the present application with the Court on the same date as his complaint to the Constitutional Court, without awaiting the outcome of that complaint. While conceding that the last stage of a particular remedy might be reached after the application had been lodged and that the Court would not typically dismiss such a case for non-exhaustion of domestic remedies (see, for example, Karoussiotis v. Portugal, no. 23205/08, § 57, 1 February 2011), the Government argued that the applicant in the present case had lost his victim status. They noted that the Constitutional Court, in its ruling of 10 February 2017, had acknowledged a breach of the applicant’s right to a fair trial (see paragraph 26 above). The Government further submitted that violation had been remedied, emphasising that redress did not necessarily have to be financial; it could also be achieved in the form of restitution. In that connection, the Government referred to the Constitutional Court’s established practice of striking down a provision retroactively (ex tunc) (see paragraphs 44-46 above) and noted that the applicant, who had been duly represented in the proceedings in the Constitutional Court, had not requested to have the contested provisions struck down retroactively (see paragraphs 21 and 27 above). The Government explained that even if the Constitutional Court held that a provision as such could not be struck down ex tunc, it could still decide otherwise in respect of a particular applicant (see paragraph 46 above). The applicant’s submissions in the present case did not sufficiently distinguish between those two elements. The Constitutional Court in the present case had not examined the possibility of striking down the contested provisions ex tunc with respect to the present applicant, as he had not requested this. The Constitutional Court had expressis verbis noted that he had not made such a request and had therefore limited its assessment to whether the provisions as such should be struck down ex tunc with respect to all persons. Had the Constitutional Court struck down the contested provisions ex tunc only with respect to the applicant, he could have requested the reopening of administrative proceedings (they referred to the Administrative Procedure Law), allowing him to lodge an appeal against the decision of the Prosecutor General in the domestic courts and to obtain redress. The applicant’s failure to make such a request should not be attributable to the Government.
55. Thirdly, the Government argued that the applicant had failed to exhaust domestic remedies, as he had not lodged a new constitutional complaint concerning the transitional provisions of the amendments newly enacted in 2018 to the Law on State Secrets (see paragraph 41 above). They submitted that the exclusion of the applicant from the circle of individuals who, following the adoption of those amendments, could lodge an appeal against the decision of the Prosecutor General was a consequence of his failure to request the Constitutional Court to strike down the contested provisions retroactively.
56. The applicant disagreed. Firstly, he submitted that he had suffered a significant disadvantage. Although the Constitutional Court had indeed ruled that the contested provisions were unconstitutional and Parliament had adopted a new legal framework, he had not obtained any redress (see paragraph 57 below for more details of this argument). The decision to revoke his security clearance had not been set aside or reviewed. He had not been informed of the reasons for his security clearance having been revoked. The new legislative framework had not provided him with access to a court to challenge the prior decision to revoke his security clearance. He asserted that the decision to revoke his security clearance had been a form of political reprisal. He asserted that his dismissal following the revocation of the security clearance had been unjustified and unlawful. As he could no longer perform his duties, he had agreed to a settlement. The applicant contended that respect for human rights required an examination of the present case on the merits, as it raised important questions of principle. He argued that the case had not been duly considered by a domestic tribunal, since the Constitutional Court had not ruled on all complaints (see paragraph 24 above).
57. Secondly, the applicant submitted that he had not received appropriate and sufficient redress for the breach of his rights. The fact that he had not requested the Constitutional Court to strike down the contested provisions ex tunc was not sufficient to argue that he had lost his victim status. In his submission, the Constitutional Court had in fact examined the question whether the contested provisions should be struck down retroactively (ex tunc) and it had decided that matter of its own motion. He rejected the Government’s contention that he had contributed to the fact that the contested provisions with respect to him had not been struck down ex tunc. The applicant was of the view that even if he had requested to have the contested provisions struck down with respect to him ex tunc, the Constitutional Court would have refused such a request in view of the overriding interests of State security. In fact, he argued that it was extremely rare for the Constitutional Court to strike down provisions with retroactive effect. He admitted that under the new legislative framework he could in principle request a new security clearance. However, his renewed request would raise suspicion in view of his previously revoked security clearance and his subsequent fight for justice.
58. Thirdly, the applicant submitted that he had exhausted domestic remedies and that he had done everything that could have been reasonably expected of him before lodging an application with the Court. To require him to lodge another application with the Constitutional Court would be excessively formalistic.
(a) General principles
59. The Court reiterates that it falls first to the national authorities to redress any violation of the Convention and that in assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but also of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase v. Moldova [GC], no. 7/08, § 105, ECHR 2010, and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 217, 22 December 2020).
60. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80, ECHR 2006-V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012; and Cristea v. the Republic of Moldova, no. 35098/12, § 25, 12 February 2019). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see Rooman v. Belgium [GC], no. 18052/11, § 129, 31 January 2019, and Selahattin Demirtaş, cited above, § 218).
61. The alleged loss of the applicant’s victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision. The appropriateness and sufficiency of redress depend on the nature of the violation complained of by the applicant (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 67 and 70, 2 November 2010, and Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006).
62. The Court refers to the well-established case-law principle to the effect that the existence of a clear and established domestic avenue of compensation, even if not used by the applicant, can amount to “appropriate and sufficient redress” for the purpose of victim status under Article 34 (see Al Husin v. Bosnia and Herzegovina (no. 2), no. 10112/16, § 90, 25 June 2019; Canè and Others v. Malta (dec.), no. 24788/17, § 75, 13 April 2021; and, most recently, K.P. v. Poland, no. 52641/16, § 111, 26 October 2023).
(b) Application to the present case
63. At the outset, the Court notes that in the present case, the alleged breach of the applicant’s right of access to court resulted from the domestic law as it stood at the material time, namely sections 11(5) and 13(3) of the Law on State Secrets which excluded any judicial review in the proceedings for the revocation of the applicant’s security clearance (see paragraph 40 above). Furthermore, the applicant gave the national courts the opportunity to put right the alleged violation of his rights by instituting proceedings in the Constitutional Court, which was an effective domestic remedy in the circumstances; the parties have not contested this. As the Court has consistently held, where the source of an alleged breach of a Convention right is a provision of Latvian law, proceedings should, in principle, be brought in the Constitutional Court prior to being brought before the Court (see, for example, Grišankova and Grišankovs, cited above, and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, §§ 142-43 and 167, 25 November 2014).
64. As regards the first condition for the loss of victim status, the Court notes that, following the applicant’s individual complaint, the Constitutional Court gave a judgment favourable to him: it held that the contested provisions, namely sections 11(5) and 13(3) of the Law on State Secrets, were unconstitutional, since they did not provide sufficient procedural safeguards and denied access to a court (see paragraphs 26-27 above). Therefore, the Court is satisfied that the Constitutional Court has expressly acknowledged a breach of the applicant’s right of access to a court – the crux of his complaint to the Court – and concludes that the first condition for loss of victim status has been fulfilled in the present case.
65. As regards the second condition for the loss of victim status, the Court notes that the parties held divergent views as to whether the applicant could or indeed did obtain appropriate and sufficient redress at the domestic level, in or following the proceedings in the Constitutional Court. The Government submitted that the applicant had been provided with sufficient redress, and emphasised that such redress did not always need to be financial. Since the applicant did not request that the contested provisions be struck down retroactively (ex tunc) with respect to him, the Constitutional Court did not examine that possibility. Instead, it limited its assessment to whether the contested provisions as such (in respect of all persons) should be struck down ex tunc (see paragraphs 27 and 54 above). According to the applicant, the Constitutional Court had examined that issue of its own motion; even if he had made such a request, it would have been refused (see paragraph 57 above).
66. The Court notes that constitutional review in Latvia is characterised by two important elements. The first delimits the scope of the review by the Constitutional Court: a constitutional complaint can only be lodged against a legal provision and not against a judicial or an administrative decision as such. The second of those elements concerns the redress provided to the individual concerned (see Larionovs and Tess, cited above, §§ 147-48). The Government have demonstrated that the Constitutional Court has competence to strike down the contested provision from a particular date, including from the date of its enactment – that is, with retroactive effect (ex tunc) – and a particular applicant may be affected by the Constitutional Court’s ruling in a different manner from other applicants (see paragraphs 44-46 above).
67. Furthermore, it is not disputed that the Latvian legal system afforded the possibility for the applicant to make a request to the Constitutional Court to strike down the contested provisions with retroactive effect in respect of him (see, for example, Yelverton Investments B.V. and Others v. Latvia (dec.), no. 57566/12, §§ 24 and 39, 18 November 2014). Nor is it disputed that the applicant did not make such a request (see paragraph 21 above). The domestic case-law indicates that the Constitutional Court has examined similar requests in many cases; in some of them it has struck down the contested provisions retroactively with respect to a particular applicant and in other cases it has refused to do so. The Constitutional Court’s case-law pre-dating its judgment in the applicant’s case in 2017 also shows that it examined such requests in practice (see paragraphs 46-47 above). Accordingly, the Court sees no reason to find that the applicant could not have made such a request or that it would have been bound to fail as argued by the applicant.
68. It is true that in the present case the Constitutional Court examined whether the contested provisions as such should be struck down retroactively with respect to all persons and concluded that they could not. In doing so, it referred to the interests of State security and the need to allow time for the legislature to adopt new regulations (see paragraph 27 above). However, those findings were made in the context of the contested provisions as such – with respect to all persons. Given that the applicant did not request that the contested provisions be struck down retroactively in respect of him, the Constitutional Court did not examine that issue. Accordingly, the Court dismisses the applicant’s contention that the Constitutional Court examined the possibility of striking down the contested provisions in respect of him of its own motion.
69. Consequently, the Court must determine whether a request by the applicant for the contested provision to be struck down retroactively in respect of him, had he made one in the proceedings before the Constitutional Court, would have been capable of affording appropriate and sufficient redress to him, which question the Court has not yet had an opportunity to answer. In doing so, the Court must consider the nature of the right in issue, the reasons advanced by the national authorities and the existence of adverse consequences for the applicant (see paragraph 61 above).
70. Nonetheless, the Court has already held that the Constitutional Court’s ruling does not automatically quash an individual decision adopted in respect of a particular applicant (see Larionovs and Tess, cited above, § 161). Following constitutional proceedings, a successful applicant would have to go through another step – to request the reopening or re-examination of his or her individual case. The Court has held that, since in the renewed examination of the case the authorities will be bound by the judgment of the Constitutional Court and its interpretation of the impugned provision, such a two-step remedy envisaged under Latvian law is capable of providing sufficient redress (ibid., § 162, as regards the reopening of criminal proceedings, and see S.N. and T.D. v. Latvia (dec.), no. 5794/13, § 83, 6 December 2016, as regards the reopening of administrative proceedings in the context of immigration).
71. In the present case, the Constitutional Court struck down the contested provisions with effect from a specific future date, 1 July 2018, in respect of all persons, including the applicant (see paragraph 27 above). It follows that the Constitutional Court’s ruling did not have an impact on the applicant’s legal situation before that date since he had not requested that the Constitutional Court strike down the contested provisions with retroactive effect in respect of him. It is precisely because the contested provisions were struck down as from 1 July 2018 that the relevant domestic authorities, when examining the applicant’s subsequent requests, refused to set aside decisions taken in 2015 and considered them lawful.
72. The Court has noted above that the Latvian legal system afforded the possibility for the applicant to make a request to the Constitutional Court to strike down the contested provisions with retroactive effect in respect of him (see paragraph 67 above). Such a request could have led to a re-examination of his case in the special review proceedings at the domestic level. The national authorities would be bound by the Constitutional Court’s judgment finding the contested provisions invalid retroactively in respect of the applicant (see paragraph 36 above). In particular, having regard to the Constitutional Court’s findings (see paragraphs 26-27 above) they would be required to ensure sufficient procedural safeguards and to provide the applicant with access to a court to contest the decision to revoke his security clearance. In that connection, the Court observes that, according to the Government, the general provisions of the Administrative Procedure Law would apply in such a situation, allowing the national authorities to re‑examine the applicant’s case (see paragraphs 35 and 54 in fine above). The applicant did not contest this. The Court notes that even if provisions of the Law on State Secrets constituted a lex specialis (see paragraph 30 above), the general provisions of the Administrative Procedure Law would still apply in so far as the enforcement of the Constitutional Court’s judgment was concerned. The Court has already accepted that the reopening of the case was available in a different but comparable context (see S.N. and T.D. v. Latvia, cited above, § 83).
73. Therefore, the Court finds that a request by the applicant for the contested provisions to be struck down retroactively in respect of him, had he made one in the proceedings before the Constitutional Court, would have been capable of affording appropriate and sufficient redress in his particular situation. The applicant, who was represented by two qualified lawyers and had the benefit of three days of public hearings before the Constitutional Court, was or ought to have been aware of the legal consequences of making such a request and its impact on the redress afforded to him in the Latvian legal system. He has not put forward any arguments that the redress available under Latvian law (see paragraphs 70 and 72 above) was deficient in his particular situation. In those circumstances, the Court finds that the Latvian legal system provided for appropriate and sufficient redress for the applicant. It follows that the second condition for the loss of victim status is also fulfilled.
74. The foregoing considerations are sufficient to enable the Court to conclude that the applicant is no longer a victim of any violation of Article 6 § 1 for the purposes of Article 34 of the Convention. This conclusion obviates the need to address any of the other objections raised by the Government.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 5 June 2025.
Ilse Freiwirth Ivana Jelić
Registrar President