On 11 October 2019, the Constitutional Court received a proposal from the Supreme Court of the Slovak Republic for judicial review of certain legal provisions which concerned the use of classified information in asylum procedures. The Supreme Court noted that it was deciding on a cassation complaint against a judgment of the Regional Court in Košice in which an applicant's subsidiary protection was not extended based on an opinion of the Slovak Information Service and Military Intelligence (SIS) which stated that the applicant was a security risk to the country. In the justification of its decision, the Ministry of the Interior stated only the fact that it is a security interest of the Slovak Republic and cannot provide further details on the reasons that led it to the ruling not to extend subsidiary protection. Furthermore, the Regional Court in Košice stated that since the law excludes the use of evidence originating from the SIS, the possibility of commenting on it is also excluded.
The applicant appealed the decision arguing that he was prevented from exercising his procedural rights to such an extent that the right to a fair trial was violated as he was not able to express his opinion on all the facts that formed the basis for the decision on the merits. He also argued that the contested provisions of the Asylum Act deny the principle of equality of parties to legal proceedings and the prohibition of discrimination. In the applicant's opinion, the non-disclosure of the reasons on the basis of which the public administration authority made its decision deprives the party to the proceedings of the opportunity to comment on all the evidence presented, in violation of the adversarial principle and the principle of equality of arms.
The Constitutional Court emphasised that there must be proportionality between the aim pursued and the means used to restrict the fundamental right or freedom. In this case, it confirmed that the legality requirement was fulfilled, as the restriction was provided in the Asylum Act and had the purpose to protect public security. The court observed that according to Section 13c, paragraph 4, letter d) of the Asylum Act, the Ministry shall not provide subsidiary protection if, among other things, the opinion of the intelligence services pursuant to Section 19a, paragraph 10 of the Asylum Act contains a disagreement with the provision of subsidiary protection. The reason for not disclosing the justification for such an opinion is the protection of classified information from unauthorized persons, a purpose considered legitimate by the Constitutional Court.
The court highlighted that the second step of the proportionality test was whether the restriction was necessary. The court emphasised that any restriction on fundamental rights and freedoms should be formulated as narrowly as possible in a democratic and constitutional state, otherwise they will not meet the requirement of necessity and the principle of proportional restriction of fundamental rights and freedoms.
The court noted that the information based on which a security assessment is done by the intelligence services are obtained through intelligence activities or within the framework of international intelligence cooperation, in many cases by classified methods and means, and its handling is subject to special legal regimes established by national law. Disclosing classified information to an unauthorized person could thwart the activities carried out in connection with the person concerned and at the same time reveal the forms, methods and means of investigation used.
In addition, the court observed that the contested provisions of the Asylum Act significantly limit the possibility of informing an applicant for subsidiary protection of the reasons relating to their public danger in the opinion of the intelligence services. Furthermore, the court noted that this limitation also applies to the Ministry itself, as its employees are not subject to a special regime of access to classified information, and the negative opinion of the intelligence services must be followed and the application rejected without further assessment if the opinion is negative.
The court highlighted that even in proceedings before an administrative court, the applicant may not learn even of the essence of the reasons for which the opinion of the intelligence services assessed them as dangerous to the security of the Slovak Republic. In proceedings involving classified information, it is therefore necessary to strike a balance between two legitimate, but mutually contradictory interests, that is ensuring a fair trial for the person whose security clearance is being examined, and the interest in keeping information secret necessary for the protection of national security and public interest which is superior to the individual right. This balance requires a minimum standard of protection of fundamental rights, not affecting the very essence of those rights.
The court cited ECtHR jurisprudence according to which even in the case of a potential threat to national security, it is at least required that the competent independent appeal body be informed of the reasons for the decision, even if such reasons are not publicly available, and the appeal body must have the power to reject the executive's claim that there is a threat to national security if it considers such a finding to be arbitrary or unfounded. In addition, some form of adversarial proceedings must be ensured, even through a special representative after security clearance (ECtHR, Al-Nashif v Bulgaria, 20 September 2002, 50963/99).
The Constitutional Court noted the possibility for both the applicant and the Ministry of familiarizing themselves with the justification of the decision of the intelligence services at least to the extent strictly necessary, i.e. at least with the essence of the reasons relating to public security that form the basis of decisions, in a manner that takes into account the necessary confidential nature of intelligence and operational information.
Therefore, the court highlighted that the opinion of the Slovak Information Service and Military Intelligence could no longer contain only a strict agreement or disagreement with the provision of protection and the administrative authority cannot be required to unconditionally accept the negative opinion of SIS. Such an approach would ensure the protection of classified information and, at the same time, would meet the necessary framework for the exercise of constitutionally guaranteed rights and allow the persons concerned to defend their interests under significantly better conditions than the contested legislation allows.
Thus, the court concluded that Section 13c(4)(d) of the Asylum Act in the part “containing consent or disagreement with the granting of asylum or with the provision of subsidiary protection” did not meet the requirements of the least invasive means of protecting the security of the Slovak Republic, as it does not provide sufficient guarantees of reviewing the decision of the Ministry.