Last Updated on February 3, 2022 by LawEuro
Information Note on the Court’s case-law 259
February 2022
Judgment 3.2.2022 [Section I]
Article 10
Article 10-1
Freedom to impart information
Denial of access, on national security grounds, to classified records relating to a sensitive part of country’s recent history, accompanied by adequate procedural safeguards and proportionate: no violation
Facts – The applicant, a retired politician, requested access to classified presidential records from the State Archive, in order to write a book on the founding of the Republic of Croatia. After obtaining the opinion of the Office of the National Security Council, the President of the Republic declassified thirty-one of the requested documents but declined to declassify the remaining twenty-five documents stating that such disclosure might cause irreparable damage to the independence, integrity and national security of the Republic of Croatia as well as its foreign relations. The State Archive thus refused the applicant’s request in so far as it concerned the latter documents, giving him access only to the documents that had been declassified. The applicant’s appeals were unsuccessful.
Law – Article 10
(a) Applicability – Applying the criteria for right of access to State-held information laid down in Magyar Helsinki Bizottság v. Hungary [GC], the Court was satisfied that the applicant, as a former politician intending to publish a historical monograph, had exercised the right to impart information on a matter of public interest and sought access to that end to information which had been ready and available. Article 10 was thus applicable.
(b) Merits – Denying the applicant access to the requested documents had amounted to an “interference” with his right to freedom of expression which had been “prescribed by law” and had pursued the legitimate aims of protecting the independence, integrity and security of the country and its foreign relations.
As to whether the interference had been necessary in a democratic society, the Court first observed that unlike a number of previous cases concerning access to personal information, the present case concerned classified information relating to a sensitive part of Croatia’s rather recent history, which still formed part of considerable public debate. National security being an evolving and context-dependent concept, the States had to be afforded a wide margin of appreciation in assessing what posed a national security risk in their countries at a particular time. At the same time, the concepts of “national security” and “public safety” had to be applied with restraint, interpreted restrictively and brought into play only where it had been shown to be necessary to suppress the release of the information for the purposes of protecting national security and public safety. Although the Court was not well equipped to challenge the national authorities’ judgment concerning the existence of national security, when this was at stake, and as in the present case, resulted in decisions restricting human rights, the Court would scrutinise the national decision-making procedure to ensure that it incorporated adequate safeguards to protect the interests of the person concerned. In particular, the concepts of lawfulness and the rule of law in a democratic society required that measures affecting fundamental human rights had to be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision. If there was no possibility of challenging effectively the executive’s assertion that national security was at stake, the State authorities would be able to encroach arbitrarily on rights protected by the Convention.
For the most part, the applicant’s request to access the documents in question had been granted. The President’s decision had been based on the opinion of a specialised advisory body on national security issues and had been ultimately reviewed and upheld by the Information Commissioner – an independent body in charge of protecting, monitoring and promoting the right of access to information-, the High Administrative Court and the Constitutional Court. The applicant’s request had been carefully assessed by all the above authorities and the requested documents, which had been assigned the highest level of classification under domestic law for a period of thirty years, had been directly inspected by at least two of them. Further, the Information Commissioner had agreed with the President’s conclusion, found no abuse of discretion by the executive and noted the applicant’s failure to explain in his appeal why his interest in accessing that information would have outweighed such crucial public interests. In such circumstances, it could not be said that the manner in which the domestic authorities had assessed the applicant’s request had been fundamentally flawed, devoid of appropriate procedural safeguards or that they had failed to perform a proportionality analysis as required under the domestic law.
Lastly, taking into consideration the extent of procedural safeguards provided to the applicant, the Court was satisfied that the reasons adduced by the national authorities for refusing him access to the documents in question had not only been relevant but also, in the circumstances, sufficient. In this connection, it noted that in the national security context, the competent authorities might not be expected to give the same amount of details in their reasoning as, for instance, in ordinary civil or administrative cases, since providing detailed reasons for refusing declassification of top-secret documents might easily run counter to the very purpose for which that information had been classified in the first place.
Accordingly, the interference with the applicant’s freedom of access to information had been necessary and proportionate to the important aims of national security relied on and the subsequent independent domestic review of his request in the circumstances had not been outside the State’s wide margin appreciation in this area.
Conclusion: no violation (unanimously).
(See Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Legal Summary)
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