Last Updated on November 8, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
Judgment 8.11.2022 [Section III]
Article 10
Article 10-1
Freedom to impart information
Freedom to receive information
Refusal, on national security grounds, of journalist’s unsubstantiated request for access to Foreign Intelligence Service files of which content disclosed, not instrumental for exercise of freedom-of-expression rights: no violation
Facts – The applicant, a journalist for the newspaper publication Bild, requested the domestic Foreign Intelligence Service to allow him to get physical access and to consult in person the files, as well as to make copies of the documents, it held regarding Mr. U.B., a former Prime Minister of the Land of Schleswig-Holstein who had died in a hotel in Switzerland in 1987. His request was dismissed in so far as it concerned the consultation of the files in person and his challenges thereto before the domestic courts were unsuccessful. The applicant was, however, provided with a summary of the declassified information the Foreign Intelligence Service held, regarding the circumstances surrounding U.B.’s death, following an agreement reached between the applicant and that service outside the scope of the judicial proceedings.
Law – Article 10: The circumstances of the present case were particular as the domestic authorities had not rejected the applicant’s request for access to information on the Foreign Intelligence Service’s files on U.B. as such but had disclosed information on the content of those files, thereby satisfying his request in part. Even assuming that physical access to the impugned files had been instrumental for the exercise of the applicant’s right to freedom of expression, and that its denial had thus constituted an interference with the applicant’s Article 10 rights, it had been in any event justified under Article 10 § 2: It had been in accordance with the law, pursued the legitimate aims of the protection of national security and preventing the disclosure of information received in confidence, and had been “necessary in a democratic society” for the following reasons.
States enjoyed a wide margin of appreciation in the area of national security and classified files of an intelligence service might in principle legitimately be subject to additional access restrictions, given that the desired physical access to the files would possibly or even likely also reveal information about the internal functioning and working methods of the intelligence service. 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.
The applicant had had access to adversarial proceedings at the administrative level before the Foreign Intelligence Service and subsequently before the Federal Administrative Court. With regard to the decision-making procedure, the Court underlined that, inasmuch as the domestic authorities were required to assess the proportionality of a refusal of access on the basis of the elements made available to them, there was a corresponding requirement on applicants to substantiate the purpose of their request before the domestic authorities, if need be in the course of the proceedings before the domestic courts. Abstract arguments would be insufficient. Thus, in the present case as the authorities had disclosed information about the content of the impugned files, which the applicant had not alleged to be incorrect, it had been incumbent on him to substantiate why physical access to the files, had been instrumental for the exercise of his right to freedom of expression. However, he had not done so and had not claimed before the domestic courts that he had been prevented from doing so. He had limited himself to a general reference to his watchdog role as a journalist, to the public interest in the circumstances and the voluminous scope of the files concerned. Although the Foreign Intelligence Service had acknowledged, in the proceedings before the Federal Administrative Court, that the right of the press to receive information might consolidate to become a right to consult files in person and had pointed out that the applicant had failed to make a substantiated submission in this respect, the applicant had not responded to this call, neither before that court nor in his subsequent constitutional complaint. Consequently, the domestic courts could not be reproached for failing to engage in a balancing exercise whether the applicant’s interests in getting physical access had outweighed national security interests in respect of certain documents. In view of the foregoing, the Court could not conclude that the manner in which the domestic authorities had assessed his request had been fundamentally flawed or devoid of procedural safeguards.
Accordingly, the domestic authorities had not overstepped their margin of appreciation when rejecting the applicant’s request.
Conclusion: no violation (four votes to three).
(See also Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, 30 January 2020, Legal Summary; Centre for Democracy and the Rule of Law (dec.), 75865/11, 3 March 2020, Legal Summary; Mikiashvili and Others (dec.), 18865/11 and 51865/11, 19 January 2021; Georgian Young Lawyers’ Association v. Georgia (dec.), 2703/12, 19 January 2021; Šeks v. Croatia, no. 39325/20, 3 February 2022, Legal Summary)
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