Case Summary and Outcome

The European Court of Human Rights (“ECtHR“) unanimously decided that the Croatian authorities did not violate the applicant’s right to freedom of expression by denying him access to twenty-five classified documents from the presidential archive related to the recent Croatian history. The applicant argued that the national authorities did not conduct a proper proportionality test, nor did they explain why the national interest overrode the applicant’s interest in gaining the information for his academic research and a book. The ECtHR rejected the application on the ground that five national authorities had examined his case and provided enough information supporting the secrecy of the documents. The Court concluded that decisions involving national security did not have to be explained with the same detail as decisions in ordinary administrative or civil cases.

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Facts

The applicant was a retired right-wing politician and a lawyer. He previously held high political functions in the country, including various high-profile positions during the war in Croatia in 1990s. He requested access to fifty-six documents in the state archives classified as “State secret – strictly confidential” dated thirty-five years ago for the purpose of writing a documentary history of the founding of the Croatian State.

The State President, as an owner of these documents, requested the opinion of the Office of the National Security Council (“ONSC”) before making a final decision about the applicant’s request. The ONSC opined that certain documents should remain classified because their publication could jeopardize the independence, the integrity, security and foreign relations of the Republic of Croatia. Therefore, the President decided to declassify thirty-one documents, but the remaining twenty-five documents remained classified. Following the President’s decision, the state archive denied access to twenty-five documents but granted declassification of thirty-one documents.

The applicant appealed to the Information Commissioner arguing that “the contested ruling had been arbitrary, unfair and devoid of any clear criteria” [para. 11]. The Commissioner reviewed the documents and agreed with the President’s and the ONSC’s findings. She reiterated that the declassification of the documents might harm the mentioned values. She added that the documents’ owner had a discretionary right to decide upon declassification. The applicant requested the High Administrative Court of the Republic of Croatia to quash the Commissioner’s decision since the contended ruling “did not contain any reasoning in respect of why certain records had been declassified while others had not” [para. 13].

The court ruled that under national legislation, the President was the owner of the documents and section 16 (1) of the Data Secrecy Act prescribed that the owner of classified information had the exclusive power to decide whether to maintain, alter the level of the classification or declassify the information in question. If there was a need for disclosure of classified documents, the President was obliged to seek advice from the ONSC. The President was under an obligation to assess the proportionality between the right of access to information and the protection of the mentioned values. According to the court, the President followed these steps. Hence, the applicant’s action was dismissed.

The applicant lodged a constitutional complaint to the Constitutional Court of Croatia complaining inter alia, “of a breach of his right to a fair trial and his right of access to information” [para. 15]. The court dismissed the complaint, but three judges out of twelve judges dissented. The Court found that the local authorities interfered with the applicant’s right of access to information but the interference was lawful because it pursued legitimate aims, namely the values mentioned by the ONSC, the President, and the Commissioner. Regarding the condition of “necessity”, the majority said that the “interference was ‘necessary in a free and democratic society” and ‘proportionate to the nature of the need’” [para. 16]. The majority also referred to the court’s reasoning in a similar case.

Two judges (L.K and G.S.) in their dissenting opinion found violations of the right to effective legal protection and the right to freedom of expression. Regarding freedom of expression, the judges accepted that a document should be out of anyone’s reach “if there indeed [was] a reason on the basis of which it could be concluded that their publication would cause irreparable harm to the national security, integrity and independence of the Republic of Croatia” [para. 17]. However, the applicant was denied any ability to see if a sufficient and rigorous evaluation of such irreparable harm had been done. They noted that the President’s decision and all subsequent decisions were just a formality since nothing suggested that a proportionality test was conducted. The result of the contested decision was that citizens had to assume that the President had conducted a proportionality test. They stated that “[a] proportionality test require[d] the public authority to examine the adequacy of the impugned measure and its necessity,” which was not possible to achieve if the goal of the measure was “set hypothetically and in the abstract” [para. 17]. The local authorities did not mention specific and sufficient reasons for denying the applicant access to the documents. Therefore, this amounted to a violation of freedom of expression.

The decision was served to the applicant’s attorney on 7 April 2020. He then lodged the application against Croatia before ECtHR. The applicant gave an interview on February 2021 stating “that he had finished writing his book and that it would be published in a few months” [para. 19].

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Decision Overview

The ECtHR had to decide whether the Croatian authorities violated the applicant’s right to freedom of expression protected by Article 10 of ECHR and the right to a fair trial protected by Article 6 of ECHR.

The right to freedom of expression

The applicant argued that the refusal of local authorities to declassify the documents amounted to the breach of his right to receive information and “that the domestic courts had failed to properly scrutinise the refusal” [para 26].

Admissibility of the application

The Court firstly dealt with the admissibility issues. Regarding ratione materiae, or subject matter, (in)compatibility, the State argued that the ECHR “did not guarantee the right of individuals to seek information owned or restricted by the State, nor did it impose an obligation on the State to make such information available” [para 27]. The applicant disagreed stating that the Croatian Constitution in Article 38 § 4 guaranteed the right of access to information held by the public authorities. The applicant did not complain because his request was ultimately denied, but due to the fact that “the impugned decision of the President of Croatia did not demonstrate that an adequate proportionality analysis had been carried out in his case” [para. 32]. The court relied on the criteria laid down in Magyar Helsinki Bizottság v. Hungary (§§ 149-80) : (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the applicant; and (d) whether the information was ready and available.

The applicant sought the documents so he could write a history book about the creation of the Croatian State during the 1990s. The requested information was of public interest, which was explicitly admitted by Croatian authorities. The applicant, as an academic researcher, enjoyed a high level of protection. Lastly, there was nothing to show that the documents were not ready for declassifying.  Hence, the ECtHR denied the State’s ratione materiae objection.

The State further argued, “that the applicant had not suffered any significant disadvantage” [para. 45]. The applicant was granted access to thirty-one documents, and he finished his book. Thus, there was no significant disadvantage and the application should be inadmissible under Article 35 § 3 (b) of ECHR. The applicant stated in the interview that the refusal to access the documents had caused delays in publishing and he considered the published work to be incomplete and subject to an update if he were ever to be granted access to the classified documents” [para 49]. The ECtHR denied the State’s argumenta and dismissed the objection. It added that the application before it concerned “important questions of principle regarding access to documents classified under domestic law” and went “beyond the scope of the applicant’s case” [para. 50].

Merits of the application

The applicant repeated that the issue with the refusal was the absence of explanation, not the outcome. He did not contest the legality of the interference, but he did stress “that the Information Commissioner and the High Administrative Court had limited their respective subsequent reviews to verifying the lawfulness of the procedure, without assessing the substance of the argument that it was necessary to deny access to the documents which he had requested” [para 54]. Also, he was not able to identify the legitimate aims pursued by the interference into his right. The Government argued that the interference was based on domestic law and pursued protecting of “the legitimate aim[s]: the independence, integrity and security of the country” [para 57]. They said that the local authorities carefully considered the possibility of declassifying the papers and evaluated the applicant’s and the state’s competing interests.

The ECtHR found that the interference was lawful and based on section 22 of the Archival Material and Archival Institutions Act. The Court decided that such interference pursued the legitimate aim of protecting the independence, integrity, and security of the country and its foreign relations.

The ECtHR invoked its well-established standards of (1) the importance of freedom of expression in general, (2) the necessity and (3) the court’s subsidiary role. It noted that this case differs from other cases involving the right to access information since it “concern[ed] classified information relating to a sensitive part of Croatia’s rather recent history which, as the applicant maintained himself, still formed part of considerable public debate” [para 63] according to the Court. The ECtHR noted that States must be afforded with a wide margin of appreciation “in assessing what pose[d] a national security risk in their countries at a particular time” [para 63]. Further, even though the Court is reluctant to challenge national decisions in the context of national security, there should be some adversarial procedures before an independent body in reviewing that kind of decision. It further said that its decision would depend on the assessment of the fact whether the national bodies “incorporated adequate safeguards to protect the interests of the person concerned” [para. 65].

The ECtHR turned to the present case reiterating the applicant’s claims that the local authorities did not conduct any proportionality test and that the national courts took a very restrictive and limited review of the case. The court acknowledged that the interference was aligned with the local law and that all of the local bodies (including courts) agreed on which legitimate aims were protected. The President and the ONSC (as a body specially designed for the issue of national security) carefully reviewed the applicant’s request and granted access to the most of requested documents. The Information Commissioner directly assessed the documents and agreed with the President’s decision. She found no arbitrariness in the procedure of issuing the President’s decision. Therefore, the Court concluded that nothing indicated that the local authorities failed to carry out a proportionality test. In addition, the court found it important that five different national authorities had decided upon the applicant’s request. Due to this, the ECtHR did not find “that the manner in which the domestic authorities [had] assessed the applicant’s request had been fundamentally flawed or devoid of appropriate procedural safeguards” [para. 70].

The ECtHR explicitly noted that one could not expect the same level of detailed reasoning in cases involving issues of national security as in ordinary civil or administrative cases. According to the court: “[p]roviding detailed reasons for refusing declassification of top-secret documents may easily run counter to the very purpose for which that information had been classified in the first place” [para. 71]. In conclusion, the court ruled that the reasons issued by Croatian authorities were sufficient and that the interference was necessary in a democratic society, so there was no violation of Article 10 of ECHR.

Article 6

The applicant also claimed that his right to a fair trial has been violated. Nevertheless, bearing in mind the findings of freedom of expression, the ECtHR decided not to give a separate ruling about the alleged Article 6 violation.

Concurring opinion of Judge Ktistakis

Judge Ktistakis issued the concurring opinion. He agreed with the majority that Croatia did not violate the applicant’s right(s) but for different reasons. The judge stated the applicant did not demonstrate why the documents that had remained classified were so important for the documentary history he was preparing. Since the documents were transcripts of meetings of the Defence and National Council in 1994 and 1995, (of which the applicant was a member) the applicant could readily demonstrate why they were so essential. Moreover, the applicant failed to ask the High Administrative Court to inspect the information in order to assess whether there were substantial reasons justifying the refusal to declassify the secret documents although the national legislation allowed for such a request. Finally, the judge considered that the ECtHR should not be deprived of the right to assess substantial reasons of a State’s refusal to declassify certain documents “in so far as national legislation provide[d] for this, albeit to a limited extent, as [was] the case with Section 26 of the Croatian Act on the Right of Access to Information” [p. 25].

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