Denial of access to classified presidential records for the sake of national security did not infringe on freedom of expression
JUDGMENT
Šeks v. Croatia 03.02.2022 (app. no. 39325/20)
SUMMARY
The case concerned a retired politician’s complaint that his request for access to classified
presidential records in order to carry out research for a book had been denied on national security
grounds.
The Court noted in particular that the President’s decision refusing to declassify some of the
requested documents had been based on an opinion of a specialised body dealing with national
security issues and had ultimately been reviewed and upheld by the Information Commissioner, the
High Administrative Court and the Constitutional Court. Moreover, the applicant’s request to access
documents had for the most part been granted.
It concluded that the interference with the applicant’s freedom of access to information had been
necessary and proportionate to the important aim of national security and that the subsequent
independent domestic review of his request had provided him with sufficient procedural safeguards
and remained within the State’s wide discretion to decide on such matters.
PRINCIPAL FACTS
The applicant, Vladimir Šeks, is a Croatian national who was born in 1943 and lives in Zagreb
(Croatia). He is a retired politician, who previously held high functions in Croatia.
In June 2017 Mr Šeks lodged a request with the Croatian State Archive to have access to
56 documents from the records of the President’s Office in the period between 1994 and 1999. He
requested access as part of research for a book he was writing on the founding of the Republic of
Croatia. The documents were classified as “State secret – strictly confidential”.
The President’s Office asked the Office of the National Security Council’s opinion on declassification.
The latter advised that 31 of the documents be declassified, while it considered that the 25
remaining documents could harm the independence, integrity, national security and foreign
relations of the country. The President’s Office followed that advice.
Mr Šeks appealed to the Information Commissioner, an independent body in charge of protecting,
monitoring and promoting the right of access to information. After inspecting the documents in
question, she dismissed his appeal in July 2018. She agreed with the conclusion that their
declassification could harm national security and foreign relations of the country and did not find the
executive’s decision to be abusive. She also noted that the applicant had failed to explain in his
appeal why his interest in accessing that information would outweigh such crucial public interests.
The President’s decision refusing to declassify 25 of the documents was ultimately also reviewed and
upheld by the High Administrative Court in October 2018 and the Constitutional Court in March
2020.
Mr Šeks’ historical book was due to be published in the spring of 2021.
Mr Šeks complained that the refusal to declassify the documents had amounted to a breach of his
right to receive information under Article 10 (freedom of expression). He also complained under
Article 6 § 1 (right to a fair hearing) that he had not had a fair hearing in his case.
THE DECISION OF THE COURT…
Article 10
First, the Court pointed out that Article 10 was applicable to the applicant’s case. It was satisfied that
the applicant, as a former politician intending to publish a historical book, had exercised the right to
impart information on a matter of public interest and had sought access to information to that end.
The Government argued that the applicant had not suffered any significant disadvantage (under
Article 35 § 3 (b) of the Convention) as he had ultimately been able to publish his book. The Court
dismissed that objection, bearing in mind what was at stake for the applicant – further research and
delays in the publication of his book, which he considered incomplete – as well as the important
questions of principle arising in his case.
The parties agreed that the interference with the applicant’s freedom of expression had been in
accordance with the law – namely section 22 of the Archival Material and Archival Institutions Act.
The Court agreed that that interference had pursued the legitimate aims of protecting the
independence, integrity and security of Croatia and its foreign relations.
Furthermore, the Court found that the manner in which the domestic authorities had assessed the
applicant’s request had not been fundamentally flawed or devoid of appropriate procedural
safeguards.
In particular, the documents requested by the applicant had been carefully reviewed by the owner
of the information (the President’s Office), assisted by a specialised advisory body (the Office of the
National Security Council), and, for the most part, the applicant’s request to access the documents in
question had been granted.
Moreover, the President’s decision refusing to declassify some of the requested documents had
ultimately been reviewed and upheld by the Information Commissioner, the High Administrative
Court and the Constitutional Court. In particular, the Information Commissioner, who had inspected the documents, had at no point disagreed with the opinion of the advisory body or sought to argue
otherwise.
Lastly, the Court was aware that in the context of national security the competent authorities could
not be expected to give the same amount of details in their reasoning as, for instance, in ordinary
civil or administrative cases. Providing detailed reasons for refusing declassification of top-secret
documents could easily run counter to the very purpose for which that information had been
classified in the first place. Taking into consideration the extent of procedural safeguards provided to
the applicant in the present case, the Court was therefore satisfied that the reasons provided by the
national authorities for refusing the applicant access to the documents in question had not only
been relevant but also, in the circumstances, sufficient.
The Court concluded that the interference with the applicant’s freedom of access to information had
been necessary and proportionate to the important aim of national security and that the subsequent
independent domestic review of his request had remained within the State’s wide discretion
(“margin of appreciation”) to decide on such matters.
There had accordingly been no violation of Article 10 of the Convention.
Article 6
The Court considered that it had examined the main legal questions raised in the applicant’s case
and that there was no need to give a separate ruling on the admissibility and merits of his complaint
under Article 6.
Separate opinion
Judge Ktistakis submitted a concurring opinion, which is annexed to the judgment.
