25 Feb Denial of access to classified information for reasons of public interest in accordance with the Convention

In the case of Šeks v. Croatia (application no. 39325/20, 03.02.2022) the European Court of Human Rights held, unanimously, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

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. 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”. He was denied access to 25 Documents.

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, 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. The Commissioner 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.

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. There had accordingly been no violation of Article 10 of the Convention.

References from the official website of the European Court of Human Rights