CONCURRING OPINION OF JUDGE KTISTAKIS

I voted in favour of no violation of Article 10 of the Convention in this case, but on the basis of reasoning that differs from that of the majority of the Court. In particular, firstly, the applicant did not explain to the national authorities (or to the Court) why, while he had succeeded in declassifying thirty-one of the requested documents, the twenty-five documents which had remained secret were so important for the documentary history he was preparing (see paragraph 5). All the more so since he has announced the publication of his book in the near future without these secret documents (see paragraph 19). The reasons for the significance of the secret documents could in fact be easily identified by the applicant because they were transcripts from sessions held in 1994 and 1995 by the Defence and National Security Council, of which the applicant had been a member (see paragraph 8). Furthermore, and secondly, the applicant did not ask the High Administrative Court, as permitted by national legislation (see paragraph 21), “ to inspect such information ” in order to assess whether there were substantial reasons justifying the refusal to declassify the secret documents because they might harm national security and foreign relations. In more general terms, I consider that, in the light of Article 53 of the Convention, the Court should not be prevented from assessing, in addition to procedural safeguards, the substantive reasons for a State’s refusal to declassify documents, in so far as national legislation provides for this, albeit to a limited extent, as is the case with Section 26 of the Croatian Act on the Right of Access to Information.

[1] See Article 8 § 4 of Protocol No. 15 and paragraph 24 of the Explanatory Report to Protocol No. 15.