CONCURRING OPINION OF JUDGE DERENČINOVIĆ

1. I agree with the decision that, in this case, the authorities did not violate the applicant companies’ rights under Article 6 of the Convention. Given that this is a borderline case, the main reason for my position is the fact that the national authorities justified the interference with the applicant companies’ fair trial rights on the grounds of national security. It is a well-established practice of the Court that in the domain of national security, States have a very wide margin of appreciation when it comes to derogable rights.

2. Nevertheless, regardless of the support on the merits, I am afraid I must disagree with some parts of the reasoning which, in my opinion, depart from the standards and principles established in the recent practice of the Court. Specifically, I believe that in such a sensitive borderline case, which encroaches on the very foundations of the right to a fair trial, it was necessary to carry out a detailed analysis of the counterbalancing factors put in place by the national authorities and to determine whether they meet the high standards of this Court. Detailed analysis and close scrutiny of those factors (compensatory measures) are necessary in order to strike the requisite balance between the security interests of the State and the individual’s right to a fair trial. Unfortunately, this in-depth analysis is missing.

3. Another shortcoming in the reasoning concerns the reference to the findings of the national courts about the “geopolitical orientation” of the State. I find very problematic the fact that the reasoning seems to endorse this contextual argument, as it has no support either in the text of the Convention or in the case-law of the Court.

4. In the following paragraphs I will briefly address these two shortcomings.

5. The reasoning in the context of the general assessment, including in terms of counterbalancing factors, relies heavily on Regner v. the Czech Republic ([GC], no. 35289/11, 19 September 2017). The reference to that judgment is not the most appropriate for several reasons. First, certain controversial findings in Regner were the subject of some justified and well ‑ reasoned criticism in separate opinions, and the judgment was not adopted with a clear consensus among the members of the composition. Thus, for example, Judge Sajó correctly concluded in his dissenting opinion that the majority’s position that “the adversarial principle and the principle of equality of arms are not absolute” did not derive from the Court’s previous case-law (see Regner , cited above, dissenting opinion of Judge Sajó, § 11). To support this position, the majority relied on Fitt v. the United Kingdom ([GC], no. 29777/96, ECHR 2000-II) and Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015). However, as correctly pointed out by Judge Sajó, the Court did not address the absolute (or relative) nature of the right to equality of arms and adversarial proceedings in those two cases. It simply reiterated that the right to access a court was not absolute, which is not the same as the equality-of-arms issue. In addition, Judge Sajó was correct in pointing out that the judgments referred to by the majority in Regner “... are inapposite because neither contemplates an applicant being completely denied access to evidence: in both Fitt and Schatschaschwili the applicants were prevented from cross-examining witnesses, but they were provided with fully transcribed copies of witness testimony. This is not so in the present case, where none of the incriminating evidence, not even a summary of the substance of the charges, was communicated to the applicant” (see Regner , cited above, dissenting opinion of Judge Sajó, § 12). This logic can also be applied, mutatis mutandis , to the present case, because the classified information which the competent State authorities refused to declassify was in no way, even indirectly, available to the applicant companies. For this reason, reference to certain findings from Regner , which departs from the Court’s previous case-law, appears not to be justified.

6. Furthermore, the reasoning in the present judgment seems to overlook the important standards on counterbalancing factors established recently in Muhammad and Muhammad v. Romania ([GC], no. 80982/12, 15 October 2020). That judgment is lex posterior in relation to Regner and is perhaps a more appropriate precedent for the present case given that it dealt with general national security concerns in relation to foreign nationals, while Regner dealt with a purely domestic issue of security clearance in the context of employment. Although in Muhammad and Muhammad (cited above) the Court found a violation of Article 1 of Protocol 7 and not of Article 6 of the Convention, its analysis was heavily influenced by fair trial (due process) considerations and was carried out in a manner characteristic of the assessment of the fair trial guarantees. The Muhammad and Muhammad standards further specify the conditions under which counterbalancing factors can be considered proportionate in the context of restrictions on individual rights for national security reasons. These standards are relevant because they confirm that a system in which procedural rights are only formally guaranteed, and in which effective participation in the proceedings by a person whose rights were restricted due to national security reasons is not ensured, does not meet the requirements established under the Convention. Put simply, such proceedings lack the basic due process guarantees.

7. In other words, the Muhammad and Muhammad standards specify that effective participation in the proceedings implies, inter alia , the awareness or knowledge of the person whose right is being restricted as to the factual elements on the basis of which the national authorities considered that person to represent a security threat. Given that the applicant companies, in this case, did not have access to the evidence based on classified data, it is not entirely clear from the reasoning whether they could have been aware of the circumstances based on facts from publicly available sources which – although it is unclear to what extent – were also part of the case file. This question is crucial for assessing whether the applicant companies’ effective participation in the proceedings was ensured.

8. What can be concluded from the reasoning of this judgment is that some of the applicant companies’ requests were accepted, such as the one for adjournment of the hearing and speeding-up of the proceedings (see paragraph 114 of the judgment), but what is missing is an analysis of the extent to which their meritorious requests necessary for the final resolution of the case were indeed considered by the authorities. Without such an analysis it is difficult to determine whether the applicant companies’ effective, and not just formal, participation in the proceedings was ensured. I firmly believe that applying the standards established in Muhammad and Muhammad would avoid this shortcoming in a borderline case like this and make the reasoning more convincing.

9. The first part of paragraph 116 of the judgment reads as follows:

“The Court also takes notice of the Government’s arguments regarding Lithuania’s geopolitical orientation, entrenched both in the domestic statutory law and in the Constitutional Court’s jurisprudence (see Article 2 § 1 in paragraph 70 above, Article 8 § 2 in paragraph 71 above, and the Constitutional Court’s ruling in paragraph 76 above). As the instant case is related to the applicant companies’ economic activity (see paragraphs 6 and 7 above), the Court also takes notice of the domestic courts’ findings that the matter was related to issues of national security, and that, according to the case-law of the Supreme Administrative Court, the rights of the individual could not supersede those of the nation and national security (see paragraph 50 above).”

10. It sounds very odd for a human rights court to endorse in such a general manner, even in the form of taking notice, the collective interests of the State over the rights of individuals guaranteed under the Convention. A reference to “geopolitical orientation”, a term that cannot be found either in the Convention or in its interpretation by the Court, seems inappropriate even in the form of taking notice, despite the fact it might be enshrined in the constitutional and statutory framework of a particular State Party. Taking fully into account the context of the case, I am thoroughly convinced that such an unusual discourse should have been reconsidered, particularly in a delicate borderline case such as this.