CONCURRING OPINION OF JUDGE DERENČINOVIĆ

1. In this case, I voted with the majority that Article 6 had not been violated to the detriment of the applicant company. However, I cannot subscribe to some parts of the reasoning. Like the connected case of UAB Ambercore DC and UAB Arcus Novus v. Lithuania (no. 56774/18, 13 June 2023), this is also a borderline case which encroaches on the very foundations of the right to a fair trial. Therefore, 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.

2. The arguments advanced in my concurring opinion in the above ‑ mentioned case are largely applicable in this case too. In order to avoid unnecessary repetition, I refer the reader to that separate opinion. In so far as certain passages are not pertinent to the present case (for instance, part of the reasoning from UAB Ambercore DC and UAB Arcus Novus addressing the issue of “geopolitical orientation”, §§ 3 and 9-10), the reader should simply disregard them as irrelevant for the present case.

3. In this case, the applicant company’s lawyers could “...examine the members of the Commission, the representative of the SSD, as well as its own sole shareholder R.K.” (see paragraph 66 of the judgment). However, the reasoning also refers to the fact that “...as the hearing records indicate, the applicant company’s lawyers ‘could guess’ that it was the latter connection, which was not denied by the applicant company’s sole shareholder R.K., that was at issue (see paragraphs 16 and 19 above)” (ibid.). The fact that the Court is satisfied with a mere assumption by the applicant company as to the factual elements relevant for the resolution of the case seems to fall short of the standard of actual knowledge (awareness) as clarified in Muhammad and Muhammad v. Romania ([GC], no. 80982/12, 15 October 2020). As the Court does in paragraph 69, it may be argued that “[h]aving regard to the proceedings as a whole ... the domestic law and practice of the administrative courts in the case at issue provided the required level of protection to the applicant company.” While I can accept this argument of overall fairness, allied to the fact that the case concerns a matter of national security, an area in which the Contracting Parties have a broad margin of appreciation, I cannot subscribe to the part of the reasoning that leaves some doubt as to whether the applicant company’s effective, and not just formal, participation in the proceedings was ensured. I firmly believe that applying the standards established in Muhammad and Muhammad (cited above) would avoid this shortcoming in a borderline case such as this and make the reasoning more convincing.