Complaint Against the Minister of Industry, Commerce and Tourism Through a ‘Special Procedure for the Protection of Fundamental Rights’
Armed Conflict in Yemen
Saudi Arabia, United Arab Emirates
The request that was submitted on behalf of Greenpeace Spain called for the disclosure of all information on decisions to issue licences for the export of arms to Saudi Arabia. Based on evidence of their use by Saudi Arabia in the conflict in Yemen, the claimants sought to access documentation on licences granted to a named manufacturer New Technologies Global Systems (NTGS), who were also joined as co-defendants in this case, for the export of specific arms (Alakran 120 mm mortar carriers) to Saudi Arabia from 2016 to 2020.
The claim was submitted following a failed information request by Greenpeace Spain to the relevant authorities, who refused to disclose any documents on the basis that they were classified in nature under the Official Secrets Act. The claim before the High Court therefore sought to challenge the lawfulness of the decision by the Spanish Minister of Industry, Commerce and Tourism not to provide access to licensing documents.
The High Court dismissed this claim at first instance, on the grounds that the right of access to information is an ‘ordinary’ rather than a fundamental right that can be subject to permissible limitation. An appeal of this decision has recently been accepted before the Supreme Court with a hearing date pending.
Case Development: Supreme Court of Spain Order of Admission (Special)
The Supreme Court admits the case for consideration, specifying it will focus on whether denying access to licensing information is a disproportionate interference with a fundamental right.nnn The...
Case Development: Notice of Appeal in Cassation to the Supreme Court (Special)
The claimants argue that the High Court’s refusal to grant access to licensing information is a disproportionate interference with the right to freedom of expression and information.nnn This...
This ‘fundamental rights’ challenge claimed that the Minister’s decision was an unlawful restriction on the claimant’s freedom of expression and information as protected by the ECHR, Article 10 and the Spanish Constitution, Article 20(1). The claimants argued that the Spanish court should follow the European Court of Human Rights (ECtHR) who has recognised that the right of access to information is an instrumental part of the right to freedom of expression and information under the ECHR.
The government countered the claimant’s arguments on the grounds that the right of access to information is not a fundamental right and therefore cannot be invoked as part of the ‘special procedure’ under which the proceedings were taking place.
It also argued that the requested information is classified for the legitimate purpose of protecting economic interests and commercial relations, as permitted under Spanish law.
After a series of press reports were published in Spain containing additional detail on the arms that had been exported, the claimants submitted further evidence in support of their initial claim. In particular, new information had come to light on the quantity of arms exported to Saudi Arabia by Spain, the concealment of this information from Parliament by the Government, and the use of Spanish Army facilities to train Saudi Arabian soldiers in the handling of the exported Spanish arms.
The Court rejected the admission of new evidence, stating that the amplification of the facts did not relate to the subject matter of the lawsuit.
Although the High Court of Madrid did initially find this challenge admissible, in its final judgement it dismissed the claimant’s submission. It concluded that the right of access to information is an ‘ordinary’ right, enshrined in an ‘ordinary’ law – Law 19/2013 – that does not form part of the fundamental right to “freely communicate or receive truthful information” enshrined in the Spanish Constitution, Article 20(1)(d).
The Court found that ECtHR case law on the right to access information as an instrumental right for the exercise of the right to freedom of expression and information under Article 10 ECHR, is not directly applicable but is rather a source of interpretation.
In turn, the Court said that Law 19/2013 contains permissible limits to the exercise of the right to access information, namely national security and the economic interests of the nation, and accepted the government’s argument that these were applicable in this case.
The fact that the court initially allowed this claim to proceed through the ‘special procedure for the protection of fundamental rights’ was seen as an implicit recognition of the right of access to information as a fundamental right. This subsequent conclusion therefore creates an inherent contradiction in the court’s action.
The claimant’s appealed the High Court’s refusal to the Supreme Court, claiming that that there is an “interest in cassation” in this case on two grounds:
Right to access information
First, relying on key principles enshrined in the Spanish Constitution, it was argued that the court should incorporate the case law of the ECtHR on the right to access information into the Spanish justice system. The appellants argued a violation of Article 96 of the Constitution, which establishes that international treaties are directly applicable in Spanish law, and Article 10.2 of the Constitution, which provides that the norms protecting fundamental rights must be interpreted in accordance with the Universal Declaration of Human Rights and other relevant treaties.
The particular grounds of appeal was that the decision of the High Court prevents the claimants from accessing information on the sale of artillery material by Expal Systems to Saudi Arabia and fails to justify how the disclosure of this information could affect national security or national defence.
Second, it was argued that the High Court failed to properly carry out a proportionality assessment when considering whether there had been a breach of the contested rights. In particular, it was submitted that the limitation on the appellants right to freedom of expression was clearly disproportionate compared to the alleged impact on the security and defence of the State, and the economic interests of co-defendant NTGS. It was submitted that in addition to the right to freedom of expression, the right to life of the victims of attacks involving Spanish weapons was engaged and placed at risk by the export decisions.
The Supreme Court has recently accepted the claimant’s notice of appeal and admitted the case for consideration.
It has stated that it will address two questions. First, whether, as the High Court determined, the right to information under the Spanish Constitution can be limited on the grounds of national security, defence and economic and commercial interests that are enshrined in Law 19/2013. Second, the scope of the qualification of certain documents as classified in relation to the right of access to information.
Details of the appeal
The Claimants have since filed their appeal, responding to the two questions raised by the Court in its admission order.
Limiting the right of access to information
First, it is argued that the limits established in Law 19/2013 cannot be invoked, because national security, defence, and economic and commercial interests are not outlined as permissible limits to the fundamental right of freedom of expression and information in the Spanish Constitution. In addition, it was submitted that the High Court did not adequately assess the government’s decision to deny access to licensing information, namely that it failed to conduct a proportionality assessment as required under both the ECHR and Law 19/2013 in determining the lawfulness of an interference with an individual’s fundamental right.
Disproportionate interference with a fundamental right
Second, that the government’s reliance on the classified nature of the licencing information under the Official Secrets Act is a disproportionate interference with the exercise of a fundamental right. This outdated nature of this pre-constitutional act is challenged, as it is argued that the political context in 1987 when it was passed is not the same as that of today.
20 Aug 2020
Greenpeace requests a copy of administrative files on specified licences for the export of arms to Saudi Arabia, including copies of the licences, the minutes of the meeting where this licensing decision was made, and the formal justification for the decision to issue these licences.Read the request to the Secretary of State here
15 Sep 2020
Formal request to government is unsuccessful on the basis of the requested information’s classified status under Spanish law.Read the government's response to the request for information here
15 Nov 2020
Case enters the courts. Claim submitted to the High Court of Justice of Madrid challenging the decision not to disclose requested information.Read the claimant's submission here
26 Nov 2020
Admissibility judgement issued. The High Court of Justice of Madrid finds that the claim is admissible and grants a hearing to assess the merits of the claim.Read the judgement here
02 Feb 2021
Government response. Minister contests all grounds and argues that the contested information is classified, and that the claimants cannot rely on the right of access to information as a fundamental right.Read the government's response to litigation here
18 May 2021
Greenpeace submits further facts to expand on the initial complaint filed before the High Court of Madrid.Read the expansion of the facts here
02 Jul 2021
The Court rejects the amplification of the facts on the grounds that they “do not relate to the subject matter of the lawsuit”.Read the judgement here
15 Sep 2021
Judgement issued by the High Court of Justice of Madrid. Case Dismissed.Read the judgement here
05 Nov 2021
Greenpeace seeks to appeal to the Supreme Court.Read the notice of appeal here
11 May 2022
The Supreme Court admits the appeal for processing.Read the Supreme Court's Order of Admission here
06 Jul 2022
The claimants file their appeal at the Supreme Court responding to the key points in the court's order of admission.Read the appeal here
04 Oct 2022
The state attorney replies to the appeal submitted by Greenpeace upholding the arguments of the government at first instance.Read the state attorney's reply
Appeal in Cassation at the Supreme Court of Spain (Special)Read the document in full
Notice of Appeal in Cassation to the Supreme Court (Special)Read the document in full
Final Written Conclusions (Greenpeace)Read the document in full
Formal Submission by Greenpeace to the High CourtRead the document in full
Submission to the High Court of Justice of MadridRead the document in full
Final Judgement by the High Court of Justice of MadridRead the document in full
Decision on the Expansion of the FactsRead the document in full
Expansion of the Facts of the Complaint (Special)Read the document in full
Prosecutor’s Response to LawsuitRead the document in full
Admissibility JudgementRead the document in full
Contact the Claimants
This claim was brought by the Spanish branch of NGO Greenpeace. The claimants were represented by lawyer Laura Díaz Román.
If you would like to know more about this case, please get in touch with our primary contact Lorena Ruiz-Huerta (Greenpeace Spain) by email. The claimant’s external legal representative can be contacted by email here.