Complaint Against the Minister of Industry, Commerce and Tourism Through a ‘Special Procedure for the Protection of Fundamental Rights’

Claimant’s arguments

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.

Government response

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.

Further Evidence

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.

Court Judgement

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.

Claimant’s arguments

The claimants appealed the High Court’s refusal to the Supreme Court, claiming 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 were that the decision of the High Court prevented the claimants from accessing information on the sale of artillery material by Expal Systems to Saudi Arabia and failed to justify how the disclosure of this information could affect national security or national defence.

Proportionality assessment

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.

Details of the appeal

The Supreme Court accepted the claimant’s notice of appeal and admitted the case for consideration, stating that it would 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, what might be the scope of the qualification of certain documents as ‘classified’ in relation to the right of access to information.

The Claimants 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 was 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, and that it failed to conduct a proportionality assessment as required under both the ECHR and Law 19/2013 in determining the lawfulness of 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 licensing information under the Official Secrets Act is a disproportionate interference with the exercise of a fundamental right. It was argued the nature of this pre-constitutional act is outdated, as the political context in 1987 when it was passed is not the same as that of today.

Supreme Court judgement

In February 2023, the Supreme Court upheld the High Court’s decision on the following grounds:

1) Access to information is not a fundamental right.

2) Providing this information puts at risk “the security and defence of the State” as well as the commercial and interest of the exporting company.