To Publicize or Not to Publicize?

The European Court of Human Rights weighed in on the Nikolova and Vandova v. Bulgaria case. The case concerned the lack of publicity of the judicial proceedings in a decision concerning the disciplinary grounds of Yordanova Nikolova, a civil servant.  The lower court disallowed public proceedings in order to preserve the confidentiality of certain documents.

Nikolova was charged with bribery and obstruction of justice in the course of her duties as a police official in 2001. She was convicted and sentenced to 5 years imprisonment in March of 2003. However, on appeal, the judgment was set aside in June of 2003 due to procedural defects.

The crux of this case hinges on the fact that the proceedings were hidden from the public, and the documents were kept from Nikolova and her lawyer, Yordanka Vandova. “In her capacity as lawyer, Ms. Vandova asked to consult the file. She could not, however, gain access to it on the ground that it had been classified as “secret” and she had not received the accreditation necessary to be entrusted with such information.”

The law states that classified documents may be accessed only if the lawyer goes through a security investigation, which Vandova refused to undergo.  Nikolova then moved to defend herself on appeal, but she ran into similar obstacles. Since the files were classified, Nikolova was initially unable to obtain copies of the decisions in question. Relying on Article 6 § 1, the right to a fair hearing, Nikolova complained that the judicial proceedings concerning her appeal were unfair because they had not been publicized, and the decisions of the Supreme Administrative Court were also not accessible to the public.

The Appeals Chamber held that domestic courts may decide whether or not public proceedings should be allowed on a case by case basis, focusing on whether or not the disallowance would protect the public interest. The Court decided that the Bulgarian authorities had a legitimate interest in preserving the confidentiality of the documents, but “the Court reiterated that the mere presence of classified documents did not automatically justify the exclusion of the public from the proceedings, without assessing the need for such exclusion by weighing the principle of the publicity of court proceedings against the imperatives of protecting public order and national security.”  The means must justify the ends, and in this case, the Court was not convinced that the exclusion of the public had been necessary in order to preserve the confidentiality of the documents concerned. Therefore, the Court held that there had been a violation of Article 6 § 1 due to the lack of publicity of the proceedings in question.  Do you think the decision was fair? How do you think a United States’ court would have dealt with a case similar to this one?

Source: HUDOC

Picture: CourtNews

One comment

  1. I do think the decision was fair. The balancing test that the court used seems to be the proper test. Although keeping certain documents confidential is a legitimate interest of the state, there must be a balance since it may be necessary to make public certain documents. Not allowing Nikolova access to those documents definitely puts her side at a disadvantage, especially since those documents are what the case hinges on. Even though a security clearance is necessary in order to be able to access certain confidential documents, I feel that this seriously puts the person seeking to gain access at a disadvantage. There is no guarantee that at the end of the security investigation, they will necessarily have access to the documents.
    With regards to the second question, I think that a U.S. court would have ruled in a similar way to the Bulgarian court. The court properly used a balancing test and weighed the important factors in determining an outcome. In my opinion it seems that the court ruled the correct way, especially since it put Nikolova at serious disadvantage.

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