CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 juin 2023

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display:inline-block } .s7E447BAE { width:130.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right }   SECOND SECTION CASE OF UAB BRAITIN v.   LITHUANIA (Application no. 13863/19)     JUDGMENT   Art 6 § 1 (civil) • Administrative proceedings concerning refusal on national security grounds to issue applicant company with permit to acquire a commercial real estate management company • Refusal based only partly on non-disclosed classified information of no apparent decisive value • Applicant company could effectively participate in proceedings • Due exercise by administrative courts of powers of scrutiny, giving reasons for decisions with regard to specific case-circumstances • Restrictions on rights to adversarial proceedings and equality of arms offset in such a manner that fair balance between parties not affected to such an extent as to impair very essence of right to a fair hearing   STRASBOURG 13 June 2023   FINAL   13/09/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of UAB Braitin v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   13863/19) against the Republic of Lithuania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a company registered in Lithuania, UAB Lewben Investment Management, which later changed its name to UAB Braitin (see paragraph 38 below) (“the applicant company”), on 4   March 2019; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning the applicant company’s right to a fair hearing and right to protection of its reputation and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 9 May 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case mainly concerns the applicant company’s complaint, under Article   6 §   1 of the Convention, that it did not have a fair hearing during administrative court proceedings in which an administrative decision refusing it permission to acquire a commercial real estate management company was upheld. THE FACTS 2.     The applicant company is registered in Vilnius. It was represented by Mr R.   Audzevičius, a lawyer practising in Vilnius. According to an operating licence issued by the Bank of Lithuania in November 2015 under its former name of Lewben Investment Management, the applicant company was authorised to manage collective investment schemes. 3.     The Government were represented by their Agent, Ms   K.   Bubnytė ‑ Širmenė. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     On 16   August 2017 the applicant company asked the Commission for Assessment of Compliance of Potential Participants with National Security Interests ( Potencialių dalyvių atitikties nacionalinio saugumo interesams įvertinimo komisija – hereinafter “the Commission”) to assess its compliance with national security interests. It intended to acquire an investment company registered in Vilnius, UAB Prosperus Real Estate Fund II, which in February 2017 had been issued a licence by the Bank of Lithuania to engage in investment activity. The applicant company noted that 100% of its shares belonged to a private individual, R.K.. 6 .     On 29   August 2017 the Chancellery of the Government (hereinafter “the Chancellery”) asked a number of State authorities whether they had any relevant information regarding the applicant company, but they replied in the negative. On 6   September 2017 the State Security Department (hereinafter “the SSD”) asked the Commission to postpone examination of the applicant company’s request so that it could provide it with classified information about the applicant company. 7 .     On 21   September 2017, by protocol decision no.   NS-41, the Commission held, with ten members voting in favour and one member abstaining, “on the basis of information provided by competent State authorities”, that the applicant company’s sole shareholder “had connections” with individuals ( asmenimis ) who had links to institutions or persons ( institucijomis ar tų valstybių asmenimis ) of States not belonging to the European Union (EU) or the North Atlantic Treaty Organisation (NATO). This meant that the condition set out in Article   7 § 10 (3) of the Law on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security (hereinafter- “the Law on Enterprises and Facilities of Strategic Importance”) had not been complied with (see paragraph   34 below). On 22   September 2017 a copy of that protocol decision was sent to the applicant company. PROCEEDINGS BEFORE THE VILNIUS REGIONAL ADMINISTRATIVE COURT 8.     The applicant company appealed against the Commission’s protocol decision, arguing, among other things, that the decision did not state on what evidence or facts it was based. 9 .     By a ruling of 25 October 2017 the Vilnius Regional Administrative Court included the SSD in the proceedings as a third party. It also asked the SSD to provide the court with a response to the applicant company’s appeal, as well as all material related to the dispute. 10.     In its response of 16   November 2017, the SSD stated that the Commission’s protocol decision was reasoned; it was also supported by public and classified material which it had provided to the Commission. 11 .     On 21   November 2017 the SSD provided the Vilnius Regional Administrative Court panel ( tik bylą nagrinėsiančiai kolegijai ) which was to hear the case regarding the Commission’s protocol decision with twelve pages of documents marked either “secret” ( slaptai ) or “confidential” ( konfidencialiai ). 12 .     On 11   December 2017, in reply to the Vilnius Regional Administrative Court’s request of 25   October 2017, the SSD also provided fifty-nine pages of publicly accessible information in connection with the applicant company’s complaint regarding the lawfulness and reasonableness of the Commission’s protocol decision. Those documents included the translation into Lithuanian of various articles by the Belarusian and Latvian press and Euobserver.com, written in Russian and English, regarding two businesspeople, A.O. and J.Č. It appeared that A.O. had been arrested in Belarus pending criminal proceedings, while J.Č., as well as some of his companies, had been under EU sanctions pursuant to EU Regulation no.   265/2012 of 23   March 2012, for having provided financial support, via his company, to the Lukashenko regime. A.O. and J.Č. had also been mentioned in the Belarusian news in connection with some business operations linked to the Belarusian State; J.Č. was a board member of the President’s Sports Club in Belarus, which was headed by Mr Dmitry Lukashenko, Mr Aleksandr Lukashenko’s son. The President’s Sports Club had been trading in the Russian Federation, with transactions in 2015 amounting to billions of Russian roubles. 13 .     On 13   December 2017 the Vilnius Regional Administrative Court asked the SSD whether it would consider declassifying the documents added to the case file, but on 10   January 2018 the SSD responded that the reasons for keeping the documents classified remained and that they therefore could not be declassified. 14 .     In its response to the applicant company’s appeal, the Chancellery, acting on the behalf of the Commission, stated that the latter had adopted its protocol decision on the basis of information provided in the SSD’s report of 20   September 2017 marked “classified” ( slaptai ), that information having been presented to the members of the Commission during its hearing of 21   September 2017. The Chancellery also stated that the information in the SSD’s report confirmed that the applicant company’s sole shareholder had links to individuals from non-EU and non-NATO countries. Furthermore, given that the Commission in its hearings always examined classified ( įslaptinta ) information, all of its members had permission to work with and see information marked “classified” ( slaptai ), and its hearings were not public (point   23 of the Rules of the Commission). The Commission would not invite to its hearings either persons submitting requests for authorisation, or their representatives or third parties. Accordingly, the applicant company was not correct in arguing that the Commission had not provided it with an opportunity to explain itself. Lastly, given that the information constituting State secrets provided in the SSD’s report of 20   September 2017 was classified and not public, the Commission would not be able to explain in any more detail the reasons and factual circumstances behind its decision in its response to the applicant company’s appeal. For objective reasons, the Commission did not have right to provide more comprehensive information on what it had based the protocol decision. The Chancellery considered that the Commission’s decision had been reasonable. The Chancellery also provided the court with twenty-eight pages of material relevant to the case, none of which contained information constituting State or official secrets. It appears that the response was given to the applicant company in accordance with the rules of administrative proceedings. 15 .     On 19   March 2018 the Baltic News Service, a news agency in Lithuania, made public information regarding the SSD having blocked the applicant company’s intention to acquire Prosperus Real Estate Fund II, the latter having intended to invest in buildings situated near the Lithuanian Seimas (Parliament). A representative of the SSD confirmed to the press that a negative decision had been adopted by the Commission in respect of the applicant company based on the public and classified material it had provided, and that the SSD considered the Commission’s decision to be reasonable. The representative of the SSD also stated that it was relations with individuals from non-EU and non-NATO countries that posed a risk to national security. Lastly, the article quoted the applicant company’s representative, who observed that the company was contesting the Commission’s decision in court. She did not respond to the question whether the Lewben group of companies had connections which caused the State institutions to consider that they posed risks to national security. 16 .     According to the hearing records provided by the Government, the Vilnius Regional Administrative Court held oral and closed ( uždari ) hearings on 5   February, 8   March and 27   March 2018, with the participation of the applicant company’s lawyers and representatives of the Commission, the Chancellery and the SSD (one of the members of the Commission). During the proceedings a number of witnesses – nine members of the Commission – were examined by the applicant company’s lawyers. The sole shareholder of the applicant company, R.K., was also examined and confirmed that “she had seen Belarusian citizens J.Č. and A.O., the latter ... at a private party ... outside ... Lithuania”. R.K. explained, however, that she had no personal connection with those two individuals. As stated in the applicant company’s lawyers’ pleadings, during the last court hearing on 27   March 2018, “they could guess” ( mes galime spėti ) that the SSD was of the view that R.K. had dangerous connections with persons listed “in the material provided”, namely Belarusian citizens A.O, D.L., A.K. and J.Č. Yet, in the view of those lawyers, the SSD had not proved that any of those individuals posed any kind of clear and present danger to national security because, among other things, EU sanctions with regard to some of them had been lifted. 17 .     On 26   March 2018 the SSD provided “only the court panel which was to hear the case” with a classified document dated 21   March 2018, which, according to the SSD, confirmed the reasonableness and lawfulness of the Commission’s protocol decision, and refuted R.K.’s statements made in court. 18 .     On 26   April 2018 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint as unfounded. 19 .     The court noted that the applicant company’s connections with persons posing a risk to the national security of Lithuania were confirmed not only by the non-public material ( nevieša medžiaga ) the SSD had provided, which the court had examined ( su kuria teismas susipažino ), but also the SSD’s response to the appeal and the material provided with it (see paragraphs 11 and 12 above). Sufficient information had been disclosed in court about the applicant company’s shareholder’s connections with persons posing a threat to national security. There was therefore no basis for holding that, without declassifying the SSD’s information and without providing the applicant company with the opportunity to see that information, its right to an effective defence in court had been restricted. It had to be noted that the applicant company’s shareholder R.K. explained in court that “she knew” ( jai žinomi ) Belarusian citizens J.Č. and A.O., the latter whom she had seen at a private party outside Lithuania. The members of the Commission, when examined in court, explained that the non-public (classified) material provided by the SSD had led them to the conclusion that the applicant company’s links to persons linked to institutions of foreign States not belonging to the EU and NATO or to the interests of those States did not comply with national security interests. 20 .     For the Vilnius Regional Administrative Court, “taking into account both public and non-public information, as well as witness testimony, it ha[d] to be concluded that [the Commission’s] decision [was] not limited to mere references to provisions of law; rather, factual circumstances [were] clearly set out therein, and those factual circumstances [were] linked to the legal provisions applied”. It followed that the applicant company had connections to non-EU and non-NATO States, or persons in those States, and thus did not meet the requirements of Article   7 §   10   (3) of the Law on Enterprises and Facilities of Strategic Importance (see paragraph   34 below). The disputed decision had been adopted on the basis of public material ( vieša medžiaga ) contained in the case file, as well as explanations by the witnesses, the Commission and the representative of the SSD. That public material was supported by the non-public material provided by the SSD on 21   November 2017 and 26   March 2018 (see paragraphs   11 and 17 above). 21.     The Vilnius Regional Administrative Court also dismissed as unfounded the applicant company’s statements that it could not have defended its rights at the time its requests were being examined by the Commission. The court pointed out that, under the legal regulation in force, the Commission had a right but not an obligation to invite to its hearing experts, representatives of the companies’ management bodies or other persons, as its hearings were closed. The applicant company had had the opportunity to provide explanations or submit documents when submitting a request for authorisation of the business transaction (see paragraph   5 above). The fact that the Commission had adopted its decision without the applicant company’s representative being present, had not been unlawful. 22 .     The court could not agree with the applicant company’s claim that the contested decision was disproportionate. It referred to the Constitutional Court’s ruling of 25   January 2013, in which it was held that the principle of proportionality was one of the elements of a State under the rule of law, and that legal regulation had to be proportionate to the aims sought and could not restrict a person’s rights more than necessary. For the administrative court, in the case at hand, national security, as virtue ( kaip vertybė ) prevailed over private business interests, and “in the presence of even the slightest (minimal) risk to State security, the State had the right to protect itself”. There was therefore no legal basis for holding that the contested decision breached the principle of proportionality. By the impugned decision, the Commission had not barred the applicant company from the ability to freely engage in business; it had only decided the question regarding the threat to State security. 23 .     In reply to the applicant company’s suggestion that the threat to national security had to be clear and present ( reali ir akivaizdi ), the court noted that neither the Law on Enterprises and Facilities of Strategic Importance nor other legal acts provided a definition of the concept “could be a threat” ( gali grėsti ). Accordingly, when assessing the question of possible threats to national security, their clarity ( realumas ) and the presence of a possibility of such a threat had to be assessed when adopting relevant decisions. It was also important to guarantee a fair balance between the interests of the State and society, on the one hand, and the potential participant in a transaction, on the other. Against that background, it followed that a positive decision by the Commission could be taken only where the potential participant met the criteria listed in Article   7 §   10 of the Law on Enterprises and Facilities of Strategic Importance (see paragraph   34 below). In the instant case, in its decision the Commission had reasonably held that the applicant company did not qualify because of its sole shareholder’s connections (see paragraph   7 above). 24 .     The court also disagreed with the applicant company’s statements that without declassifying the SSD’s information and allowing it to see that information, its right to an effective defence in court had been restricted. In fact, the SSD had also provided the court with public information, which the applicant company had had the opportunity to consult. Furthermore, the applicant company’s representatives could lodge requests, submit evidence and examine the Commission’s members in court. The applicant company’s shareholder R.K. had also taken part in the court proceedings and testified. 25 .   Lastly, the court referred to Article   56 §   6 of the Law on Administrative Proceedings (see paragraph   35 below), and noted that the applicant company had not refuted the Commission’s conclusion. At the same time, it had not provided the court with any other information which would call into question the reasonableness of that decision. Overall, the Commission had correctly applied the law, comprehensively assessed the factual circumstances of the case and reached a reasonable and lawful decision. 26 .     On 26   April 2018 the Baltic News Service announced that the Vilnius Regional Administrative Court had upheld the Commission’s September 2017 decision refusing Lewben Investment Management permission to acquire Prosperus Real Estate Fund II because of non-compliance with national security interests. The court’s representative stated that, under the Law on Enterprises and Facilities of Strategic Importance, a potential participant was declared as complying with national security interests where he, she or it did not have links to individuals from non-NATO and non-EU countries which would pose a risk to national security. 27.     On 27   April 2018 the Vilnius Regional Administrative Court returned to the SSD the classified documents marked either “confidential” or “secret” (see paragraph   11 above). PROCEEDINGS BEFORE THE SUPREME ADMINISTRATIVE COURT 28 .     The applicant company appealed, complaining, among other things, that the information contained in the SSD’s classified report had not been disclosed to it or its shareholder either at the time of adoption of the Commission’s decision or during the proceedings before the Vilnius Regional Administrative Court. The applicant company could not therefore have disputed circumstances unknown to it. It also argued that “one meeting” ( vienas susitikimas ) with a citizen of a third State had been insufficient to hold that its shareholder posed a threat to Lithuania’s national security. The applicant company also argued that although both the Commission and the first-instance court had heard the case in closed hearings, both the SSD and that court had still disclosed certain information about the case, including the Commission’s decision, which had not yet entered into force. Such actions of the SSD and the first-instance court had been in breach of Article 8 of the Convention. The applicant company requested that the court examine the case in closed court hearings, and that it take into account the unlawful disclosure of information when deciding whether to annul the decisions of the Commission and the first-instance court. 29 .     By a final ruling of 17   October 2018, the Supreme Administrative Court left the lower court’s decision unchanged. It noted that when the Commission had assessed the applicant company’s request on 21   September 2017, it had assessed the classified information provided by the SSD and then adopted the contested protocol decision (see paragraph   7 above). 30.     It further held that, “having assessed the evidence in the case file”, it was clear that publicly available factual information confirmed that applicant company’s sole shareholder had links with individuals who had connections with persons from States not belonging to the EU and NATO. Inasmuch as it concerned the assessment of evidence, and taking into account all the circumstances relevant to the case, on the basis of procedural rules set out in the law regarding the assessment of evidence, as well as on the basis of the criteria of fairness and reasonableness, there was no basis for rejecting or acknowledging as unfounded the publicly accessible information provided by the SSD to the Commission. Given that the first-instance court had thoroughly and comprehensively examined the information forming the factual basis for the Commission’s decision, the Supreme Administrative Court would not assess those circumstances in detail. Yet, it was worth noting that the sole shareholder of Lewben Investment Management, when examined in the first-instance court as a witness, “confirmed that she was acquainted with the Belarusian citizens concerned” ( patvirtino pažintį su atitinkamais Baltarusijos piliečiais ). 31 .     Although the first-instance court had also relied on “classified data provided by the SSD”, Article   56 §   3 of the Law on Administrative Proceedings did not impose an absolute ban on the use of information constituting a State or official secret as evidence in an administrative case. It was only important that no court decision could be based exclusively on classified information which was not known to the parties (or one party) to the proceedings. On this point, the Supreme Administrative Court referred to the Constitutional Court’s ruling of 15   May 2007 (see paragraph   36 below). In the case at hand, the first-instance court, when admitting the classified information in evidence and having assessed that information together with the other – unclassified information – contained in the case file, in accordance with Article   56 §   6 of the Law on Administrative Proceedings, had not departed from the principles regarding the use of classified information as evidence set out in the case-law of the Court and the Constitutional Court (referred to by the first-instance court), as well as the case-law of the Supreme Administrative Court (ruling of 27   June 2018 in administrative case no.   eA   4143-442/2018). 32 .     On 17   October 2018 the Baltic News Service published news about the Supreme Administrative Court’s ruling: the court’s representative announced that the applicant company’s appeal had been dismissed, and that the court was unable to provide more information on the subject because of the closed nature of the proceedings. The applicant company’s lawyer, R.A., for his part, “could not believe the Supreme Administrative Court’s decision” and stated his intention to lodge an application with the Court. He also said that the Commission’s decision had been adopted in the context of a specific transaction and that it was no longer relevant. RELEVANT LEGAL FRAMEWORK AND PRACTICE 33.     The Constitution reads: Article 30 “A person whose constitutional rights or freedoms are violated shall have the right to apply to a court. ...” Article 46 “Lithuania’s economy shall be based on the right of private ownership, freedom of individual economic activity and initiative. The State shall support economic efforts and initiative that are useful to society. The State shall regulate economic activity so that it serves the general welfare of the Nation. ...” 34 .     The relevant provisions of the Law on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security ( Strateginę reikšmę nacionaliniam saugumui turinčių įmonių ir įrenginių bei kitų nacionaliniam saugumui užtikrinti svarbių įmonių įstatymas ) at the material time read as follows: Article 2. Definitions “1. National security interests mean protection of the independence and sovereignty of the State, European and transatlantic integration, reducing threats and risks to the energy and other economic sectors of fundamental importance to public security. ...” Article 3. State and municipal enterprises of strategic importance to national security and facilities belonging to the State by the right of ownership “3. The following economic sectors shall be of considerable strategic importance to national security: ... 4) finance and credit. ...” Article 7. Assessment of compliance of potential participants with national security interests “1. Assessment of the compliance of potential participants with national security interests shall be carried out in the manner and cases stipulated herein. ... 10. A potential participant shall be recognised as complying with national security interests provided that [he, she or it]: ... (3) does not maintain relations with institutions of foreign States which are not members of the European Union and the North Atlantic Treaty Organisation or with persons from those States which might increase the risk or pose a threat to national security; ... 11. If the Commission finds that a potential participant does not comply with national security interests, the decision must indicate the legal and factual basis. A negative decision by the Commission means that the State objects to that person becoming a potential participant, and that the person may not become a potential participant in the manner referred to in paragraph 2 until [he, she or it] eliminates the reasons for [his, her or its] non-compliance with national security interests and the Commission has taken a new decision confirming compliance of that person with national security interests. 12. The decision of the Commission may be appealed against before the Vilnius Regional Administrative Court in accordance with the procedure established by the Law on Administrative Proceedings of the Republic of Lithuania.” 35 .     The Law on Administrative Proceedings ( Administracinių bylų teisenos įstatymas ) at the material time read as follows: Article 8. Publicity of court proceedings “1. Cases before the administrative courts shall be heard in public ... 2. The hearing may be closed to protect the confidentiality of a person’s personal or family life, and if a public hearing can reveal a State, official, professional or commercial secret. In this regard, the court shall adopt a reasoned ruling. In a closed hearing, participants in the proceedings may be present and, where appropriate, witnesses, specialists, experts and interpreters. 3. In a closed hearing, the case shall be heard in accordance with all the rules of procedure. The operative part of the judgment shall be made public, unless otherwise provided for by law.” Article 56. Evidence “1. Evidence in an administrative case is all factual information found admissible by the court hearing the case and based on which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case, or that there are no such circumstances ... 3. As a rule (paprastai), factual information which constitutes a State or official secret may not be used as evidence in an administrative case, until the information has been declassified in a manner prescribed by law. ... 6. No evidence before the court shall have any predetermined effect. The court shall assess the evidence according to its inner conviction based on a detailed, comprehensive and objective review of all the circumstances of the case on the basis of the law, as well as the criteria of justice and reasonableness.” 36 .     In its ruling of 15   May 2007, the Constitutional Court pointed out that no court decision could be based exclusively on information constituting a State secret (or other classified information) which was not known to the parties (or one party) to the case. THE LAW PRELIMINARY REMARKS 37.     In its observations of 29   January 2021, the applicant company submitted that a distinction had to be made between its activities, which were focused on investment management on Lithuanian territory, and those of the Lewben group of companies, which provided various international consultancy activities to a very diversified clientele, which differed according to the origin of their State, their nationality, citizenship or establishment in one region of the world or another. The applicant company also stated that at the time of the screening process it had been controlled by a sole shareholder, R.K. 38 .     In their observations of 19   March 2021, the Government raised an objection regarding the applicant company’s victim status. They referred to information – based on the applicant company’s submissions of 29   January 2021 to the Court and some information in the public domain – that on 17   October 2019 the company name Lewben Investment Management had been changed to Braitin, and that the owners of the company had also changed. The Government pointed out that the negative decision within the screening process had been adopted due to the fact that R.K., at the relevant time the sole shareholder of Lewben Investment Management, had relations posing a threat to national security. Once 100% of the shares had been sold to other persons, those relations had become irrelevant for Braitin. The eligibility of the new owners to invest in a sector of strategic importance had not been questioned by the Lithuanian authorities in the disputed screening process. The Government also stated that not only had Braitin not been involved in the contested domestic proceedings while disputing the Commission’s decision, it had also presented itself as a completely new entity. 39.     On 23   March 2021 the Government’s submissions were forwarded to the applicant company “for information”. The applicant company was also requested “not to reply to those submissions”. 40.     The Court considers that the fact that the applicant company changed its name and shareholders has no decisive impact regarding the issue of victim status. It suffices to note that the Government have not argued that the applicant company ceased to exist. Accordingly, their preliminary objection that the application should be declared inadmissible as being incompatible ratione personae with the provisions of the Convention must be rejected. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 41.     The applicant company complained that it had not had a fair hearing when in the administrative courts challenging the Commission’s decision finding that it did not comply with the interests of national security. It argued that the Commission’s decision had been very succinct, that the courts had examined the classified information behind closed doors, and that it could not effectively respond, even though the respondent had exercised such a right. Any publicly available information had been too scarce or unreliable to justify the conclusion that it constituted a threat to national security. In support of its complaint, the applicant company relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility The parties’ submissions 42 .     The Government did not deny that the present case concerned a “dispute” between the applicant company, as a potential participant in a sector of strategic importance, and the Commission. The Commission’s decision had therefore had an effect on the applicant company’s civil rights. The Government thus agreed that Article 6 § 1 of the Convention was applicable under its civil limb. 43.     They submitted, however, that the applicant company’s complaint of a lack of a fair hearing and adversarial proceedings was manifestly   ill ‑ founded. 44.     The applicant company agreed that the Commission’s decision regarding it not meeting the national security interests criteria and the subsequent administrative court proceedings had affected its and its former shareholder’s civil rights. It also submitted that the complaint of a lack of a fair hearing was well-founded. The Court’s assessment 45.     The Court notes that the dispute between the applicant company and the Commission, examined by the administrative courts, concerned the assessment of the applicant company’s compliance with national security interests in connection with its intention to acquire another company (see paragraph   5 above). It therefore considers that its grievances related to the fairness of the proceedings, in which the lawfulness and reasonableness of the decision had been assessed, fall to be examined under the civil head of Article   6 §   1 of the Convention. The applicability of that provision to the circumstances of the present case and the applicant company’s complaint not having been contested by the Government (see paragraph   42 above), the Court sees no reason to hold otherwise. 46.     The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant company 47.     The applicant company submitted that, on the facts of the case, it was clear that the requirements of the principles of adversarial proceedings and equality of arms had not been respected in the administrative proceedings regarding the Commission’s decision. Firstly, it had never been aware (was still not aware) and could not be aware of the grounds on which the unfavourable decision and the administrative court rulings had been based. Secondly, the administrative procedure and the procedural measures adopted had not provided means for it to prepare its defence in respect of the most important matters of the case. Thirdly, it had been put at a significant disadvantage as compared to the respondent (the Commission and the SSD) in the administrative case. Fourthly, it had not had effective means of appealing against the ruling of the first-instance court because no specific grounds or reasoning had been indicated in the ruling of the first-instance court. Fifthly, the decision not to disclose classified information to the applicant company had been arbitrary and unjustified. 48.     The applicant company considered that it, or its former shareholder could not have reasonably posed a real or obvious threat to national security through the acquisition of a commercial real estate management company. Domestic law and the practice of the administrative and constitutional courts, according to which no court decision could be exclusively based on classified evidence, had not been followed in its case. The Commission, the SSD and the administrative courts had communicated and exchanged the most pertinent evidence in the case, without the applicant company being provided with access to such information. This had resulted in a situation where the case had been effectively decided only by the respondent (the Commission and the SSD) and the administrative courts, whereas it had had absolutely no means of defending or rebutting the Commission’s and the SSD’s claims or of providing its comments or counterarguments. It had been kept “totally in the dark”, whereas the Commission, the SSD and the administrative courts had enjoyed full access to the classified evidence. Such a process had in no way guaranteed equality of arms to the parties. 49.     The issue of the declassification of the confidential information, which had been the basis of the Commission’s decision and the administrative courts’ findings, had been left to the discretion of one party, the SSD, which had been the source of the classified information and had therefore effectively been the respondent in the case. This meant that the SSD had had a significant advantage in the case vis-à-vis the applicant company, because the former had had the discretion to decide whether to provide access to the most pertinent evidence to the latter, and had eventually decided to withhold it. This, in essence, had provided the Commission and the SSD with absolute and unchallengeable means of influencing the result of the administrative case to their own advantage. 50.     The fact that the applicant company had lodged numerous requests with the administrative courts, such as for the case to be examined in non ‑ public oral hearings or for witnesses to be examined in court, had been to no avail. An oral examination of the case had had no benefit for the applicant company, since, as could be seen from the hearing transcripts provided by the Government, the representatives of the Commission and the SSD, when examined by the applicant company’s lawyers, had not disclosed any pertinent information. In fact, the examination of the Commission’s members had been of absolutely no use for the applicant company. Clearly, after the examination of the witnesses, the applicant company could not have known and still did not know what kind of relations could be identified by the SSD as potentially posing a risk to national security. 51 .     Since the applicant company and its former shareholder R.K. had not and could not have known what sort of relations and with whom had been considered a threat to national security, the applicant company and its shareholder had had to play a guessing game in the administrative court proceedings in order to at least try to defend such unknown allegations. In fact, since the applicant company had had to defend itself “blindfolded”, it had collected every name and surname of all the persons mentioned in the so ‑ called “public information” submitted by the SSD and asked R.K. if she had ever heard or knew anything about them. 52.     The administrative courts’ reference to “public information” in the case file had been insufficient, given that none of the court decisions had provided any explanation or reasoning or referred to the material which was allegedly “public” and allegedly proved the relations alleged by the SSD. In other words, the administrative courts had not provided any arguments as to what that “public information” had actually proven. Besides, the statements of the administrative courts and the Government that the administrative courts had allegedly relied on “public information”, that is, excerpts from articles posted online in Russian, had also violated the applicant company’s right to due process. Such “public information” published on the Internet was obviously unreliable – it could not be objectively verified, nor could the authenticity of those sources or their authors be verified. In addition, the decisions of the administrative courts had not even mentioned that the “public information” provided by the SSD contained detailed and accurate information about the applicant company’s conduct, its alleged improper contacts or other circumstances which could endanger national security. No such information had been provided in the Commission’s decision or in the rulings of the administrative courts. Furthermore, the so-called “public information” had only contained excerpts from the various news articles in Russian. None of the excerpts from those articles had even mentioned the applicant company or its former shareholder or the Lewben group. In that context, the applicant company also argued that the EU sanctions in relation to Belarusian citizens J.Č. and A.O. and some of their companies had been lifted in 2015, that is, well before the Commission’s decision. It was clear that, similarly to the facts in the case of Pocius v. Lithuania (no.   35601/04, 6   July 2010), the Commission, the SSD and the administrative courts had relied to a decisive extent on classified information, which had been the only evidence in the case. 53.     In sum, the applicant company had not had a fair hearing and adversarial proceedings, as it had been put at a disadvantage as compared to another party, and that the decision-making procedure had not ensured compliance with the requirements of equality of arms and had not incorporated adequate safeguards to protect its interests. That, in its view, amounted to a violation of Article 6 § 1 of the Convention. (b)    The Government 54.     The Government were of the view that the requirements of the principles of adversarial proceedings and equality of arms had been complied with in the court proceedings in respect of the applicant company. 55.     Firstly, the applicant company had been aware of the grounds on which the unfavourable decisions adopted in respect of it had been based. Whereas the Commission’s decision had been reached mainly on the basis of the information submitted by the SSD, which had been to a certain extent classified, the SSD, within the course of the judicial proceedings had submitted with its response publicly available information clearly identifying the contacts, explicitly mentioning specific individuals and companies and their links to the Lukashenko regime, thus allowing the defence to be aware of the reasons for the conclusions adopted by the Commission. As this information had been provided to the applicant company prior to the examination of the case at first instance, the defence had had an opportunity to effectively prepare its defence. 56 .     Secondly, as was apparent from the material of the administrative case file, the applicant company had actively exercised its procedural rights and guarantees. No obstacles to the defence had been created and the judicial authorities had followed all the necessary procedures to avoid unnecessary restrictions. Throughout the administrative proceedings the applicant company had successfully availed itself of the right to submit various requests: during the proceedi