CASE OF EASTERN UKRAINIAN CENTRE FOR PUBLIC INITIATIVES v. UKRAINE

 

 

 

FIFTH SECTION

CASE OF EASTERN UKRAINIAN CENTRE FOR PUBLIC INITIATIVES v. UKRAINE

(Applications nos. 18036/13 and 13 others)

 

 

 

 

JUDGMENT
 

STRASBOURG

5 October 2023

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Eastern Ukrainian Centre for Public Initiatives v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the fourteen applications against Ukraine (submitted on the various dates indicated in the appended table) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian non-governmental organisation “Eastern Ukrainian Centre for Public Initiatives” (“the applicant NGO”), which was represented by Ms A. Nekrasova, a lawyer practising in Kyiv;

the decision to give notice of the complaint under Article 10 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, and to declare inadmissible the remainder of the applications;

the parties’ observations;

 

Having deliberated in private on 14 September 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern refusals to allow the applicant NGO to access the master plans of various urban settlements, allegedly in violation of Article 10 of the Convention.

2.  The applicant is an NGO dedicated to democratic governance and human rights.

3.  In November 2009 (and in January 2014 – application no. 38956/15) the applicant NGO requested 196 municipalities all over Ukraine to provide it with information regarding their spatial planning. In its requests it asked whether and when master plans of settlements (генеральні плани населених пунктів) and other urban planning documents had been adopted, and how citizens could access those documents, in particular the graphic part of the master plans. It also asked the municipalities to provide it with copies (either printed or electronic) of the master plans. The requests (except the request in application no. 38956/15) mentioned that the applicant NGO was implementing a project aimed at monitoring the accessibility of the master plans of Ukrainian cities and that “systematised monitoring data would be widely published in national and regional media”.

4.  Five municipalities provided the applicant NGO with copies of their master plans.

5.  The applications before the Court concern 14 unsuccessful requests made to the remaining 191 municipalities; no information was provided by the parties as to the other 177 unsuccessful requests.

6.  In application no. 48140/14 no reply was provided to the applicant NGO’s request. In applications nos. 5067/15 and 73450/14 the municipalities stated that the master plan (or at least “a version open to the public”) was available on the website. In application no. 56744/14 the municipality refused on the basis that it was unable to copy the master plan because of its size. In application no. 2855/15 the municipality proposed that the applicant NGO come to its premises to see the master plan, but with certain limitations. In all the remaining cases before the Court the municipalities refused to provide the textual and graphic parts of the master plans on the ground that they were marked “for internal use only” (лише для службового користування) and/or that they were “secret” (таємно). Some of the replies also mentioned that the master plans had been subject to public discussions at the time of their adoption as prescribed by the law. As regards the details of other spatial planning documents, they were provided where applicable.

7.  In its complaints to the domestic courts the applicant NGO claimed that the information requested, namely the master plans, was of public interest as it related to the distribution of land and its use, including planned use, within a given settlement. It also underlined that while some parts of the master plans might well be restricted (for example, information regarding strategic objects), others should be freely accessible.

8.  In application no. 48140/14, where no reply was provided to the applicant NGO’s request, the domestic courts ordered the municipality to examine the request and provide a reply, leaving the nature of the reply to the discretion of the municipality. The applicant NGO submitted that no reply had been provided.

9.  In the other thirteen cases the domestic courts ruled against the applicant NGO (see the dates of final judgments in the table below). In each case, including those where the municipalities’ refusal was grounded on their inability to copy documents the size of the master plan or on the reason that it was “secret”, the domestic courts relied on the Instruction on the procedure for the registration, storage and use of documents, case files, publications and other material sources of information containing confidential information owned by the State, adopted by Resolution no. 1893 of the Cabinet of Ministers of Ukraine of 27 November 1998 (“the Instruction”).

10.  Under that Instruction, information could be categorised as being “for official use” (для службового користування) by special expert commissions, with the decision having to be subsequently confirmed by the central or local authority holding the information at issue.

11.  Information so categorised could not be used for any publications or presentations to the general public and access to it was only possible upon approval from the relevant authority. In order to receive approval it was necessary to make a request stating one’s reasons for wishing to access the restricted information and the nature of the task for which it was needed.

12.  The domestic courts mentioned the details of the respective decisions adopted by the commissions and/or authorities in accordance with the above Instruction’s requirements in six cases. In the remaining seven cases they merely restated the provisions of the Instruction, concluding that the master plans were thereby restricted. Reference was also made to the Instruction in those cases where the initial grounds for refusal were unrelated to the restricted nature of the information or to the fact of its being “secret”, apparently because the municipalities had relied on the Instruction during the domestic proceedings as a further argument for preventing access.

THE COURT’S ASSESSMENT

JOINDER OF THE APPLICATIONS

13.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTIONAdmissibility

14.  The Government claimed, in general terms, that all the applications constituted an abuse of the right of individual application as the applicant NGO had sent similar requests to numerous municipalities (and had challenged their refusals) even though the requested information was clearly restricted. In that context they also claimed that the aim of the applications was not one of those protected by Article 10.

15.  The Court, in the light of the applicable general principles as set out in, for example, Zhdanov and Others v. Russia (no. 12200/08 and 2 others, §§ 79-81, 16 July 2019), does not discern in the applicant NGO’s actions any elements of the possible “harmful exercise of a right for purposes other than those for which it is designed” and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it. The Government’s argument about the purpose of the requests is closely related to the question of the existence of an interference under Article 10, which will be addressed below.

16.  Regarding the Government’s further argument as to the alleged non‑compliance with the 6-month time-limit in respect of applications nos. 18036/13, 14667/14 and 36985/14, it is observed that the Government have calculated the respective periods from the date when the applications were received by the Court and not when they were posted by the applicant NGO, which is the correct starting date (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 117, ECHR 2015). In view of the information available to the Court, the applications concerned were submitted within the deadlines (see the table below).

17.  As for the existence of an interference with the applicant NGO’s freedom of expression and the applicability of Article 10, the Government submitted that while three of the four criteria established in the case of Magyar Helsinki Bizottság v. Hungary [GC] (no. 18030/11, §§ 158-80, 8 November 2016) judgment had been met, the criterion of the “purpose of the information request” had not been fulfilled. They argued that the purpose of the applicant NGO had not been to “receive and impart” information, but to make the master plans open to the public in general. Yet even if they were to be made public, no meaningful public debate could be generated owing to the very complex nature of the documents in question. Furthermore, the applicant NGO had never published any materials in relation to the information requested. The Government also claimed that there had been no denial of access to information as the applicant NGO had been provided with all the information that was not restricted and/or had been informed where to find it online or how to consult it on the spot (which it had never tried to do). Finally, they contended that given the legislative requirement to hold public discussions when adopting master plans, the need for further public debate on the matter was questionable.

18.  The applicant NGO stated that its overarching aim was indeed to make the master plans open and accessible to the public. It had published those master plans that had been sent to it (5 out of 196) as well as the refusals it had received, advocating as it did so for better transparency. It also provided to the Court electronic versions of its report entitled “Public Access to Comprehensive City Plans in Ukraine: A Collection of Materials from the Project ‘Public Access to Information from Comprehensive City Plans as a Way to Eliminate Corruption in Urban Planning’” (2011) and its handbook “Master Plans for Citizens” (2013). It further noted that the existence of one municipality failing to answer its request had been enough to show that the Government’s general argument as to the absence of a denial of access to information did not stand. It also submitted that consulting the information on the spot was not possible as some municipalities were located hundreds of kilometres away from its headquarters. Finally, the applicant NGO contended that public scrutiny was equally important after the adoption of the master plans to ensure compliance with their provisions.

19.  The Court reiterates that a right of access to information held by a public authority may arise where such access is instrumental for the individual’s exercise of his or her right to freedom of expression, and where its denial constitutes an interference with that right. The threshold criteria for such an assessment are: the purpose of the information request, the nature of the information sought, the role of the applicant, and whether the information was ready and available (ibid., §§ 149-80).

20.  Concerning the first of those criteria, which is the only one that the Government considered not to have been met in the present case, it must be a prerequisite that the purpose of the person in requesting access to the information held by a public authority is to enable his or her exercise of the freedom to “receive and impart information and ideas” to others. Thus, the Court has placed emphasis in similar cases on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate (ibid., § 158).

21.  The Court accepts that the purpose of the applicant NGO’s information requests was to access master plans, which contain comprehensive information as to urban planning in a given community, in order to ensure that they were accessible to the public and to instigate a debate about them. Even after receiving the refusals, it had, as can be seen from the copies of the articles and other publications submitted, analysed them and published its conclusions, namely that there was a lack of transparency and clarity around master plans.

22.  The Court further notes that the very nature of the information requested, specifically its relationship to the distribution and current and future use of land for urban planning and thus its public-interest status, as well as the applicant’s role as an NGO dedicated to democratic governance and human rights, neither of which have been disputed by the Government, made the purpose of the requests clear enough.

23.  The Court therefore has no doubt that the information sought by the applicant NGO was necessary for its right to receive and impart information on a matter of public interest in the framework of its activities, and that the denial of access to it constituted an interference with its rights under Article 10, such that this Article is applicable.

24.  The Government’s preliminary objections must therefore be dismissed.

25.  The Court further notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

Merits

26.  The applicant NGO complained that the interference with its right to access publicly held information in the form of the master plans was unlawful, and argued that in those cases where the courts had referred, based on the Instruction, to the information being “for official use”, they had failed to take into account the fact that the Instruction had merely established the procedure for applying that regime rather than limiting access to certain information. In that context the courts had also failed to establish whether that procedure had been complied with. As regards the “secret information” ground, the courts had failed to verify whether master plans were in fact covered by that regime. Finally, the refusals based on an inability to copy vast amounts of information or the availability of the requested information online had had no basis in domestic law whatsoever.

27.  The applicant NGO further contended that the court decisions lacked an analysis of the legitimate aim and proportionality of restricting access to the documents. It added that while it might have been necessary in the past for the master plans to have been restricted, with the development of geoinformation technologies that was no longer reasonable.

28.  The Government did not submit any comments as to the merits of the complaint.

29.  In order to be justified, an interference with the right to freedom of expression must be prescribed by law, pursue one or more of the legitimate aims mentioned in paragraph 2 of Article 10 of the Convention, and be necessary in a democratic society.

30.  In all cases, except for application no. 48140/14, it transpires from the reasoning of the decisions of the domestic courts that the legal basis of the interference was the Instruction, which sets out the procedure for categorising documents “for official use only” and confers discretion on the public authorities in that respect without even defining the concept. Furthermore, in the majority of those cases the domestic courts did not even touch upon the issue of whether the procedure for the restriction of information set out by the Instruction (see paragraph 10 above) had been followed. In others they relied, somewhat confusingly, on two different regimes at once, namely that of secret information and that of “for official use”, while in yet others they relied on the Instruction even though the initial grounds for refusal had not been related to the restricted nature of the information at all (see paragraph 12 above). In the Court’s view that raises an issue as to the lawfulness of the interference within the meaning of Article 10 § 2. As to the legitimate aim, the Court would not disagree that urban planning documents might contain sensitive information the disclosure of which could jeopardise some of the interests listed in this provision, such as national security. It observes however that at no point did the authorities, including the domestic courts, explain the restriction of access to entire master plans by specific reasons related to the aims listed in Article 10 § 2.

31.  Nevertheless, the Court does not find it necessary to decide on lawfulness and legitimate aim since the interference in any event does not meet the necessity condition, the reasons adduced by the national authorities to justify it being insufficient (see, for instance, Magyar Helsinki Bizottság, cited above, § 187).

32.  As noted above, when upholding the refusals the domestic courts essentially relied on the Instruction, which did not list the types of information that can be restricted but only set out a procedure for applying the “for official use only” regime. Furthermore, in only six of the thirteen cases did they mention the existence of decisions by the relevant expert commissions and/or authorities to restrict access to the master plans as prescribed by the Instruction. In the remaining cases they limited themselves to a mere reference to the Instruction and the restatement of its provisions. The domestic courts also cited other legal acts, without providing any analysis of their applicability to a particular case before them.

33.  Moreover, while in its initial requests the applicant NGO had asked for “copies of master plans” without differentiating between any potentially restricted or unrestricted parts thereof, in its submissions to the domestic courts it did accept that particular parts of the master plans could be restricted. The domestic courts did not address this differentiation and treated the master plans rather as a “block”, implying that once a part of a master plan was categorised “for official use” in accordance with the Instruction, the entire document would be restricted. The domestic courts thus made no attempt to weigh up the potential interests involved, namely that of the need to protect sensitive information on urban planning on the one hand, and the public interest in having access to open information and the applicant NGO’s rights under Article 10 on the other.

34.  In view of the above, the Court cannot but find that the reasons adduced to justify the interference were not sufficient, and that, consequently, it was not “necessary in a democratic society”.

35.  This conclusion applies a fortiori in respect of application no. 48140/14 in which the applicant NGO’s request remained unanswered despite a final judgment ordering that a reply be given.

36.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37.  The applicant NGO submitted that it had sustained non-pecuniary damage but that the finding of a violation would constitute sufficient just satisfaction. It added that it did not wish to submit claims in respect of costs and expenses.

38.  The Government thus considered that there was no call to award any compensation to the applicant NGO.

39.  In view of the applicant NGO’s position, the Court concludes that the finding of a violation constitutes in itself sufficient just satisfaction under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

Done in English, and notified in writing on 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Martina Keller Lado Chanturia
 Deputy Registrar President

 

 

APPENDIX

List of applications:

No.

Application no.

Lodged on

Final judgment

adopted on

1.

18036/13

21/02/2013

21/08/2012

(sent to the applicant on 28/08/2012, application submitted on 21/02/2013)

2.

43206/13

19/06/2013

25/12/2012

3.

14667/14

22/01/2014

13/07/2013

(sent to the applicant on 23/07/2013, application submitted on 22/01/2014)

4.

14681/14

22/01/2014

19/07/2014

5.

36985/14

21/04/2014

16/10/2013 (sent to the applicant on 31/10/2013, application submitted on 21/04/2014)

6.

48140/14

02/06/2014

26/12/2013

7.

56744/14

30/07/2014

24/01/2014

8.

73448/14

13/11/2014

12/06/2014

9.

73450/14

13/11/2014

12/06/2014

10.

2855/15

24/12/2014

26/11/2014

11.

4168/15

24/12/2014

07/08/2014

12.

5067/15

22/12/2014

25/11/2014

13.

5883/15

24/12/2014

28/10/2014

14.

38956/15

27/01/2015

30/10/2014

 

Full & Egal Universal Law Academy