FIFTH SECTION
CASE OF VOLODYMYR TORBICH v. UKRAINE
(Application no. 14957/13)
JUDGMENT
STRASBOURG
13 July 2023
This judgment is final but it may be subject to editorial revision.
In the case of Volodymyr Torbich v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 14957/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 February 2013 by a Ukrainian national, Mr Volodymyr Anatoliyovych Torbich, who was born in 1980 and lives in Rivne (“the applicant”), and who was represented by Ms L.V. Opryshko, 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 the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 22 June 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns a refusal to provide a journalist with access to information held by public authorities, allegedly in violation of Article 10 of the Convention.
2. The applicant is a journalist and the editor-in-chief of the Rivne Agency of Journalistic Investigations (Рівненське агентство журналістських розслідувань), an information agency (“the Agency”).
3. In his first request to the Head of the Rivne State Administration (“the RSA”), the applicant, introducing himself as the editor-in-chief of the Agency, asked to be provided with information on the bonuses (премія) paid to the Head, his deputies and all other RSA staff members between 2009 and 2011. The applicant asked that the information be provided in an anonymised manner but with details as to each position, type of bonus and amount per month. He relied, in particular, on the Law on Access to Public Information, which provided that access to information on the use of budgetary funds could not be limited.
4. The applicant received the information from some of the RSA entities as requested. From others, however, he received refusals to provide the information, or he was only provided with generalised or incomplete information (for example, without details of the position or the type of bonus), on the ground that disclosing further details would be in breach of the legislation on personal data protection.
5. The applicant’s complaints about the refusals, which included references to the Court’s case-law under Article 10, were rejected by the local and appellate courts on 14 February and 11 June 2012 respectively. The courts reasoned that: (i) as the RSA’s official website and the information displayed on the RSA premises contained detailed lists of its staff members by department, providing the information requested by the applicant (that is, with details of each position) would make personal identification easy, in breach of the legislation on personal data protection; (ii) personal financial information could not be disseminated without the data subject’s prior consent, and only the income declarations of State officials were public; and (iii) the applicant had not submitted the request in his personal capacity but rather in his capacity as a representative of the Agency, and as such his individual rights had not been infringed.
6. On 3 August 2012 the High Administrative Court refused to open cassation proceedings, finding that there was no evidence of a breach of either substantive or procedural legislation by the lower courts, and that the applicant’s cassation appeal, in which he had essentially restated his arguments, was ill-founded.
7. In two further requests, the applicant, introducing himself as the editor-in-chief of the Agency, asked the Chairman of Parliament to provide him with copies of the income declarations of twenty-two members of parliament (MPs) for the year 2012.
8. In reply the applicant was informed that providing him with the income declarations of MPs without their prior consent would be in breach of the legislation on personal data protection. The applicant was eventually provided with the declarations of eight MPs who had given their consent to disclosure, and he was informed that four more declarations had been published in the Official Gazette and were thus freely accessible.
9. The applicant’s subsequent complaints, based on the Law on Access to Public Information and the Law on Preventing and Fighting against Corruption, pursuant to which access to the information contained in the declarations of public officials could not be restricted, were rejected by the courts. In its final judgment of 1 April 2014, the Kyiv Administrative Court of Appeal found that as the applicant had requested copies of the declarations (containing personal data not only of the MPs concerned but also of their family members), rather than specific information from the declarations, his request had been rightly rejected. That decision was final and was not subject to further appeal.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
Admissibility10. The Government contended that the applicant’s complaints of a violation of his Convention rights constituted an abuse of the right of application as, in respect of the first request to the RSA, he had been de facto provided with the information he had requested and, further, in respect of both requests, he had never in fact used the information obtained but had simply requested it for the purpose of litigation.
11. The Government further argued that Article 10 was not applicable to the present case since, while three of the four criteria established in the Court’s judgment in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 158-80, 8 November 2016) were met, the criterion of the “purpose of the information request” had not been fulfilled. They relied on the arguments made above under the head of abuse of the right of application and noted that the applicant had never explained the reason for which he had requested the information.
12. The applicant disagreed, stating, in particular, that the purpose of his requests had been to investigate the use of public funds and to uncover any possible abuse.
13. Referring to Zhdanov and Others v. Russia (nos. 12200/08 and 2 others, §§ 79-81, 16 July 2019) as regards the applicable general principles, the Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 (a) of the Convention must be understood as being “the 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.
14. As to the applicability of Article 10, the Court reiterates that a right of access to information held by a public authority may arise where such access is instrumental for an 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 (see Magyar Helsinki Bizottság, cited above, §§ 149-80).
15. Concerning the first of these criteria, 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 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.
16. This being so, the Court considers that the Government’s preliminary objections are interrelated and should be examined together.
17. The applicant provided copies of the articles he had published following his requests, analysing the replies received from the authorities. In particular, the article about RSA bonuses mentioned that certain authorities were abusing the system by awarding such high bonuses that staff members received remuneration that was many times greater than their official salary, and the applicant had thus questioned this practice. The article concerning the MPs’ declarations looked at those MPs who had ties with the Rivne Region and who might have hidden their assets or were actual millionaires.
18. The Court notes also that while the applicant’s requests did not contain any reason as to why he needed the information requested (which is not, in principle, required by the domestic legislation), in his submissions to the domestic courts he either directly claimed, or it could be reasonably implied from his submissions, that he was investigating the use of budgetary allocations by the authorities (compare Severyn v. Ukraine (dec.) [Committee], no. 50256/08, §§ 45-46, 15 September 2020).
19. The Court further notes that the very nature of the information requested, that is, its direct connection to public funding and thus its public interest, as well as the applicant’s role (as clearly stated in the requests), neither of which were disputed by the Government, must have given a clear enough sign to the authorities regarding the purpose of the requests.
20. The Court has therefore no doubt that the information sought by the applicant was necessary for his right to receive and impart information on a matter of public interest within the framework of his journalistic activities.
21. It follows from this, firstly, that there is no indication that the applicant intended to exercise his right under Article 10 for purposes other than those for which that right is designed. Secondly, bearing in mind that the Government did not contend that the other three criteria established in the Magyar Helsinki Bizottság judgment were not met, the denial of access to information to the applicant constituted an interference with his rights under Article 10, and this provision is thus applicable.
22. The Government’s preliminary objections must therefore be dismissed.
23. The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
Merits24. The applicant complained that the interference with his right to access publicly held information had not been lawful as the authorities had failed to consider the requirements of the special legislation on access to public information, nor had it been “necessary in a democratic society”.
25. The Government claimed in general terms that the national courts had provided a relevant assessment as to the nature of the requested information and whether it could have been provided under the Law on Access to Public Information. They further noted that the legitimate aim pursued was that of protection of the privacy of the individuals concerned. As regards necessity, the Government stated that the applicant had failed to show that there was a need to disclose the information requested based on a significant public interest which outweighed the need to protect private life of the persons concerned.
26. The Court finds it unnecessary to decide whether the interference was prescribed by law within the meaning of Article 10 § 2, since it does not, in any event, meet the necessity condition.
27. As to necessity, the Court’s task is to look at the interference in the light of the case as a whole and to determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient (see, for instance, Magyar Helsinki Bizottság, cited above, § 187).
28. That being so, the Court notes that the key reason advanced by the authorities for the refusals of the applicant’s requests was the need to protect the sensitive personal data of RSA staff or MPs, thus corresponding to the legitimate aim of “the protection of the reputation or rights of others”.
29. However, in his first request the applicant clearly asked for anonymised information. The domestic authorities, including the courts, relied heavily on the theoretical and unlikely possibility that the persons concerned would be identified if the information were provided in the form requested by the applicant, and thus on the need to protect privacy, and failed to weigh that consideration against the right of access to such important information as the use of public funds. The courts also seem to have failed to consider and distinguish, as necessary, between blanket refusals and the possibility of providing the information in a different format from that requested by the applicant.
30. As regards the applicant’s second request, the Court notes that, as confirmed by the Kyiv Administrative Court of Appeal itself, the domestic legislation allowed access to information on the financial status and income of MPs. In such circumstances the Court finds that the domestic authorities’ approach in the present case was too formalistic and restrictive as there must have existed, in principle, a possibility of satisfying the applicant’s request, for example by providing the declarations with the personal data redacted. The appellate court also seems to have failed to have analysed the requirements of the anti-corruption legislation on the issue referred to by the applicant.
31. It follows that the reasons adduced to justify the interference with the right of the applicant under Article 10 were not relevant and sufficient, and, accordingly, that the interference was not “necessary in a democratic society”.
32. There has accordingly been a violation of Article 10 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant submitted that the finding of a violation would constitute sufficient just satisfaction; he did not raise any other claims, in particular as to costs and expenses.
34. The Government contended that there was no call to award any compensation to the applicant.
35. The Court considers that the applicant must have suffered non‑pecuniary damage on account of the violation found and that that finding constitutes in itself sufficient just satisfaction.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application 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 13 July 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Carlo Ranzoni
Deputy Registrar President