FIFTH SECTION
DECISION
Application no. 59690/15
CENTRE FOR SOCIAL AND POLITICAL TECHNOLOGIES “PUBLIC RELATIONS”, TOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 7 December 2023 as a Committee composed of:
Lado Chanturia, President,
Stéphanie Mourou-Vikström,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 59690/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian limited liability company, Centre for Social and Political Technologies “Public Relations”, TOV, which has its registered office in Kyiv (“the applicant company”), on 13 November 2015;
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 Government’s observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns a refusal, allegedly in breach of Article 10 of the Convention, of a request for access to information held by the public authorities.
2. In December 2014 M., the editor-in-chief of the Judicial and Legal Newspaper, owned by the applicant company, asked P., the then Minister of Agricultural Policy and Food, to provide information as to whether he had relatives who resided and/or worked abroad, where they were based, for how long they had been there and what posts they held. The request was made on the basis, in particular, of the provisions of the Constitution of Ukraine, the Law on Access to Public Information (“the Law on Access”) and the Law on Information. It contained no explanation of its purpose.
3. The request was refused, as the information sought was not public within the meaning of section 1 of the Law on Access, which provides that public information means any documented information that has been received or created in connection with the performance by the public authorities of their powers provided for by legislation or that is in the possession of the public authorities or other entities handling public information.
4. The applicant company challenged the refusal in the courts. It argued that the information sought was public, as it was closely linked to the fulfilment by the Minister, as a public figure, of his duties and that the right of access to such information also related to the requirements of transparency in the light of anti-corruption legislation. In its appeal, the applicant company further mentioned that “readers had on numerous occasions expressed interest [in obtaining the information requested]” and that the request had been made in order to “establish the veracity of existing information as to the Minister’s relatives and family members abroad”.
5. The applicant company’s complaints were dismissed by the Kyiv Circuit Administrative Court and the Kyiv Administrative Court of Appeal on 1 April and 4 June 2015 respectively. The courts noted that the information requested concerned private life and was therefore confidential, and that the dissemination of confidential information was only possible with the consent of the persons concerned or if the public interest in obtaining it outweighed the need to protect privacy. As the information requested had no relation to the Minister’s professional responsibilities and did not fall within the public domain, there was no public interest in obtaining it. In that context, the appellate court specifically noted in its judgment that during the hearing, the applicant company had failed to explain how the information requested would be important for the public interest.
6. On 24 June 2015 the High Administrative Court refused to open cassation proceedings in relation to the applicant company’s claims, as its arguments did not indicate any violations of substantive or procedural law by the lower courts.
THE COURT’S ASSESSMENT
7. The applicant company alleged that the authorities’ decisions denying it access to the information requested had amounted to an unjustified interference with its freedom of expression, in particular with its right to have access to public information in order to inform the public on matters of public interest, and had thus entailed a violation of Article 10 of the Convention.
8. The Government argued that there had been no interference with the applicant company’s rights under Article 10 as three of the four criteria established in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 158-80, 8 November 2016) had not been met. They conceded that only the criterion of the “watchdog” role of the applicant company had been complied with. They stated that neither in its request nor in the subsequent domestic proceedings, or, indeed, before the Court, had the applicant company provided a satisfactory explanation of the purpose of its request. In that connection they noted that at the material time no public debate had existed about Minister P. and his relatives. They further noted that the applicant company’s means of communication with the public was the Judicial and Legal Newspaper, which it owned and which focused, in principle, on specialist legal material, in particular the case-law of the courts. In the Government’s view, its role as the publisher of that newspaper was irreconcilable with its request regarding Minister P.’s relatives, especially as the applicant company had never published any articles about the Minister in question either before or after the request. The Government accordingly submitted that the applicant company had failed to show that the information requested was instrumental for the exercise of its freedom of expression and was of any public interest. Lastly, they contended that the information in question had not been “ready and available”, as normally a ministry would not gather and keep information about the place of work of all the minister’s relatives, recording instead only basic information about the minister’s spouse and children.
9. The applicant company failed to submit its observations in reply within the time-limit set.
10. 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).
11. As to the purpose of the request, 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 (ibid., §§ 158-59). An important consideration is also whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”, which includes, but is not necessarily limited to, journalists, non-governmental organisations, academic researchers, authors of literature on matters of public concern, and, in certain circumstances, bloggers and popular users of social media (ibid., §§ 166-68). Lastly, it is in the first place before the relevant domestic authorities that the seeker of information must sufficiently explain the exact purpose of the request by specifying, inter alia, how his or her particular role in receiving and imparting information to the public is compatible with the nature of the information sought and why access to it is instrumental for the exercise of his or her right to freedom of expression (see Namazli v. Azerbaijan (dec.), no. 28203/10, § 33, 7 June 2022, with further references).
12. Applying those principles to the present case, the Court observes that the applicant company failed to state any reasons in the request itself. Its statements to that effect in its claim submitted to the local court concentrated on the fact that the information in question concerned the Minister as a high‑level public figure and his activities. It was only in its appeal against the local court’s judgment that the applicant company clearly stated that the information was needed in order to “establish the veracity of existing information as to the Minister’s relatives and family members abroad”. The applicant company had, however, never provided, either domestically or before the Court, any details or relevant background information, such as whether any specific allegations about Minister P. were being discussed among the public at the time. In short, there is insufficient detail concerning the purpose for which the information was sought, and the applicant company’s submissions in that regard are incomplete and unsupported by any relevant material. Its reference to the fact that “the readers had on numerous occasions expressed interest [in obtaining the information requested]” was also not supported by any specific facts or documents.
13. In view of the above considerations, the Court likewise cannot conclude that the nature of the information sought necessarily constituted a matter of public interest in this particular context.
14. As to the question of the “watchdog” role of the applicant company, which was not disputed by the Government, the Court – in view of the main focus of the newspaper owned by the applicant company, being a law-related media outlet, and the absence of any specific arguments, either at domestic level or before the Court, as to how its request related to its field of activities – has difficulty accepting that the applicant company was acting in the capacity of a “public watchdog” in this particular case.
15. The above considerations, assessed as a whole, are sufficient to conclude that no right of access to the information requested by the applicant company arose in the present case, for it has not been shown that access to the information sought would have been instrumental for the exercise of its right to freedom of expression and, therefore, its denial did not constitute an interference with that right.
16. It follows that Article 10 is not applicable and that the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 January 2024.
Martina Keller Lado Chanturia
Deputy Registrar President
Full & Egal Universal Law Academy