FIFTH SECTION
DECISION
Applications nos. 49071/12 and 51940/12
Emzar DIASAMIDZE and BATUMELEBI
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 25 March 2021 as a Committee composed of:
Lətif Hüseynov, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above applications lodged on 20 July and 1 August 2012,
Having regard to the observations submitted by the Government of Georgia (“the Government”) and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. Applications nos. 49071/12 and 51940/12 were introduced on 20 July and 1 August 2012 respectively by the same two applicants. The former application concerns the inability to obtain State-held information about sugar imports in the country, whilst the latter one relates to the non‑disclosure of information about certain types of parliamentary expenditure (see paragraph 6 below).
2. Mr Emzar Diasamidze (“the first applicant”) is a Georgian national who was born in 1969 and lives in the village of Akho, the Keda District. The Batumelebi publishing house (“the second applicant”) is a legal entity established under Georgian law on an unspecified date. Both applicants were successively represented by Ms T. Abazadze and Ms N. Jomarjidze, lawyers practising in Georgia.
3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.The circumstances of the case
4. The facts of the cases, as submitted by the parties, may be summarised as follows.
5. The first applicant is a journalist who worked at the material time for a weekly newspaper published by the second applicant.
6. In February and July 2010 the first applicant, acting in his individual capacity, asked, respectively, the Ministry of Agriculture (“the Ministry”) and the Registry of Parliament of Georgia (“the Registry”) to provide him with the following types of information. He requested the Ministry to disclose the identity of private companies which had been importing sugar since 2010, specifying that he wished to know the exact distribution of import quantities between the companies involved. As regards the Registry, the first applicant requested information about (i) the sums paid in the form of non-salary benefits to all staff members of the Registry and (ii) the costs and expenses arising from official missions and retreat meetings conducted by the Members of Parliament in 2010.
7. The first applicant did not give any reasons in either of his two requests as to why he needed the solicited information.
8. The public authorities refused to disclose the requested information. Thus, the Ministry stated that the detailed information about the sugar import quantities was a commercial secret and could not therefore be made public, pursuant to Articles 2, 10 and 28 of the General Administrative Code (“the GAC”) (see paragraphs 13 and 14 below). The Registry replied that the voluminous amount of the information requested was such that it did not exist in a readily available form, as the authority had never computerised the relevant financial data.
9. In April 2010 and March 2011 the first applicant brought, in his own name, two separate court actions against, respectively, the Ministry and the Registry, contesting the authorities’ refusals to disclose the requested information. As confirmed by statement of his claims as well as by transcripts of the associated court hearings, the first applicant never explained why exactly he needed the solicited information either before the first-instance, appellate or cassation levels of jurisdiction. He limited his position to the claim that the respondent authorities’ refusals to disclose the information had restricted his right of access to information of public interest, in breach Article 37 § 1 of the GAC (see paragraph 15 below).
10. On 24 September 2010 and 10 March 2011 the Tbilisi City Court dismissed the first applicant’s actions as ill-founded in two separate sets of administrative-legal proceedings. The court ruled that the information sought by the first applicant related either to commercial secret or personal information, and that such classified forms of information could not qualify as public and be disclosed, within the meaning of Articles 2, 10 and 28 of the GAC (see paragraphs 13 and 14 below). The Tbilisi City Court’s rulings were upheld by the Tbilisi Court of Appeals on 9 December 2010 and 30 May 2011.
11. In so far as application no. 49071/12 was concerned, the Supreme Court’s final decision of 8 February 2012, terminating the proceedings, was served on the first applicant on 23 February 2012.
12. As regards application no. 51940/12, the Supreme Court’s final decision of 21 March 2011 was served on the first applicant on 15 March 2012.Relevant domestic law
13. Under Article 2 of the GAC, not all types of information collected and stored by a public authority were considered to be “public information”. More specifically, under Article 2 (m), information collected or stored by a public authority was considered “classified” if it contained either “personal data about third parties” or if it related to a “commercial or State secret”.
14. Articles 10 and 28 of the GAC further specified that everyone had a right to obtain access to public information stored by a public authority “unless [that] information relates to a State, professional or commercial secret or contains personal data about third parties”.
15. Article 37 of the GAC, the provision which formed part of a Chapter devoted to governing the procedure for the exercise of the right of access to information qualified as “public”, read as follows:
Article 37 – Request to access public information
“1. Everybody has the right to access public information, regardless of the form in which [it] has been stored. ...
2. An application to access public information shall be submitted in writing. ... If such an application may result in the disclosure of classified information, it shall be accompanied by a certified consent from the third party concerned. ...”
COMPLAINT
16. The applicants complained under Article 10 of the Convention that the relevant public authorities had refused to disclose information that they considered to be of general public interest.
THE LAW
17. Given the similarity of the applications (see paragraph 1 above), the Court decides to order their joinder in accordance with Rule 42 § 1 of the Rules of Court.
18. Article 10 of the Convention read, in its relevant parts, as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information and ideas without interference by public authority and regardless of frontiers ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”The parties’ submissions
19. The Government raised three objections as to the admissibility of the applications under Article 35 of the Convention. Firstly, they suggested that either Article 10 § 1 of the Convention was not applicable or that the applicants had not suffered a significant disadvantage, because the information sought was not essential to the exercise of any of the applicants’ rights related to freedom of expression. Secondly, assuming that Article 10 § 1 applied, the Government argued that the applications were manifestly ill-founded, given that the applicants failed to show that there had been an interference under this provision.
20. The applicants disagreed, maintaining that their inability to obtain disclosure of the information from the Ministry and Registry had interfered with the exercise of their rights to freedom of expression. In that regard, the applicants submitted extensive legal arguments as to why the domestic courts’ assessment of the circumstances of the cases and reading of the relevant provisions of the GAC had been erroneous. They claimed that the respondent public authorities’ refusals to disclose the solicited information were both unlawful and contrary to Article 10 § 1 of the Convention.The Court’s assessment
21. The Court observes that the second applicant was not a party to the relevant domestic proceedings in either of the two applications at stake. However, it considers that it is not necessary to rule on the compatibility ratione personae of the second applicant’s complaints with the provisions of the Convention (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 90-95, ECHR 2012), given that both applications are in any event inadmissible in their entirety for the following reasons.General principles
22. The Court reiterates that Article 10 of the Convention does not confer on the individual a right of access to information held by a public authority nor does it oblige the Government to impart such information to the individual. However, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression. Whether and to what extent the denial of access to information constitutes an interference with an applicant’s rights to freedom of expression must be assessed in each individual case and in the light of its particular circumstances (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 156-57, 8 November 2016). In order to determine whether Article 10 can be said to apply to a public authority’s refusal to disclose information, the situation must be assessed in the light of the following criteria: (a) the purpose of the information request; (b) the nature of the information sought; (c) the particular role of the seeker of the information in “receiving and imparting” it to the public; and (d) whether the information was ready and available (ibid., §§ 15-70).Application of the above principles to the present case
23. The Court restates that the question of applicability of a Convention right is an issue of the Court’s jurisdiction ratione materiae and the relevant analysis should normally be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018, and Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, § 32, 30 January 2020). It finds that no such particular reasons appear to exist in the present case.
24. Applying the above-mentioned four-criteria test developed in Magyar Helsinki Bizottság (cited above), the Court notes, firstly, that the journalistic role of the applicants in both cases was undeniably compatible with the scope of the right to solicit access to State-held information (compare, for instance, Roşiianu v. Romania, no. 27329/06, § 61, 24 June 2014).
25. As regards the purpose of the information requests, the Court reiterates that for that criterion to be satisfied it would not be sufficient for an applicant to explain that purpose for the first time in the proceedings before the Court (see Studio Monitori and Others, cited above, §§ 40 and 42). 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 relevant right to freedom of expression (compare Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, §§ 51, 54 and 57-62, 3 March 2020).
26. In the present cases, the Court observes that the applicants never explained either before the relevant public authorities – the Ministry and the Registry of Parliament – or the domestic courts why exactly the disclosure of the information at stake was necessary for the exercise of the applicants’ freedom to receive and impart information to others (see paragraphs 6-9 above, compare Studio Monitori and Others, cited above, §§ 40 and 42, and contrast Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, §§ 13-19 and 97, 26 March 2020, and Mikiashvili and Others v. Georgia (dec.), nos. 18865/11 and 51865/11, 19 January 2021). The Court thus finds that the applicants have failed to comply with the criterion relating to the “purpose of the information request”.
27. Even though the above consideration is sufficient for the Court to conclude that Article 10 has not come into play in the circumstances of present cases, it additionally notes, as regards application no. 49071/12, that the applicants have not shown that the criterion of the “nature of the information” sought was met. They have not explained how knowledge of the information concerning the sugar import quantities – which was moreover a classified piece of information under the domestic law (see paragraphs 8, 10 and 13-14 above) – could be of interest to society as a whole and how knowledge of this information could enhance public governance (compare Mikiashvili and Others, the decision cited above, §§ 52-53).
28. As regards application no. 51940/12, the Court observes that the information solicited from the Registry of Parliament did not exist in a “ready and available” form at the material time (see paragraph 8 above and compare with a similar situation examined in the case of Mikiashvili and Others, the decision cited above, § 55). Indeed, Article 10 of the Convention cannot be interpreted in such a manner as to impose upon a public authority the obligation to collect information upon an applicant’s request, particularly when, as in the present case, a considerable amount of work is involved (see Bubon v. Russia, no. 63898/09, §§ 44 and 45, 7 February 2017).
29. In the light of the foregoing, the Court finds that the applicants have failed to show that the denial of their requests to access the relevant information impaired the exercise of their freedom to receive and impart information in a manner which undermined the very essence of their Article 10 rights (see Centre for Democracy and the Rule of Law (dec.), cited above, § 62). It follows that Article 10 does not apply. The applications thus must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously,Decides to join the applications;Declares the applications inadmissible.
Done in English and notified in writing on 22 April 2021.
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Martina KellerLətif Hüseynov
Deputy RegistrarPresident
Full & Egal Universal Law Academy