FIRST SECTION
DECISION
Application no. 22715/09
Ivica GRČAR
against Croatia
The European Court of Human Rights (First Section), sitting on 17 September 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 11 March 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ivica Grčar, is a Croatian national, who was born in 1948 and lives in Zagreb. He was represented before the Court by Ms A. Vuksan, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 22 February 2007 the applicant, a freelance journalist, informed the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske; hereinafter “the Ministry”) by email that he was doing research on the supervisory boards of certain companies in Croatia and requested authorisation to have a list of the people who sat on two or more supervisory boards printed out from the e-court register database.
5. The Ministry’s IT department replied to the applicant’s email on 26 February 2007, informing him that they had just received his request and that it would take a couple of days to respond to a request, and asking him whether he would still need the information.
6. On 5 March 2007 the applicant sent another email to the Ministry, complaining that he had not received the information he had requested.
7. The applicant received an email from the Ministry on 6 March 2007, in which he was informed that the information requested had not been collected by any of the Ministry’s departments and that it had all been publicly accessible through the Official Gazette’s (Narodne novine) publications concerning business entities in Croatia and on the web page of the court register of companies. The Ministry also explained that the information requested had not existed as a single centralised database, and that the IT department only had authorisation to provide information concerning the business entities themselves but not personal information.
8. On 9 March 2007 the applicant complained to the Minister of Justice that he had been unable to obtain information from the Ministry about the people who sat on two or more supervisory boards. Relying on the Access to Information Act (Zakon o pravu na pristup informacijama) he requested the same information again.
9. On 2 April 2007 the applicant urged the Minister of Justice to decide his request for access to information.
10. On 5 April 2007 a press officer from the Ministry refused the applicant’s request on the grounds that the information about the people who sat on two or more supervisory boards had been publicly accessible and that the Ministry had not collected and analysed that information in a single centralised database. She also cited the Personal Data Protection Act (Zakon o zaštiti osobnih podataka) and held that the disclosure of further personal information would violate the right to privacy of the individuals concerned, since all the relevant information had already been available through the Official Gazette’s publications concerning business entities in Croatia and on the web page of the court register of companies.
11. The applicant lodged an appeal against the above decision with the Minister of Justice, but on 18 May 2007 it was dismissed as ill-founded.
12. On 6 June 2007 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske) contesting the above decision.
13. On 11 July 2007 the Administrative Court quashed the contested decision and ordered the Ministry to re-examine the case. It held that the information sought was not personal information within the meaning of the relevant domestic law and that the Personal Data Protection Act was therefore inapplicable to the situation at issue. The Administrative Court also found the reasoning of the Ministry’s decision contradictory, in that it had found that the information sought had been publicly accessible, while at the same time referring to the protection of privacy under the Personal Data Protection Act.
14. The Administrative Court served its judgment on the Ministry and on the applicant on 15 and 16 October 2007 respectively.
15. On the same day the Ministry received the judgment of the Administrative Court, it provided the applicant with a list containing the names of people who sat on two or more supervisory boards of companies in Croatia.
16. However, the applicant was not satisfied with the scope of the information obtained and he lodged an action with the Administrative Court against the letter in which the Ministry had provided him with the relevant information.
17. On 7 December 2007 the applicant complained to the Administrative Court, relying on section 64(1) of the Administrative Disputes Act (see paragraph 31 below), that the Ministry had failed to comply with that court’s judgment of 11 July 2007 since it had only provided him with a list of names, which he had been unable to match up with their respective positions in the supervisory boards.
18. The Administrative Court dismissed the applicant’s complaint on 14 February 2008 on the grounds that by providing him with the list, the Ministry had fully complied with the judgment of 11 July 2007. It also pointed out that the applicant could always request additional information if he considered the information received to be insufficient.
19. On 7 April 2008 the applicant requested the Ministry to provide him with a list of the people who sat on two or more supervisory boards of companies in Croatia, together with additional information about the exact number of boards on which every individual sat.
20. On 10 April 2008 the Administrative Court declared the applicant’s action against the letter of the Ministry of 15 October 2007 (see paragraphs 15 and 16 above) inadmissible on the grounds that it was not possible to lodge an administrative action against a letter of a public authority.
21. On 26 May 2008 the applicant asked the President of the Administrative Court whether that court had departed from its practice of deciding a case concerning access to information within three months.
22. A spokesperson from the Administrative Court informed the applicant on 3 June 2008 that the court had not departed from its practice of deciding such cases within three months, since there was no such practice. She also informed the applicant about the process by which such cases were dealt with by the Administrative Court.
23. On 15 October 2008 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed a request for protection of legality (zahtjev za zaštitu zakonitosti) lodged by the State Attorney of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) against the Administrative Court judgment of 11 July 2007.
24. The Supreme Court endorsed the findings of the Administrative Court that the Personal Data Protection Act was inapplicable to the case at issue since the information sought had been publicly available on the Ministry’s web page and the e-court register, as well as through the Official Gazette’s publications. The Supreme Court, however, declined to deal with the State Attorney’s argument that the Ministry had no obligation to collect and systematise the information in order to facilitate individual research because the Administrative Court had not been called upon to deal with that matter.
25. On 21 November 2008 the Ministry informed the applicant that it did not have the information he had requested on 7 April 2008 (see paragraph 19 above) and forwarded his request to the President of the High Commercial Court (Visoki Trgovački sud Republike Hrvatske), who under the new Rules for Entry in the Court Register (which came into effect on 15 January 2008) was responsible for centralising all relevant information concerning companies in Croatia.
26. On 10 April 2009 the President of the High Commercial Court provided the applicant with a list of the people who sat on two or more supervisory boards of companies in Croatia.
27. On 29 April 2009 the applicant requested the President of the High Commercial Court to provide him with additional information about the exact number of supervisory boards on which each individual sat, pointing out that certain names had disappeared from the list.
28. On 15 May 2009 the President of the High Commercial Court provided the applicant with the additional information and explained that the information on the court register was constantly being updated and therefore would not always be the same.
B. Relevant domestic law
1. Access to Information Act
29. The relevant provisions of the Access to Information Act (Zakon o pravu na pristup informacijama, Official Gazette, no. 172/2003) read:
Application of the rules on administrative procedure
Section 9
“Unless this Act provides otherwise, the Administrative Procedure Act is applicable in proceedings concerning access to information.”
Access to information
Section 10
“Public authorities are obliged to make access to information possible:
...
2) by directly providing information to an authorised person who has submitted a request,
...
5) in any other way which enables the right of free access to information to be exercised.”
...”
Additional and corrected information
Section 16
“(1) If the authorised person, on the basis of the evidence available, considers that the information given on the basis of the request is inaccurate or incomplete, he may request additional information or that it be corrected.
(2) The public authority is obliged to give a specific decision on the rejection of the request if it considers that there are no grounds for supplying additional or corrected information.”
Appeal and administrative proceedings
Section 17
(1) The applicant may lodge an appeal against the decision of the public authority to the head of the competent public authority, within 8 days of the decision being served.
(2) The second-instance decision on the appeal must be given and served without delay, and within no more than 15 days of the appeal being lodged.
(3) The applicant may lodge a complaint and thereby institute an administrative action with the Administrative Court against the second-instance decision, namely the final first-instance decision of the public authority dismissing the request, in accordance with the provisions of the Administrative Disputes Act. The proceedings under the complaint are regarded as urgent.”
2. Administrative Procedure Act and Administrative Disputes Act
30. Section 218(2) of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991) provides that a party whose application has not been decided and served within the relevant time‑limits (one month in simple and two in complex cases) may lodge an appeal for failure to respond (žalba zbog šutnje administracije) as if his or her application had been dismissed.
Under section 246(1) the second-instance authority deciding on the appeal for failure to respond may order the first-instance authority to give a decision within one month or may, under section 246(2), decide the case itself.
31. Section 64(2) of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) provides that, following a judgment of the Administrative Court whereby that court quashes a decision of a public authority, that authority should issue a new decision immediately and within no more than thirty days. Otherwise, a party may submit a specific request for it to do so. If the authority does not issue a decision within seven days of such a request, the party may apply to the Administrative Court again.
COMPLAINTS
32. The applicant complained, invoking Articles 6 § 1, 10 and 13 of the Convention, about the prolonged non-compliance on the part of the domestic authorities with the Administrative Court judgment of 11 July 2007, deciding on his right to receive and impart information.
THE LAW
33. The applicant relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
He also relied on Article 10 of the Convention which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
Lastly, the applicant cited Article 13 of the Convention which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ arguments
34. The applicant contended that the administrative proceedings concerning his request for access to information had been excessively long and had lacked the necessary procedural guarantees. He also submitted that he had not had an effective opportunity to enforce the Administrative Court judgment of 11 July 2007 since he had been unable to obtain all the information he had requested until 15 May 2009 when the High Commercial Court had supplied him with certain information and had informed him that the information at issue was constantly being updated. On 26 May 2008 he had asked the President of the Administrative Court about the progress of his proceedings and thus he had exhausted all available remedies but to no avail.
35. The Government pointed out that in the course of the administrative proceedings concerning his request for access to information, the applicant had failed to lodge an appeal for failure to respond under section 218(2) of the Administrative Procedure Act (see paragraph 30 above) and had failed to institute the relevant procedure under sections 16 and 17 of the Access to Information Act (see paragraph 29 above). In addition, the applicant had had an opportunity to lodge a civil action for damages against the State, but he had failed to avail himself of that remedy.
36. The Government further submitted that the Administrative Court had not established any rights in favour of the applicant in the judgment of 11 July 2007 but had only quashed the decision of the Ministry not to provide the applicant with a list of the people who sat on two or more supervisory boards and ordered that his request be re-examined. The Ministry had complied with that order on the same day it had received the Administrative Court judgment and provided the applicant with the requested information. The fact that on 7 April 2008 the applicant had requested more detailed information concerning the exact number of supervisory boards on which each individual sat had not concerned the enforcement of the Administrative Court judgment of 11 July 2007 but rather a new request for access to information. However, in respect of his new request the applicant had failed to exhaust the relevant domestic remedies.
B. The Court’s assessment
37. The Court finds it unnecessary to address all of the Government’s objections, as the complaints are in any event inadmissible for the following reasons.
38. The Court notes at the outset that the prolonged non-enforcement of a court judgment concerning the right to receive and impart information of public interest may raise an issue under Articles 6 § 1, 10 and 13 of the Convention (see Kenedi v. Hungary, no. 31475/05, 26 May 2009).
39. The Court notes in the present case that in his initial request for access to information of 22 February 2007 the applicant requested the Ministry to provide him a list of the people who sat on two or more supervisory boards of companies in Croatia (see paragraph 4 above).
40. After the Ministry dismissed his request, the applicant used the available domestic remedies and on 6 June 2007 brought an action in the Administrative Court. On 11 July 2007 the Administrative Court accepted that action and ordered the Ministry to re-examine the applicant’s request. The Ministry received the Administrative Court judgment on 15 October 2007 and on the same day complied with the order providing the applicant with a list of the people who sat on two or more supervisory boards (see paragraph 15 above). This was confirmed by the Administrative Court when it dismissed the applicant’s non-compliance complaint (see paragraph 18 above) and the Court does not see any reason to hold otherwise.
41. Therefore, noting that the Administrative Court judgment of 11 July 2007 was enforced on the same day the Ministry received it, the Court is unable to discern any relevant delays or lack of diligence on the part of the domestic authorities in enforcing that judgment.
42. The Court therefore considers that the applicant’s complaint in this regard is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
43. As regards the applicant’s allegation that he had received the relevant information only on 15 May 2009 by the High Commercial Court, the Court notes that this information concerned the exact number of boards on which each individual sat. Request for such information was for the first time set on 7 April 2008 (see paragraph 19 above) and it was not the subject matter of the above-examined administrative proceedings which ended with the Administrative Court judgment of 11 July 2007.
44. However, in the course of the administrative proceedings concerning his request for access to this additional information the applicant never attempted to use any of the available domestic remedies as suggested by the Government, even though he never contested their effectiveness. In particular, the applicant failed to use the appeal for failure to respond under section 218(2) of the Administrative Procedure Act, which could have provided him with an effective opportunity for ensuring that the administrative proceedings were expedited and his request decided (see, among other authorities, Rauš and Rauš-Radanović v. Croatia (dec.), no. 43603/05, 2 October 2008; Cokarić and Others v. Croatia (dec.), no. 33212/02, 19 January 2006; and Štajcar v. Croatia (dec.), no. 46279/99, 20 January 2000). The mere fact that the applicant asked the President of the Administrative Court about the progress of his proceedings did not dispense him of the obligation to use the available domestic remedies before bringing his complaints to the Court.
45. The Court therefore finds, even assuming that there is any issue to be addressed in this regard, that the applicant’s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachIsabelle Berro-Lefèvre
Deputy RegistrarPresident
Full & Egal Universal Law Academy