FIFTH SECTION
DECISION
Applications nos. 18865/11 and 51865/11
Nino MIKIASHVILI against Georgia
and STUDIO REPORTIORI and Vakhtang KOMAKHIDZE
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 19 January 2021 as a Chamber composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Ganna Yudkivska,
Stéphanie Mourou-Vikström,
Jovan Ilievski,
Lado Chanturia,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above two applications lodged on 15 March and 3 August 2011 respectively,
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. The applicant in application no. 18865/11 is Ms Nino Mikiashvili (“the first applicant”), a Georgian national who was born in 1972 and lives in Tbilisi.
2. The applicants in application no. 51865/11 are Studio Reportiori (“the second applicant”), a legal entity established under Georgian law, and Mr Vakhtang Komakhidze (“the third applicant”), a Georgian national who was born in 1964 and lives in Tbilisi.
3. The applicants were represented before the Court mainly by Ms T. Abazadze, a practising lawyer and a member of the Georgian Young Lawyers’ Association in Tbilisi, but also by a number of other members of the same organisation.
4. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
5. The facts of the case, as submitted by the applicants, may be summarised as follows.Application no. 18865/11
6. In a letter dated 10 September 2009 the first applicant, citing Article 37 of the General Administrative Code (“the GAC”, see paragraph 26 below), enquired with the Ministry of Prisons about the serving of sentences by certain individuals who had been convicted in three separate murder cases. More specifically, in respect of two of those cases, she asked the Ministry of Prisons whether the convicted individuals were still serving their prison terms or had already been released. With regard to the third case, she wanted to know in which custodial institution the relevant prisoner was serving his sentence. Without giving any reasons for her request, the first applicant merely indicated, next to her signature, that she was a journalist by profession.
7. In a letter of 15 September 2009 the Ministry of Prisons replied that the information requested by the first applicant was not public in nature within the meaning of Article 3 § 4 of the GAC (see paragraph 22 below) and could not therefore be disclosed.
8. On 28 October 2009 the Ministry of Prisons published a statement on its official website in which it confirmed that the convicted individuals in all three murder cases that were of interest to the first applicant were still serving their prison terms in various custodial institutions in Georgia, but without stating which ones. The first applicant became aware of that official statement that same day.
9. On 29 October 2009 the first applicant lodged an administrative complaint with the Ministry of Prisons, reiterating her request to be granted access to the information which, in her opinion, was of a public character within the meaning of Article 37 of the GAC (see paragraph 26 below).
10. By a decision of 10 November 2009 the Ministry of Prisons rejected the first applicant’s administrative complaint, stating that the information solicited with regard to the custodial address of the relevant prisoner related to the question of the execution of the final court decision and thus, under Article 3 § 4 of the GAC (see paragraph 22 below), could not be considered public or be disclosed.
11. On 18 December 2009 the first applicant brought an action in the Tbilisi City Court concerning the Ministry’s decision of 10 November 2009, requesting that the decision be set aside as ill-founded. In the statement of claim the applicant submitted that she was requesting that information in her capacity as a journalist who often reported on high-profile criminal cases, such as the three murder cases in question, that society had a genuine interest in being kept informed of what had happened to those who had been found guilty, and that the Ministry’s refusal to disclose that information had hindered her in her duty to keep the public informed.
12. By a judgment of 29 January 2010 the Tbilisi City Court upheld the first applicant’s claim in the part relating to her request to find out whether the individuals convicted in two of the murder cases were still serving their prison sentences. As regards the refusal to disclose information on where exactly the individual convicted in the third murder case was serving his sentence, the City Court dismissed that part of her claim as ill-founded. Duly acknowledging the first applicant’s status as a journalist, the court stated that journalistic freedom and the right to receive and impart information were much cherished values. However, this right was not absolute and could be limited in a lawful and balanced manner whenever there was a legitimate need for so doing, within the meaning of Article 24 §§ 1 and 4 of the Constitution (see paragraph 20 below). In applying that proportionality test, the court found, on the one hand, that there could be no legitimate reason for not disclosing information to the first applicant about whether or not the individuals convicted in the relevant murder cases were still in prison; however, the court noted that this matter had already been resolved in the light of the respondent authority’s official statement published on its website on 28 October 2009 (see paragraph 8 above). On the other hand, the City Court concluded that the exact custodial address of the person convicted in the third murder case of interest to the applicant was a more sensitive issue. Relying on Article 41 § 2 of the Constitution (see paragraph 20 below), the court stated that such information, which was kept in the official records of the Ministry of Prisons, was clearly of a private nature and thus could not be disclosed to the public without the consent of the individual concerned. To demonstrate further that a prisoner’s custodial address was not public but classified information, the court referred to section 21 (1) of the Law on imprisonment (see paragraph 28 below), under which the prison authority was allowed to communicate that information only to members of the prisoner’s family and to the criminal court by which he or she had been convicted and sentenced. Additionally, the City Court upheld the respondent authority’s position that the information sought by the first applicant related directly to the enforcement of final court judgments and as such could not qualify as public within the meaning of Article 3 § 4 of the GAC (see paragraph 22 below).
13. The first applicant appealed, complaining that the first-instance court had erred in the interpretation of the relevant domestic legal provisions. Her appeal was dismissed by the Tbilisi Court of Appeal as manifestly ill‑founded on 11 May 2010. A final decision on the matter, dismissing the first applicant’s further appeal on points of law, was delivered by the Supreme Court on 10 October 2010.Application no. 51865/11
14. The second applicant is a non-governmental organisation which was established with the aim of protecting human rights and democracy through journalistic investigations. The third applicant is a journalist and the managing director of the second applicant.
15. On 19 June 2009 the third applicant, in his capacity as a journalist, asked the Ministry of Justice to provide him with information about the sums paid in the form of non-salary benefits and bonuses to all staff members of the Ministry, from 2004 until recently. He did not give any reasons in the request as to why he needed that information.
16. In its replies of 29 June and 14 and 17 August 2009 the Ministry repeatedly refused to disclose the information requested, maintaining that what individual employees had earned in non-salary benefits and bonuses constituted personal data which could not be made public without their consent. In one of its replies, dated 14 August 2009, the Ministry also referred to a judgment of the Supreme Court in an unrelated but similar case (no. ბს-333-317(კ-06), see paragraph 30 below), which concerned the objective impossibility of processing and disclosing to the public a voluminous amount of information kept in the State’s records, thus suggesting that the information sought by the third applicant could not be processed easily. On the other hand, the Ministry gave information to the third applicant about how much each of the approximately 330 officials of the Ministry had received by way of salary and the costs and expenses arising from their official journeys in 2008.
17. The third applicant, again in his personal capacity as a journalist, brought an action against the Ministry of Justice. In his statement of claim he explained, for the first time, that he needed the information in question for a journalistic investigation into what he considered to be a “shadowy” source of income for public officials – the system of paying non-salary benefits and bonuses to officials on top of their statutory pay rates. He also argued that, under Article 44 § 1 of the GAC (see paragraph 27 below), financial information concerning civil servants did not constitute personal data that needed to be protected.
18. The third applicant’s action was dismissed as manifestly ill-founded by the Tbilisi City Court and the Tbilisi Court of Appeal on 15 January and 27 May 2010 respectively. Acknowledging the third applicant’s status as a journalist and the need to protect the right to receive and impart information and ideas, the courts reasoned that such right was nevertheless subject, under Article 24 §§ 1 and 4 and Article 41 § 2 of the Constitution (see paragraph 20 below), to a number of limitations, both implicit and explicit, and should thus be balanced against other legitimate interests at stake, including the rights and freedoms of others. The courts thus found that information about non-salary benefits and bonuses paid to Ministry of Justice staff was considered to be personal data within the meaning of Article 27(1) and Article 28 of the GAC (see paragraphs 23 and 24 below), since such payments were made to officials as a reward for significant achievements in the accomplishment of various highly specific official tasks which could at times also be confidential, and thus could not be disclosed to the public without the consent of the individuals concerned. The courts further suggested an alternative solution that was more compatible with the need to respect the personal data of the relevant Ministry officials, namely the possibility for the third applicant to consult the annual wealth declarations filled in by those officials. Such declarations, which were publicly available documents that were easily accessible on the Internet, indicated what public officials earned each year through various types of lawful income, and the total amounts obviously included any non-salary benefits and bonuses received along with the statutory salaries. Admittedly, those wealth declarations did not provide a breakdown of income according to its specific sources. However, the courts ruled that it would be futile to oblige the Ministry to process the relevant financial information for the purpose of subtracting the amounts paid through the scheme of non-salary benefits and bonuses from the global figures, particularly as the Ministry had not kept computerised accounting records that could have facilitated the task (see also paragraph 16 above) and since the payments received by public officials by way of bonuses and non-salary benefits constituted, for the reasons stated above, personal data.
19. A final decision, dismissing the third applicant’s appeal on points of law and upholding the lower courts’ decisions, was delivered by the Supreme Court on 11 January 2011 and notified to the third applicant’s lawyer on 3 February 2011.
Relevant legal framework and practiceThe Constitution of Georgia
20. The relevant provisions from the Constitution of Georgia, as its text stood at the material time, read as follows:
Article 24
“1. Everyone shall be free to receive and impart information, and to express and impart his or her opinion, whether orally, in writing or otherwise. ...
4. The exercise of the rights listed in the first and second paragraphs of this Article may be restricted by law, to the extent and in so far as is necessary in a democratic society, in order to ... protect the reputations and rights of others [or] to prevent the disclosure of information received in confidence ...”
Article 41
“2. Information contained in official records pertaining to the health, the finances or other private matters of an individual shall not be made available to any third party without the prior consent of the individual in question, except as determined by law, and when doing so is necessary to safeguard national security or public safety, or the health, rights and freedoms of others.”The General Administrative Code of 25 June 1999, as it read at the material time
21. Under Article 2 of the GAC, not all types of information collected and kept by a public authority were considered to be “public information”. More specifically, under Article 2 (m), information collected or kept 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”.
22. Article 3 § 4 specified that the whole of the GAC, including its Chapter III (see paragraph 26 below), did not apply to bodies of the State’s executive branch that were tasked with the execution of final and binding court decisions.
23. Articles 10 and 28 of the GAC further specified that everyone had a right to obtain access to public information kept by a public authority “unless [that] information relate[d] to a State, professional or commercial secret or contain[ed] personal data about third parties”.
24. Pursuant to Article 27(1) of the GAC, only the individual concerned could decide what part of his or her personal data in public records did not have to be treated with the requisite confidentiality and in what respect – unless legislation provided otherwise.
25. Under Article 27 (d) of the GAC, the term “high-ranking State official” (“თანამდებობის პირი”) (as also used in Article 44 § 1 in fine; see paragraph 27 below) meant that ordinary civil servants were excluded from its ambit. The term referred to an exhaustive list of State officials of the highest rank, such as the President of the State, the Prime Minister, the Speaker of Parliament, members of parliament, Ministers and their Deputies, and judges; ordinary staff members of a ministry were excluded from the list.
26. Chapter III of the GAC, of which Article 37 formed part, concerned the right of access to public information. The relevant part of that provision read as follows:
Article 37 – Request to access public information
“1. Everyone has the right to access public information, regardless of the form in which [it] has been kept. ...
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 the certified consent of the person concerned. ...”
27. Articles 44 and 45 of the GAC, which concerned disclosure of “personal data” by a public authority, read as follows:
Article 44 – Confidentiality of personal data
“1. A public body is not allowed to disclose personal data about a third party unless that person has consented to the disclosure or there is a court decision ordering the disclosure on the basis of legislation. Personal data concerning high-ranking State officials [თანამდებობის პირები] are not covered by the said protection. ...
3. A court may order the disclosure of personal data kept in public records only if this information proves indispensable for establishing the truth in a pending case and if other similar information cannot be retrieved from other sources.”
Article 45 – Accessibility of personal data
“Personal data may only be disclosed by [a public body] for the purposes of facilitating scientific research if anonymised.”The Law of 22 July 1997 on imprisonment
28. Pursuant to section 21(1) of the Law on imprisonment, as in force at the material time, the administration of the relevant prison had to communicate the custodial address of a newly arrived prisoner to his or her family and to the court by which he or she was convicted and sentenced.
29. Under section 50 of the Law on imprisonment, a convicted person had the right to send mail, subject to bearing the requisite postal costs, and to receive an unlimited amount of mail, and the prison authority had to ensure both the delivery of incoming mail and the dispatch of outgoing letters.Practice of the Supreme Court
30. The case of Ms Zhuzhuna Utiashvili v. Financial Police (registration no. ბს-333-317(კ-06)) concerned an administrative-law dispute between an individual and a law-enforcement agency under the authority of the Ministry of Finance. The individual claimant, relying on Article 37 of the GAC (see paragraph 26 above), had requested that the public agency provide her with information about the overall number of staff members serving in the financial police, their full names and official ranks, dates of birth, comprehensive information about their educational and professional backgrounds, their full office contact details and details of their salaries as well as of any non-salary benefits and bonuses paid to them in the preceding year. In its judgment delivered in 2006, the Supreme Court ruled that, except for the names and office contact details of the staff members of the respondent public agency, the majority of the information requested constituted personal data and thus could not be disclosed to the public without the consent of the staff members. The Supreme Court also reasoned that the voluminous amount of information requested was such that the agency did not even possess all that data in a readily available form, nor was the respondent agency obliged by law to process, upon requests from third parties without any apparent valid justification, vast amounts of data and make them freely available for the public to access.Practice of the Constitutional Court
31. In its judgment delivered in 2008 in Georgian Young Lawyer’s Association and Public Defender of Georgia v. Parliament of Georgia (registration no. 2/3/406.408), which concerned a dispute over the right to be allowed access to official documents among public records, the Constitutional Court of Georgia reiterated that the right to freedom of expression was not absolute, especially when it concerned the disclosure of State-held information.
32. In the Constitutional Court’s view, documents kept among State records could be categorised into four different types depending, in accordance with Article 41 of the Constitution (see paragraph 20 above), to what extent the public were permitted to access them. The first type concerned documents which could be retrieved without any restriction provided that they contained data concerning the requesting person. The second type consisted of official documents which, albeit not directly relating to the requesting person, could still be disclosed (provided that such documents already existed in an accessible form) because they did not contain any classified information. The third type consisted of documents that contained personal data about third parties relating to matters such as their health, finances or other private matters. That third type of documents could not, as a rule, be disclosed to the public unless the individual concerned by the requested data had previously given his or her consent or where such disclosure was authorised by law for one of the legitimate aims listed exhaustively in paragraph 2 of Article 41 of the Constitution (see paragraph 20 above). Lastly, the fourth – and most protected – type consisted of documents which contained State or commercial secrets: such confidential documents could not, under any circumstances, be disclosed to the public.
33. The Constitutional Court gave the following interpretation of the personal-data protection clause in Article 41 § 2 of the Constitution:
“[An] individual’s interest against disclosure of his or her personal data [kept in public records] ... is a fundamental aspect of the concept of the inviolability of private life. [Under] Article 41 § 2 of the Constitution ..., the presumption should be that the individual is opposed to the disclosure of his or her personal data, ... and the State shall act [on the basis of that presumption] in protecting the individual’s private life as long as this individual has not expressly consented to the disclosure.”
COMPLAINTS
34. The applicants complained under Article 10 of the Convention that the relevant public authorities had refused to disclose information of general public interest – namely, in the first applicant’s complaint, the address of the facility where an individual convicted of murder was being held; and in the complaint of the second and third applicants, data about the non-salary benefits and bonuses paid to staff members of the Ministry of Justice.
THE LAW
35. Given the similarity of the two applications, the Court decides to order their joinder in accordance with Rule 42 § 1 of the Rules of Court.
36. Article 10 of the Convention reads, 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’ submissionsApplication no. 18865/11
37. The Government raised three objections as to the admissibility of the first applicant’s complaint under Article 35 of the Convention. Firstly, they submitted that Article 10 of the Convention was not applicable in the particular circumstances of the case, because the information that had been sought by the first applicant was not essential to the exercise of her journalistic duties. Secondly, in so far as that provision might nevertheless apply, the Government argued that the application was manifestly ill founded because there had been no interference with the first applicant’s right to receive and impart information. In their view, there could hardly be any appetite among the public for having access to the custodial address of a person convicted of murder. Noting that it was only in the proceedings before the Court that the first applicant had explained, for the first time, why exactly she was interested in that particular information (see paragraph 40 below), the Government submitted that her particular professional concern had been fully attended to by the Ministry of Prisons’ official statement of 28 October 2009, which had publicly confirmed that the convicted person in question was duly serving his prison sentence in an unspecified custodial institution. The official statement had been sufficient for the purposes of quashing any rumours about that person’s purported disappearance, and the first applicant had been free to report on this official statement to the public. Of particular interest was the fact that in 2012 the first applicant had managed to meet the convicted person face to face through administrative arrangements made by the latter’s legal representative, and this further underscored, in the Government’s view, that the first applicant’s fears about the prisoner’s “disappearance” had been unfounded and could not have been of relevance to any serious public debate.
38. Thirdly, assuming that there had been interference, the Government argued that the first applicant had not suffered a significant disadvantage. The Ministry’s official statement of 28 October 2009 had been sufficient for the purpose of satisfying the first applicant’s professional curiosity. In this regard, the Government considered it helpful to inform the Court, by submitting a copy of the relevant publications, that in 2009‑10 the first applicant had published a number of newspaper articles on the murder case in question without any hindrance from public authorities. Furthermore, the first applicant had, in actual fact, been free to correspond with the convicted person and to ask him any questions she wished, including whether he would consent to the disclosure of his custodial address, by addressing her letters to the prison authority which, in accordance with section 50 of the Law on imprisonment (see paragraph 29 above), would have secured the exchange of correspondence with full respect for the prisoner’s right to uninterrupted and uncensored communication. The Government also submitted that the Ministry’s refusal to reveal the custodial address fell squarely within domestic law, as that authority was not bound to disclose information by virtue of the exemption contained in Article 3 § 4 of the GAC (see paragraph 22 above). The refusal to disclose the solicited information had moreover been motivated by the need to protect both the security and the privacy of the person who was serving a sentence following a high-profile murder case.
39. In conclusion, the Government requested that the Court reject the application as inadmissible either under sub-paragraph (a) of Article 35 § 3 of the Convention, for being incompatible ratione materiae or manifestly ill-founded, or under its sub-paragraph (b), because the alleged violation under Article 10 did not attain a minimum level of severity to warrant consideration by the Court.
40. The first applicant replied that her inability to obtain details of the precise custodial address of the person convicted of murdering a public figure had constituted an interference with the exercise of her right to freedom of expression. That had been so because, at the material time, rumours were being spread by the victim’s family that the convicted person had in actual fact either been murdered in prison or been given safe passage out of the country by the authorities. Thus, the first applicant believed that the disclosure of the prisoner’s custodial address would have been essential to her journalistic activities, either confirming or dispelling those rumours. Emphasising in this connection the principle in the Court’s case-law that the question whether, and if so to what extent, the denial of access to information constituted an interference with an applicant’s freedom of expression had to be assessed in each individual case and in the light of its particular circumstances (she referred to Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 172, 8 November 2016), she added that the information of interest to her had existed in a ready and available form, and that its disclosure would not therefore have placed any high burden on the relevant authorities (she also referred to Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, 14 April 2009).
41. The first applicant further asserted that the information about the custodial address of the convicted person related to a subject of general importance, when assessed against the specific context of the case at hand, and notably the fact that it had concerned a high-profile murder. Finally, the first applicant also disagreed with the Government’s objection relating to the “significant disadvantage” criterion in Article 35 § 3 of the Convention, reiterating that the subject matter of the application was not whether the authorities had prevented her from writing about the relevant murder case more generally, but the fact that she had been unlawfully denied access to information of public interest. In her claim about the unlawfulness of the interference, she submitted extensive arguments calling into question the reading of the relevant legal provisions by the domestic courts. She reiterated that she was entitled to learn from the authorities and then to inform the public about the prison in which the convicted person was serving his prison sentence.
42. In conclusion, the first applicant submitted that her application was not inadmissible on any of the three grounds referred to by the Government and that it should therefore be examined on the merits.Application no. 51865/11
43. The Government argued that application no. 51865/11 should be rejected as inadmissible under Article 35 § 3 (b) of the Convention as the second and third applicants had not suffered a significant disadvantage in respect of their complaints under Article 10 of the Convention. In this connection, the Government drew attention to the domestic courts’ argument that there was no need for the Ministry of Justice to disclose precise details about the non-salary benefits and bonuses paid to its staff members between 2004 and 2009 since it had always been open to the two applicants to consult the annual wealth declarations of those civil servants. Those declarations showed the total annual income of the staff members, and as such those total figures would necessarily include the amounts that had been paid as non-salary benefits and bonuses (see paragraph 18 above). Based on the total income and exact pay rate payable for each post and position of Ministry staff – such information being readily accessible in the public domain – the second and third applicants could easily work out, through a few simple calculations, exactly what proportion of the annual income was derived from non-salary benefits and bonuses.
44. The Government further submitted that between 2004 and 2007 the Ministry of Justice had not kept computerised accounting records of the non-salary benefits and bonuses paid, which explained why it was virtually impossible to collate and process the required information. As regards the period between 2007 and 2009, the Government submitted that, since the Ministry’s accounting system had first been computerised in 2013, it was possible to gather and process the necessary information only in respect of a few high-ranking State officials of the Ministry but not in respect of all staff members. Furthermore, the Government argued that, pursuant to Articles 44 and 45 of the GAC (see paragraph 27 above), the Ministry of Justice was unable to disclose the information about the non-salary benefits and bonuses paid to ordinary staff members, since, unlike the case of high-ranking State officials, that information was considered to be personal data and thus classified.
45. The third applicant, acting on behalf of the second applicant, disagreed with the Government’s objection relating to the admissibility of their complaints under Article 10 of the Convention. In this regard, while acknowledging that it was possible to find out about the total annual income of staff members of the Ministry of Justice by consulting their annual wealth declarations and that those figures would have included all the non‑salary benefits and benefits paid, he maintained that the crux of his complaint under Article 10 was his inability to ascertain the separate amounts paid to the staff members in the form of non-salary benefits and bonuses. Admittedly, by making the calculations referred to by the Government, it would indeed be possible to establish the total income from non-salary benefits and bonuses for each staff member. However, the third applicant argued that what mattered was knowing how much was paid to the staff member either monthly or quarterly in the form of non-salary benefits and bonuses. To access a public record of this particular information was important so that the public could be alerted to possible instances of corruption or favouritism within the Ministry of Justice.The Court’s assessment
46. At the outset, in so far as application no. 51865/11 is concerned, the Court notes that the second applicant was not a party to the relevant domestic proceedings (see paragraphs 14-19 above). However, it considers that it is not necessary to rule on the compatibility ratione personae of this particular part of the application 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), as both applications are in any event inadmissible for the following reasons. General principles
47. 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 an enforceable court order 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 freedom of expression must be assessed in each individual case and in the light of its particular circumstances (see Magyar Helsinki Bizottság, cited above, § 156-57). 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., §§ 157‑70).Application of those principles to the present case
48. The Court reiterates that the question of the applicability of a Convention right pertains to 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.
49. Applying the above-mentioned four-criteria test developed in Magyar Helsinki Bizottság (cited above), the Court notes, firstly, that the journalistic role of all the applicants 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).
50. 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).
51. In the present cases, the Court observes that the applicants, while having omitted to give reasons when requesting information from the administrative authorities, remedied their initial omission by providing the necessary arguments in the subsequent judicial proceedings (see paragraphs 11 and 17 above and compare Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, §§ 13‑19 and 97, 26 March 2020, and contrast Studio Monitori and Others, cited above, §§ 40 and 42). The Court thus finds that all three applicants can be said to have satisfied the criterion relating to the “purpose of the information request”.
52. As to the criterion of the “nature of the information sought”, the Court reiterates that the information to which access is sought must meet a public-interest test which, according to its general definition, exists where disclosure provides transparency on the conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the general public. What might constitute a subject of public interest will moreover depend on the circumstances of each case (see, for instance, Magyar Helsinki Bizottság, cited above, § 162).
53. In so far as application no. 18865/11 is concerned, the Court observes that the crux of the first applicant’s complaint under Article 10 of the Convention was her wish to learn and then inform the public of the exact custodial address of the person convicted of murder in a high-profile criminal case. However, this applicant has not sufficiently explained how knowledge of the address of the prison where a convicted person is serving his or her sentence – which was moreover a sensitive and classified piece of information under the domestic law (see paragraphs 21 and 28 above) – could be of interest to society as a whole and how knowledge of this information could enhance public governance. Admittedly, a matter which is capable of giving rise to a considerable controversy might also meet a public-interest test (see Sioutis v. Greece (dec.), no. 16393/14, § 28, 29 August 2017), and in this regard the Court notes the first applicant’s claim that at the material time rumours were being actively spread by the victim’s family that the convicted person had in actual fact either been murdered in prison or been given safe passage out of the country by the authorities (see paragraph 40 above). In general, whilst the Court does not consider that unconfirmed rumours and hearsay can in themselves be equated with public interest, it is not excluded that, in certain circumstances, they can trigger the public’s legitimate interest in uncovering false or misleading information. Thus, assuming that in the particular circumstances of the present case such rumours could qualify as a controversial issue affecting Georgian society as a whole, there is no reason to consider that the related public interest was not sufficiently addressed by the prison authority’s official statement of 28 October 2009, which confirmed that the convicted person was alive and serving his prison sentence. If the first applicant mistrusted that official statement, it was still open to her, as suggested by the Government, to try to make contact with the prisoner by addressing a letter to him through the intermediary of the prison authority (see paragraph 38 above) or with the help of his lawyer or family members, as the first applicant had done a few years earlier (see paragraph 37 above).
54. As to application no. 51865/11, the Court acknowledges that, in general, access to information about the income earned by civil servants contributes to transparency in public affairs and that, therefore, such information may be of public interest. However, it is also uncontested that this information was easily accessible to the second and third applicants and the general public, given that the annual wealth declarations of each staff member of the Ministry were already within the public domain. By making use of the public information about the statutory wage corresponding to the grade of each post and position attached to the Ministry, very simple calculations could have revealed to the second and third applicants how much of the annual income of the staff members of interest to him came from the statutory wage and how much consisted of non-salary benefits and bonuses. As to the third applicant’s argument that only the monthly or quarterly itemisation of the said income could reveal “possible instances of corruption or favouritism within the Ministry of Justice” (see paragraph 45 above), it is not sufficiently made out for the Court to perceive how exactly that itemised information attended to the corruption concerns. The Court thus considers that, in the particular circumstances of the present case, the specific form in which the information was requested did not satisfy a public-interest test.
55. Even though the above considerations are sufficient for the Court to conclude that Article 10 has not come into play in the circumstances of application no. 51865/11, it additionally notes that the information requested from the Ministry in an itemised form did not appear to have been “ready and available” at the material time. This finding follows both from the reasons advanced by the authority at the domestic level – notably the parallels drawn by the Ministry with the relevant domestic judicial practice that referred to the question of availability of the requested information in a processed manner (see paragraphs 16, 18 and 30 above) – and from the additional explanations adduced on the matter by the Government in the proceedings before the Court (see paragraph 44 above). The Court observes that Article 10 of the Convention does not impose an obligation to collect information upon the 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).
56. 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 18 February 2021.
{signature_p_1} signature_p_2}
Martina KellerSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy