PUBLIC ASSOCIATION FOR ASSISTANCE TO A FREE ECONOMY v. AZERBAIJAN

FIRST SECTION

DECISION

Application no. 27642/13
PUBLIC ASSOCIATION FOR ASSISTANCE TO A FREE ECONOMY
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 25 June 2024 as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 27642/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 March 2013 by the Public Association for Assistance to a Free Economy (“the applicant organisation”), which was represented by Mr F.M. Namazli, a lawyer based in Azerbaijan;

the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case, brought under Articles 6 and 10 of the Convention, concerns an alleged violation of the applicant organisation’s right of access to information of public interest allegedly held by the State, and its right to a fair hearing in civil proceedings initiated by it in that connection.

2.  According to the applicant organisation, it carried out “public oversight” of the State budget’s revenue and expenditure, monitoring of the implementation of social and economic programmes and other similar activities.

3.  On 1 August 2011 the applicant organisation submitted an information request to the Cabinet of Ministers asking detailed questions regarding two subjects: firstly, whether the Cabinet of Ministers had drafted proposals for the President in order to bring normative legal instruments currently in force, including those of the central executive authorities, into compliance with the Regulations on drafting, implementing, monitoring and assessing State investment programmes, which had recently been approved by Presidential Decree no. 239 of 17 March 2010 (“the Regulations”), and what the essence of those proposed changes were; and secondly, whether the Cabinet of Ministers had drafted and approved the Instructions on the analysis and assessment of the effectiveness of State investment programmes (“the Instructions”). The Cabinet of Ministers had been assigned both tasks by the same presidential decree. The applicant organisation also requested copies of any related documents.

4.  Having received no response from the Cabinet of Ministers, the applicant organisation lodged a claim with Baku Administrative Economic Court No. 1, asking the court to order the Cabinet of Ministers to provide the requested information.

5.  By a judgment of 22 December 2011, Baku Administrative Economic Court No. 1 dismissed the claim, finding that the requested information was not the type of information to be disclosed under Article 29 of the Law on Access to Information of 30 September 2005.

6.  Appeals by the applicant organisation were dismissed on 5 June and 9 October 2012 by the Baku Court of Appeal and the Supreme Court respectively. The representative of the applicant organisation did not attend the hearings before the appellate and cassation courts.

7.  The applicant organisation complained under Article 10 of the Convention that the Cabinet of Ministers’ refusal to provide the requested information had amounted to a breach of its right of access to information of public interest. It further argued under Article 6 of the Convention that the domestic courts had delivered unreasoned judgments, in breach of its right to a fair trial.

THE COURT’S ASSESSMENT

8.  The Court notes at the outset that the present application was lodged on behalf of the applicant organisation by Z.I., who was its chairman at the time. In their observations, the Government noted that the applicant organisation had not submitted a decision concerning Z.I.’s re-election as its chairman for State registration at any point after 2008, and no extract from the State register of legal entities to that effect had been provided. That being so, Z.I. was not entitled to appear before the Court on behalf of the applicant organisation or to represent it. The applicant organisation contested the Government’s objection and provided a copy of the minutes of its general assembly meeting held on 24 May 2010. According to the minutes, Z.I. had been re-elected as chairman of the applicant organisation. The Court notes that it is not necessary to examine the Government’s objection, because the application is in any event inadmissible for the following reasons.

9.  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 State to impart such information to the individual. However, such a right or obligation may arise in certain circumstances. 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 criteria established in the Court’s case-law (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., §§ 157-70).

10.  As to the nature of the requested information, the Court observes that the applicant organisation in its information request posed several questions which can be summarised as, firstly, whether the Cabinet of Ministers had prepared proposals in order to bring the existing legislative instruments into compliance with the newly adopted Regulations and, secondly, whether the Cabinet of Ministers had adopted and approved the Instructions. In connection with the second group of questions, the Court takes note of the Government’s submission that all legal and natural persons have open access to a public legislative database where all legal instruments that have been adopted, whether they are still in force or have been repealed – including laws, rules, regulations, and instructions – are available. In this connection, the Court notes that the absence of any information in the database regarding the Instructions that were the subject of the applicant organisation’s enquiry should already by itself have indicated to the applicant organisation that the legislative instrument in question had not yet been adopted by the Cabinet of Ministers. Consequently, the applicant organisation could have indicated in its reports that the absence of the Instructions in the database showed that the presidential decree had not yet been executed in full by the Cabinet of Ministers.

11.  With regard to the question as to whether the Cabinet of Ministers had made any draft proposals to the President for bringing the existing legislation into compliance with the Regulations, the Court notes that the Government submitted that under the domestic legal system, the adoption of a new normative legal instrument – usually a law enacted by Parliament or an instrument that had been approved by a presidential decree – was followed by a presidential decree instructing the Cabinet of Ministers to make proposals to bring the existing legislation into compliance with the newly adopted instrument (as occurred in the present case). In this connection, the Court notes that such proposals were subject to changes and their final iteration would be reflected in the legal instrument that was eventually adopted or in the amendments made to an existing legal instrument and would be published.

12.  In view of all the above, the Court is not convinced that the unadopted, and therefore unpublished, Instructions and draft proposals made by the Cabinet of Ministers to the President constituted a matter of public interest requiring such a formalistic approach by the applicant organisation in enquiring about them (compare The Public Union for Assistance in Economic Initiatives v. Azerbaijan [Committee] (dec.), no. 48460/11, § 6, 17 October 2023).

13.  Turning to the purpose of the information request, the Court observes that the applicant organisation, in a general manner, noted that the requested information was needed for conducting impartial public scrutiny of the working mechanisms of State investment programmes. However, given that the requested information concerned a legislatively technical matter such as bringing legislative instruments into compliance with the newly adopted Regulations, and that the applicant organisation submitted no relevant background information or supporting documents concerning any project with a relevant connection to the requested information, the Court is not convinced that the applicant organisation has been able to demonstrate that the requested information was instrumental for the exercise of its right to freedom of expression. It cannot be established from the material available in the case file that the information requested was actually needed for any genuine research project relating to the monitoring of State investments with a view to sharing the results of such research with the public. In any event, as noted above, the absence of the relevant legislation in the public database was in itself information that could have been used by the applicant organisation in its research or any other activity.

14.  As to the question whether the sought information was “ready and available”, the Court observes that if adopted, the legislative instrument forming the subject of the enquiry would have been published in the database. Therefore, in the circumstances of the case, the lack of information about those instruments was an indication that the requested information was not ready and available.

15.  The above considerations, assessed as a whole, are sufficient for the Court to conclude that no right of access to the information requested by the applicant organisation arose in the present case, and that there was no State interference with that right. It therefore considers it unnecessary to further assess whether the applicant organisation could be regarded as acting in the capacity of a “public watchdog” on this particular occasion, as in the present case satisfying that criterion would not be sufficient to lead the Court to a different conclusion (compare Mehtiyev v. Azerbaijan [Committee] (dec.), no. 42485/10, § 14, 13 December 2022).

16.  Consequently, the Court concludes that in the circumstances of the case the application must be rejected as being incompatible ratione materiae with Article 10 of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

17.  The applicant organisation also complained under Article 6 of the Convention that the domestic courts had not given reasons for their judgments.

18.  The Court considers that the applicant organisation was given an opportunity to raise its factual and legal arguments before the domestic courts. Those arguments were examined by the courts, which provided reasons in their judgments that were pertinent to the grounds on which the claim had been dismissed. In such circumstances, the Court is not in a position to assume the role of a fourth‑instance body by reviewing any particular errors of law allegedly made by the domestic courts (see Namazli v. Azerbaijan, no. 28203/10, § 45, 7 June 2022).

19.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with 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 29 August 2024.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President