Information Note on the Court’s case-law 257
December 2021
Rovshan Hajiyev v. Azerbaijan - 19925/12 and 47532/13
Judgment 9.12.2021
Article 10
Article 10-1
Freedom to receive information
Unlawful refusal to provide a journalist access to information of public interest on the environmental and health impact of a former Soviet military radar station: violation
Facts – The applicant was a journalist and editor of the newspaper Azadliq. He sent requests to the Ministry of Healthcare and the Cabinet of Ministers for information concerning the environmental and public‑health impact of the Gabala Radar Station, a Soviet military early warning radar located in Azerbaijani territory. After the Soviet Union’s dissolution this station had become the property of Azerbaijan but had been operated by Russia under a lease agreement until its closure in 2012. The applicant mainly inquired whether the Commission appointed to carry out the impact assessment was still active and requested copies of any reports. The Ministry of Healthcare replied that a report had been prepared by the Commission and transmitted to the Cabinet of Ministers. The latter did not respond at all to the applicant’s request. As he was not provided with the requested information, the applicant instituted two separate sets of proceedings against the mentioned authorities but was unsuccessful.
The applicant complained under Article 10.
Law – Article 10:
(a) Applicability – Both requests concerned access to the same State-held information and, as such, constituted essentially the same information request. Although Article 10 did not confer on the individual a right of access to information held by a public authority or oblige the Government to impart such information, such a right or obligation could arise where access to the information was instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constituted an interference with that right. The Court, applying the criteria for right of access to State-held information laid down in Magyar Helsinki Bizottság v. Hungary [GC] was satisfied that the information requested by the applicant, which had been ready and available, constituted a matter of public interest. Access to this information had been instrumental for the applicant, as a journalist, to exercise his right to receive and impart information. Article 10 was therefore applicable.
(b) Merits – As the applicant had not received the Commission’s report, there had been an interference with his rights enshrined in Article 10 § 1. The Court then found that the interference had not been “prescribed by law” for the following reasons:
First, the crux of the applicant’s claim had not concerned any failure by the State authorities to disclose the contents of the report of their own accord, but rather the alleged breach of the legal requirements applicable to processing individual requests for information. The domestic courts, however, had failed to duly examine the lawfulness of the denial of access to the requested information by either of the two authorities, even though arguably that denial had not complied with the procedural requirements of the applicable domestic law.
Second, the domestic courts had dismissed the applicant’s claim against the Cabinet of Ministers solely on the basis of Article 29.1 of the 2005 Law on Access to Information, finding that this provision “[did] not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose”. This reasoning, however, had been based on a manifestly unreasonable interpretation and application of the domestic law. Further, the courts had not dealt with the scope of applicability and exact meaning of the above provision which in fact did not, as such, limit access by members of the public to State-held information but facilitated such access by requiring information owners to disclose certain types of often-sought information. Moreover, it appeared that access to information, which, as in the present case, did not belong to the types that information owners were obligated to “disclose” under in Article 29.1, could be sought by individual request. The information owners were then required to provide such access unless the information was lawfully restricted or there were other specifically defined grounds for refusing to provide access. However, the existence of any such substantive grounds for denial was not put forward by the domestic courts or, for that matter, by the authorities or the Government.
Conclusion: violation (unanimously)
Article 41: in the specific circumstances of the case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which the applicant might have suffered.
(See also Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Legal Summary; Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 931/13, 27 June 2017, Legal Summary)
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This summary by the Registry does not bind the Court.
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