THE MEDIA RIGHTS INSTITUTE v. AZERBAIJAN

FIRST SECTION

DECISION

Application no. 33394/12
THE MEDIA RIGHTS INSTITUTE
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 29 August 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. 33394/12) 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 30 March 2012 by the Media Rights Institute (“the applicant organisation”), which was represented by Mr R. Hajili and Ms Z. Sadigova, lawyers based in Strasbourg and Azerbaijan respectively;

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’s charter, it was a public union established with a view to helping the development of the media. In its submissions before the Court, the applicant organisation noted that it had been dealing with various projects relating to freedom of expression and access to official documents, and that it had prepared and published reports about those issues.

3.  On 21 April 2010 the chairperson of the applicant organisation submitted an information request to Parliament and asked for copies of the draft Law on additions and amendments to the Law on Electric Power, the Law on Gas Supply and the Law on Water Supply and Wastewater (“the Draft Law”) which had been adopted at a parliamentary session on 30 September 2009 and submitted to the President for signing. He also asked whether a meeting had been held by Parliament’s Standing Committee on Natural Resources, Energy and Ecology (“the Committee”) concerning the Draft Law. The applicant organisation noted very broadly in its request that the information was needed in order to summarise, analyse and discuss the transparency of Parliament’s activities.

4.  A few months before the applicant organisation submitted the above information request to Parliament, some media sources had published articles alleging that the Committee had unlawfully changed the text of the Draft Law after it had already been adopted by Parliament. They stated that, according to the version of the Draft Law that had been presented to and adopted in Parliament, all consumers, namely all legal and natural persons, were to be exempted from paying the costs for the installation of electricity, gas and water meters, but that the version of the Draft Law sent to the President for signature had excluded legal persons from the exemption.

5.  Having received no response from Parliament, on 29 June 2010 the applicant organisation lodged a claim with the Sabayil District Court. It argued that as an information holder, Parliament had been obliged to provide the requested information, as it had been necessary for the applicant organisation’s work and had not been available on Parliament’s website. The applicant organisation asked the court to find that its right to receive information had been violated, to also find that Parliament’s failure to respond had been unlawful, and to order Parliament to provide the requested information.

6.  While the case was being examined by the Sabayil District Court, Parliament provided several documents concerning the information request, including the initial version of the Draft Law submitted by the President to Parliament, and a copy of the minutes of the Committee meeting held on 30 September 2009. According to the minutes, the Committee had decided to present the changes in question (which excluded legal persons from the exemption) for discussion by Parliament.

7.  By a judgment of 19 November 2010, the Sabayil District Court dismissed the claim.

8.  Further appeals by the applicant organisation, mainly arguing that the information provided was incomplete, were dismissed on 27 April and 30 September 2011 by the Baku Court of Appeal and the Supreme Court respectively.

9.  The applicant organisation complained under Article 10 of the Convention that Parliament’s refusal to provide all the requested information had amounted to a violation of its right of access to information of public interest. It further complained under Article 6 of the Convention that the domestic courts had delivered unreasoned judgments.

THE COURT’S ASSESSMENT

10.  In its observations to the Court, the applicant organisation additionally complained under Article 13 of the Convention of the lack of an effective domestic remedy in respect of its complaints relating to the information request. However, in its application to the Court, the applicant organisation only raised complaints under Articles 6 and 10. Having regard to the fact that this issue was not part of the application of which the Government were given notice on 7 December 2016, the Court will limit its consideration to the applicant organisation’s initial complaints under Articles 6 and 10 of the Convention (see Aliyeva and Others v. Azerbaijan, nos. 66249/16 and 6 others, §§ 94-96, 21 September 2021).

11.  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, 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 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).

12.  The Court takes note of the fact that Parliament provided, albeit belatedly, documents related to the information request.

13.  As to the nature of the information sought, neither of the parties argued that the requested information had not been of public interest since it had concerned the transparency of Parliament’s activities. Moreover, the Court considers it unnecessary to assess whether the information sought by the applicant organisation was “ready and available”, since in the present case – for the reasons specified below – it has not been demonstrated that the other criteria, namely the purpose of the information request and the role of the applicant organisation, which are closely interlinked in the circumstances of the present case, have been met.

14.  As regards the purpose of the information request, the Court reiterates that in order 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. 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 right to freedom of expression (see Mikiashvili and Others v. Georgia (dec.), nos. 18865/11 and 51865/11, § 50, 19 January 2021, with further references). It is not sufficient for an applicant to make an abstract point to the effect that certain information should be made accessible as a matter of the general principle of transparency (see Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, § 54, 3 March 2020).

15.  In the present case, the Court observes that, in its request to Parliament, the applicant organisation explained its purpose in seeking information in very general terms (see paragraph 3 above), but wholly omitted to explain that purpose to the first-instance court. Even though in its subsequent appeals the applicant organisation mentioned, albeit again very briefly and vaguely, that it wanted to check the veracity of the allegations about the irregularity in the way the amendments had been made, and to participate in public debates in that connection, the Court cannot attach weighty significance to this vague and insufficient explanation. The Court observes that the applicant organisation’s information request to Parliament was based on allegations circulating in the media which had referred to speeches made by several public figures, the full content and context of which have not been made clear.

16.  The applicant organisation argued in particular that Parliament had not provided an answer to its question whether the Committee meeting had been held after the adoption of the initial version of the Draft Law concerning proposed amendments, and that this alleged failure had hindered the applicant organisation’s ability to participate in public debates on the matter. However, the Court observes that Parliament provided a copy of the minutes of the Committee meeting at which it had been decided to submit the amendments in question, which had also been agreed in advance with the Presidential Administration, for discussion by Parliament. The Court notes that the applicant organisation was unable to explain why the copy of the minutes could not be accepted as a satisfactory answer to its question. Moreover, Parliament also provided other documents related to the information request, such as the initial version of the Draft Law presented by the President to Parliament and the published final version of the law signed by the President. In view of all the above, the Court finds that the applicant organisation has not provided convincing arguments or a relevant explanation for the alleged inability to participate in public debates on the basis of the documents provided by Parliament (compare, mutatis mutandis, Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, §§ 40-42, 30 January 2020; Centre for Democracy and the Rule of Law, cited above, §§ 57-61; and Namazli v. Azerbaijan (dec.), no. 28203/10, §§ 36-37, 7 June 2022).

17.  Turning to the specific role of the information seeker, which is closely interlinked with the purpose of the information request in the present case, the Court specifically takes note of the applicant organisation’s submissions before it in which it stated that it had been dealing with various projects relating to freedom of expression and access to public documents. In this connection, the applicant organisation submitted only a copy of a report, dated 2010, which consisted of a statistical analysis of the reactions of the State authorities, including Parliament (full, partial or no response), to information requests made to them by the applicant organisation itself and various persons affiliated with it. However, the report did not contain, in substance, the specific information requested from Parliament in the present case, or any discussion or analysis of the transparency of Parliament’s activities (compare Agaliyev v. Azerbaijan [Committee] (dec.), no. 8135/12, § 15, 10 January 2023).

18.  In such circumstances, the available material suggests that the information request made to Parliament, forming the subject matter of the present case, might have been one of those information requests sent by the applicant organisation and persons affiliated with it to various authorities and companies with the actual purpose of conducting the statistical analysis set out in the 2010 report. Accordingly, Parliament’s initial failure to provide the requested information appears to have been used as a statistic in that report. Contrary to the applicant organisation’s submissions, it cannot be established from the material available in the case file that the information it requested in the present case was also needed for any genuine project relating specifically to Parliament’s activities or for participating in related debates conducted by the applicant organisation with a view to imparting information on that issue to the public (ibid., § 16). For these reasons, and also taking into account the applicant organisation’s failure to clearly explain the exact purpose of the information request at the domestic level, the Court cannot but conclude that the applicant organisation failed to demonstrate in the present case that it had actually been acting in the capacity of a “public watchdog” or had a special role in receiving and imparting information on the transparency of Parliament’s legislative activities to the public.

19.  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. Accordingly, the Court considers that it has not been shown that access to the requested information was instrumental for the exercise of the applicant organisation’s right to freedom of expression and finds that the denial of such access did not constitute an interference with that right.

20.  It follows that Article 10 does not apply and that this complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

21.  The applicant organisation complained of a lack of reasons for court judgments in breach of the requirements of Article 6 § 1 of the Convention.

22.  Even assuming that Article 6 § 1 of the Convention applies under its civil limb to the domestic proceedings in the present case by virtue of the determination of a “civil right” arising under the provisions of the applicable domestic law (see Namazli, cited above, § 43), the Court considers that the complaint is in any event inadmissible for the following reasons.

23.  The Court notes 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 domestic courts, which provided reasons in their judgments that were pertinent to the grounds on which the applicant organisation’s claim had been dismissed, and it has not been demonstrated that those findings were arbitrary or manifestly unreasonable to the point of prejudicing the fairness of the proceedings or resulting in a “denial of justice”. In such circumstances, the Court is not in a position to assume the role of a fourth‑instance body by embarking on a review of any particular alleged errors of law committed by the domestic courts (compare Namazli, cited above, § 45).

24.  It follows that this part of the application 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 19 September 2024.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President