THE ORGANISATION FOR THE PROTECTION OF OIL WORKERS' RIGHTS v. AZERBAIJAN

FIRST SECTION

DECISION

Application no. 7211/12
THE ORGANISATION FOR THE PROTECTION
OF OIL WORKERS’ RIGHTS
against Azerbaijan

The European Court of Human Rights (First Section), sitting on 7 May 2024 as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Ivana Jelić, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 7211/12) 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 10 January 2012 by the Organisation for the Protection of Oil Workers’ Rights, a non‑governmental organisation registered and based in Baku (“the applicant organisation”), which was represented by Mr R. Hajili and Mr F. Namazli, 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 trial in the subsequent civil proceedings brought by the applicant organisation in that connection.

2.  According to its Charter, the applicant organisation is a non‑governmental organisation whose main purpose is “to help to defend the rights of oil workers”. In its submissions before the Court, the applicant organisation briefly, and in general terms, stated that it specialised in conducting research on the state of the environment, the ecological impact of industrial processes, and the transparency and accountability of State funds allocated in that sphere, and that it conducted advocacy and organised events in that connection. According to the applicant organisation, it organised debates and other events to inform the public of the results of its research.

3.  On 17 August 2010 the applicant organisation submitted an information request, a copy of which has not been provided to the Court, to the State Oil Company of the Republic of Azerbaijan (SOCAR), a fully State‑owned petroleum company. According to the case material from the subsequent judicial proceedings, the applicant organisation had asked SOCAR the following questions:

“– Where do the oil and gas production departments of the Azneft Production Union, a structural unit of SOCAR operating in oil and gas fields in the sea and soil, divert the groundwater (lay suları) obtained during extraction?

– Where do the drilling departments of the Complex Drilling Works Trust, a structural unit of SOCAR undertaking complex drilling work in hydrocarbon deposits in the sea and soil, store the drilling sludge (şlam) and how is it neutralised?”

4.  By a letter of 25 August 2010, one of SOCAR’s vice-presidents refused to provide the requested information, pointing out that, under Article 9 of the Law on access to information of 30 September 2005 (“the Law on Access to Information”), SOCAR was not an “information owner” obliged by law to provide access to the type of information sought by the applicant organisation.

5.  The chairperson of the applicant organisation lodged a civil claim with the Sabayil District Court. Arguing, inter alia, that SOCAR was a “legal entity performing public functions” under Article 9.1.2 of the Law on Access to Information, and therefore an “information owner” obliged to provide access to information of public interest, she asked the court to find that SOCAR’s refusal to provide the information had been unlawful and had violated the applicant organisation’s right of access to information, and to order SOCAR to provide the requested information. She also submitted that the requested information was not available on SOCAR’s website.

6.  By a judgment of 27 October 2010, the Sabayil District Court, referring to the relevant provisions of domestic law and SOCAR’s Charter, dismissed the claim, finding that within the meaning of the Law on Access to Information, SOCAR was not an “information owner” required to disclose the type of information sought by the applicant organisation.

7.  Further appeals by the applicant organisation were dismissed on 15 February and 11 July 2011 respectively by the Baku Court of Appeal and the Supreme Court.

8.  The applicant organisation complained under Article 10 of the Convention that SOCAR’s refusal to provide the information sought 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 court judgments in its case had contained insufficient reasons.

THE COURT’S ASSESSMENT

9.  The Court notes at the outset that SOCAR was a wholly State-owned company, and not a public authority. Therefore, a question arises as to whether, in such circumstances, the alleged interference could be considered to be attributable to the State. However, it is not necessary to decide on this matter in the present case, because even assuming that the alleged interference could be attributable to the State, the application is in any event inadmissible for the following reasons.

10.  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).

11.  In the circumstances of the present case, considering the potential for oil and gas extraction to cause environmental pollution, the Court accepts that the information requested from SOCAR might have constituted a matter of public interest, even though it was requested in the form of very specific and technical questions. This has not been disputed by the Government. However, for the reasons specified below, the Court considers that the other threshold criteria, namely the purpose of the information request and the particular role of the applicant organisation, which are closely interlinked in the present case, have not been demonstrated to have been met.

12.  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). Moreover, 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).

13.  In the present case, given that no copy of the information request is available in the case file, it cannot be established that the applicant organisation had indicated its exact purpose in seeking information from SOCAR. Moreover, the Court observes that the applicant organisation also omitted to explain the purpose of the information sought to the first-instance court. It is true that the applicant organisation attempted to remedy that initial omission in the subsequent appeal proceedings by briefly and vaguely stating that the information was important for it to be able to conduct research and to draft a report. However, the Court is not convinced that such a vague and brief remark is a sufficient explanation of the exact purpose for requesting the information in issue, given that the applicant organisation has not provided any detailed or relevant background information, such as whether it had been collecting any other data in connection with the claimed purpose of the particular information request or conducting any other related research activities (see Namazli v. Azerbaijan (dec.), no. 28203/10, §§ 37, 7 June 2022). Overall, the Court notes that there is insufficient detail concerning the purpose for which this very technical and specific information was sought, and the applicant organisation’s submissions in that regard, made before the domestic courts and the Court respectively, are vague, incomplete and unsupported by any relevant material. Thus, the applicant organisation has failed to demonstrate that access to the information sought was instrumental for the exercise of its right to freedom of expression (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, cited above, §§ 36-37).

14.  As to the role of the applicant organisation in seeking the information in question, the Court takes note of the applicant organisation’s Charter, which provided that “the main purpose of the organisation is to help to defend the rights of oil workers” and which did not list any other purpose. However, the Court accepts that having only one “main” purpose set out in the Charter did not necessarily prevent the applicant organisation from conducting research about other related issues. Nevertheless, the Court also observes that the applicant organisation failed to submit to the domestic courts or the Court any documentary evidence (such as published reports, examples of previous research, and so on) showing that it had in fact conducted such research into the impact of industrial processes on the environment or had carried out similar projects prior to requesting information from SOCAR. For those reasons, and also taking into account the applicant organisation’s failure to explain the exact purpose of the information request at the domestic level, the Court is not convinced that it has been demonstrated that the applicant organisation was acting in the capacity of a “public watchdog” in respect of the specific information requested in the present case.

15.  Having regard to the above considerations, the Court does not consider it necessary to determine whether the information sought was “ready and available”. However, it takes note of the Government’s submission that the applicant organisation could have obtained the information sought from the Ministry of Environment and Natural Resources. The applicant organisation did not comment on this argument made by the Government.

16.  The above considerations, assessed as a whole, are sufficient to conclude that no right of access to the information requested by the applicant organisation arose in the present case, as it cannot be established either that it requested the information in question with the purpose of conducting any genuine research on issues of public interest relating to the impact of SOCAR’s activities on the environment, or that the applicant organisation was acting as a “public watchdog” in respect of those issues in the circumstances of the present case.

17.  Accordingly, it has not been shown that access to the information sought was instrumental for the exercise of the applicant organisation’s right to freedom of expression and, therefore, its denial did not constitute an interference with that right.

18.  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.

19.  The applicant organisation also complained that the domestic judgments had contained insufficient reasons, in breach of the requirements of Article 6 § 1 of the Convention.

20.  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.

21.  The Court notes that the applicant organisation was given the 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 was dismissed. While the applicant organisation disagreed with the domestic courts’ reasoning and findings, 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).

22.  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 30 May 2024.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President