Refusal of the public to provide information to a citizen despite the existence of a court order. Violation of the right of freedom of expression
JUDGMENT
ZHOKH v. Ukraine 28.09.2023 ( app. no. 29319/13)
SUMMARY
The appellant requested from the town planning office documents for public real estate. The officials refused to grant the documents. A court order was then issued ordering the government to grant them, which was never carried out.
According to the Court, to be justified, the administration’s refusal to provide information should meet the requirements of Article 10 of the ECHR, i.e. it should be provided for in the law and necessary in a democratic society. In this case, he found that the competent authorities had no reason to refuse the granting of copies for the public properties.
The ECHR found a violation of Article 10 of the ECHR and awarded 1,000 euros for moral damage.
PROVISION
Article 10
PRINCIPAL FACTS
The application concerned an alleged denial of access to information of public interest despite the issuance of a court order ordering the provision of the requested information. The applicant complained of violations of Articles 6 and 10 of the Convention on this ground.
On August 30, 2011, the applicant asked the Obukhiv Department of the State Land Resources Service of Kyiv (hereinafter: Department) to provide him with the documents for the plots of land in the village of Neshcheriv, which are state or municipal property and are not available to private individuals or legal entities. He referred to the Constitution of Ukraine and the law on access to public information, noting that anyone could obtain this information as it was public.
The applicant’s request was rejected on the grounds that the requested information was “confidential information for official use only” and that, in any case, “the relevant database was compiled by the plot owners”.
With a final decision of May 15, 2012, the Administrative Court of Appeal of Kyiv accepted the applicant’s action, judging that the Department’s refusal was based on contradictory reasons, namely that the requested information was limited and, at the same time, that the Department did not have the disputed information. The court found that no evidence had been adduced to support any of these arguments. The national court therefore ordered the Department to provide the requested information.
On October 12, 2012, enforcement proceedings were initiated. During this process, the bailiff fined the Department twice (November and December 2012) for not voluntarily complying with the order. On December 28, 2012, the execution procedure was terminated without execution, due to the “impossibility of executing the decision without the participation of the debtor”. On the same day, the Bailiffs Service sent a memorandum to the prosecutor regarding a possible criminal offense committed by the Department for “failure to execute a court order.”
Criminal proceedings were initiated by the public prosecutor, but the case was filed. The public prosecutor decided that it was premature to consider that there were criminal acts on the part of the employees of the Department. The applicant brought an action for violation of freedom of expression.
THE DECISION OF THE COURT…
The Court held that the Department’s failure to provide the applicant with the relevant information despite the decision of the Kyiv Administrative Appeals Court of 15 May 2012 ordering it to be provided to him amounted to an interference with his rights under Article 10.
Regarding the applicability of Article 10 of the Convention in the present case, the Court reiterated that this provision does not grant the private individual the right to access information held by a public authority, nor does it oblige the State to transmit this information to the private individual. However, such a right or obligation may arise where, as in the present case, the disclosure of the information has been ordered by an enforceable court order. It reiterated that such an intervention violates the ECHR if it does not meet the requirements of the second paragraph of that provision as to to be “prescribed by law”, to pursue one or more of the legitimate purposes set out in that paragraph and to be “necessary in a democratic society” to achieve those purposes.
In the circumstances of the present case, and in the absence of an explanation from the Government, the Court did not establish on what legal basis the Department’s position could be based or what legitimate purpose within the meaning of Article 10 § 2 it could serve (see mutatismutandis , Kenedi v. Hungary of 26.05.2009, case no. 31475/05 § 45 and Guseva v. Bulgaria of 17.02.2015, case no. 6987/07 §§ 59-60).
The ECtHR found a violation of Article 10 of the ECHR.
Just satisfaction: The Court awarded the applicant 1,000 euros for moral damage (edited by echrcaselaw.com).
