European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

CASE OF LESHCHENKO v. UKRAINE

(Applications nos. 14220/13 and 72601/13)

 

 

 

 

JUDGMENT

 

 

 

 

 

 

STRASBOURG

21 January 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Leshchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Jovan Ilievski,
          Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

two applications (nos. 14220/13 and 72601/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Anatoliyovych Leshchenko (“the applicant”), on 19 February and 15 November 2013 respectively;

the decision to give notice of the applications to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 10 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The applicant, a journalist, alleged, under Article 10 of the Convention, that his right to receive and impart information had been violated as he had been refused access to information and documentation he allegedly needed for his work.

THE FACTS

2.  The applicant was born in 1980 and lives in Kyiv. As concerns the first application, the applicant was represented by Mr E. Markov, who at the time the observations and claims for just satisfaction were submitted, was a lawyer admitted to practise in Odessa. As concerns the second application, the applicant was first represented by Mr Markov and then by Ms T. Oleksiyuk, a lawyer practising in Kyiv.

3.  The Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  At the material time the applicant was a journalist with Ukrayinska Pravda, an online newspaper, and was well known for his investigative journalism and numerous publications concerning Ukrainian politics and allegations of corruption in the high echelons of power, most notably concerning the former President Viktor Yanukovych and his family.

I.       The first application

A.    Background to the case

6.  Mezhyhirya was the residence of President Yanukovych, then in office, which had been allocated to him by the State in 2002. The estate comprises 140 hectares and was in State ownership until 2007, when most of it (136.6 hectares) was privatised by two companies. In 2010, Mr Yanukovych acquired as his private property 1.76 hectares of the Mezhyhirya land owned by the State.

7.  Following a journalistic investigation into the circumstances of the sale of the State residence, Ukrayinska Pravda published a number of documents allegedly showing a link between the two aforementioned companies and Mr Yanukovych’s family and close friends.

B.     Applicant’s information requests

8.  On 31 May 2011, relying on section 6(5) of the Access to Public Information Act (“the APIA”), which secured public access to information related to the use of state and municipal property (see paragraph 36 below), the applicant asked the Vyshhorod State Administration, the local authority for the district where Mezhyhirya was situated (hereinafter referred to as “the local administration”), to provide the following:

(i) documents and permissions given by the local administration which served as the basis for the land sale contract between Mr Yanukovych and the local administration in 2010;

(ii) the land sale contract itself; and

(iii) details of the price at which the land was sold to Mr Yanukovych.

The applicant stated that he had determined that Mr Yanukovych had acquired the land in 2010 because in his income and assets declaration for 2009 he had declared it as rented while in the declaration for 2010 it was listed as owned.

9.  On the same date the applicant lodged a similar request with the Presidential Administration.

10.  On 29 June 2011 the local administration confirmed to the applicant that in 2010 a sale agreement for a plot of land of 1.76 hectares had been concluded between Mr Yanukovych and the local administration and stated that all permission procedures for the deal had been complied with. There was also a house owned by Mr Yanukovych on the plot. At the same time, the local administration refused to provide the applicant with any further information or documents. It further stated that the requested information concerned property and other rights and the protected interests of a third party and that it was prohibited by law to interfere with the private and family life of others. The local administration referred in that connection to Articles 8 and 17 of the Convention as well as to Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe (“the PACE Resolution”, see paragraph 42 below).

11.  Later, the applicant lodged two further requests with the local administration which were ultimately refused on similar grounds.

12.  On 6 June 2011 the Presidential Administration also refused to provide the applicant with the requested information, noting that the applicant’s request for information could be considered an interference with private life in breach of Article 32 of the Constitution (see paragraph 34 below). The applicant was called upon to respect the private lives of others. The reply referred to the PACE Resolution and the Convention.

C.    Proceedings before domestic courts

13.  The applicant instituted proceedings before the Kyiv Circuit Administrative Court against the local administration. The applicant sought to have the local administration’s refusal declared unlawful and to have it ordered to provide him with the information he had requested on 31 May 2011. The applicant emphasised that the requested information concerned the administration of State property and not the private life of Mr Yanukovych and, in this context, providing information on the conditions on which State land had been released to a person could not be seen as an interference with the private life of that person, all the more so where that person was the President.

Relying on the extensive case-law of the Court on Article 10 of the Convention, the applicant submitted, inter alia, that the private sphere of politicians was smaller than that of ordinary citizens. He further referred to a number of the Court’s judgments concerning the right of the press to receive and impart information on matters of public interest. For instance, he pointed out that in Editions Plon v. France (no. 58148/00, ECHR 2004‑IV) the Court had found a violation of Article 10 on account of disproportionate measures taken to protect the privacy of a former president and his family. The applicant pointed out that the PACE Resolution referred to paparazzi-like activities and not to the legitimate collection of documents by journalists.

14.  On 19 December 2011 the first-instance court found against the applicant. It concluded that in the transactions in question the local administration had acted not as a public authority but as a party to a civil law transaction. In this context the court cited the definition of public information in section 1 of the APIA (see paragraph 36 below) and concluded that the administration had not “created” the information in question.

Referring in particular to Article 32 of the Constitution, Article 301 of the Civil Code and section 11(2) of the Information Act (see paragraphs 34, 35 and 38 below), the court held that the requested information was confidential as it concerned the private life of an individual, Mr Yanukovych, and thus could not be released without his prior authorisation, which the applicant had not obtained. The court also drew attention to the fact that the legislation did not contain an exhaustive list of confidential information and pointed out that, under section 21 of the Information Act, information about individuals was confidential (see paragraph 38 below).

With reference to the PACE Resolution, the court also noted that Article 10 of the Convention was not to be seen as allowing the press to interfere with the private lives of individuals under the pretext of society’s right to receive information about public persons. It further stated that the right to private life enshrined in Article 8 of the Convention should be protected not only from any interference by public authorities, but also against any interference by private persons or institutions, including the mass media. The extent of an individual’s freedom ended where the rights of another individual began. The court finally noted that the right to protection of private and family life was guaranteed to everybody, irrespective of the level of his or her prominence in society. It cited, in this connection, the constitutional provision guaranteeing the equality of all citizens (see paragraph 34 below).

15.  The applicant lodged an appeal, relying mainly on the same arguments as in his claim. He noted, in addition, that the first-instance court had failed to examine his key argument that the information and the documents he had requested concerned the administration of State property and thus that the local administration, as the holder of this information, was prohibited by law, under section 6(5) of the APIA, from denying the public access to it.

He further complained that the first-instance court’s analysis of and reference to the domestic legislation and international documents had been incorrect. In particular, he stated that the constitutional provision guaranteeing the right to a private life relied on by the first-instance court made it clear that that right was not absolute. Moreover, despite concluding that the information in question had not been “created” by the local administration as a public authority, within the meaning of section 1 of the APIA, the court had failed to examine whether it nevertheless fell within the definition of public information under that provision because the information was, in any event, “held” by the administration (see paragraph 36 below).

16.  On 15 March 2012 the Kyiv Administrative Court of Appeal (“the Court of Appeal”) upheld the conclusions of the first-instance court, finding the requested information to be confidential. The reasoning given in the judgment was largely identical to that of the first-instance court.

17.  The applicant lodged an appeal on points of law, relying on essentially the same arguments.

18.  On 20 November 2012 the High Administrative Court, relying on the reasoning given by the lower courts, upheld their decisions.

II.    The second application

19.  On 3 July 2012 the Ukrainian Parliament adopted the Language Policy Act. The Act modified the rules concerning the use of Ukrainian, Russian and other languages and in particular extended the areas of public life in which the use of Russian was authorised. The Act and the issues regulated by it provoked intense public debate.

20.  In July 2012 the applicant published two articles concerning the political developments surrounding the debate over the bill, which eventually became the Act. Previously, in July 2011, the applicant had also published an interview with a former president of Ukraine, dedicated, in part, to language policy.

21.  Fifty-one members of parliament lodged two applications with the Constitutional Court for a review of the constitutionality of the Act. In the first application they argued primarily that the procedure which had led to the Act’s passage had been unconstitutional because the requirements set forth in the Rules of Parliament and the Parliamentary Committees Act had not been observed. In the second application, the members of parliament argued primarily that the substance of the Act was unconstitutional on the grounds that it had modified the status of the Ukrainian language set forth in the Constitution and misinterpreted and misapplied the European Charter for Regional or Minority Languages.

22.  In November 2012 the applicant asked the Constitutional Court to provide him with a copy of the application for review of the constitutionality of the Language Policy Act. It appears that the request concerned the first of the two above-mentioned applications. He stated that he was a journalist for Ukrayinska Pravda, working on journalistic investigations and publications on matters of public interest, and that he needed the information for his work on a publication (інформація необхідна для роботи над матеріалом). He added that the information sought would be of great public interest.

23.  The applicant’s request was made on the form made available by the Constitutional Court on its website, which contained the following fields to be completed: the requesting person’s name, address and contact details, and a description of the information requested.

24.  On 16 November 2012 the Registry of the Constitutional Court responded, stating that the requested information could not be provided since it concerned constitutional proceedings at a stage preceding the decision. By an order of 30 August 2011 (see paragraph 40 below), the President of the court, acting under section 6 of the APIA (see paragraph 36 below), had restricted access to that information.

25.  The applicant appealed to the administrative courts, seeking to have the Constitutional Court’s refusal declared unlawful. He argued that the information he had sought could not be considered “information for internal use”, within the meaning of section 9 of the APIA (see paragraph 37 below), because the application for constitutional review was not internal correspondence to which that provision was applicable and, in any event, it was not shown that harm from its disclosure would outweigh the public interest in it.

The order of the Constitutional Court’s President, designating certain information as “information for internal use” only (see paragraph 40 below), did not mention applications for constitutional review. The order in general designated the information created by the Constitutional Court, its judges and its registry as “information for internal use”. That did not cover applications for constitutional review. There was no indication that there would be any harm in the disclosure of that information, which the applicant considered to be of great public interest. Therefore, the refusal constituted a breach of domestic law and of Article 10 of the Convention.

26.  On 25 January 2013 the Kyiv Circuit Administrative Court dismissed the applicant’s claim, holding that the Constitutional Court’s refusal had been lawful. The administrative court quoted sections 6 and 9 of the APIA (see paragraphs 36 and 37 below) and observed that the Constitutional Court’s refusal had been based on the order of its President (see paragraph 40 below), which was publicly accessible on the court’s website. The administrative court referred to item 1 of the list of information approved by that order and stated that applications for constitutional review contained personal data of individuals and were used as material in the preparation of the Constitutional Court’s decisions. The administrative court also referred to the provision of the Rules of the Constitutional Court to the effect that parties to constitutional review proceedings had the right to access the case-file material (see paragraph 39 below). The administrative court interpreted that provision to mean that only the parties to the proceedings could have such access. The administrative court reasoned that applications for constitutional review were an integral part of the case files concerning constitutional review proceedings and could not be separated from them.

27.  The applicant appealed. In his submissions before the higher courts, he relied essentially on the same arguments as before.

28.  On 30 January and 27 March 2013 the Constitutional Court rejected the applications for constitutional review concerning the Language Policy Act (see paragraph 21 above) without examining them on the merits. As for the first, “procedural” application, the Constitutional Court held that it was only competent to review compliance of Acts of Parliament with the Constitution; it could not review compliance with procedures envisaged by the Rules of Parliament and other ordinary legislation. As to the second, “substantive” application, the court found that the application amounted to an expression of policy concerns over the status of the Ukrainian language but contained no valid arguments showing that the Act was unconstitutional. The applicant submitted examples of three media publications dedicated to those decisions.

29.  On 21 March 2013 the Court of Appeal allowed the applicant’s appeal, quashed the first-instance court’s judgment, found the Constitutional Court’s refusal unlawful and ordered the Constitutional Court to provide the information requested. It reasoned that there were no grounds for treating applications for constitutional review as “information for internal use”. The application for constitutional review in question concerned a matter of public interest, namely language policy, and therefore access to that information could not be restricted. The text of the application was not an internal document of a public authority: it had been submitted by a party initiating constitutional review proceedings and, as such, had to be distinguished from other material that might be contained in the case file concerning constitutional review proceedings. This was evident from the wording of the order of the Constitutional Court’s President, which had designated only material produced by the court, its judges and the registry as “information for internal use”, thus not including applications for constitutional review. The Court of Appeal disapproved of the first-instance court’s reliance on the Rules of the Constitutional Court, finding that the matter of access of third parties to the case-file material was governed by the APIA.

30.  The Court of Appeal also relied on the Court’s judgment in Társaság a Szabadságjogokért v. Hungary (no. 37374/05, § 37, 14 April 2009), to the effect that denial of access to a copy of a constitutional complaint could not be considered necessary in a democratic society to protect the personal data of its authors, namely members of parliament.

31.  The Court of Appeal concluded that, because members of parliament had lodged the application for constitutional review in their official capacity, the information contained in it could not be considered confidential. Moreover, in any case, to the extent that the application contained such personal data as the addresses and telephone numbers of the authors, that information had to be redacted.

32.  The Court of Appeal found that refusal to disclose could not be justified by the concern to preserve the authority of the judiciary since that authority was unrelated to the grounds on which parties to the proceedings applied to courts. Release of that information could not have any impact on the court’s authority and impartiality.

33.  On 30 May 2013 the High Administrative Court allowed the Constitutional Court’s appeal, quashed the Court of Appeal’s decision and rejected the applicant’s claim. It held that the applicant, not being a party to the constitutional review proceedings, had no right to access case-file material which constituted “information for internal use”.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.       Relevant domestic material

A.    Constitution of 1996

34.  The relevant provisions of the Constitution read:

Article 24

“Citizens have equal constitutional rights and freedoms and are equal before the law.

There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics.

...”

Article 32

“No one shall be subjected to interference with his private life and family matters, except when such interference is provided for by the Constitution of Ukraine.

The collection, storage, use, and dissemination of confidential information about a person without his consent shall not be permitted, except in cases determined by law and only in the interests of national security, economic well-being, and human rights. ...”

Article 34

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”

B.     Civil Code of 2003

35.  Article 301 of the Code provides that an individual has a right to a private life. He or she has the personal right to determine the extent of his or her private life and the possibility of others learning about it.

C.    Access to Public Information Act of 13 January 2011 (the APIA)

36.  The relevant provisions of the APIA read:

Section 1 - Public Information

“1.  Public information is information that is reflected and documented by any means and through any medium and was received or created in the process of the performance by public authorities of their duties laid down in the legislation in force or which is held by public authorities or any other public-information handlers determined by this law.

2.  Public information is fully accessible by the public except in the cases established by law.”

Section 6 - Public information with limited access

“1.  Information with limited access is:

(i)  confidential information;

(ii)  secret information; and

(iii)  information for official use.

2.  A limitation on the access to information shall be imposed in accordance with the law when the following circumstances apply:

(i)  where access to the information is limited exclusively in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary;

(ii)  disclosure of the information is capable of significantly harming those interests; and

(iii)  the harm caused by the disclosure of the information outweighs the public interest in obtaining the information.

3.  Limited-access information shall be provided by an information-handler if he or she had legitimately disclosed it previously.

4.  Limited-access information must be provided by an information-handler if the legal grounds for limiting access to that information no longer exist.

5.  No limitations shall be placed on access to information about: the use made of budget funds; the possession, use and disposition of state and municipal property, including access to copies of the corresponding documents; the conditions of the receipt of such funds or property; and the names of physical persons and legal entities in receipt of such funds or property (не може бути обмежено доступ до інформації про розпорядження бюджетними коштами, володіння, користування чи розпорядження державним, комунальним майном, у тому числі до копій відповідних документів, умови отримання цих коштів чи майна, прізвища, імена, по батькові фізичних осіб та найменування юридичних осіб, які отримали ці кошти або майно). Under the terms laid down in subsection 2 above, this provision does not apply in cases where the disclosure or provision of such information may harm the interests of national security, defence, investigation or prevention of crimes.

6.  Income declarations made by the following categories of people, and members of their families, do not fall into the category of limited-access information:

(i)  individuals who aspire to hold or who hold elected positions in bodies of power; and

(ii)  State government and local government employees of the first or second tier.

7.  Limitations on access apply to information and not to documents as a whole. If a document contains information to which access is limited then any other information within that document, to which access is not limited, must be made available for examination.”

Section 7 - Confidential information

“2.  Information-handlers ... who possess confidential information can disseminate it only with the consent of the person who limited the access to the information. If no such consent has been provided, the information can be disseminated only in the interests of national security, economic well-being, and human rights.”

37.  Section 9 provides that access can be restricted to information designated as “information for internal use” (для службового користування), namely internal letters, memoranda, recommendations concerning deliberations on the decisions to be taken by public authorities and concerning their decision-making process prior to the public discussion and the issuing of decisions. Requests for access to such information are to be examined pursuant to the three-part test set out in section 6(2) of the Act (see paragraph 36 above).

D.    Information Act of 1992

38.  The relevant provisions of the Act read:

Section 11 - Information about an individual

“1.  Information about an individual (personal data) is information or a set of data about an identified individual or an individual who can be identified.

2.  The collection, storage, use, and dissemination of confidential information about a person without his consent shall not be permitted, except in the cases determined by law and only in the interests of national security, economic well-being, and human rights. In particular, information concerning the person’s nationality, education, marital status, religion, and state of health as well as address, date and place of birth shall be considered confidential.

...”

Section 21 - Restricted information

“...

2.  Confidential information includes information about an individual as well as information to which access has been limited by an individual or legal entity other than a public authority. Confidential information can be disseminated with the consent of the person concerned, subject to any conditions that he or she applies, as well as in certain cases specified by law.

...”

II.    Rules of the Constitutional Court

39.  Rule 34 § 2 of the Rules of the Constitutional Court, as worded at the relevant time, stated that the participants in constitutional proceedings (defined in the Constitutional Court Act as those who apply for constitutional review and their representatives, as well as entities and officials, witnesses, experts and translators involved in the proceedings) had the right to access and study (ознайомлюватися) the case-file material.

40.  On 30 August 2011 the President of the Constitutional Court issued order no. 57/2011, approving the list of items of information to which access was restricted:

“List of items of information created in the Constitutional Court of Ukraine which shall be designated as information for internal use

1.  Information concerning applications for constitutional review and constitutional interpretation at all stages preceding the decision:

– analysis, summaries, memoranda, expert opinions, draft decisions, preliminary conclusions, judges’ requests for information and information obtained, decisions of the court’s panels, judges’ instructions concerning the drafting of rules and decisions and the material produced in accordance with such instructions, registers of the court’s decisions and other information produced by the court’s judges, units of the court’s registry, minutes of the court’s meetings;

...”

Items 2 to 4 of the list also designated as only “for internal use” certain other information, namely: (i) internal correspondence concerning the planning of the court’s activities; (ii) information concerning information security, security clearances, organisation of work with classified material and wartime mobilisation preparedness plans; and (iii) information concerning the guarding of the court’s premises and its secure telecommunication lines.

41.  On 24 July 2014 the President of the Constitutional Court approved a new list of “information for internal use”. The material concerning pending cases was removed from the list. The Constitutional Court started systematically publishing applications for constitutional review lodged by public figures (namely the President and members of parliament) on its website.

III. Relevant international material

42.  Resolution of the Parliamentary Assembly of the Council of Europe of 25 December 2008 no. 1165 on the right to privacy reads, in the relevant part:

“6.  The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.

7.  Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

8.  It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.

9.  Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10.  It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.”

THE LAW

I.       JOINDER OF THE APPLICATIONS

43.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.    ALLEGED VIOLATIONS OF ARTICLE 10 OF THE CONVENTION

44.  The applicant complained that when the authorities denied him access to the information he had sought, they had breached his rights under Article 10 of the Convention, which provides:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.    Admissibility

1.    The parties’ submissions

(a)    The Government

(i)      No significant disadvantage: in respect of both applications

45.  The Government submitted that, in both cases, the applicant had not suffered a significant disadvantage. He was a well-known journalist and in the autumn of 2014 he had even become a member of parliament. While the information he had been seeking had aroused an interest in society, it had not been directly related to the applicant. He had been only one of many journalists who had wanted to obtain that information. Whether or not it had been disclosed to him could not have caused him any pecuniary or non-pecuniary damage.

46.  As far as the second application was concerned, the applicant’s conduct indicated that the information he had sought had been of little significance for him (see paragraph 50 below):

47.  There had also been objective conditions for applying the “no significant disadvantage” rule. In particular, there was established case-law on the question of the right to receive information and freedom of information. There had been a change of Government in Ukraine in 2014 as a result of “Euromaidan” protests in which the applicant had actively taken part. As a result of those changes the Mezhyhirya estate had been returned to the State and its former owner, former President Yanukovych, was wanted on criminal charges. As a result, the circumstances of the estate’s privatisation were not currently of “acute interest” to Ukrainian society.

48.  As far as the second application was concerned, the objective conditions were also met. While the Language Policy Act had indeed aroused public interest, the short-lived constitutional review proceedings in that respect had not. The applicant’s premature request for information on those proceedings had had no wider implications. In its case-law the Court had held that respect for human rights did not require it to continue applications where the relevant law had changed and the complaint before the Court was of merely historical interest (citing Léger v. France (striking out), no. 19324/02, § 51, 30 March 2009, and Ionescu v. Romania (dec.), no. 36659/04, § 39, 1 June 2010).

(ii)    Applicability of Article 10 and alleged abuse of the right of application in respect of the second application

49.  The Government submitted that the applicant had pursued no genuine important purpose in requesting information from the Constitutional Court. In his information request the applicant had not identified any such purpose, beyond mentioning that the requested information constituted a matter of public importance (see paragraph 22 above). He had never explained specifically why the information had been necessary for the exercise of his freedom of expression. The applicant had not published on the issue in question and had rather been known for his articles critical of high-ranking officials. Where domestic law restricted access to particular information for a certain period of time, in this case for the duration of the constitutional proceedings, it was incumbent on the requested party to explain why the information was needed urgently. The applicant had failed to show any such urgency.

50.  The applicant’s request for information had been rejected because the relevant constitutional review proceedings had been at the pre-decision stage. It had remained open to the applicant to reapply once the proceedings in the case had ended or at least once the Constitutional Court had changed its rules on disclosure (see paragraphs 28 and 41 above); however, he had failed to do so. For the Government, this indicated that the applicant’s aim had not been to obtain the information but rather to “punish” the Constitutional Court for its original refusal by having a violation established by the European Court of Human Rights, obtaining compensation and using the European Court’s eventual judgment for political purposes. The Government submitted, therefore, that the applicant’s actions amounted to abuse of the right of individual application.

(b)    The applicant

51.  The applicant submitted that, both from a subjective and an objective perspective, the “no significant disadvantage” criterion was not applicable to his case. Nor had there been an abuse of the right of application.

52.  The applicant had sought to obtain information to perform his work as a journalist and “public watchdog” on matters of great importance for society and had spent a great deal of time and money fighting cases in the courts to be able to do so. In particular, the matter of language policy was of particular social importance in Ukraine, where, since its independence in 1991, the status of the Russian language had been subject to intense public debate. It also raised the issue of the implementation in Ukraine of the European Charter for Regional or Minority Languages. Those issues had a particular impact on the media, in particular audiovisual media, which were subject to language policy regulations. The information the applicant had sought had been ready and available.

53.  As far as the subjective test was concerned, the applicant pointed out that at the material time he had been a well-known journalist, known for his work in the field of Ukrainian politics, and in particular corruption in the highest echelons of government. Information, including from official sources, was indispensable for that work. Between 2010 and 2012 he had had more than 200 articles published on Ukrayinska Pravda, the most popular Ukrainian online media outlet, and had also had pieces published concerning language policy.

54.  As concerns his first application, the applicant submitted that his suspicions that there might have been corruption in the course of the privatisation of the Mezhyhirya estate had been incapable of being substantiated because of the secrecy which had surrounded the transactions and because he had been denied access to the official information on the subject. While the applicant had not been the only journalist who had been interested in the matter, he had published the most on the subject and had been one of the best known of the journalists in question, and had been active in investigating the alleged corruption of former President Yanukovych. In fact, to the applicant’s knowledge, no other journalist had applied to the Court in this connection. In relation to the question of access to information by a journalist it would be wrong to require him to show that he had suffered any damage personally because it was a matter of principle and of him exercising the role of a public “watchdog”.

55.  As concerns his second application, the applicant disputed the Government’s assertion that he had not been interested in language policy, and referred to his publications on the topic (see paragraph 20 above). His request for information was not a spontaneous move but had rather been directly linked to his specialisation as a journalist. The refusal had prevented him from informing the public on how their elected representatives influenced language policy.

56.  As far as the objective test was concerned, there was indeed case-law on the subject of access to information, but it could not be said that it was well-established and, furthermore, there was no case-law in respect of Ukraine on that issue at the time the applications had been lodged. Certainly, the public interest in the issue had considerably decreased since 2014 when the estate in question had been returned to the State. Access to public information had also improved. However, it could not be said that there were no longer any problems in this respect in Ukraine or that Ukrainian practice complied with “international democratic standards”. In any case the change in the situation in 2014 could not change the way the authorities and the courts had rejected the applicant’s claims in this matter, which the applicant objected to as a matter of principle.

57.  The case raised a matter of general nature which meant that “respect for human rights” required its examination regardless of the assessment of the individual damage to the applicant.

2.    The Court’s assessment

(a)    Application of Article 35 § 3 (b) of the Convention

58.  The issue raised by the present applications goes beyond the personal interests of the applicant and concerned an important matter of principle, namely access to information in the context of journalistic activity. Accordingly, the Court sees no reason to dismiss the case with reference to Article 35 § 3 (b) of the Convention (see Berladir and Others v. Russia, no. 34202/06, § 34, 10 July 2012, and Mikhaylova v. Russia, no. 46998/08, § 49, 19 November 2015).

(b)    Applicability of Article 10 of the Convention

(i)      Relevant general principles

59.  The Court has clarified the principles to be applied in assessing whether the denial of access to information constitutes an interference with freedom of expression in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 157-70, 8 November 2016).

60.  Whether and to what extent the denial of access to information constitutes an interference with an applicant’s freedom-of-expression rights must be assessed in each individual case and in the light of its particular circumstances (ibid., § 157). In order to define further the scope of such a right, the Court in the latter case, relying on recent Article 10 case-law, referred to 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).

61.  The Court has held that the question of applicability of a Convention provision is an issue of the Court’s jurisdiction ratione materiae and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). This also concerns the applicability of Article 10 in cases involving the rejection of information requests (see Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, § 32, 30 January 2020, and Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 48, 26 March 2020).

62.  The Court finds no particular reason to join the question of applicability of Article 10 to the merits in the present case.

(ii)    Application of the above principles to the present case

63.  The Court will first address the last three criteria set out in paragraph 60 and will then turn to the first criterion (the purpose of the information request), which requires a more detailed examination specific to each of the two applications.

64.  The Court considers that the information sought in both of his information requests met the public-interest test. In the first application it concerned the acquisition of formerly public property by the then President of Ukraine. The same can be said of the matters involved in the second application: the constitutional challenge against the changes in language policy introduced by the Language Policy Act.

65.  The role of the applicant, at the time, as a prominent investigative journalist, is not open to doubt. The Government’s submission, in respect of the first application, to the effect that the applicant was not the only journalist interested in the matter (see paragraph 43 above) only tends to support the conclusion that the information in question was of public interest and does not detract from the applicant’s role.

66.  As far as the second application is concerned, while the applicant’s primary focus as a journalist appears to have been allegations of corruption, he had demonstrated interest in matters of language policy as well (see paragraph 20 above and contrast, for example, Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, § 57, 3 March 2020).

67.  The information requested concerned specific property transactions and a specific constitutional review application. There is no reason to doubt that it was “ready and available”.

68.  Turning now to the purpose of the information request, the applicant has convincingly argued that he needed the information in question for his journalistic work. There is nothing in the case file to put this in doubt. In fact, the applicant regularly published on subjects to which both of his information requests related (see paragraphs 5, 20 and 53 above). In this connection, the Court reiterates that the gathering of information can be a relevant preparatory step in journalistic activities (see Magyar Helsinki Bizottság, cited above, § 158).

69.  The Court must also address the Government’s argument to the effect that the applicant’s interest in the information he had sought from the Constitutional Court had not been genuine since he had not identified any reasons for his information request and had not renewed his request after the proceedings in the constitutional review case had been terminated or after the Constitutional Court’s rules on disclosure had been changed (see paragraphs 49 and 50 above).

70.  As to the purpose of the request, the applicant did in fact identify it in the request, specifying that he needed the information for a publication he was working on (see paragraph 22 above). Moreover, in the judgment in Centre for Democracy and the Rule of Law (cited above, § 119), the Court, dealing with the same provisions of domestic law, found that the setting-out of reasons was not a required element of an information request under domestic law. Indeed, the information request form provided by the Constitutional Court and used by the applicant did not contain a specific field asking for reasons to be given (see paragraph 23 above).

71.  As to the possibility, suggested by the Government, of renewing the information request after proceedings were terminated, as the facts in Centre for Democracy and the Rule of Law ((dec.), cited above, §§ 12-15) show, at the relevant time the Constitutional Court restricted access to the case-file material even in terminated cases.

72.  That policy was changed only in July 2014, a year and a half after the termination of the relevant proceedings and after considerable political upheaval in Ukraine (see Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, §§ 12-15, 17 October 2019). Given that news is a perishable commodity and to delay its publication may deprive it of all its value and interest (see, for example, Stoll v. Switzerland [GC], no. 69698/01, § 131, ECHR 2007‑V), the applicant, a journalist writing on matters of current concern, can hardly be reproached for not renewing his request after such a considerable period of time under such circumstances.

73.  Finally, it has never been suggested, at any stage of the proceedings, that the applicant could, without prejudice to his work, have obtained the information he was seeking from an alternative source, such as the members of parliament who lodged the application for constitutional review (contrast Centre for Democracy and the Rule of Law (dec.), cited above, § 58).

74.  Accordingly, the Court is satisfied that the rejection of both of the applicant’s information requests impaired the exercise of his freedom to receive and impart information under Article 10 of the Convention.

75.  That provision was, accordingly, applicable in respect of the rejection of the applicant’s information requests in both of his applications.

(iii)  Alleged abuse of the right of individual application in respect of the applicant’s second application

76.  In view of its findings above, the Court sees no indication of abuse of the right of application on the applicant’s part.

(iv)   Overall conclusion as to admissibility

77.  The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

(a)    The first application

(i)      The applicant

78.  The applicant submitted that the interference with his freedom of expression had not been prescribed by law, and in particular that the domestic courts had failed to comment on his arguments based on the explicit provision of section 6(5) of the APIA (see paragraph 36 above), which, according to the applicant, made it impossible to restrict access to the information he had sought.

79.  As to the legitimate aim, the domestic courts had referred to the need to protect the then President’s private and family life. However, they had done so in an abstract fashion and had failed to address the specific nature of the President’s status as a public person. The applicant submitted that, in such circumstances, the domestic authorities had failed to identify a legitimate aim for the interference.

80.  As to the requirement of “necessity in a democratic society”, the applicant submitted that the information he had been seeking had not been intended to infringe the President’s right to protection of his private and family life. The domestic authorities had failed to address the difference between the President and an ordinary citizen in terms of political accountability and the need for different levels of transparency of their actions, income and property. Giving public figures the power to censor the press and public debate in the name of their personality rights would be fatal for freedom of expression in the sphere of politics. Accordingly, the authorities and the courts had failed to strike a fair balance between the President’s right to have his private life protected and the right of the public to receive information of social importance.

(ii)    The Government

81.  Having objected to the admissibility of the first application (see above), the Government did not submit any specific observations on its merits.

(b)    The second application

(i)      The applicant

82.  The applicant submitted that the refusal to provide a copy of the application for constitutional review had had no basis in domestic law. The Constitutional Court President’s order governing access to “information for internal use” had not referred to such applications as “information for internal use” and even if it had, that would have been contrary to section 9 of the APIA, which defined such information as information produced internally by public authorities rather than information submitted to them by litigants (see paragraphs 37 and 40 above).

83.  The Constitutional Court had rejected the applicant’s information request not because that had been necessary to maintain authority and impartiality of the judiciary but for purely formal reasons (see paragraph 24 above). In fact, it had not conducted a balancing exercise as required by section 6(2) of the APIA and also the Convention.

(ii)    The Government

84.  The Government submitted, for the reasons set out in paragraph 49 above, that there had been no interference with the applicant’s right to freedom of expression. If the Court were to find that such an interference had occurred, the Government maintained that it had been “prescribed by law” in the interests of maintaining the authority and impartiality of the judiciary and the protection of personal data.

85.  The applicant’s case had to be distinguished from Társaság a Szabadságjogokért v. Hungary (no. 37374/05, 14 April 2009), with which it had only superficial similarities. In the applicant’s case the restriction on access to information had concerned only the period prior to the Constitutional Court’s decision because the Constitutional Court had been using the requested information in its decision-making process. Unrestricted access to the case files concerning constitutional proceedings could have been seen as a threat to the Constitutional Court’s independence, which was of paramount importance in a democratic system governed by the rule of law. It had been essential to protect members of the judiciary from attacks on their dignity and undue influence. In such circumstances, a temporary restriction on access had been necessary.

2.    The Court’s assessment

(a)    Relevant general principles

86.  The principles relevant to assessing whether an interference with freedom of expression was “prescribed by law” have recently been summarised in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland ([GC], no. 931/13, §§ 142-45, 27 June 2017) and those relevant to assessing whether it was “necessary in a democratic society” in Magyar Helsinki Bizottság (cited above, § 187).

(b)    Application of the above principles to the present case

(i) Whether there was an interference with the applicant’s freedom of expression

87.  In view of the findings in paragraphs 64 to 75 above, the Court considers that there has been an interference with the applicant’s right to freedom of expression in both cases.

88.  Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph, and whether it was “necessary in a democratic society” in order to achieve those aims (see, for example, Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, § 37, 28 November 2013).

(ii) Whether the interference was justified

(α)    The first application

89.  The domestic courts failed to comment on the applicant’s argument that a very specific provision of the APIA - section 6(5) - prevented there being any restrictions on access to the information he was seeking (see paragraphs 8 and 14 above). That provision, given its plain meaning, would indeed appear to rule out nearly any restriction on access to the information in question. The domestic authorities and courts referred instead to much more general provisions of domestic law regarding the right to privacy (see paragraphs 10 and 14 above). There was no reasoning given as to why those more general provisions were applicable and not section 6(5) of the APIA, or why they overrode that section.

90.  To the extent the domestic courts commented on that issue, they implied that the information in question was not “public information” within the meaning of the APIA at all (see paragraph 14 above). However, in doing so they commented only on the first prong of the definition of public information contained in section 1 of the APIA, concluding that the information in question had been “created” by the local administration not in its public but rather in its private capacity (see paragraph 36 above). There is no need for the Court to assess the reasonableness of that argument as, in any event, the domestic courts did not comment on the second prong of the definition in section 1 of the APIA, thereby failing to comment on why they did not consider this information to be “held” by the public authority.

91.  The conclusion, therefore, is that the domestic courts did not definitively find that the APIA was not applicable to the information in question and yet they failed to state why they considered section 6(5) of the APIA inapplicable.

92.  The Court does not rule out that a situation could arise where, despite the plain meaning of section 6(5) of the APIA, very specific overriding privacy considerations would nevertheless permit the domestic authorities to limit the scope of disclosure, even on the basis of more generally worded privacy-related provisions. To use but one example, the disclosure of information about the state of health of a person in receipt of State-funded disability-related payments, which could arguably be seen as included within the plain meaning of section 6(5) of the APIA (see paragraph 36 above), could nevertheless be restricted.

93.  In the present case, however, the domestic courts cited no such specific and strong privacy-related concerns. Instead, they relied on very general legislative provisions protecting privacy to set aside a very specific legislative provision which appeared to require the disclosure of the information in question, which concerned the transfer of public property to the President then in office, a matter in which there would unquestionably be considerable public interest.

94.  In view of these flaws in the domestic courts’ reasoning, the Court is not convinced that the domestic law, as interpreted and applied by the domestic courts in the present case, was “foreseeable”.

95.  However, even assuming that the interference was “prescribed by law” and that it pursued a legitimate aim of protecting the rights of others (see Magyar Helsinki Bizottság, § 186, and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung, § 39, both cited above), the Court concludes, for the same reasons, that the domestic authorities did not cite “sufficient” reasons for the interference, which was not proportionate to the legitimate aim pursued.

96.  There has, accordingly, been a violation of Article 10 of the Convention in application no. 14220/13.

(β)    The second application

97.  The applicant argued both at the domestic level and before the Court (see paragraphs 25 and 82 above) that the refusal of his information request had not been lawful since the Constitutional Court’s regulations providing for restrictions on access to documents did not explicitly refer to applications for constitutional review as documents to which access was to be restricted. He argued, moreover, that the regulations themselves and the provision of the APIA on which they had been based applied only to material produced by the Constitutional Court and not to any material submitted to the court, such as applications for constitutional review.

98.  A perusal of the relevant domestic provisions indicates that the applicant’s interpretation was not without basis. Moreover, it was endorsed by the domestic Court of Appeal (see paragraph 29 above). The High Administrative Court, in quashing the Court of Appeal’s ruling, did not explain its reasons for disagreeing (see paragraph 33 above). While the matter was addressed by the first-instance court (see paragraph 26 above), its explanation as to why it appeared to go against the literal meaning of the relevant regulations and section 9 of the APIA on which they were based was rather short and did not cite any pre-existing case-law or other material in support of the first-instance court’s interpretation.

99.  The Court, therefore, entertains doubts as to whether the interpretation of the relevant domestic law provisions by the domestic courts was “foreseeable”. However, it does not find it necessary to decide whether the above considerations alone can serve as a basis for finding a violation of Article 10 of the Convention and will continue its examination of the case by turning to the question whether the interference pursued a legitimate aim and was necessary in a democratic society (see, for example, Chumak v. Ukraine, no. 44529/09, § 49, 6 March 2018, and the judgment in Centre for Democracy and the Rule of Law, cited above, §§ 107-12).

100.  In any event, the question (which the applicant also raised - see paragraph 83 above) of compliance with section 6(2) of the APIA, requiring that a balancing exercise be conducted in deciding on requests for information, goes primarily to the matter of necessity in a democratic society (see Instytut Ekonomichnykh Reform, TOV v. Ukraine, no. 61561/08, § 39, 2 June 2016).

101.  The Court accepts the Government’s submissions (see paragraph 84 above) that the interference pursued the legitimate aim of protecting the privacy rights of others and maintaining the authority and impartiality of the judiciary.

102.  The Court has already examined the question of denial of access to a copy of a constitutional complaint pending before the Constitutional Court of Hungary in Társaság a Szabadságjogokért (cited above, § 34). As far as the purpose of protecting the personal data of the authors of the constitutional review application was concerned, in the present case the Court does not see any reason to reach a different conclusion from the one reached in Társaság a Szabadságjogokért:

“37.  The Court observes that the applicant had requested information about the constitutional complaint eventually without the personal data of its author. Moreover, the Court finds it quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. It is true that he had informed the press that he had lodged the complaint, and therefore his opinion on this public matter could, in principle, be identified with his person. However, the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent. These considerations cannot justify, in the Court’s view, the interference of which complaint is made in the present case.”

103.  In the instant case, the Court of Appeal found, and its finding on that point was not disavowed by the High Administrative Court (see paragraphs 31 and 33 above), that the way to address any privacy concerns of the members of parliament who lodged the constitutional review application would be to redact any sensitive personal information contained in the text of the application rather than denying access to the text of the application in its entirety (see the judgment in Centre for Democracy and the Rule of Law, cited above, § 94).

104.  As far as the aim of maintaining the authority and impartiality of the judiciary is concerned, the Court is not convinced that the domestic authorities gave sufficient reasons for their assessment that restriction of access was necessary to safeguard those important interests.

105.  The Constitutional Court, in its refusal of the information request, did not address that issue. It apparently argued that point before the domestic administrative courts but the only court which addressed that issue was the Court of Appeal, which found the argument unpersuasive (see paragraphs 24 and 32 above). The High Administrative Court, in quashing the Court of Appeal’s ruling, did not indicate any position on that point (see paragraph 33 above).

106.  The Court does not consider that the issue could be considered to have been addressed through the first-instance court’s mere reference to the fact that applications for constitutional review were part of the case file and were used in the Constitutional Court’s decision-making process (see paragraph 26 above). Those statements were general, did not identify any specific prejudice which could be caused by the disclosure of information, and addressed the matter of the legality of the refusal rather than of its proportionality.

107.  Apart from those statements in the first-instance court’s judgment and the Constitutional Court’s blanket reference to section 6 of the APIA (see paragraph 24 above), there is no indication that the domestic authorities at any stage conducted (as required by section 6(2) of the Act, see paragraph 36 above), a balancing exercise to assess whether the public interest in disclosure outweighed potential prejudice from it (see the judgment in Centre for Democracy and the Rule of Law, cited above, § 118).

108.  The Court concludes, therefore, that the interference was not based on “sufficient” reasons and the necessity of the interference with the exercise of the applicant’s freedom of expression has not been shown.

109.  There has, accordingly, been a violation of Article 10 of the Convention in application no. 72601/13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

110.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

111.  The applicant claimed 6,000 euros (EUR) for each application in respect of non-pecuniary damage.

112.  The Government contested that claim, considering it exorbitant and unsubstantiated.

113.  In view of the relatively minor nature of the violations, the Court finds it appropriate not to make an award in respect of non-pecuniary damage. The Court holds that the finding of violations constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that there has been a violation of Article 10 of the Convention in application no. 14220/13;

4.      Holds that there has been a violation of Article 10 of the Convention in application no. 72601/13;

5.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                   Stéphanie Mourou-Vikström
Deputy Registrar                                                                President