European Court of Human Rights

FIFTH SECTION

CASE OF ZHOKH v. UKRAINE

(Application no. 29319/13)

JUDGMENT
 

STRASBOURG

28 September 2023

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

In the case of Zhokh v. Ukraine,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 29319/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 16 April 2013 by a Ukrainian national, Mr Oleksiy Oleksiyovych Zhokh ("the applicant"), who was born in 1991 and lives in Obukhiv;

the decision to give notice of the application to the Ukrainian Government ("the Government"), represented by their Agent, most recently, Ms M. Sokorenko;

the parties' observations;

Having deliberated in private on 7 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns an alleged denial of access to information of public interest despite a court judgment ordering the provision of the information requested. The applicant complained of violations of Articles 6 and 10 of the Convention on that account.

2.  On 30 August 2011 the applicant requested the Obukhiv Department of the State Land Resources Agency in the Kyiv Region ("the Department") to provide him with the "graphic materials (on paper) for the land plots in the village of Neshcheriv which are State or municipal property and are not allocated 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, and notwithstanding the reasons for requesting it.

3.  The applicant's request was refused by the Department on the grounds that the information requested belonged to "confidential information for official use only" and that, in any case, "the respective database was compiled by the owners of plots".

4.  In a final judgment dated 15 May 2012, the Kyiv Administrative Court of Appeal allowed the applicant's claim against the Department, finding that the Department's refusal had been based on contradictory grounds, namely that the information requested was restricted and, at the same time, that the Department did not hold the information in question. The court found that no evidence had been presented to support either of those arguments. The court thus ordered the Department to provide the information requested.

5.  On 12 October 2012 enforcement proceedings were initiated by the Bailiffs Service. In the course of those proceedings, the Department was fined twice (in November and December 2012) by the bailiff for its failure to enforce the judgment voluntarily. On 28 December 2012 the enforcement proceedings were terminated by the bailiff without enforcement having taken place, owing to the "impossibility of enforcing the judgment without the debtor's participation". On the same day, a submission on a possible criminal offence committed by the Department of a "failure to enforce a court judgment" was sent by the Bailiffs Service to the prosecutor.

6.  On 20 February 2013 a criminal case was opened by the prosecutor into the possibility of the commission of criminal actions under Article 382 § 2 of the Criminal Code of Ukraine (non-enforcement of a final court judgment by an official). However, on 20 November 2013 the proceedings were terminated. The relevant resolution mentioned the Department's position that it had never received the bailiff's resolution on the opening of the enforcement proceedings and that it had only belatedly received the last decision on the imposition of a fine. On that basis, the investigator decided that it was too early to consider that there were any punishable actions on the part of the Department's employees.

7.  By a letter dated 22 November 2013, a copy of the resolution on the termination of the proceedings was sent to the applicant. The letter informed the applicant that he was entitled to challenge the resolution before the prosecutor within ten days from the date of receipt.

THE COURT'S ASSESSMENT

8.  The applicant complained that the non-enforcement of the domestic court's final judgment ordering the Department to provide the information he had requested constituted a violation of his rights under Articles 6 and 10 of the Convention.

9.  As the master of the characterisation to be given in law to the facts of the case, the Court considers that the applicant's complaint falls to be examined solely under Article 10 of the Convention.

1. ADMISSIBILITY

10.  The Government argued, firstly, that the applicant had not challenged the resolution on the termination of the criminal proceedings and had thus failed to exhaust domestic remedies.

11.  The applicant stated that he had never received the investigator's letter containing the resolution on the termination of criminal proceedings as it had been sent to the wrong address (the wrong apartment number). Having found out about the termination of the criminal proceedings from the Government's observations, on 20 December 2021 he had challenged the relevant resolution in the local court.

12.  The Court has already found, in cases in which an applicant has complained of the non-enforcement of a final judgment and the Government have raised a preliminary objection of non-exhaustion of domestic remedies, that a person who has obtained a final judgment against a State cannot be expected to bring separate enforcement proceedings; where a defendant State authority was duly notified of the judgment, it must take all necessary measures to comply with it or to transmit it to another competent authority for execution (see, for instance, Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 46, 15 October 2009, with further references). It cannot therefore be inferred from the fact that the applicant has not challenged the resolution - even assuming it had been duly sent to him - that he has not exhausted domestic remedies regarding his complaint about the non-enforcement of the final judgment of 15 May 2012.

13.  Secondly, the Government argued that the cadastral map of Ukraine had been publicly available online since 1 January 2013, and as such the applicant's application to the Court was devoid of any actual purpose, thus constituting an abuse of the right of petition. Under this head they also noted that the applicant had failed to inform the Court about the termination of the criminal proceedings.

14.  The applicant argued that the availability of information online did not exempt the authorities from providing it by way of execution of a court judgment, and that he had been unaware of the termination of the criminal proceedings.

15.  The Court, in the light of the applicable general principles as set out in, for example, Zhdanov and Others v. Russia (nos. 12200/08 and 2 others, §§ 79-81, 16 July 2019), does not discern in the applicant's actions any evidence of the possible "harmful exercise of a right for purposes other than those for which it is designed" impeding the proper functioning of the Court or the proper conduct of the proceedings before it.

16.  Lastly, the Government asserted that there had been no interference with the applicant's rights as his request did not meet the criteria set out in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 156-57, 8 November 2016).

17.  The applicant contended that he had requested information of public interest as it related to the division of land, and that accessing it was necessary to prevent unfair practices by the authorities.

18.  As for the applicability of Article 10 of the Convention to the present case, the Court reiterates that this provision 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 notably where, as in the present case, the disclosure of the information has been imposed by an enforceable court order (ibid., § 156).

19.  The Government's preliminary objections must therefore be dismissed.

20.  The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. MERITS

21.  The applicant complained under Article 10 of the Convention that the non-enforcement of the domestic court's final judgment ordering the Department to provide the information he had requested had infringed his rights under Article 10, in particular his right to receive and impart information.

22.  The Government limited themselves to stating that they considered that there had been no violation of any of the applicant's rights under the Convention.

23.  The Court considers that the failure of the Department to provide the applicant with the information concerned despite the final judgment of the Kyiv Administrative Court of Appeal of 15 May 2012 ordering that it be provided to him constituted an interference with his rights under Article 10. It reiterates that such an interference infringes the Convention if it does not meet the requirements of the second paragraph of that provision as to being "prescribed by law", pursuing one or more of the legitimate aims set out in that paragraph, and being "necessary in a democratic society" in order to achieve those aims.

24.  In the circumstances of the present case, and in the absence of any explanations by the Government, the Court does not see on what legal basis the attitude of the Department could have rested, or which legitimate aim within the meaning of Article 10 § 2 it could have served (see, mutatis mutandis, Kenedi v. Hungary, no. 31475/05, § 45, 26 May 2009, and Guseva v. Bulgaria, no. 6987/07, §§ 59-60, 17 February 2015).

25.  There has therefore been a violation of Article 10 of the Convention.

3. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage and 2,412 Ukrainian hryvnias (UAH - approximately EUR 78) in respect of costs and expenses incurred in the proceedings before the Court, constituted of UAH 2,000 in lawyer's fees and UAH 412 in postal expenses.

27.  The Government contested those claims as excessive and unsubstantiated.

28.  The Court considers that the applicant sustained non-pecuniary damage on account of the violation found and, ruling on equitable basis, awards him EUR 1,000.

29.  As to costs and expenses, according to the Court's case-law, an applicant is entitled to their reimbursement only in so far as it has been shown that those have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the fact that the applicant has provided no proof of payment of any amount to his representative and that the receipts provided in support of the claims for postal expenses do not show what those payments were for, the Court rejects the applicant's claim under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 28 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President