FIFTH SECTION

DECISION

Application no. 50256/08 Oleksandr Yevgenovych SEVERYN against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 15 September 2020 as a Committee composed of:

Gabriele Kucsko-Stadlmayer , President, Ganna Yudkivska , Mattias Guyomar , judges,

and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 9 October 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the third-party comments submitted by a Ukrainian NGO, the Centre for Democracy and the Rule of Law,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Oleksandr Yevgenovych Severyn , is a Ukrainian national, who was born in 1970 and lives in Kyiv.

A. The circumstances of the case

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

3 . At the time of the events giving rise to the present application, the applicant was a public activist and a correspondent for the Human Rights information bulletin published by the Kharkiv Human Rights Group NGO. He was also a member of the board administering the maidan.org.ua website publishing materials concerning various political and social topics.

4 . On 27 August 2005 the applicant submitted a request for information to the Constitutional Court of Ukraine (hereinafter – “the CCU”). He did not provide a copy of the above request but submitted in his application form of 9 October 2008 that he had requested “to provide him written information about the number of citizens ’ and legal persons ’ petitions ( кількість звернень громадян та юридичних осіб ) to the CCU in 2003-2004 and during six months of 2005, as well as a number of decisions on the opening of the proceedings and refusals for the same period ( кількість винесених ухвал про порушення справи та про відмову у порушенні справи ) ”. According to the applicant, in his request he referred to Article 34 of the Constitution and the Information Act.

5 . In its reply of 13 September 2005 the CCU informed the applicant that “following your request for information about the functioning of the Constitutional Court of Ukraine, which, according to you, is necessary for the enjoyment of your personal rights and interests of the citizen of Ukraine and of a human rights defender, it is noted that the submission of such information is not provided for either by the Constitutional Court Act, or by the Rules of the Constitutional Court”. It was further noted that the CCU ’ s activity was covered in its official journal and on its Internet site. Furthermore, according to the applicable law, individuals could only apply to the CCU with requests to provide official interpretation of the Constitution or the laws of Ukraine, if they considered that their application could adversely affect their constitutional rights and freedoms.

6 . In January 2006 the applicant challenged that refusal in the Golosiyivsky District Court in Kyiv. He did not provide a copy of his claim but it transpires from the subsequent court decisions that he had requested the CCU “to provide him with written information about the number of citizens ’ and legal persons ’ petitions to the CCU in 2003-2004 and during six months of 2005, as well as a number of decisions on the opening of the proceedings and refusals for the same period” and considered the CCU ’ s refusal as unlawful. In his claim and in a court hearing the applicant referred, in particular, to Article 10 of the Convention, Articles 34 and 40 of the Constitution of Ukraine and Sections 9 and 45 of the Information Act, and claimed that all citizens of Ukraine had a right to freely receive information necessary for the enjoyment of their rights, freedoms and lawful interests. He further requested to oblige the respondent to comply with his information request within the fifteen-day time limit.

7 . On 31 January 2006 the court, referring to Articles 9 and 21 of the Information Act as well as to the Constitutional Court Act ruled against the applicant, stating that his claim was not based on law.

8 . The applicant appealed referring to Article 10 of the Convention, Article 34 of the Constitution of Ukraine, and Article 9 of the Information Act and stating that the defendant had breached his right to receive information guaranteed by the above acts. He also submitted that the legal provisions referred to by the first instance court were irrelevant in his case.

9 . On 10 May 2006 the Kyiv City Court of Appeal rejected the applicant ’ s appeal as unsubstantiated reiterating that the lower court had applied the law correctly.

10 . The applicant appealed in cassation reiterating his arguments that the lower courts had failed to apply the law correctly.

11 . On 15 July 2008 the Higher Administrative Court of Ukraine rejected the applicant ’ s appeal arguing that the CCU had applied the law correctly when answering the applicant ’ s request.

12 . By a letter of 20 May 2011 the CCU Registry sent data to the applicant on constitutional appeals lodged by individuals and legal persons in 2003-2010 and on a number of decisions adopted following their examination. It was noted that the majority of appeals had been returned to their authors for failure to comply with the requirements of the Constitutional Court Act. The one page annex to this letter contained data on appeals lodged by citizens of Ukraine and legal entities between 2003 and 2010 separately per subject/per year. It also contained a table with a number of decisions on the opening of proceedings or refusals/termination of such proceedings equally per subject/per year. In addition it was mentioned that “out of 2,617 constitutional appeals 2,446 were returned for corrections”.

13 . On 8 June 2011 the applicant published an article “ Oleksandr Severyn : the State tells you to bugger off ” ( Олександр Северин: «Держава відповідає»: да пошлі ви ...» ) on an Internet site maidan.org.ua . The data provided to the applicant in May 2011 is reflected in two paragraphs of this article. Having cited the numerical data, the author concludes that the fact that only 1.22% of all constitutional appeals were admitted for examination signified that the State had failed to create an effective mechanism for access to the CCU.

B. Relevant domestic law

1. Constitution of Ukraine of 1996

14 . The relevant provisions of the Constitution of Ukraine read as follows:

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.”

Article 40

“Everyone has the right to file individual or collective petitions, or to personally appeal to bodies of state power, bodies of local self-government, and to the officials and officers of these bodies, that are obliged to consider the petitions and to provide a substantiated reply within the term established by law.”

2. Law of Ukraine “On Information” (Information Act) no. 2657-XII of 2 October 1992

15 . The relevant provisions of the Information Act, as formulated at the material time, read as follows:

Section 9. Right to information

“All citizens of Ukraine, legal entities and State bodies shall have the right to information, which denotes a possibility of free access to, use, dissemination and storage of the information necessary for them to realise their rights, freedoms and lawful interests, [or] perform [their] tasks and functions.”

Section 21. Information of Governmental Authorities, Local and Regional Governmental Authorities

“Information of governmental authorities, local and regional governmental authorities is documented information created in the process of current activity of legislative, executive and judicial authorities, local and regional governmental authorities.

The main sources of this information are the legislative acts of Ukraine, other acts to be passed by Verkhovna Rada and its authorities, the acts of the President of Ukraine, subordinate legislation, non-regulatory act of governmental authorities, acts of local and regional governmental authorities.

Information of government authorities and local and regional governmental authorities shall be brought to concerned persons ’ notice by:

publishing of this information in official printed publications or dissemination by information services of corresponding state authorities and organizations;

publishing of this information in printed mass media or open disclosure through audio and audio-visualized mass media;

direct bringing of this information to concerned persons ’ notice (in verbal, written or other forms);

granting the possibility of familiarization with archive materials;

disclosure of it during public speaking of officials;

sources and procedure for obtaining, use, dissemination and storage of official information of governmental authorities and local and regional governmental authorities shall be defined by legislative acts on such authorities.

Legislative and other acts that concern rights, freedoms and legal interests of citizens that are not brought to public ’ s notice shall not have any legal effect.”

Section 32. Information request concerning access to official documents and request to provide written or oral information

“...

A request to provide written or oral information within the meaning of this Act shall denote an application with a demand to provide written or oral information concerning the activity of the bodies of the legislative, executive and judicial branch of power in Ukraine, [or] their officials in particular spheres.

...

Bodies of legislative, executive and judicial branches of power in Ukraine, [and] their officials are obliged to provide information which concerns their activity in writing, orally, by telephone or via public presentations of their officials.”

Section 45. Protection of right to information

“The right to information shall be protected by law. The State shall guarantee to all participants of the relations in the sphere of information equal rights and opportunities to access information.

Nobody may restrict the rights of a person in choosing forms and sources of receiving information, except in cases envisaged by law.

The subject of the right to information may demand cessation of any breaches of his/her right.”

3. Constitutional Court Act, 1996

16 . The relevant provisions of the Act provided as follows;

Section 38. Forms of Applications to the Constitutional Court of Ukraine

“Applications to the Constitutional Court of Ukraine shall be made in the form of a constitutional petition and a constitutional appeal.”

Section 43. Subjects of the right to a constitutional appeal in order to obtain the opinion of the Constitutional Court of Ukraine

“The subjects of the right to a constitutional appeal in order to obtain the opinion of the Constitutional Court of Ukraine in the cases foreseen by subparagraph 4 of Article 13 of this Law are citizens of Ukraine, aliens, stateless persons and legal entities.”

COMPLAINT

17 . The applicant complains under Article 10 of the Convention that the CCU unlawfully denied his right as a citizen, a journalist and a human rights defender to obtain information of public importance and that the domestic courts equally failed to protect his right.

THE LAW

18 . The applicant complains that the refusal of the national authorities to provide him with the requested information breaches Article 10 of the Convention, which reads :

“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. The parties ’ observations

1. The Government

19 . The Government submitted at the outset that the case file materials in the applicant ’ s court case had been destroyed because the time-limit for keeping these types of documents had already expired.

20 . The Government further noted that, while the applicant had claimed throughout the proceedings on the national level that the information requested by him had been unavailable, data requested by the applicant had been accessible from open sources, such as the CCU ’ s web site (information concerning refusals to institute proceedings) and the Bulletins of the CCU, in particular, the one published in November 2005 and sent to the applicant in February 2006.

21 . The Government considered that such threshold criteria for the right of access to State-held information as the nature of the information sought, the role of the applicant, and the readiness and availability of information, were met in the applicant ’ s case. However, the purpose of the information request made by the applicant to the CCU was not to further enable his exercise of the freedom of expression but “to test the system of provision of the information by various State bodies” since he was the author of a number of Internet publications on how to lodge an information request before a State body and claimed to be an expert in this field. In particular, the applicant did not proceed to any publication after the respective statistical information became available from the 2005 Bulletin.

22 . Consequently, since the information in question was available to the applicant from public sources and, moreover, he was not interested in obtaining it in the first place, in the Government ’ s view the applicant could not be considered a victim. For the same reasons there was no interference with the applicant ’ s right under Article 10 of the Convention. Moreover, the fact that the applicant concealed from the Court the availability of the requested information could, in the Government ’ s view, have been considered as an abuse of the right of application.

23 . In support of their statements the Government submitted a copy of the CCU Bulletin no. 4 of 2005. The Bulletin contains statistics for a number of constitutional appeals lodged by private and legal persons separately for each year between 1997 and 2005. It also contained a list of decisions adopted following the examination of constitutional appeals.

2. The applicant

24 . The applicant stated that in August 2005 he had requested the CCU to inform him about a “number of constitutional appeals to institute constitutional proceedings filed by individuals and legal entities between January 2003 and July 2005” and requesting “how many of them were allowed or rejected?” According to the applicant, he needed this information in order to prepare his article dedicated to the activity of the CCU and the rights of citizens applying to the CCU. The information in question was finally provided to him in May 2011 and he published an article “ Oleksandr Severyn : the State tells you to bugger off ” on 8 June 2011 on an Internet site: maidan.org.ua.

25 . In reply to the Government ’ s observations the applicant submitted that neither the Bulletin 4/2005, nor its on-line version contained the information requested by him from the CCU in August 2005. The applicant admitted that the first part of his request had been indeed addressed, when the CCU had sent him the Bulletin, however, it was done with a six-month delay. Nevertheless the second part of his request remained unanswered until 2011 when the information has already lost its novelty. The mere fact of finally being provided with the information requested with a six-year delay, in the applicant ’ s view, did not deprive him of his victim status.

26 . As for the Government ’ s argument that the information was available from the CCU ’ s web-site, the applicant noted that according to the information received by him in 2011 the majority of constitutional appeals were returned by a simple letter and not by a decision and therefore any official statistics in this respect were absent. The applicant further considered that the information requested by him had been ready and available and had not required any preparation.

27 . The applicant further stated that without knowing the destiny of the majority of the constitutional appeals filed before the CCU he had been unable to inform the public about the effectiveness of this institution and thus had been unable to exercise his freedom of expression. In particular, at the material time the applicant was a correspondent in the Human Rights Information Bulletin published by the Kharkiv Human Rights Protection Group. He was also working on the issue of citizens exercising their political rights and for this purpose in 2004-2005 he filed a number of administrative lawsuits and prepared a step-by-step manual on how to file such suits. The primary goal of the applicant ’ s information request was an assessment of the effectiveness of a legal remedy such as a right to file a constitutional appeal with the CCU. In the applicant ’ s view his access to the data requested was essential for performing a “watch-dog” function on the effectiveness of the judicial bodies ’ activity. In particular, the denial of access to the requested information hindered the applicant in his efforts to eliminate the problem of the CCU ’ s ineffectiveness. If the applicant had received the requested data promptly after his initial request, the publication of the data would have created a significant forum for public debate.

28 . Therefore, the applicant stated that the refusal of the national authorities to provide him with the requested data should be considered as an interference with his rights within the meaning of Article 10 of the Convention.

29 . The applicant finally stated that the above interference was unlawful as the courts had ignored his arguments and had disregarded his rights guaranteed by the Constitution of Ukraine. It equally did not pursue any legitimate aim and was unnecessary in a democratic society.

3. The third party

30 . In its submissions the Centre for Democracy and the Rule of Law, NGO, ( Центр демократії і верховенства права ) (hereinafter – “CDRL”) provided an account of the Ukrainian legislation on access to information in force at the material time. Such a right was provided for by Article 34 of the Constitution of Ukraine, the latter having a direct force according to Article 8 of the Constitution and according to subsequent case-law of the Supreme Court of Ukraine (Resolution of the Plenary Assembly of the Supreme Court of Ukraine No. 9 of 11 January 1996 “On application of the Constitution of Ukraine in the implementation of justice”). Further on, the Information Act (Sections 21 and 32-37) obliged all public authorities, including courts, to impart official information in their possession following a request for such information. However, the legislation in question did not provide sufficient guarantees for enjoyment of this right which resulted in numerous unjustified refusals to provide information in 2004-2005. In order to guarantee an effective exercise of the right of access to information, the new Public Information Access Act was adopted in 2011. It outlined procedures for exercising and securing the right of every person to access information of public interest possessed by government agencies and other providers of public information.

31 . As for the CCU, being the sole body of the constitutional jurisdiction in Ukraine, its activities are based, inter alia , on the principle of openness, which provides for free public access to court proceedings and court decisions. The special position in the judicial system and the importance of the decisions of the CCU set additional requirements to such openness. The functioning of the CCU is ensured by its Registry. In particular, the Registry collects statistical information on the number of appeals lodged before the CCU and on the outcome of the proceedings. The Registry is equally responsible for processing responses to information requests lodged before the CCU.

32 . The CDRL further stated that the information on judicial statistics that did not require any additional collection should have been provided to a person who intended to use it in his or her evaluation of the human rights situation and the effectiveness of the institution aimed at the protection of rights.

33 . The CDRL finally concluded that in view of criteria set out in the case of Magyar Helsinki Bizottság v. Hungary [GC] ( no. 18030/11, 8 November 2016) in the present case the information requested by the applicant was a matter of public interest as it showed the manner in which the CCU protects the rights and freedoms of individuals. The data on constitutional appeals and their consideration did not require the authorities to process and summarise information using specific parameters. Finally, statistical information on the number of constitutional appeals considered by the court in the hands of a human rights defender might turn into the evidence on the effectiveness of this institution.

B. The Court ’ s assessment

34 . The Court has clarified and summarised the principles to be applied in assessing whether the denial of access to information constitutes an interference with freedom of expression in the case of Magyar Helsinki Bizottság (cited above, §§ 149-80). In accordance with that judgment, whilst Article 10 does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to an individual, such a right or obligation may arise where access to the information is instrumental for the individual ’ s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right.

35 . Whether and to what extent the denial of access to information constitutes such interference must be assessed in each individual case and in the light of its particular circumstances.

36 . The threshold criteria for such an assessment were laid down in the case of Magyar Helsinki Bizottság (cited above, §§ 149-80) as follows: the purpose of the information request, the nature of the information sought, the role of the applicant, and whether the information was ready and available.

37 . The Court notes that in the present case the parties disagree as to whether such criterion as the purpose of the request has been met.

38 . In this respect the Court reiterates that, according to its case-law, the purpose of the person in requesting access to the information held by a public authority shall be to enable his or her exercise of the freedom to “receive and impart information and ideas” to others. Thus, the gathering of the information is considered as a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate ( Magyar Helsinki Bizottság , cited above, §§ 158-159).

39 . According to the applicant, in the present case the information requested was needed by him in order to publish an article about the effectiveness of recourse to the CCU by way of constitutional appeal. The Government, on the contrary, submitted that the applicant was simply “testing the system” and did not intend to make any publications.

40 . The Court considers, however, that even assuming that the purpose of the applicant ’ s request for information filed before the domestic authorities was indeed a subsequent analysis and sharing of this information, the denial of access to it nevertheless does not constitute an interference with his rights guaranteed by Article 10 for the following reason.

41 . The Court notes that the applicant neither submitted a copy of his request filed to the CCU, nor a copy of his claim lodged subsequently before the domestic court. According to the Government, such copies are unavailable from the domestic court ’ s archive as the time-limit for keeping these types of documents has already expired.

42 . As follows from the text of the first instance court decision and as is not denied by the applicant, in the court hearing he requested the court to find the refusal to provide him with information unlawful and to oblige the respondent to comply with his information request within the fifteen-day time limit. He further stated that the Information Act provided for the right of Ukrainian citizens to receive information essential for the enjoyment of their rights and that such access could not be limited unlawfully. In his further appeals lodged before higher courts following an unfavourable decision in his case the applicant ’ s arguments were limited exclusively to the alleged unlawfulness of the refusal to provide him with the information and to statements of erroneous application of law in his case by lower courts.

43 . Consequently, there is no evidence that either the CCU or the domestic courts were clearly informed by the applicant about the purpose of his information request (see, a contrario , Centre for Democracy and the Rule of Law v. Ukraine , no. 10090/16 , § 119, 26 March 2020). Equally, the applicant did not submit in his observations before this Court that he had specified on the national level his information request purpose. While the domestic law in force at the material time indeed did not require to indicate reasons for the information request, the Court reiterates that an applicant cannot plead, relying on Article 10, an abstract restriction on access to information, which he or she believes should be accessible merely as a matter of principle, but must be able to demonstrate that access to the information requested is instrumental for the exercise of his or her right to freedom of expression such that the denial of access to that specific information constitutes an interference with that right (see Centre for Democracy and the Rule of Law , cited above ).

44 . The Court further notes that, according to the information provided by the parties, the applicant indeed was a public activist who had published various materials on human rights protection issues and, in particular, on access to information and on how to petition the State authorities. The CCU also referred to him as a human rights defender in its reply of 13 September 2005.

45 . The Court reiterates that the protection of freedom of expression is not limited exclusively to the press or NGOs. An important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog” (see Magyar Helsinki Bizottság , cited above, § 168). However, as noted above, it does not transpire from the applicant ’ s submissions, especially given the available copies of his appeals lodged before the higher courts, that the statistical information was requested by him in view of future publication and his status as a human rights defender did not automatically imply sharing the information as the only possible scenario. Equally, there is no evidence that the domestic authorities were sufficiently aware of the applicant ’ s involvement in the publishing activities of the Kharkiv Human Rights Group NGO or on the maidan.org.ua web site.

46 . The Court does not lose sight of the fact that in 2011 the applicant indeed published an article on, inter alia , access to the CCU. However, this information is available to the Court in retrospect and as noted above there is nothing to enable the Court to conclude that the domestic courts were sufficiently aware of such intentions by the applicant at the material time.

47 . Consequently, even assuming that other criteria for assessment of whether the applicant ’ s right of access to information has been interfered with were met in the present case, the Court finds that the applicant failed to show that the domestic authorities and courts were sufficiently aware that his gathering of the information was a preparatory step in his activities for creating a forum for public debate . Therefore, his complaint under Article 10 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020 .

Anne-Marie Dougin Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President