Communicated on 9 November 2020 Published on 30 November 2020

FIFTH SECTION

Application no. 37316/16 ECOLOGIC AL AND HUMANITARIAN ASSOCIATION ‘ ZELENYY SVIT ’ against Ukraine lodged on 15 June 2016

SUBJECT MATTER OF THE CASE

The application concerns an alleged denial by the State authorities of access to information of alleged public interest in reply to a request from the applicant.

The applicant is an NGO located in the town of Chortkiv , Ternopil Region, and whose activities relate to the protection of ecological rights and preservation of natural, historical and cultural heritage. In particular, in 2014-2015 it was implementing a project related to the canyon of the Dniester River.

In June 2015 the State Finance Inspection of the Ternopil Region (hereafter – the Ternopil SFI) conducted an inspection of the financial and commercial activities of the National Natural Park “Dniester Canyon”, in particular as to the use of budgetary allocations.

On 27 July 2015 the applicant NGO requested the Ternopil SFI to provide it with a copy of the inspection conclusion. Relying on the Law on Access to Public Information and the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) the applicant NGO claimed that the requested information was open to the public.

By the letter of 5 August 2015 the applicant NGO was informed by the Ternopil SFI that all relevant materials had been transferred to the prosecutor ’ s office and that criminal proceeding had been initiated. It was further stated that the investigation authorities had informed the Ternopil SFI that the inspection conclusion, being key evidence in the proceedings, could not be disclosed. Thus, without the agreement of the investigation authorities the Ternopil SFI could not provide the applicant NGO with the information requested.

The applicant company challenged that refusal before the courts claiming that the requested conclusion contained important environmental data and information as to authorities ’ actions (i.e. use of the budgetary allocations) and was thus of high importance for the public.

By the judgment of 8 September 2015 the Ternopil Circuit Administrative Court dismissed those claims essentially endorsing the reasons provided in the Ternopil SFI ’ s letter of 5 August 2015.

On 16 November 2015 the above judgment was upheld on appeal by the Lviv Administrative Court of Appeal. The court rejected the applicant NGO ’ s argument that its request related to the information about the environment, and noted that it was a piece of evidence in the criminal proceedings.

On 17 December 2015 the High Administrative Court refused to open cassation proceedings finding that the arguments of the applicant NGO ’ s cassation appeal did not show any violations of material or procedural law.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant NGO ’ s freedom of expression, in particular its right to receive information, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?