Information Note on the Court’s case-law 238

March 2020

Centre for Democracy and the Rule of Law v. Ukraine - 10090/16

Judgment 26.3.2020 [Section V]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

NGO denied access to information about education and work history contained in CVs of political leaders running for parliamentary elections: violation

Facts – The Central Election C ommission of Ukraine (“the CEC”) refused to provide the applicant NGO with copies of full biographies of the heads of political parties running in parliamentary elections, stating that the requested information was confidential in nature and could be fully disclosed only with the consent of the persons concerned. The applicant NGO was provided only with certain data from the requested biographies, which had been published on the CEC web-site. It appealed unsuccessfully against the refusal.

Law – Article 10

(a) Applicability – In the present case, the question of whether the grievance of which the applicant organisation had complained fell within the scope of Article 10 was closely linked to the merits of its complaint. The present case also raised a novel is sue at the domestic level and was one of the first cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság v. Hungary [GC] to examine the questions of applicability of Article 10 in the context of access to information and the circum stances in which refusal of access to certain information might be considered an interference with the right to freedom of expression guaranteed by that provision. Accordingly, the Court decided to join the question of Article 10’s applicability to the mer its of the complaint.

(b) Merits

(i) Existence of an interference, its lawfulness and legitimate aim – The applicant organisation had requested, not particular information contained in the CVs, but rather copies of the CVs themselves. However, it had conceded that the candidates’ addresses and phone numbers could not be disclosed. As to the list of famil y members, the applicant organisation had failed to explain why it could not have obtained it from available alternative sources. It had therefore not made an arguable case that there had been an interference with its Article 10 rights on that account. Acc ordingly, the question which remained for the Court to resolve was whether the failure to disclose to the applicant organisation the information about the education and work history (including work at public institutions) which the political leaders had in cluded in their official CVs submitted to the CEC as part of the election process involved an interference with and a breach of the applicant organisation’s rights under Article 10. The Court examined the existence of an interference with reference to the four criteria set out in the Grand Chamber’s judgment in Magyar Helsinki Bizottság v. Hungary [GC].

– The purpose of the information request: the applicant organisation had been concerned about the integrity of candidates for high office in light of previo us controversies regarding the educational qualifications of senior officials. While considerable information about their education and work history was already in the public domain, the applicant NGO had explained, rather convincingly, that it specificall y needed the information as presented first-hand by the candidates, particularly in order to match it with the information about their assets. It had not been argued that this specific information had been available from other sources at the time.

– The n ature of the information sought: the public had an interest in the candidates' background and integrity in the immediate post-election context. The information sought had therefore met the public-interest test.

– The particular role of the seeker of the in formation in “receiving and imparting” it to the public: the applicant organisation had played an important “watchdog” function.

– Whether the information sought is ready and available: this had been the case.

Therefore, by refusing to disclose to the applicant organisation the information on the top candidates’ education and work history contained in their official CVs filed with the CEC in the framework of their candidature, the domestic authorities had impair ed its exercise of its freedom to receive and impart information in a manner striking at the very substance of its Article 10 rights.

The interference had been prescribed by law and had pursued the legitimate aim of protecting the privacy rights of others.

(ii) “Necessary in a democratic society” – The individuals concerned, prominent public figures, had submitted their CVs in the context of putting their candidacies forward in a national parliamentary election. They had thus inevitably exposed their qualif ications and record to close public scrutiny. Moreover, they had done so in the context where domestic law at the time designated the impugned information as “open”. While that information constituted personal data, its disclosure would not have subjected the political leaders to public exposure to a degree surpassing that which they could possibly have foreseen when registering as candidates at the top of the lists of the parties contesting the parliamentary elections.

The domestic courts had failed to co nduct an adequate balancing exercise, comparing the harm any potential disclosure could do to the politicians’ interest in non-disclosure of this information with the consequences for effective exercise of the applicant organisation’s freedom of expression . Concluding that the need for disclosure in terms of effective exercise of voting rights had not been shown, they had not attempted to assess the degree of potential harmful impact, if any, on the politicians’ privacy.

While the applicant organisation ha d not cited any reasons for its initial request, it had explained them before the domestic courts. There was no indication that the latter had been prevented, by any rules of domestic law or other considerations, from taking that additional information int o account and possibly reassessing the CEC’s conclusions in that light.

Therefore, the decision to deny the applicant organisation access to the impugned information had not been “necessary in a democratic society”.

Conclusion : violation (unanimously).

Art icle 41: finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage.

(See also Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung -eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grun dbesitzes v. Austria , 39534/07, 28 November 2013, Information Note 168 ; Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Information Note 201 ; and Bubon v. Russia , 63898/09 , 7 February 2017)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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