Information Note on the Court’s case-law 238

March 2020

Centre for Democracy and the Rule of Law v. Ukraine (dec.) - 75865/11

Decision 3.3.2020 [Section V]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

NGO denied access to academic opinions forming part of case-file and relied upon by the Constitutional Court, not instrumental for exercise of freedom-of-expression rights : inadmissible

Facts – The applicant NGO unsuccessfully tried to obtain from the Constitutional Court of Ukraine copies of legal opinions by several Ukrainian law schools, to which it had referred in its decision concerning the possibility for individual d eputies to take part in the formation of a parliamentary coalition. Under the Ukrainian Constitution the Government was nominated by a coalition of parliamentary groups and factions controlling an absolute majority of seats in the Parliament. The constitut ional matter of contention was whether groups that did not in themselves control an absolute majority could also include in the coalition, in order to gain an absolute majority, dissident MPs from political groups not supporting the coalition and non-affil iated MPs.

Law – Article 10: Questions relating to the applicability of Article 10 and the existence of interferences, the latter forming part of the merits of the relevant complaints, had been often inextricably linked. In the case of Magyar Helsinki Bizo ttság v. Hungary [GC], the Court had decided to join the question of the applicability of this article to the merits in the circumstances of that novel case. At the same time, the Court had also held that the question of applicability was an issue of the C ourt’s jurisdiction ratione materiae and the relevant analysis should be carried out at the admissibility stage unless there was a particular reason to join that question to the merits. No such particular reasons appeared to exist in the present case. The Court further examined the case against the criteria set out in the judgment Magyar Helsinki Bizottság .

First, the information the applicant organisation had sought from the Constitutional Court was ready and available. Secondly, regarding the particular role of the applicant organisation in “receiving and imparting” information to the public, it had been playing a “watchdog” function in Ukraine’s public life, with its expertise in media sphere and, particularly, political influence on media.

Third, concer ning the nature of the information sought, the legal opinions in question met the public-interest test. They concerned a constitutional issue that had important political implications. Moreover, the Constitutional Court had been perceived to have changed i ts previous position on the important constitutional matter of coalition formation. In doing so, it had referred to those opinions without, however, quoting them or even summarising their content. In such circumstances, it could perhaps be expected that pu blic interest in the content of the legal opinions could be aroused. At the same time, since those opinions had been part of that court’s case-file, their disclosure might have raised concerns related to the need to ensure the proper administration of just ice. That information had been, according to the Constitutional Court procedural rules applicable at the relevant time, subject to restricted access and available only to the participants to the proceedings.

The transparency could help maintain the legitimacy of constitutional review jurisdictions. Where a court had the option to request such third party interventions and had exercised it, the public might have a legitimate interest in being informed not just of their reception but also of their essential content. However, the Court was not called to examine whether, as a matter of principle, the documents of the type requested by the applicant organisation could or should have been disclosed. Rather, it should establish if the applicant organisation had showed, at any stage in the proceedings, that the purpose of its information request had been to enable it effectively to exercise its freedom of expression and that access to the information requested had been instrumental for the exercise of the right conferred by Article 10 § 1.

Fourth, as regards the purpose of the information request, the gist of the applicant organisation’s argument was that it had needed to know the rules concerning the formation of the ru ling coalition to help it produce quality analysis and be effective in its legislative advocacy in the field of media law. The applicant organisation had not submitted any information which would indicate that at the relevant time it had had any particular experience in or that it had pursued activities related to constitutional issues beyond matters concerning media and information or that it had been specialised in the relevant constitutional law issues. However, the proceedings before the Constitutional Court had not concerned the media or freedom of expression but rather matters of constitutional interpretation. The applicant organisation had not alleged, for example, that the legal opinions had been necessary to interpret the Constitutional Court’s deci sion in its impact on the media. Nor had it alleged that it had been interested for any specific reason in any particular aspect of the procedure before that court, its deliberations or its reasoning. The Constitutional Court had indicated to the applicant organisation that the legal opinions could be requested from the law schools which had produced them. The applicant organisation, however, had never attempted to ask the law schools directly and, most importantly, had not explained why it had failed to do so. It had not alleged, for example, that it had considered such a request doomed to fail for any specific reason.

The Convention had not allowed an actio popularis . It was not sufficient that an applicant made an abstract point to the effect that certain information should be made accessible as a matter of general principle of openness. The applicant had to be able to demonstrate that access to the information requested was instrumental for the exercise of his or her right to freedom of expression such th at the denial of access to that specific information constituted an interference with that right.

While Article 10 did not confer on individuals a right to access State-held information, such a right might arise under certain conditions. However, neither of them had been present in the instant case: there had been no court ordered disclosure and the applican t organisation had failed to demonstrate that access to the requested material had been instrumental for the exercise of its right to freedom of expression and, in particular its freedom to receive and impart information. The applicant organisation had the refore failed to show that the refusal of its requests to access the relevant information had impaired the exercise of its freedom to receive and impart information in a manner striking at the very substance of its Article 10 rights.

Conclusion : inadmissib le (incompatible ratione materiae ).

(See also Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Information Note 201 ; Bubon v. Russia , 63898/09 , 7 February 2017; Studio Monitori and Others v. Georgia , 44920/09 and 8942/10, 30 January 2020, Information Note 236 )

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