JOINT DISSENTING OPINION OF JUDGES O ’ LEARY AND BÅRDSEN

I

1 . We are unable to concur with our colleagues in finding a violation of Article 10 of the Convention in this case. The application is, in our opinion, manifestly ill-founded and therefore inadmissible in accordance with Article 35 § 3 (a) of the Convention. Our view can be summed up by the following four interconnected observations.

II

2 . Firstly , the key precedent for the assessment of the current case is the Court ’ s Grand Chamber judgment in Magyar Helsinki Bizottság v. Hungary (cited in the judgment). The ruling, handed down on 8 November 2016, represented a substantial legal development. It introduced virtually a new right under Article 10 of the Convention, namely the “right of access to information held by public authorities.” While we are not now calling into question the jurisprudential development which led to the recognition of that right, we note that at the material time of the facts forming the basis of the current application – from May 2005 to October 2009 – such a right had not yet been recognized by the Court.

3 . Indeed, the object and purpose of the Convention require that its provisions must be interpreted and applied in a manner which renders them practical and effective, not theoretical and illusory. However, the Court is also mindful of the fact that broadening the scope of the protection afforded by the Convention via case-law will inevitably entail certain elements of retroactivity that are difficult to reconcile with the requirements of foreseeability. Thus, albeit that the Convention is, and shall definitely also remain, a living instrument which must be adapted to present-day conditions, a well-proven and wise approach is to develop the law under the Convention on a step-by-step basis, rather than by large leaps. Should the Court from time to time nevertheless conclude that a larger move is indeed justified and judicious, it must, in its assessment of the domestic authorities ’ conduct in cases where the facts predate any such substantial change, take due account of the fact that the new standards under the Convention had not yet been established. Doing so does not run counter to the Court ’ s evolutive role in the Convention system; rather it completes and confirms that function.

III

4 . Secondly , it should be noted that the application in the current case was lodged already on 10 April 2010. The Government ’ s observations on the admissibility and the merits are dated 14 February 2012, the applicant ’ s observations on the admissibility and merits and claim for just satisfaction are dated 1 August 2012 and the Government ’ s comments on the applicant ’ s claim for just satisfaction are dated 21 September 2012. Accordingly, all the material and all the submissions in the case precede by several years the landmark Magyar Helsinki Bizottság ruling. Consequently, neither the applicant nor the Ukrainian Government have had the opportunity to furnish evidence or submit arguments addressing the novel legal framework created by the Grand Chamber ’ s judgment, let alone to relate their submissions more specifically to the relevant legal criteria. Accordingly, there is in this case practically no correlation between the factual and legal issues to be decided by the Court on the one hand, and the material and the arguments provided to the Court by the Parties, on the other. This should in our view have led the majority to proceed with caution.

IV

5 . Thirdly , and turning now to the applicability of Article 10, the Court emphasized in Magyar Helsinki Bizottság (cited in the judgment, § 156), that “the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion.” The Court further consider ed that 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 the individual. However, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force (which is not an issue in the present case) and, secondly, in circumstances 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.

6 . Furthermore, the Grand Chamber emphasized in Magyar Helsinki Bizottság (cited in the judgment, § 157) that whether and to what extent “the denial of access to information constitutes an interference with an applicant ’ s freedom-of-expression rights must be assessed in each individual case and in the light of its particular circumstances.” In order to first establish whether Article 10 is applicable, a set of overarching and rather general criteria for this assessment was identified by the Grand Chamber, namely 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. This set of criteria, did not, moreover, appear exhaustive, being but a distillation of relevant principles from existing Article 10 case-law. An integrated part of this overall assessment is “whether the information sought was in fact necessary for the exercise of freedom of expression” (ibid., § 158). Obtaining access to information would, still according to the Grand Chamber, be considered necessary only “if withholding it would hinder or impair the individual ’ s exercise of his or her right to freedom of expression [...] including the freedom ‘ to receive and impart information and ideas ’ , in a manner consistent with such ‘ duties and responsibilities ’ as may follow from paragraph 2 of Article 10.”

7 . It transpires from the applicant ’ s submissions that he – “as a citizen of Ukraine and a journalist” (a member of the non-governmental organization Kharkiv Human Rights Protection Group and the deputy editor of its bulletin Human Rights ) – asked for the dates, numbers and titles of classified presidential decrees, in order to write an article on the existence of an allegedly illegal practice of secrecy by the then current and the former Presidents ’ offices. It also transpires from the applicant ’ s submissions that his main critique was that the applied labels (“not for publication” and “not for printing”) lacked a legal basis in domestic law. We understand that having access to the information sought might have eased the applicant ’ s work with the article and possibly also enabled him to describe the modalities of the practice in more detail. However, the applicant has not substantiated before the Court that he, as a consequence of the refusal to provide him with the exact dates, numbers and titles was hindered or impaired from addressing the allegedly unlawful practice of secrecy, or in what manner the access to the information sought was in fact necessary – i.e., instrumental , as opposed to convenient, interesting or useful – for the exercise of his freedom of expression. The Government ’ s reference to the declassification of over 2,000 documents bearing the impugned labels between 2008 and 2010 and to changes in domestic law on access to documents in 2011 is left without comment. Furthermore, it is not contested that the applicant was directed by the President ’ s Secretariat to apply to the Unified State Register of Legal Acts and that on receipt of the decision of the Ministry of Justice denying his request he did not challenge this administrative decision.

8 . Moreover, in Magyar Helsinki Bizottság (cited in the judgment, § 170), the Grand Chamber of the Court was of the view that – bearing in mind the wording of Article 10 § 1 (namely, the words “without interference by public authority”) – the fact that the information requested is “ready and available” ought to constitute an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an “interference” with the freedom to “receive and impart information” as protected by Article 10 of the Convention. Neither the applicant nor the Government were requested to address this in their submissions, let alone provide the Court with any information whatsoever as to the probable volume of the information sought, whether any form for compilation already existed at the material time, and what measures would have had to be taken in order to accumulate this information in a format that could be made accessible to the applicant. Contrary to the majority, we are unable to “assume” that the material sought was in any event “ready and available”, in the sense of Magyar Helsinki Bizottság . We recall that the request was of a very broad and general nature and that it covered an extensive period of time . At issue, after all, were presidential decrees issued by two former Presidents spanning a period of over eleven years.

V

9 . Fourthly , even assuming that there was an interference with the applicant ’ s “right to have access to information held by public authorities”, and that Article 10 of the Convention is therefore applicable, we are not able to follow the majority ’ s assessment that there has in this case been a violation of that provision.

10 . We recall here that the applicant ’ s request was denied by the domestic administrative and judicial authorities for two specific reasons, one of them being that the material sought was classified. The applicant ’ s argument, both at domestic level and before the Court, was that the classification was not “in accordance with the law”, as required by Article 10 § 2 of the Convention. His core submission was that the labels applied (“not for publication” and “not for printing”) were not listed in the relevant domestic legislation and, moreover, that the classification of the documents as such could not, again as a matter of domestic law, imply also the classification of the information of the documents ’ existence, date and title etc.

11 . We take note that the majority are not addressing directly the applicant ’ s prime argument – that the classification of the documents, and also the corollary classification of the meta-information related to the documents sought by the applicant, lacked the required base in domestic law. Instead, the majority found a violation of Article 10 on the grounds that the domestic courts did not make any analysis as to the proportionality of the refusal and, moreover, because the domestic authorities failed to explain – to give “further reasons for that conclusion” – why the documents and the information on titles, numbers and dates etc. were classified, and that they therefore “cannot be said to have applied standards which were in conformity with the procedural principles embodied in Article 10 of the Convention and to adduce ‘ relevant and sufficient ’ reasons that could justify the interference at issue.” (paragraph 47 of the judgment).

12 . This assessment is in our view problematic, for the following reasons.

13 . It must be noted that the procedural angle applied by the majority barely has any basis in the applicant ’ s submissions before the Court – and, accordingly, this approach has not been addressed by the Respondent Government either.

14 . Furthermore, even if one accepted the adversarial deficit represented by the lack of correspondence between what has been focused on in the Parties ’ submissions and the actual basis for the Court ’ s ruling, it appears, moreover, rather rigid to hold against the domestic authorities that they did not comply with “standards which were in conformity with the procedural principles embodied in Article 10 of the Convention”, taking into account that those standards were at the material time not yet established under the Convention.

15 . Moreover, and going more directly to the substance, we seriously doubt that one can infer from Article 10 of the Convention, as this provision has been interpreted by the Grand Chamber of the Court in Magyar Helsinki Bizottság and subsequent case law, that the domestic authorities are in general required to openly explain to a journalist or to the general public, other than in very broad terms, why any given document or any given set of aggregated information related to a group of documents, are classified, and hence cannot be made publicly available. We recall that the Convention acknowledges by the very wording in Article 10 § 2 that classification might be legitimate for the purpose of inter alia “ national security, territorial integrity or public safety ” or the need “to p revent the disclosure of information received in confidence ”. Moreover, it appears to us that any procedural duty under Article 10 to give “further reasons” publicly for a decision to classify information or for not giving access to classified information, will in practice very easily run directly counter to the pursuit of these aims. In the judgment the majority pays no attention to this paradox and the majority provides, accordingly, no analysis whatsoever as to the legal basis, the scope or the limitations for this duty to give “further reasons” within the context of classified material.

VI

16 . We conclude by emphasizing that transparency and openness are fundamental values in a democratic society and that access to information promotes such values. The applicant ’ s case demonstrates that fault lines existed in the respondent State in that regard at the turn of the century and suggest that some may still persist . However, the applicant ’ s case also points to the difficulties to which the Court ’ s development of its Article 10 case-law on access to information gives rise. The applicability of that provision is first determined by a series of loose criteria whose application closely resembles a proportionality assessment. Thereafter, on the merits, the assessment of whether or not Article 10 has been violated may assume, as here, a dimension which has nothing to do with the applicant ’ s case as pleaded before the domestic courts or this Court. The resulting mismatch leads to the respondent State courts being criticised for not having reasoned their decisions adequately in relation to a Grand Chamber judgment which, as just pointed out, had not been handed down at the relevant time. One also sees clearly in this case that a Grand Chamber judgment which in essence requires the Court and, by extension, domestic courts, to formulate the scope of information rights risks cutting across the relevant provisions of domestic law without establishing the consequences of this cross-cutting effect. It is noteworthy that the lawfulness of the alleged interference with the applicant ’ s Article 10 rights – which was central to his complaint – is first bundled into the assessment of “necessity” and then completely avoided by the majority due to the “procedural dysfunction” identified. The dissenting opinion in Magyar Helsinki Bizottság expressed concern about the consequences of Article 10 giving general effect at international level to soft-law international instruments in support of access to information, enforceable without any more specific measures and without any controlling qualifications and limitations at that level (see § 36 of the said dissenting opinion, referring also to the UKSC in Kennedy v. the Charity Commission , 26 March 2014). The judgment in the present case demonstrates the prescience of that concern.