Published on 19 June 2023

FOURTH SECTION

Application no. 5497/17 KHAGHAGHUTYAN YERKKHOSUTYUN against Armenia lodged on 27 December 2016 communicated on 1 June 2023

SUBJECT MATTER OF THE CASE

The application, lodged by a non-governmental organisation (NGO), concerns denial of access to State-held information of public interest.

The applicant is an NGO which is involved in projects aimed at supporting peaceful resolution of conflicts in South Caucasus, advancing the role of the civil society in that regard and assisting those who suffered from conflicts. The applicant has been engaged in promoting human rights protection in armed forces and impartial and transparent investigation of offences therein with a special focus on protecting the interests of the families of deceased servicemen in relatively peaceful conditions.

On 7 November 2014 the applicant submitted a request for information to the Ministry of Defence (“the Ministry”) asking it to provide data on fatalities in the armed forces between 1994 and 2014, including the names of the deceased, the dates and places of the incidents, the numbers of the military units concerned and the names and military ranks of the respective commanders, the causes of the deaths and a brief description of the incidents. The applicant explained that it needed the requested information for the purposes of collection of necessary information for the publication of an accurate database concerning fatalities in the armed forces after the ceasefire in 1994 in the scope of the project “Safe Soldiers for Safe Armenia”. The applicant submitted that it had created a website containing the available information received from the relatives of the deceased servicemen, but that it was important to publish official objective data on the issue.

Having received no response to its enquiry, the applicant lodged a claim with the Administrative Court against the Ministry seeking to oblige it to provide the requested information.

In the course of the proceedings the Ministry argued that the requested information could not be provided due to the restrictions stipulated in Decree no. 9-N of 9 July 2015 of the Minister of Defence setting out a list containing information to be treated as classified in the Ministry (“the Decree”). Relying on the same decree, the Ministry’s representative submitted that the information concerning incidents ( արտակարգ դեպք ) and accidents in the armed forces, the reasons thereof (based on the level of secrecy of the information and depending on changes in military-political and operative situation) and the results of the ensuing internal investigations (based on the level of secrecy of the information) constituted classified data.

The applicant then requested the materials that the Ministry had relied on when adopting the Decree and information on previous legal regulations concerning classified data, which the Ministry refused to disclose.

Thereafter, the applicant lodged another claim with the Administrative Court against the Ministry seeking invalidation of provisions 42 and 43 of Chapter 17 of the Decree, according to which the information requested by the applicant had been considered as classified. The applicant additionally submitted that upon its request in 2013 the Ministry had provided the sought information for the years 2010 and 2011.

The Administrative Court rejected the applicant’s invalidation claim referring to State security interests. It ruled, in particular, that the disclosure of the requested information could, in certain military and political circumstances, pose a threat to State security. The applicant’s appeal against this judgment was unsuccessful. The Administrative Court of Appeal concluded that the information requested by the applicant concerned the combat capability of the armed forces, which the Ministry could categorise as classified according to the Law on State and Official Secret. The applicant lodged an appeal on points of law but on 7 September 2016 the Court of Cassation declared it inadmissible. That decision was served on the applicant on 29 September 2016.

The applicant complains under Article 10 of the Convention that the interference with its right to receive and impart information was not provided by law, did not pursue a legitimate aim and was not necessary in a democratic society.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s right to receive and impart information within the meaning of Article 10 § 1 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 149-80, 8 November 2016; Studio Monitori and Others v. Georgia , nos. 44920/09 and 8942/10 , §§ 40-43, 30 January 2020; and Centre For Democracy and the Rule Of Law v. Ukraine (dec.), no. 75865/11, §§ 50-63, 3 March 2020)?

2. In the affirmative, was that interference justified under Article 10 § 2 of the Convention (see Magyar Helsinki Bizottság , cited above, §§ 181-200; Centre for Democracy and the Rule of Law v. Ukraine , no. 10090/16, §§ 104-21, 26 March 2020; and Šeks v. Croatia , no. 39325/20, §§ 60-73, 3 February 2022)? In particular:

(a) was the interference “prescribed by law”?

(b) did it pursue one or more of the legitimate aims referred to in Article 10 § 2 of the Convention?

(c) was it necessary in a democratic society?

The parties are requested to clarify the outcome of the applicant’s claim to the Administrative Court before seeking the invalidation of the Decree and to provide the copies of the relevant documents and decision. They are further requested to submit a copy of the response by which the Ministry of Defence accepted the applicant’s request lodged in 2013 and provided the requested data for the years 2010 and 2011.