Published on 9 October 2023

FOURTH SECTION

Applications nos. 22685/17 and 29315/18 IRAVUNKI YEVROPA MIAVORUM against Armenia lodged on 6 March 2017 and 12 June 2018 respectively communicated on 19 September 2023

SUBJECT MATTER OF THE CASES

The applications, lodged by ‘‘Europe of Law Union’’, a non-governmental organisation (NGO), concern denial of access to State-held information of public interest. The applicant is a human rights organisation which is apparently dealing with judicial reforms including monitoring the selection process of candidates for judicial posts.

On 27 January and 23 February 2015 the applicant submitted information requests to the then Council of Justice seeking to receive detailed information on the results of several competitions for the selection of candidates for judicial posts that it had monitored. The applicant asked, in particular, to be provided with the voting results following the interviews, including the number of votes for and against received by each candidate from each Council of Justice member, the opinions of each Council of Justice member on each candidate and dissenting opinions, if any, and also the questionnaires, the psychological tests and their results, as well as the criteria of evaluation at that stage of the selection process along with detailed information concerning the preparation of the psychological tests.

In reply, the Council of Justice provided a copy of one dissenting opinion which had resulted in an additional interview in one of the competitions. It noted that the deliberations between its members and their voting had taken place in camera . Therefore, their opinions about the candidates (included in individual reports on every candidate) and the distribution of votes could not be provided to the applicant. Furthermore, the results of the psychological testing were confidential and subject to destruction after the approval of the selected candidates’ list by the President of the Republic. Also, the preparation of the psychological tests had been outsourced to a specialised organisation.

Upon request of judicial review by the applicant, the Administrative Court acknowledged that the applicant had sought information on a matter of public importance, and that the information it had been seeking was necessary for conducting and disseminating research on the selection process of candidates for judicial posts but declined the applicant’s claims mainly referring to the necessity of protecting the privacy of both the candidates and the members of the Council of Justice. Also, the applicant could participate in the public debate on the selection of judges by analysing publicly available information. Finally, the questions concerning preparation of psychological tests required professional knowledge and should have been addressed to the relevant specialised organisation.

The Administrative Court’s decision was upheld upon appeal.

The applicant’s appeal on point of law was declared inadmissible by the Court of Cassation on 17 August 2016. The decision was served on 6 September 2016.

The applicant complains under Article 10 of the Convention that the denial of access to the requested information was in breach of its right to receive and impart information.

On 29 December 2015 the applicant requested information from the Special Investigative Service (“the SIS”) concerning recruitment competitions held in 2014 and 2015, including the number and names of the applicants and participants in those competitions and also those of the selected candidates.

In reply, the SIS provided the number of the participants of the relevant competitions all of whom had been selected for the announced posts but refused to disclose their names for privacy considerations.

Thereafter, the applicant requested permission to monitor the upcoming competition. The SIS refused the monitoring request relying on point 59 of the Order on the Procedure of Competition for Recruitment in the SIS (“the Order”), according to which in cases provided by law and other legal acts, representatives of the media as well as invited observers could attend the competition. The SIS argued that firstly, that due to lack of specific regulations on conditions and procedure of the participation of observers in the competition their right to participate cannot be guaranteed and could moreover violate the candidates’ rights, and secondly, only the attendance of the invited observers was prescribed whereas the SIS had not invited the applicant.

Following a refusal of the latter request, the applicant brought a court action against the SIS for declining its request for information and for rejecting the monitoring permission. Relying on Article 10 of the Convention, Article 42 of the Constitution of Armenia (freedom of expression), the Law on Freedom of Information and the Order, the applicant argued that having sought the given information it had been trying to exercise its role of a “public watchdog” over the activities of public authorities aimed at ensuring their transparency and accountability. It claimed that such a role derived from its charter and was carried out within its project which involved monitoring recruitment procedures within different State agencies.

The Administrative Court rejected the applicant’s claim relying on the protection of privacy of the candidates and endorsing the interpretation of the Order by the SIS.

The applicant’s appeal was dismissed by the Administrative Court of Appeal.

The applicant’s appeal on points of law was declared inadmissible by the Court of Cassation on 29 November 2017. The decision was served on 12 December 2017.

The applicant complains under Article 10 of the Convention that the denial of access to the requested information and the refusal of the monitoring permission were in breach of its right to receive and impart information.

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; Centre For Democracy and the Rule Of Law v. Ukraine (dec.), no. 75865/11, §§ 50-63, 3 March 2020; and Mikiashvili and Others v. Georgia (dec.), nos. 18865/11 and 51865/11, §§ 47-56, 19 January 2021)?

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, §§ 104-121, 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?

3. With respect to application no. 29315/18, 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 as regards the refusal of the request to carry out a monitoring of the competition of candidate investigators?

If so, was the interference “prescribed by law”, pursued a legitimate aim referred to in Article 10 § 2 of the Convention and was necessary in a democratic society?