FIFTH SECTION

DECISION

Application no. 37316/16 ECOLOGICAL AND HUMANITARIAN ASSOCIATION ZELENYY SVIT against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 November 2023 as a Committee composed of:

Carlo Ranzoni , President , Mattias Guyomar, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 37316/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 June 2016 by a Ukrainian non-governmental organisation, the Ecological and Humanitarian Association Zelenyy Svit, which has its seat in the town of Chortkiv, Ternopil Region (“the applicant NGO”), and which was represented by Mr M.O. Tarakhkalo, Ms V.P. Lebid, and Mr T. Collis, lawyers practising in Kyiv and London;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns a refusal by State authorities to provide the applicant NGO with information of public interest, allegedly in breach of Article 10 of the Convention.

2. The applicant NGO’s activities relate to the protection of ecological rights and the preservation of natural, historical and cultural heritage. Between 2014 and 2015 it undertook a project relating to the canyon of the Dniester River.

3. In June 2015 the State Finance Inspectorate of the Ternopil Region (“the Ternopil SFI”) conducted an inspection of the financial and commercial activities of the Dniester Canyon National Natural Park.

4. On 27 July 2015 the applicant NGO asked the Ternopil SFI to provide it with a copy of the inspection report. Relying on the Law on Access to Public Information, as well as on the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”), the applicant NGO argued that the inspection report was open information available to the public.

5. By a letter dated 5 August 2015, the applicant NGO was informed by the Ternopil SFI that all the relevant material had been transferred to the prosecutor’s office in the context of criminal proceedings that had been initiated into possible neglect of official duties by staff of the Dniester Canyon National Natural Park. The letter further stated that the investigation authorities had informed the Ternopil SFI that the inspection report, being key evidence in the proceedings, could not be disclosed in accordance with the criminal procedural legislation. Thus, without the permission of the investigation authorities the Ternopil SFI could not provide the applicant NGO with the report.

6. The applicant NGO challenged that refusal before the courts, arguing that the report contained important environmental information as well as information as to the authorities’ actions, namely the use of budgetary allocations, and was thus of high importance in terms of the public interest.

7. By a judgment of 8 September 2015, the Ternopil Circuit Administrative Court dismissed those claims, essentially endorsing the reasons provided in the Ternopil SFI’s reply.

8. On 16 November 2015 the above-mentioned judgment was upheld by the Lviv Administrative Court of Appeal. The court rejected the applicant NGO’s argument that its request related to information about the environment and thus constituted a matter of public interest requiring free access.

9. On 17 December 2015 the High Administrative Court refused to open cassation proceedings, finding that the arguments in the applicant NGO’s cassation appeal did not show any violation of substantive or procedural law.

10. According to the information provided by the applicant NGO in its observations, the inspection report was provided to it in May 2016 following its renewed request to the Ternopil SFI after the criminal investigation had been completed.

THE COURT’S ASSESSMENT

11. The Government argued that the applicant NGO had abused its right of application because it had misled the Court as to its real intention in requesting the report at issue, which was not because it contained environmental information but because the applicant NGO intended to “protect the officials of the Dniester Canyon by way of an appeal against the inspection report”. The applicant NGO disputed that claim, arguing that it had not concealed anything from the Court and that the Government’s claims were “bold allegations” without real proof.

12. The Court, in the light of the applicable general principles as set out in, for example, Zhdanov and Others v. Russia (nos. 12200/08 and 2 others, §§ 79-81, 16 July 2019), does not discern in the applicant’s actions any elements of the possible “harmful exercise of a right for purposes other than those for which it is designed” impeding the proper functioning of the Court or the proper conduct of the proceedings before it. It thus dismisses this preliminary objection.

13. The Government further argued, on the issue of applicability of Article 10, that only one of the four criteria established in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 158-80, 8 November 2016) for Article 10 to be applicable was met, that being the “nature of the information requested”, and that none of others had been fulfilled. They stated, in particular, that in view of its questionable intent (as mentioned above), the applicant NGO could not be considered a “public watchdog” and the information requested was not “ready and available” since in order to comply with the applicant NGO’s request, the Ternopil SFI would have had to apply to the investigation authorities to obtain permission to disseminate the report, or else face criminal sanctions.

14. The applicant NGO disagreed, emphasising that the SFI’s report, which might have shed light on possible misuse of budgetary funds, was necessary for it to undertake its statutory activities in general and in relation to the Canyon in particular. In that context it submitted that it was a “watchdog” for the purposes of Article 10 of the Convention, being a specialised NGO and conducting a range of activities aimed at advancing environmental and ecological issues. Lastly, it argued that the fact that the Ternopil SFI might have needed to obtain permission from the investigating authorities did not constitute a significant burden on it, in particular as the SFI’s reply indicated that it had in fact requested that permission and it had been refused.

15. The Court reiterates that a right of access to information held by a public authority may arise where such access is instrumental for the individual’s exercise of his or her right to freedom of expression, and where its denial constitutes an interference with that right. The threshold criteria for such an assessment are: 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 (see Magyar Helsinki Bizottság , cited above, §§ 149 ‑ 80).

16. The Court has no doubt that the applicant NGO, in view of its statutory activities related to environmental protection and its role in relation to the Dniester Canyon, could be considered a “watchdog”. Similarly, the Court finds that the information requested met the public-interest test, since it related, at the very least, to public spending. On the other hand, the Court considers that there might be issues regarding the purpose of the applicant NGO’s request, which it failed to explain at the domestic level, and as to whether the information was “ready and available”. However, the Court does not consider it necessary to decide on those issues as the application is in any event manifestly ill-founded for the reasons stated below.

17. The Court reiterates that in order to be justified, an interference with the right to freedom of expression must be “prescribed by law”, pursue one or more of the legitimate aims mentioned in paragraph 2 of Article 10, and be “necessary in a democratic society” (see, for instance, Magyar Helsinki Bizottság , cited above, § 181).

18. In the present case the Ternopil SFI’s refusal to provide the applicant NGO with the report it had requested stemmed from the fact that the report formed part of a criminal case file and access to it had been restricted while the investigation was ongoing. Such a restriction was clearly provided for by the law, namely by Article 222 of the Criminal Code of Procedure, and was necessary to ensure the secrecy of the investigation, thus falling under one of the legitimate aims listed in paragraph 2 of Article 10, that is, “maintaining the authority and impartiality of the judiciary”. That restriction could have been lifted upon a decision of the investigator. While the applicant NGO contended that the Ternopil SFI had unsuccessfully applied for that permission, the Government have provided no information on the matter and the material available to the Court does not allow it to decide conclusively on this issue. On the other hand, it appears that there was nothing to prevent the applicant NGO from itself applying for permission to access the report. Furthermore, once that ground for restriction ceased to exist, the report was provided to the applicant NGO, less than a year after the initial request. In this connection the Court also notes that at no point in time did the applicant NGO argue that that delay significantly affected its activities, let alone prevented it from continuing them. On that account, the Court considers that the restriction on the applicant NGO’s right of access to information was proportionate to the legitimate aim pursued.

19. It follows that the applicant NGO’s complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 November 2023.

Martina Keller Carlo Ranzoni Deputy Registrar President