After the judgment in Studio Monitori v Georgia, the European Court of Human Rights has further developed its line of case law on access to information under article 10 ECHR in ‚Centre for Democracy and the Rule of Law v. Ukraine‘. The case concerns a request for access to information in connection to the parliamentary elections held in Ukraine in 2014.
The applicant was an NGO dedicated to furthering the rule of law in Ukraine. At the time the application was filed, the applicant was called Media Law Centre.
Ukrainian law set out that candidates standing in the 2014 election had to submit their CV to the Central Election Commission when registering. The Central Election Commission published parts of the information contained in the CVs on a website.
In 2014, the applicant asked the Central Election Commission to provide it with copies of the CVs the candidates had submitted. The Commission refused. It pointed out that the requested information constituted confidential information protected by the right to private life. It stated that it could only use the CVs for the purposes for which they had been provided and that the candidates had not consented to disclosure of information regarding their work history, family, address and telephone, which was contained in their CVs.
The applicant organization filed a lawsuit on the basis of the Access to Public Information Act. It pointed out that the requested information regarding the candidates’ education, their work history and families was relevant to assessing the level of competence of the respective candidates and to establish potential conflicts of interest.
The court dismissed the civil action. It stated that information about the candidates had already been published on the website of the Central Election Commission. According to the court, the applicant’s head failed to substantiate why further information was needed for the voters to exercise their right to vote effectively.
The court also referred to the judgment of the European Court of Human Rights in the case von Hanover v. Germany. It stated that the European Court of human rights had headed in that case that restrictions on the rights enshrined in article 10 ECHR are permissible when it is necessary to protect rights guaranteed by the right to private life pursuant to article 8 ECHR.
The applicant organization appealed against the judgment. It submitted that the case von Hannover v. Germany was not pertinent to the case at hand, because the requested information did not concern the private life of the candidates but their education, job history and families.
The Court of Appeals upheld the first instance judgment; the High Administrative Court refused to institute proceedings for review of the lower court’s decision on points of law.
The Court has the task to control whether states comply with their obligations under the European Convention on Human Rights (article 19 ECHR). Consequently, it only has jurisdiction to entertain cases which regard potential violations of the ECHR; only applications concerning such a violation are admissible. The question, whether an action or omission by a state falls within the scope of a Convention right is therefore a question of admissibility.
The Court underlined that it was a question of admissibility whether article 10 ECHR conferred a right of access to information. However, it stated that the question was linked closely to the merits and decided to examine the applicability of article 10 ECHR together with the question whether there had been an interference under the merits of the case.
The Court pointed out that it had established in Magyar Helsinki Bizottsag v. Hungary four criteria to assess whether article 10 ECHR confers a right to access information in a given case:
- The purpose of the information request
- The nature of the information sought
- The particular role of the seeker of information in ‘receiving and imparting’ it to the public
- Whether the information thought is readily available
The Court pointed out that the applicant organization had conceded during the proceedings before the Court that the candidates’ addresses and phone numbers could not have been disclosed. It also pointed out that the list of family members had been available from alternative sources. In regard to this information, the Court was of the view that there had not been an interference with the applicant’s rights under article 10 ECHR
However, based on the criteria mentioned above, the court found that the refusal to provide the applicants with information regarding the candidates’ work history and education amounted to an interference with the applicant’s rights under article 10 ECHR. It stated that the purpose of the information request had aimed at providing transparency on the candidates’ qualification for office and potential conflict of interests. The applicant organization had clearly explained that on the domestic level. Regarding the nature of the requested information, the Court found that it had been clearly in the public interest.
Also, the applicant organization had an important function as a public watchdog. The court added that the information had been readily available.
Thus, the request to access the information had fallen within the scope of article 10 ECHR; the refusal to provide the information had amounted to an interference with that right.
The Court conceded that there had been a legal basis for this interference; it was also of the view that interference had served a legitimate aim.
The Court examined whether the interference had been necessary in a democratic society. It noted that the requested information constituted personal data but much of it had been already in the public sphere. It concluded that it was therefore not necessary to balance the candidates’ rights under article 8 ECHR with the rights under article 10 invoked by the applicant organization. It stated that the candidates had submitted their CV for purposes of the parliamentarian election and thus exposed their qualifications and record to close public scrutiny.
The Court was of the view that the domestic courts had failed to conduct an adequate balancing exercise. They had, according to the Court, just referred to the candidates’ right to private life, but not sufficiently considered what harm the disclosure of their education and work history could actually cause.
The Court concluded that the refusal to provide this information had not been necessary in a democratic society. It found a violation of article 10 ECHR