CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 mars 2020

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The applicant organisation was represented, by Ms T. Oleksiyuk and Ms   A.   Pravdychenko, lawyers practising in Kyiv. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant organisation has been active since 2005 and, when the applications were lodged, was called Media Law Institute. It has its offices in Kyiv. 5.     Under the Ukrainian Constitution the Government is nominated by a coalition of parliamentary groups and factions controlling an absolute majority of seats (226 out of 450) in the Parliament ( Verkhovna Rada ). A constitutional matter of contention was whether groups that do not in themselves control an absolute majority can also include in the coalition, in order to gain an absolute majority, dissident MPs from political groups not supporting the coalition and non-affiliated MPs. 6 .     This was the background of the constitutional review proceedings which gave rise to the request for information from the applicant organisation. The context of the constitutional proceedings in question is described in the opinion of the European Commission for Democracy through Law (Venice Commission) on the constitutional situation in Ukraine adopted at the Commission’s 85th Plenary Session (17 ‑ 18   December 2010): “22. In February 2010, Mr Yanukovich won the presidential elections in the country. However, the formation of the new Government faced some difficulties due to the fact that the majority coalition (consisting of President Yanukovych’s Party of Regions, Mr Lytvyn’s eponymous bloc and the Communist Party) fell seven votes short of a required majority of 226 members. In early March, the Ukrainian Verkhovna Rada [Parliament] amended the Law on the Rules of Procedure of Parliament with respect to the provisions for the formation of a ruling coalition. The new provisions now stipulate that a parliamentary majority is established on the basis of the number of individual MPs that support such a coalition. These changes to the Rules of Procedure allowed a new governing coalition to be established. 23. This legislative amendment however, seemed to contradict Article 83 of the Constitution according to which the governing coalition in Verkhovna Rada must be formed by “a coalition of parliamentary factions” and not individual deputies [this provision was introduced in the Constitution through the 2004 amendments in the aim of increasing the level of political responsibility of both the Cabinet of Ministers and of parliament. The Rada, having formed the Cabinet, was supposed to work more closely with it.] According to the Constitutional Court’s decision on the constitutionality of Article 13 of the Law on Status of the People’s Deputies of Ukraine, given in June 2008, leaving - or even not joining - a faction of the political party, on a list of which an MP was elected, is contrary to the Constitution. In the words of the Court, “staying of a Deputy in a parliamentary faction of the political party (or the electoral block of parties) on a list of which he or she was elected, is his or her constitutional duty and not the right ” [emphasis added]. 24. However, on 6 April 2010 – deciding upon an appeal from a number of opposition deputies asking for the official interpretation of [the constitutional provision related to formation of governing coalition] and the review of the constitutionality of Article 59 of the Law on the Rules of Procedure of Parliament - the CCU seems to have given a different interpretation on this matter, which goes into the direction of allowing individual deputies in the Verkhovna Rada to take part in the formation of a parliamentary coalition.” 7.     On 10 February 2010 the Parliament amended its Rules. In particular, the amended Rules authorised individual Members of Parliament, non-affiliated with any party and those expelled from the group of the party on the list of which they had been elected, to join the coalition forming the Government, even if their former party did not join the coalition and opposed it. 8.     A number of opposition deputies lodged a constitutional review application asking the Constitutional Court to declare those changes unconstitutional. 9.     Within the framework of the constitutional proceedings initiated by the deputies, the Constitutional Court’s judge rapporteur requested, under the authority conferred on him by the Constitutional Court Act (see paragraph 24 below), opinions on the legal matters raised by the case from four major public law schools: Ivan Franko Lviv National University, Yaroslav Mudry Kharkiv National Law Academy, Odessa National Law Academy and Taras Shevchenko Kyiv National University. The three first law schools provided opinions as requested. The fourth law school, Kyiv University, sent the relevant opinion to the court on 8 April 2010, after the Constitutional Court had delivered its decision (see paragraph 13 below). 10.     The opinions were dedicated to the questions of constitutional interpretation, in particular the interpretation to be given to the constitutional provisions concerning the status of Members of Parliament and the formation of ruling coalitions. They were signed by constitutional law professors of the relevant schools and (except for the one from the Lviv University) were sent to the Constitutional Court with cover letters signed by university presidents or vice-presidents. The Lviv and Kyiv University professors argued that the amendments to the Parliament’s Rules were unconstitutional while the Kharkiv and Odessa Law Academy professors considered them constitutional. 11.     The judge rapporteur also, within the same framework, requested and obtained opinions on the legal matters raised by the case from the President of Ukraine, the president of Parliament, the Prime Minister and the Legal Expertise Department of the Constitutional Court’s Secretariat. 12.     In its decision of 6 April 2010 the Constitutional Court decided, contrary to its previous position, that the coalition could encompass not only parliamentary groups and factions but also individual Members of Parliament (“MPs”). In practice, this meant that parties that did not have an absolute majority between themselves could take individual MPs from other groups and non-aligned MPs in order to bring their coalition over the 226 ‑ mandate threshold and thus nominate a Government. 13 .     In the part of its decision of 6 April 2010 setting out the parties’ submissions the Constitutional Court, after presenting the subject matter of the constitutional-review application, stated: “2. The President of Ukraine, the president of the Verkhovna Rada, the academics of Ivan Franko Lviv National University, Yaroslav Mudry National Law Academy and Odessa National Law Academy expressed their positions regarding the subject matter of the constitutional review application.” 14.     On 17 May 2010 the applicant organisation lodged an application with the Constitutional Court, asking to be provided with copies of the above-mentioned academic legal opinions. The applicant organisation did not state why it needed the opinions. 15 .     On 31 May 2010 the head of the Constitutional Court’s secretariat wrote to the applicant organisation informing it that the requested opinions could not be provided. Referring to the Rules of the Constitutional Court, he stated that the opinions were only accessible by the parties to the respective proceedings and that under section 38 of the Information Act the educational institutions were the owners of the requested information and it was for those institutions to allow access to their legal opinions (see the relevant provisions in paragraphs 22 and 26 below). The head of the secretariat stated that he was writing on the instructions of the president of the court. 16.     The applicant organisation lodged an appeal with an administrative court against the Constitutional Court, seeking to have the Constitutional Court’s refusal to provide the information declared unlawful and an order for the information to be disclosed. 17.     On 1 July 2010 the Kyiv Circuit Administrative Court refused to open proceedings on the applicant organisation’s claim, considering that administrative courts lacked jurisdiction. It relied on the Supreme Court’s resolution of 12 June 2009 which explained that, for the purposes of the application of the Code of Administrative Justice, courts and judges, when they acted in connection with the examination of a court case, could not be considered “public authorities” the disputes with which could be settled by administrative courts (see paragraph 27 below). 18.     The applicant organisation appealed. It did not provide the Court with copies of its appeals. The relevant decisions of the domestic courts do not indicate whether, in the proceedings before the courts, the applicant organisation indicated any reasons for its information request. 19.     On 9 December 2010 the Kyiv Administrative Court of Appeal and on 24 March 2011 the High Administrative Court upheld the first-instance court’s ruling. The latter court’s decision was served on the applicant organisation on 29 March 2011. 20.     According to a letter from the Constitutional Court’s Secretariat submitted by the Government, after the enactment, on 13 January 2011, of the Access to Public Information Act, the material in the Constitutional Court’s case files was designated “for internal use” under section 9 of that Act (see paragraph 23 below). 21 .     Beginning on 1 September 2014 this “for internal use” designation was removed from the documents contained in the Constitutional Court’s files regarding proceedings which had been completed and the court started the practice of publishing those materials on the court’s website. As part of that process, in November 2014 the legal opinions at issue in the present case were published on the Constitutional Court’s website, together with other case-file material concerning the relevant 2010 constitutional review proceedings. [1] Relevant domestic law and practice Information Act 1992 22 .     Section 38 of the Act, as amended in 2005 and as worded at the relevant time in 2010, provided that information could be fully owned or used by individuals, legal entities and the State. The owner ( власник ) of the information can dispose of it as he or she sees fit within the limits of the law. One of the grounds for which ownership rights in information is vested is creation of the information by the owner. Access to Public Information Act 2011 23 .     Section 9 of the Act authorises restriction on public access to information labelled as “for internal use” ( інформація для службового використання ). Such a designation can be assigned notably to the internal correspondence, memoranda, recommendations of public authorities, in particular that concerning preparatory stages of elaboration of their decisions. Constitutional Court Act 1996 (in force at the relevant time) 24 .     Section 19 § 2 of the Act provided that judges of the Constitutional Court had the right to demand ( витребувати ) any material and information concerning matters which were being prepared for examination by the Constitutional Court from the Parliament, the President, the Prime Minister, the Prosecutor General, judges, public authorities, any companies and other entities, political parties and non-governmental organisations. 25.     Section 30 authorised the Constitutional Court to enact its Rules to govern matters of procedure and work organisation at the Court. Constitutional Court Rules of 1997 26 .     Paragraph 34 (2) of the Rules, as worded at the relevant time, stated that the participants of the constitutional proceedings (defined in the Constitutional Court Act as those who apply for constitutional review, their representatives, as well as entities and officials, witnesses, experts and translators involved in the proceedings) had the right to access and study ( ознайомлюватися ) the case-file material. Resolution of the Plenary of the Supreme Court of 2009 27 .     Resolution no. 6 of the Plenary of the Supreme Court of 12 June 2009 reads: [For the purposes of the provisions of the Code of Administrative Justice defining jurisdiction of the administrative courts] the courts and judges, while examining civil, commercial, criminal, administrative and administrative-offence cases, cannot be considered public authorities which exercise administrative functions and cannot be defendants in cases concerning challenges against their decisions, acts or inaction made in connection with examination of court cases [ суди та судді при розгляді ними цивільних, господарських, кримінальних, адміністративних справ та справ про адміністративні правопорушення не є суб’єктами владних повноважень, які здійснюють владні управлінські функції, і не можуть бути відповідачами у справах про оскарження їх рішень, дій чи бездіяльності, вчинених у зв’язку з розглядом судових справ ]. COMPLAINTS 28.     The applicant organisation complained that the decision of the authorities to deny it access to the information sought by it which it claimed was necessary for the effective exercise of its freedom of expression had breached its rights under Article   10 of the Convention. 29.     The applicant organisation also complained, under Article 13 of the Convention, that it had not had at its disposal an effective domestic remedy for its complaint under Article   10. THE LAW Alleged violation of Article 10 of the Convention 30.     The applicant organisation complained of a violation of Article   10 of the Convention, which provides: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The parties’ submissions (a)    The Government 31.     There had been no interference with the applicant organisation’s freedom of expression. 32.     The Constitutional Court had taken the opinions the applicant organisation had sought into account in its decision, which had been published and which the applicant organisation could read on the court’s website. 33.     While the Government accepted that the applicant organisation’s role as an organisation working towards freedom of expression and access to information could not be ignored, the material it had been seeking had not been necessary for the exercise of its freedom of expression. 34.     In assessing that question, it had to be taken into account that the proceedings concerned the functioning of the Parliament. While this in principle touched on the public interest, there had been no need to know the content of the opinions the Constitutional Court had taken into account in assessing the constitutionality of the rules of formation of the parliamentary coalitions. 35.     It was difficult to conceive what purpose the applicant organisation had been pursuing in trying to get access to that material. It would appear that it had merely had doubts as to the correctness of the Constitutional Court’s decision. However, it had been fully reasoned and published and the applicant organisation could have expressed its views on the interpretation of rules concerning the formation of coalitions based on that decision. 36.     The interference had been prescribed by law as, at the relevant time, only parties to the constitutional proceedings could examine the case-file material. 37.     As to the aim of any interference, the Government submitted that the opinions the applicant organisation had requested had been the property of those institutions or their employees and could not have been disclosed by the Constitutional Court to third parties. The restriction had also pursued the goal of ensuring the authority and impartiality of the judiciary. 38.     As to the “necessity in a democratic society”, the information sought by the applicant organisation had not been a matter for public deliberation. To exercise its freedom of expression, it could have used the public text of the Constitutional Court’s decision. In any event, in 2014 the opinions the applicant organisation had been seeking to obtain had been later published on the court’s website (see paragraph 21 above). (b)    The applicant organisation 39.     The fact that the information sought had been published four years later meant that there had been no legal reason to withhold it before, it had not pursued the goal of protecting the rights of its owners and as a result the information had been withheld from the public for years. 40.     The legal opinions the applicant organisation had sought to obtain had been of great social significance. Citizens were interested in the official positions of the leading law schools funded by them as taxpayers and which had an impact on the eventual decision of the Constitutional Court. 41 .     That decision had been directly related to the applicant organisation’s activities. The applicant organisation had extensive experience in drafting laws and advocating for them in Parliament, including the Access to Public Information Act of 2011, the Reform of State and Municipal Print Media Act of 2015 and the Public Television and Radio Act of 2014. Having particular expertise in the media sphere, the applicant organisation’s experts had taken part in numerous working groups which had worked on the drafting of bills, as well as sitting on the commissions set up by the National Television and Radio Council, the President, the Parliamentary Commissioner for Human Rights and various ministries. 42 .     The applicant organisation had produced and published a number of studies concerning the political influence on the media and the transparency of the judicial system for journalists and access to court materials.   To produce high quality analysis and to initiate public discussion of possible influence of the newly formed parliamentary coalition with respect to media legislation the applicant organisation needed not only the Constitutional Court’s decision but also other case-file material. 43.     Since its founding the applicant organisation had worked to establish transparent and fair rules in the media sector and had been involved in legislative advocacy. The information it had sought had concerned the predictability of political preferences of MPs. After elections MPs elected on a list of a party had then often quit that grouping and switched sides. This had been due to legal flaws and had led to the Constitutional Court case. The situation had generated significant interest among Ukrainian citizens. 44 .     Constantly working with the Parliament, the applicant organisation needed to foresee the results of voting and the political configuration of the Parliament in order to engage in effective advocacy. The bills it had lobbied for succeeded or failed base on that. As an example, the applicant organisation cited the Public TV and Radio bill, which it had been lobbying for since 2004 but which had only been passed into law in 2014 thanks to a favourable political situation. The Court’s assessment (a)    Compliance with the six-month limit 45.     The Government did not raise any objection in respect of compliance with the six-month time-limit in respect of the first application. However, the Constitutional Court refused the applicant organisation’s information request more than six months before it lodged its first application with the Court (see paragraphs 1 and 15 above) and the domestic administrative courts at three levels of jurisdiction unanimously declined jurisdiction over the applicant organisation’s claim, citing pre-existing guidelines issued by the Supreme Court (see paragraph 27 above). 46.     In such circumstances the issue of compliance with the six-month rule, as a public policy rule, may call for consideration by the Court of its own motion (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no.   56080/13, § 128, 19 December 2017). However, the Court finds it unnecessary to address this matter since the application is, in any event, inadmissible for the reasons set out below. (b)    Applicability of Article 10 of the Convention (i)   Relevant general principles 47.     The Court has clarified and summarised the principles to be applied in assessing whether the denial of access to information constitutes an interference with freedom of expression in the case of Magyar Helsinki Bizottság ([GC], no. 18030/11, §§ 149-80, 8 November 2016).   In accordance with that judgment, 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 an individual. Nevertheless, such a right or obligation may arise, firstly, where disclosure of the information is imposed by a judicial order and, secondly, in circumstances where access to the information is instrumental for the exercise of the right to freedom of expression and where its denial constitutes an interference with that right. 48.     The Court has recognised that questions relating to the applicability of Article 10 and the existence of interferences, the latter forming part of the merits of the relevant complaints, are often inextricably linked. In Magyar Helsinki Bizottság (cited above, §§ 71 and 117), which concerned the applicant NGO’s right of access to information held by public authorities, having decided that it was not prevented from interpreting Article 10 §   1 of the Convention as including a right of access to information, the Court decided to join the question of the applicability of this article to the merits in the circumstances of that novel case. At the same time, the Court has held in its case-law that the question of applicability is an issue of the Court’s jurisdiction ratione materiae and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no.   76639/11, §   93, 25   September 2018, in relation to Article 8 and Studio Monitori and Others v. Georgia , nos. 44920/09 and 8942/10, § 32, 30 January 2020 [2] ). No such particular reasons appear to exist in the present case. 49 .     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 (see Magyar Helsinki Bizottság , cited above, § 157). In order to define further the scope of such a right, the Court in the latter case, relying on recent Article 10 case-law, referred to the following criteria: (a)   the purpose of the information request; (b)   the nature of the information sought; (c)   the particular role of the seeker of the information in “receiving and imparting” it to the public; and (d)   whether the information was ready and available (ibid., §§   157 ‑ 70). (ii)   Application of the above principles to the present case 50.   Starting with the last of the above-mentioned criteria, the Court notes that it is not in dispute that the information the applicant organisation sought from the Constitutional Court was ready and available. 51.     Turning to the question of the particular role of the applicant organisation in “receiving and imparting” information to the public, the Court notes that the role of the applicant organisation as an NGO playing a “watchdog” function in Ukraine’s public life has not been contested. It further notes its submission that it had particular expertise in the media sphere and that it had published a number of studies concerning political influence on media (see paragraphs 41-42 above). To what extent the applicant organisation explained the link between the exercise of that watchdog function and the information it had sought from the Constitutional Court relates to the question of the “purpose of the information request” and will be examined below. 52.     As far as the nature of the information is concerned, the Court considers that in the circumstances of the present case the legal opinions the applicant organisation sought met the public-interest test. They concerned a constitutional issue that had important political implications. Moreover, it should not be overlooked that in the case in question the Constitutional Court was perceived to have changed its previous position on the important constitutional matter of coalition formation (see the Venice Commission’s assessment in paragraph 6 above). In doing so, it referred to academic legal opinions without, however, quoting them or even summarising their content. In such circumstances, it could perhaps be expected that public interest in the content of the legal opinions could be aroused. 53.     In this context the Court finds it important to note that transparency can help maintain the legitimacy of constitutional review jurisdictions. Where, as here, a court has the option to request such third party interventions, which it exercises, the public may in certain circumstances have a legitimate interest in being informed not just of their reception but also of their essential content. 54.     That being said, the Court is not called to examine, in the present case, whether, as a matter of principle, the documents of the type requested by the applicant organisation could or should have been disclosed. Rather, it should establish if the applicant organisation showed, at any stage in the proceedings, that the purpose of its information request was to enable it effectively to exercise its freedom of expression and that access to the information requested was instrumental for the exercise of the right conferred by Article 10 § 1. It is not sufficient that an applicant make an abstract point to the effect that certain information should be made accessible as a matter of general principle of openness. 55.     However, it is evident that, because those opinions were part of that court’s case-file, their disclosure may have raised concerns related to the need to ensure the proper administration of justice. That information was, according to the Constitutional Court procedural rules applicable at the relevant time, subject to restricted access and available only to the participants to the Constitutional Court proceedings. In accordance with the adoption of access to information legislation adopted in 2011, it was designated as being for internal use only; a designation only altered in 2014 when greater access to Constitutional Court files in cases where proceedings had been completed appears to have been given. 56.     This brings the Court to the first of the criteria set out in Magyar Helsinki Bizottság and referred to in paragraph 49 (i) above, the purpose of the information request. 57.     The gist of the applicant organisation’s argument was that it needed to know the rules concerning the formation of the ruling coalition to help it produce quality analysis and be effective in its legislative advocacy in the field of media law (see paragraphs 42 to 44 above). The applicant organisation did not submit any information which would indicate that at the relevant time it had any particular experience in or that it pursued activities related to constitutional issues beyond matters concerning media and information or that it was specialised in the relevant constitutional law issues. However, the proceedings before the Constitutional Court did not concern the media or freedom of expression but rather matters of constitutional interpretation. 58.     The applicant organisation did not allege, for example, that the legal opinions had been necessary to interpret the Constitutional Court’s decision in its impact on the media. Nor did it allege that it had been interested for any specific reason in any particular aspect of the procedure before that court, its deliberations or its reasoning (for example, suspicion of a possible irregularity the applicant had wished to denounce, and so forth). What is more, the Constitutional Court indicated to the applicant organisation that the legal opinions could be requested from the law schools which had produced them (see paragraph 15 above). The applicant organisation, however, never attempted to ask the law schools for the opinions and, most importantly, did not explain why it had not done so. It did not allege, for example, that it considered such a request doomed to fail for any specific reason (compare, for example, Studio Monitori and Others , cited above, §   40). 59.     In this context the Court reiterates that the Convention does not allow an actio popularis but requires as a condition for the exercise of the right of individual petition that the applicant must be able to claim on arguable grounds that he himself has been a direct or indirect victim of a violation of the Convention resulting from an act or omission which can be attributed to a Contracting State (see Cengiz and Others v. Turkey , nos.   48226/10 and 14027/11, § 49, ECHR 2015 (extracts)). That means, as stated previously, that an applicant cannot plead, relying on Article   10, an abstract restriction on access to information, which he or she believes should be accessible merely as a matter of principle, but must be able to demonstrate that access to the information requested is instrumental for the exercise of his or her right to freedom of expression such that the denial of access to that specific information constitutes an interference with that right. 60.     As indicated previously, Article   10 does not confer on individuals a right to access State-held information but such a right may arise, firstly, where disclosure of the information is imposed by a judicial order and, secondly, in circumstances where access to the information is instrumental for the exercise of the right to freedom of expression and where its denial constitutes an interference with that right (see Magyar Helsinki Bizottság , cited above, § 156). 61.     Neither of these two scenarios is present in this case: there was no court ordered disclosure and, as explained above, the applicant organisation has failed to demonstrate that access to the requested material was instrumental for the exercise of its right to freedom of expression and, in particular its freedom to receive and impart information. 62.     The Court thus concludes that the applicant organisation has failed to show that the refusal of its requests to access the relevant information impaired the exercise of its freedom to receive and impart information in a manner striking at the very substance of its Article 10 rights. 63.     In the light of the above considerations, the Court considers that the above complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4. Alleged violation of Article 13 of the Convention 64.     The applicant organisation complained of a violation Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 65.     The Government contested that argument. 66.     The Court, having declared the relevant complaint under Article   10 of the Convention inadmissible, concludes that the applicant organisation has no arguable claim for the purposes of Article 13 of the Convention. 67.     It follows that the applicant organisation’s complaint under Article   13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article   35   §§   3   (a) and 4. For these reasons, the Court, by a majority, Declares the application inadmissible. Done in English and notified in writing on 26 March 2020.   Claudia Westerdiek   Síofra O’Leary   Registrar   President   [1]     http://www.ccu.gov.ua/docs/607 (last visited 17 February 2020). [2] Not yet final.