CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 25 juin 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sC986E16F { font-family:Arial; color:#ffffff } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sE208486F { font-family:Arial; color:#ff0000 } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .sDD6F64E2 { width:137.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 12759/13 PUBLIC ASSOCIATION FOR ASSISTANCE TO A FREE ECONOMY against Azerbaijan   The European Court of Human Rights (First Section), sitting on 25 June 2024 as a Committee composed of:   Krzysztof Wojtyczek , President ,   Lətif Hüseynov,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   12759/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 January 2013 by the Public Association for Assistance to a Free Economy (“the applicant organisation”), which was represented by Mr R.R. Hajili and Ms   Z.   Sadigova, lawyers based in Strasbourg and Azerbaijan respectively; the decision to give notice of the application to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case, brought under Articles 6, 10 and 13 of the Convention, concerns an alleged violation of the applicant organisation’s right of access to information of public interest, allegedly held by the State, and its right to a fair trial in civil proceedings initiated by it in that connection. 2.     According to the applicant organisation, it was established with the purpose of campaigning for the effective and transparent expenditure of public funds, developing public initiatives in support of a liberal economy, and carrying out projects relating to public scrutiny over the spending of public funds and oil revenues. 3.     On 16 July 2010 the applicant organisation submitted an information request to the State-owned Azerbaijan Television and Radio Broadcasting Company (AzTV) asking for information and various documents relating to the following for the year 2009: AzTV’s budget; the amount allocated by AzTV for its employees’ salaries; the monthly salaries of various management personnel; the amount allocated by AzTV for purchasing and repairing its vehicles and for fuel; and the amount allocated by AzTV for the repair of its main premises and other buildings. In its request, the applicant organisation noted that the requested information was needed so that it could summarise, analyse and discuss information about the transparency of AzTV’s budget. 4.     Having received no response from AzTV, the applicant organisation lodged a civil claim with the Sabayil District Court, asking the court to find that AzTV’s inaction had been unlawful and a violation of the applicant organisation’s right to receive information, and to order AzTV to provide the information requested. The applicant organisation, repeating its purpose in seeking the information, argued that the information sought was of public interest and should be provided by AzTV. 5.     In November 2010, the Sabayil District Court dismissed the claim, finding that the information requested constituted confidential commercial information. 6.     Upon appeal, the Baku Court of Appeal partly granted the claim, finding that AzTV’s failure to respond to the request had been unlawful and dismissed the remainder of the claim. The applicant organisation was not represented at the hearing. 7.     Following a cassation appeal brought by the applicant organisation, the Supreme Court partly overruled the decision of the appellate court, remitting the case to the lower court for a fresh examination of the part that had been dismissed. The applicant organisation was again not represented at the hearing. 8.     In February 2012, the Baku Court of Appeal granted the applicant organisation’s claim in full and ordered AzTV to provide the information requested. 9.     AzTV lodged a cassation appeal, and, by a final decision of 26 July 2012, the Supreme Court quashed the lower court’s judgment and granted AzTV’s cassation appeal. According to the applicant organisation, the Supreme Court failed to duly notify it of the hearings. The Government provided copies of the court notifications addressed to the applicant organisation informing it of the date and place of the hearings. 10.     The applicant organisation complained under Article 10 of the Convention that AzTV’s refusal to provide the information sought had amounted to a breach of its right of access to information of public interest. It further complained under Articles 6 and 13 of the Convention that the domestic courts had delivered unreasoned judgments and that it had not been duly notified of the Supreme Court’s hearing, in breach of its rights to a fair trial and to an effective domestic remedy. THE COURT’S ASSESSMENT Article 10 of the Convention 11.     The Court notes that AzTV is a State-owned broadcasting company, and not a public authority. In such circumstances, a question arises as to whether the alleged interference can be considered to be attributable to the State. However, it is not necessary to decide on this matter in the present case because, even assuming that the alleged interference could be attributable to the State, the application is in any event inadmissible for the following reasons. 12.     Article 10 of the Convention does not confer on the individual a right of access to information held by a public authority, nor does it oblige the State to impart such information to the individual. However, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by an enforceable court order and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression. Whether and to what extent the denial of access to information constitutes an interference with an applicant’s freedom of expression must be assessed in each individual case and in the light of its particular circumstances (see   Magyar Helsinki Bizottság v.   Hungary   [GC], no.   18030/11 , §§ 156-57, 8 November 2016). In order to determine whether Article 10 can be said to apply to a public authority’s refusal to disclose information, the situation must be assessed in the light of the following criteria: (a) the purpose of the request for information; (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). 13.     As regards the nature of the information sought, the Court finds it difficult to accept, without further relevant contextual details, the applicant organisation’s submissions that all of the information requested by it, for example, information on AzTV’s fuel and repair costs or the salary scheme of managerial positions, necessarily constituted a matter of public interest (compare Agaliyev v. Azerbaijan [Committee] (dec.), no. 8135/12, § 12, 10   January 2023). The Court further observes that, in its submissions before the Court, the applicant organisation stated that the total amount allocated from the State budget to AzTV in 2009 was 27,722,061 Azerbaijani manats; it therefore appears that this information was already available to the public. Moreover, given the peculiarities and the detailed nature of the questions posed by the applicant organisation, a question arises as to whether the information was “ready and available”. In connection with the latter criterion, the Court reiterates that the Convention does not impose an obligation to collect information at an applicant’s request and provide it in the particular form that the applicant is seeking (see, mutatis mutandis ,   Bubon v. Russi a, no. 63898/09, §§ 44-45 , 7   February 2017, and Mikiashvili and Others v.   Georgia (dec.), nos. 18865/11 and 51865/11, § 55, 19 January 2021). 14.     Furthermore, as to the purpose of the information request, the Court reiterates that for that criterion to be satisfied, it would not be sufficient for an applicant to explain that purpose for the first time in the proceedings before the Court. It is before the relevant domestic authorities that the seeker of information must first sufficiently explain the exact purpose of a request by specifying, among other things, how his or her particular role in receiving and imparting information to the public is compatible with the nature of the information sought, and why access to it is instrumental for the exercise of his or her right to freedom of expression (see   Mikiashvili and Others , cited above, §   50). It is not sufficient for an applicant to make an abstract point to the effect that certain information should be made accessible as a matter of the general principle of transparency (see   Centre for Democracy and the Rule of Law v.   Ukraine   (dec.), no.   75865/11 , § 54, 3 March 2020, and Agaliyev , cited above, § 13). 15.     In the present case, the applicant organisation vaguely described its purpose in seeking information from AzTV (see paragraphs 3 and 4 above) as allowing it to summarise, analyse, and discuss information about the transparency of AzTV’s budget. It also referred to the relevant provisions of the domestic law, which it argued specified that such information should be publicly disclosed. Before the first-instance court,   it argued that “the questions in the information request were directed at clarifying the way in which State funds were allocated to AzTV and how they were spent”. In its submissions before the Court, the applicant organisation added that there were rumours that AzTV had obtained funds unlawfully and that there were many articles circulating in the press alleging financial corruption within AzTV (no copies of any of those articles were submitted to the Court). The applicant organisation argued that AzTV’s refusal to provide the information requested made it impossible for it to carry out its projects relating to public scrutiny of expenditure from the State budget, to enhance transparency in the field, or to contribute to public debates in the matter. However, it is not clear how the information sought, such as salaries for different positions or the amount spent on fuel, could have assisted in verifying unspecified corruption allegations concerning AzTV. Moreover, the Court observes that the descriptions of the alleged purpose indicated in the submissions before the domestic courts and the Court were not only quite general but also unsupported by any documentary evidence, making it difficult to discern whether those matters were the subject of already ongoing public debate, or whether the applicant organisation was collecting other data in connection with its claimed purpose of studying expenditure from the public funds allocated to AzTV (for example, calls for tenders and so on). 16.     In sum, there is an insufficient amount of detail concerning the purposes for which the information was sought, and the applicant organisation’s submissions made before the domestic courts and the Court were vague, lacked convincing arguments, and were unsupported by any relevant material. For those reasons, in the specific circumstances of the present case, and also taking into account the applicant organisation’s failure to explain precisely the exact purpose of its request at the domestic level, the Court considers that it has not been demonstrated that the particular information sought satisfied the public-interest test or that it was instrumental for the exercise of the applicant organisation’s right to freedom of expression (see Mikiashvili and Others , cited above, § 50, and compare, mutatis mutandis , Mehtiyev v. Azerbaijan [Committee] (dec.), no. 42845/10, §§   11 ‑ 14, 13 December 2022) 17.     The above considerations, assessed as a whole, are sufficient to conclude that no right of access to the information requested by the applicant organisation arose in the present case and its denial did not constitute an interference with that right. The Court therefore considers that it is not necessary to further assess whether, when seeking the information in question, the applicant organisation acted in the capacity of a “public watchdog” with the purpose of informing the public on a matter of public interest, since in the circumstances of the present case, meeting that criterion would not be sufficient to lead the Court to a different conclusion. 18.     It follows that Article 10 does not apply and that this complaint must be rejected as being incompatible   ratione materiae   with Article 10 of the Convention, pursuant to Article 35 §§   3   (a) and 4. Article 6 § 1 and Article 13 of the Convention 19.     As to the complaints under Article 6 § 1 of the Convention (see paragraph 10 above), even assuming that that provision applies under its civil limb to the domestic proceedings in the present case by virtue of the determination of a “civil right” arising under the provisions of the applicable domestic law (see Namazli v.   Azerbaijan (dec.), no. 28203/10, § 43, 7 June 2022), the Court finds that the complaints are inadmissible. 20.     In particular, the Court notes that the applicant organisation was given an opportunity to raise its factual and legal arguments before the domestic courts. Those arguments were examined by the courts, which provided reasons in their judgments which were pertinent to the grounds on which the claim was dismissed. It has not been demonstrated that the courts’ findings were arbitrary or manifestly unreasonable to the point of prejudicing the fairness of the proceedings or resulting in a “denial of justice”. Having regard to all the foregoing, the Court is not in a position to assume the role of a fourth ‑ instance body by reviewing any particular errors of law allegedly made by the domestic courts (compare   Namazli , cited above, §   45). 21.     Moreover, the available case material shows that the Supreme Court sent a notification to the applicant organisation informing it that the hearing was to be held on 19 July 2012. The representative of the applicant organisation did not attend the hearing on that date, and it was adjourned until 26 July 2012. The applicant organisation was then notified of the new date. The Court also observes that the applicant organisation, without providing any reasons, did not appear at the court hearings before the appellate and cassation courts. 22.     As concerns the complaint under Article 13 of the Convention, this is clearly inadmissible since the applicant organisation’s claim was tried by three levels of jurisdiction. 23.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and 4   of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 August 2024.     Liv Tigerstedt   Krzysztof Wojtyczek   Deputy Registrar   President