MITOV A OSTATNÍ proti Bulharsku

THIRD SECTION

DECISION

Application no. 80857/17
Boris Antonov MITOV and Others
against Bulgaria

The European Court of Human Rights (Third Section), sitting on 28 February 2023 as a Chamber composed of:

Pere Pastor Vilanova, President,
Georgios A. Serghides,
Jolien Schukking,
Darian Pavli,
Ioannis Ktistakis,
Andreas Zünd, judges,
Maiia Rousseva, ad hoc judge,
and Milan Blaško, Section Registrar,

Having regard to:

the above application lodged on 18 November 2017;

the decision to declare part of the application inadmissible and give the respondent Government notice of the applicants’ complaints under Article 10 of the Convention; and

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

Noting that Mr Yonko Grozev, the judge elected with respect to Bulgaria, withdrew from sitting in the case, and that the President of the Chamber accordingly appointed Ms Maiia Rousseva to sit as an ad hoc judge;

Having deliberated, decides as follows:

THE FACTS

1. The applicants’ details are set out in the appendix. They were all represented by Mr A. Kashamov, a lawyer practising in Sofia.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova of the Ministry of Justice.

1. The applicants

3. The applicants are eight journalists from various Bulgarian media specialising in reporting on matters relating to the judiciary and an association, based in Varna, whose work focuses on “optimising the work of the judiciary and the administration” and “protecting human and civil rights”.

2. The Supreme Administrative Court’s online case database
   1. Operation of the database until 2016

4. The Supreme Administrative Court was one of the first courts in Bulgaria to provide Internet access to all cases before it. The court’s database was opened to the public in 2000 via its website. It gave access to basic information about the cases before the court (names of the parties and case number), to certain scanned case material (administrative decisions and lower court judgments under challenge, and claims for judicial review and appeals lodged with the court), hearing records, and judgments and decisions. Until 2010, none of the documents published in that database were being redacted. In 2010 the court began redacting the personal identification numbers of the people mentioned in those documents.

2. Proceedings before the Commission for Personal Data Protection

5. In July 2014 two people complained to the Commission for Personal Data Protection that the Supreme Administrative Court and a private company providing legal database services had unlawfully processed their personal data. The complaint concerned, in particular, an appeal lodged by one of those people with that court and the court’s judgment in that appeal: the two documents had been uploaded to the court’s online database and copied from there into the company’s commercial database without being redacted or anonymised.

6. In March 2015 the Commission declared the complaint inadmissible with respect to the first complainant, on the basis that the appeal and judgment in question only contained two of his names, which, according to the Commission’s practice, did not constitute personal data since they were not sufficient to enable his identification. The Commission found the complaint admissible with respect to the second complainant, since the appeal and judgment contained his three names and his address, which were in its view sufficient to enable his identification. The Commission went on to uphold the part of the complaint which it found admissible. It noted that at the time the complaint had been lodged, the version of the judgment uploaded to the Supreme Administrative Court’s online database had contained the second complainant’s names and address (they had later been anonymised), and that the scanned appeal featuring in the same database was still freely accessible to the public. The publication of those documents without the anonymisation of the complainant’s personal data had amounted to an unlawful processing of that data. The Commission fined the Supreme Administrative Court and instructed it to bring all documents published in its online database and containing the personal data of individuals in line with the requirements of the personal data protection legislation, and in particular to anonymise all personal data in those documents. The Commission issued the same instruction with respect to the company providing legal database services (реш. № Ж-827/2014 г. от 23.03.2015 г., КЗЛД).

7. The Commission’s decision was not challenged and became final.

3. September 2016 anonymisation rules

8. As a result of the proceedings before the Commission for Personal Data Protection, in September 2016 the President of the Supreme Administrative Court laid down internal rules for the redaction of personal data in documents published in the court’s online database.

9. Rule 1 provided that the database would contain court decisions, public hearing records, front covers of case files, case registration cards and lists of persons summoned to hearings, with personal data redacted from them. Under Rule 2, thirteen categories of “personal data” would be redacted from those documents: (a) the personal names of participants in the proceedings; (b) the names of legal entities, associations, political parties and organisations; (c) email addresses; (d) IBAN numbers; (e) personal identification numbers; (f) legal entity identification numbers; (g) residential addresses; (h) localities; (i) municipalities; (j) car registration numbers; (k) dates of birth; (l) street or road names; and (m) other data relating to individuals which could directly or indirectly lead to their identification.

10. Rule 3 stated that since scanned case material could not be redacted in that manner, it would not be made available online.

11. Under Rules 4 and 6, data would be redacted using a special module in the court’s case management software, and any data not redacted automatically in this way would then be redacted manually by a court officer before publication of the relevant document in the court’s online database.

12. The database, which had been taken down earlier in 2016 to be brought into compliance with those rules, was then republished on the Supreme Administrative Court’s website in line with them.

4. Legal challenge against the 2016 anonymisation rules

13. In October 2016 the applicants sought judicial review of Rules 1, 2 and 3; eight other journalists were also claimants in the proceedings. They were in particular aggrieved that, in contrast to the previous situation, the rules did not provide for the online publication of administrative decisions under challenge or claims for judicial review. They also submitted that some categories of data subject to redaction under Rule 2 were not personal data or had been defined too broadly to be personal data in all cases. They argued that they had standing to bring the challenge since the rules were normative and affected everyone, in particular journalists like them who wished to obtain information from the Supreme Administrative Court.

14. In February 2017 the Sofia City Administrative Court declared the two claims lodged by the applicants inadmissible. It noted that the impugned rules dealt with a matter internal to the Supreme Administrative Court, were addressed solely to that court’s judges and officers, had no direct and proximate impact on the applicants’ legal sphere, and did not impinge on their constitutional right to access information (опр. № 989 от 14.02.2017 г., по адм. д. № 11173/2016 г., АС-София-град).

15. The applicants appealed, arguing, among other things, that the court had erred in holding that the rules did not affect their legal sphere.

16. On 18 May 2018 the Supreme Administrative Court upheld the lower court’s decision. It agreed that the rules did not affect the applicants’ rights or legal interests. They did not hamper the applicants from reporting on matters of public interest or – as regards the applicant association – from litigating with a view to improving the work of the administration and the judiciary. The rules were only meant to protect personal data, and could not be seen as being in breach of the constitutional rights to freedom of expression and to seek, receive and disseminate information (опр. № 6219 от 18.05.2018 г. по адм. д. № 4422/2017 г., ВАС, V о.).

5. June 2018 anonymisation rules

17. In June 2018 the President of the Supreme Administrative Court laid down new anonymisation rules.

18. Rule 1 stated that, as required under the personal data protection legislation, personal data in the court’s hearing records, judgments and decisions published on its website would be redacted.

19. Rule 2 specified that the following categories of data would be redacted from those documents: (a) the first names of the parties to and participants in the proceedings; (b) all personal data, except the family name of individuals acting as representatives of legal entities, public authorities, political parties or associations, or of politicians, mayors, presidents of municipal councils, government ministers or members of initiative committees; (c) email addresses, if they contained the name of an individual; (d) personal identification numbers; (e) IBAN numbers; (f) residential addresses, street or road names and localities, if they represented the address of an individual who was a party to the case; (g) municipalities; (h) car registration numbers; (i) dates of birth; and (j) “sensitive data”. Under Rule 3, some types of data, such as the names of public authorities, legal entities, political parties, associations, notaries and the media, would not be redacted.

20. Rule 4 stated that since scanned case material could not be redacted in that manner, it would not be made available online.

21. It appears that cases published in the Supreme Administrative Court’s online database before implementation of the rules were not affected.

3. Deferred publication of certain judicial decisions in criminal cases

22. Section 64(1) of the Judiciary Act 2007 introduced the requirement for all judicial decisions to be published on the relevant court’s website. As originally worded, that provision required publication at quarterly intervals, but in 2009 it was amended to provide that judicial decisions would be published online immediately after being delivered.

23. An amendment to section 64 that came into force in November 2017 provided for an exception to the requirement for immediate publication. Under subsection 1, as reworded, and a new subsection 2, judicial decisions in criminal cases which convicted and sentenced someone or which finally upheld convictions and sentences would only be published online after the prosecuting authorities had informed the relevant court that steps had been taken to enforce them.

COMPLAINTS

24. The applicants complained under Article 10 of the Convention about:

(a) the anonymisation rules laid down by the President of the Supreme Administrative Court in September 2016 (see paragraphs 8 to 11 above), and

(b) the 2017 legislative amendment introducing a deferred-publication rule for certain criminal judgments (see paragraph 23 above).

THE LAW

25. In support of their complaints about (a) the anonymisation rules laid down by the President of the Supreme Administrative Court in 2016, and (b) the 2017 legislative amendment introducing a deferred-publication rule for certain criminal judgments, the applicants relied on Article 10 of the Convention, the relevant part of 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 ...”

1. Admissibility of the complaint about the Supreme Administrative Court’s 2016 anonymisation rules
   1. The parties’ submissions

(a) The Government

26. The Government submitted that the applicants could not claim to be victims of a breach of Article 10 of the Convention. They had not been directly and individually targeted by the Supreme Administrative Court’s anonymisation rules. Nor was there any evidence that they had tried to obtain specific data held by that court and been denied access to it, or that the implementation of the court’s anonymisation rules had impeded their work as journalists in a given case. Their complaint was thus abstract, whereas the Convention did not allow an actio popularis. Being a journalist claiming to cover the work of the judiciary did not in itself confer an unqualified right to obtain information about all cases before a given court. There was no indication that the applicants regularly used the types of data anonymised in the Supreme Administrative Court’s database in their work.

27. The Government further submitted that Article 10 of the Convention did not enshrine an absolute right to access information held by a public authority, and that in the present case the criteria to determine whether that provision was engaged in such circumstances could only be assessed in the abstract, since there was no indication that the applicants had sought or been unable to obtain anonymised information in a specific case, and had thus been prevented from reporting properly on it. But those criteria did not lend themselves to an abstract assessment. The anonymisation rules had thus not in themselves affected the applicants’ freedom of expression.

(b) The applicants

28. The applicants submitted that eight of them were well-known investigative journalists who had many times reported on issues related to the judiciary. They described in detail their professional interests, and noted that they acted as a “public watchdog” in relation to the judiciary, which made it necessary for them to be able to obtain information relating to it, in particular the types of information previously available without impediment in the Supreme Administrative Court’s online database.

29. The applicants went on to argue that the anonymisation rules had limited their freedom of expression since they obstructed free access to information about cases and thus reporting on matters of public interest. That information – in particular that featuring in the scanned case material – could not be obtained from other sources. Although in the course of their work they had used the Supreme Administrative Court’s online database on many occasions, it was impermissible to require them to refer to specific instances, since the impugned rules concerned all cases before that court.

2. The Court’s assessment

30. Article 10 of the Convention does not in terms confer a right to access information held by the authorities or oblige them to impart such information. However, such a right or obligation may arise if disclosure of the information has been ordered by a court – a scenario not at issue in the present case – or if access to the information is instrumental for the exercise of the right to freedom of expression of the person seeking to obtain that information (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 156, 8 November 2016). The criteria for determining the latter point are (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 is ready and available (ibid., §§ 157-70). These criteria are in principle cumulative (see Saure v. Germany (dec.), no. 6106/16, § 34, 19 October 2021).

31. According to the Court’s settled case-law, those points are to be assessed in the light of the particular circumstances of each case (see Magyar Helsinki Bizottság, cited above, § 157; and also Sioutis v. Greece (dec.), no. 16393/14, § 25, 29 August 2017; Cangı v. Turkey, no. 24973/15, § 31, 29 January 2019; Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, § 39, 30 January 2020; Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, § 49, 3 March 2020; Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 82, 26 March 2020; Mikiashvili and Others v. Georgia (dec.), nos. 18865/11 and 51865/11, § 47, 19 January 2021; Georgian Young Lawyers’ Association v. Georgia (dec.), no. 2703/12, § 30, 19 January 2021; Yuriy Chumak v. Ukraine, no. 23897/10, § 28, 18 March 2021; Association Burestop 55 and Others v. France, nos. 56176/18 and 5 others, § 84, 1 July 2021; TMMOB Mimarlar Odası v. Turkey (dec.), no. 10515/18, § 56, 12 October 2021; Saure, cited above, § 34; Rovshan Hajiyev v. Azerbaijan, nos. 19925/12 and 47532/13, § 45, 9 December 2021; Šeks v. Croatia, no. 39325/20, § 37, 3 February 2022; and Namazli v. Azerbaijan (dec.), no. 28203/10, § 31, 7 June 2022).

32. In the present case, however, there are no particular circumstances on the basis of which to apply the above-mentioned criteria and conclude that the information to which the applicants claim not to have access is instrumental for the exercise of their right to freedom of expression. The applicants’ complaint does not concern a specific piece of information or even a defined category of information held by a public authority. They are aggrieved by the impossibility of accessing on the Internet all scanned case material available in the database of the Bulgarian Supreme Administrative Court and the anonymised parts of all of that court’s judgments and decisions. They argued that all that information concerned matters of public interest, and that the impossibility of accessing it hindered them from reporting on such matters. But even though the applicants’ role as “public watchdogs” is not in doubt, this remains an entirely abstract statement, whereas, as already noted by the Court, the definition of what might constitute a subject of public interest depends on the circumstances of each case (see Magyar Helsinki Bizottság, cited above, § 162). It must be the case that some of the documents and information in question touched upon matters of public interest and that some did not. It is impossible to assess this question – which goes to the first and second of the criteria set out in paragraph 30 above – in the abstract; it cannot be said that all judicial review and other cases heard by the Bulgarian Supreme Administrative Court concern matters of public interest, as this notion is understood in the Court’s case-law, and that all information relating to those cases relates, without distinction, to such matters. The Court has already had occasion to note that an applicant cannot complain of a restriction on access to information in the abstract (see Centre for Democracy and the Rule of Law v. Ukraine (dec.), cited above, §§ 54 and 59, and Saure v. Germany, no. 8819/16, § 55, 8 November 2022). It has also held that general statements on why certain types of information held by the authorities ought to be made available are not sufficient to engage Article 10 of the Convention (see Georgian Young Lawyers’ Association, § 30, and Namazli, § 37, both cited above). It should also be noted in this connection that if the documents and information in question here were to be made freely available on the Internet, they would inevitably be available not only to the applicants but also to any member of the public (contrast, mutatis mutandis, Gafiuc v. Romania, no. 59174/13, § 55, 13 October 2020).

33. The question whether Article 10 of the Convention requires a State authority to disclose information is different from that what form of publicity of judicial decisions would suffice to satisfy the requirements of the second sentence of Article 6 § 1 of the Convention (see Sioutis, § 29 in fine, and Studio Monitori and Others, § 42, both cited above).

34. The Court is hence not in a position to find that the information to which the applicants claim not to have access is instrumental for the exercise of their right to freedom of expression. According to its settled case-law, in proceedings originating in an individual application under Article 34 of the Convention its task is not to review domestic law in the abstract but to determine whether the way in which it was applied to the applicant gave rise to a breach of the Convention (see, among other authorities, Golder v. the United Kingdom, 21 February 1975, § 39 in fine, Series A no. 18; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 116, ECHR 2012; and Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015 (extracts)). It is thus not for the Court to make abstract pronouncements in such proceedings on how a national court should provide access to the documents in its case files and anonymise its judgments and decisions when publishing them on the Internet.

35. It follows that Article 10 does not apply and that this complaint is to be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

2. Admissibility of the complaint about the deferred-publication rule for certain criminal judgments
   1. The parties’ submissions

(a) The Government

36. The Government submitted that the applicants could not claim to be victims, for the same reasons as those relating to the complaint about the Supreme Administrative Court’s anonymisation rules (see paragraph 26 above). They also pointed out that the applicants had not referred to any specific case in which the deferred-publication rule had impeded their journalistic work, but were complaining about the rule itself, and on that basis argued that this complaint was also an actio popularis.

37. The Government further submitted that the deferred-publication rule had not in itself affected the applicants’ freedom of expression. They noted in this connection that there was no evidence that the applicants’ work had been hindered by that provision in a specific case, and that this was not a point which could be judged in the abstract.

(b) The applicants

38. The applicants referred to their submissions relating to their complaint about the Supreme Administrative Court’s anonymisation rules (see paragraphs 28 and 29 above). They went on to say that they often reported on high-profile criminal cases and that the deferred-publication rule impeded them from doing so properly.

2. The Court’s assessment

39. As noted in paragraph 31 above, the criteria for determining whether access to information held by the authorities is instrumental for the exercise of the right to freedom of expression of the person seeking that information can only be assessed in the light of the particular circumstances of each case. Like the complaint about the Supreme Administrative Court’s anonymisation rules, the complaint at hand does not, however, concern any particular circumstances; the applicants are contesting the deferred-publication rule (see paragraph 23 above) itself. But it is impossible to assess in the abstract whether that provision will actually hinder their reporting on matters of public interest – this may be so in some cases but not in others.

40. As with the Supreme Administrative Court’s anonymisation rules, the Court is hence not in a position to find that the information to which the applicants seek access is instrumental for the exercise of their right to freedom of expression. It is not for the Court, in proceedings originating in an individual application, to make abstract pronouncements on how quickly national courts should publish their judgments on the Internet; as already noted, in such proceedings its task is not to review domestic law in the abstract. Indeed, when examining delays in making judgments publicly available under the second sentence of Article 6 § 1 of the Convention, the Court has always had regard to the specific circumstances at hand (see Fazliyski v. Bulgaria, no. 40908/05, §§ 67-68, 16 April 2013, and Vasil Vasilev v. Bulgaria, no. 7610/15, §§ 116-17, 16 November 2021).

41. It follows that Article 10 does not apply and that this complaint is to 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 23 March 2023.

Milan Blaško Pere Pastor Vilanova
Registrar President

APPENDIX

List of the applicants: