NAMAZLI proti Ázerbajdžánu

FIFTH SECTION

DECISION

Application no. 28203/10
Fariz NAMAZLI
against Azerbaijan

The European Court of Human Rights (Fifth Section), sitting on 7 June 2022 as a Chamber composed of:

Síofra O’Leary, President,
Mārtiņš Mits,
Lətif Hüseynov,
Lado Chanturia,
Ivana Jelić,
Arnfinn Bårdsen,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 4 May 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Fariz Mubariz oglu Namazli (Fariz Mübariz oğlu Namazlı), is an Azerbaijani national who was born in 1982 and lives in Baku. He was represented before the Court by Mr R. Hajili, a lawyer based in Strasbourg.

2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is a lawyer. According to him, at the time of the events in question, he was working as a lawyer at the Media Rights Institute, a non‑governmental organisation (NGO) dealing with various projects relating to freedom of information and freedom of expression. However, his affiliation with that NGO was not mentioned in any of his submissions to the domestic authorities or courts described below. The Government disputed the applicant’s assertion that he was employed by the NGO in question.

5. On 28 November 2008 the applicant wrote to the head of the Binagadi District Executive Authority (“the BDEA”), requesting information concerning the yearly budget of the Binagadi District for 2008, the amount of revenues received by the BDEA in the first half of 2008 from paid services, and copies of documents concerning the state of the BDEA’s expenditure from the budget funds and funds received from the provision of services in the first half of 2008. He noted that this information could not be found on the BDEA’s website. He referred to a number of domestic legal provisions, including various provisions of the Law on Access to Information of 30 September 2005 and the National Strategy on improvement of transparency and combating corruption, approved by the Presidential Order of 28 July 2007, pursuant to which, in his view, the BDEA was obliged to provide him with the requested information. He did not expressly explain the purpose for which he was requesting the information in question.

6. By a letter of 17 December 2008, the deputy head of the BDEA responded that it was “outside the [BDEA’s] competence to provide the information mentioned in [the applicant’s] letter to any individual, institution, company or organisation”.

7. The applicant lodged a claim against the BDEA with the Binagadi District Court. Relying on various provisions of, inter alia, the Constitution and the Law on Access to Information, he requested that the court order the BDEA to provide the requested information. He also noted:

“I am currently conducting research into the activities of executive authorities and their budget funds and it was for that reason that I applied to the [BDEA] to obtain the information necessary for the research; however, the defendant refused my request, in violation of the requirements of the [Law on Access to Information].”

8. By a judgment of 25 February 2009, the Binagadi District Court dismissed the applicant’s claim. Referring, in particular, to Article 29.1 of the Law on Access to Information which listed the types of information that “information owners” were obliged to disclose to the public of their own accord, the court held that the information requested by the applicant was not of the type that information owners were obliged to disclose under the law and that it exceeded “the extent that was considered necessary” to be disclosed by the defendant authority.

9. The applicant appealed, arguing that the first-instance court’s judgment had lacked relevant substantiation and that, in accordance with the Law on Access to Information, information owners were obliged to disclose reports on the activities of State authorities and municipalities, as well as statements on the execution of the State budget.

10. By a judgment of 5 June 2009, the Baku Court of Appeal dismissed the applicant’s appeal, providing a different reasoning. It noted that, pursuant to Article 15.4 of the Law on Access to Information, a person requesting information was prohibited from obtaining information for private purposes on the pretext of performing his or her official duties or by making use of his or her official position. The court found that, in his information request addressed to the BDEA, the applicant had failed to specify the purpose for which he had requested the information in question. It was therefore not clear for what purposes, either personal or otherwise, that information would be used. The court concluded that, in such circumstances, it could not be ruled out that the information could be used for personal aims.

11. The applicant lodged a cassation appeal with the Supreme Court, arguing that he had specified the purpose of the request in his claim before the first-instance court and that, moreover, the Law on Access to Information did not require him to do so in the information request he had sent to the BDEA. He argued that the requested information constituted a matter of public interest and that the State authorities were legally required to disclose this information to the public of their own accord. In addition to various provisions of the domestic law, he relied on Articles 6 and 10 of the Convention, arguing that his right to a reasoned judgment and his right to receive information had been breached by the BDEA and the lower courts.

12. On 4 November 2009 the Supreme Court dismissed the applicant’s appeal, upholding the Baku Court of Appeal’s reasoning and conclusion.

RELEVANT LEGAL FRAMEWORK

13. A detailed summary of various relevant provisions of the Law on Access to Information, as applicable at the material time, is provided in Rovshan Hajiyev v. Azerbaijan (nos. 19925/12 and 47532/13, §§ 25-37, 9 December 2021). In particular, Article 29.1 listed the types of information that information owners were obligated to disclose to the public of their own accord, “in order to meet the public interest in a simpler and more efficient manner and to reduce the number of requests for information”. The list, which consisted of thirty-four lines in total, included the following types of information: reports on activities of State bodies and municipalities; budget forecasts; reports on execution of the State budget; decisions and orders of State authorities and municipalities; list of information constituting State secrets; and so on. According to Article 29.2, the types of information listed in Article 29.1 could not be requested by way of an individual information request, subject to certain exceptions not relevant to the present case.

14. Article 15.4 of the Law on Access to Information provided that a person requesting information could not seek access to that information for personal aims on the pretext of performing his or her official duties or by making use of his or her official position, or to use information obtained while performing his or her official duties for other purposes.

15. The National Strategy on improvement of transparency and combating corruption, approved by the Presidential Order of 28 July 2007, provided, inter alia, that, with the exception of information to which access was restricted by law, State authorities were required to inform the public about their activities and to take the necessary measures to ensure access to such information by individuals, mass media and civil-society institutions.

COMPLAINTS

16. The applicant complained under Article 10 of the Convention that the BDEA’s refusal to disclose the requested information had amounted to a breach of his right of access to information of public interest.

17. The applicant also complained under Article 6 § 1 of the Convention that the domestic courts’ judgments had not been adequately reasoned because the courts had failed to make a proper legal assessment of his arguments as required by domestic law.

THE LAW

1. The Government’s objection as to the six-month time‑limit

18. The Government submitted that the application as a whole had been lodged outside the six-month time-limit, referring to the absence of a postal stamp on the copy of the applicant’s first letter, which had been forwarded to the Government by the Court when they were notified of the application.

19. The applicant noted that his first letter had been submitted on 4 May 2010 and enclosed a copy of the postal receipt to that effect.

20. Having regard to the material in the case file and its own records, the Court notes that the envelope containing the applicant’s original letter of introduction of the application was postmarked on 4 May 2010. The Court further notes that the copy of the postal receipt submitted by the applicant in response to the Government’s observations contains a postal stamp corresponding to 4 May 2010. The final decision in the present case was delivered on 4 November 2009. It follows that the application was lodged within the period of six months from the date of the final decision and that, therefore, the Government’s objection must be dismissed.

21. Having reached the above finding, the Court will proceed to examine the admissibility of each complaint separately.

2. Alleged violation of Article 10 of the Convention

22. The applicant complained that his right of access to information had been breached owing to the BDEA’s refusal to provide him with the requested information. Article 10 provides as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

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.”

1. The parties’ submissions

23. Relying on a number of the Court’s judgments, the Government submitted that a right of access to information of public interest could arise where the applicant was, inter alia, a professional researcher, a journalist, a human rights defender or an association performing the role of a “public watchdog”. However, in the present case, the applicant, being a private individual, could not be regarded as performing the role of a “public watchdog”. Nothing in the case file suggested that when requesting the information, he had been acting on behalf of the association by which he claimed to be employed. In his application form, he stated that he was a lawyer of the association, not a member thereof. Furthermore, his indication in the claim lodged with the first-instance court that the request related to research conducted by him had not been substantiated with any reference to his professional affiliation or background.

24. For the above reasons, the Government argued that the applicant had not been entitled to receive the information requested and that, therefore, there had been no interference with his rights under Article 10 of the Convention. Lastly, the Government argued that, in any event, it was within the competence of the Ministry of Finance, and not a local executive authority such as the BDEA, to disclose to the public information concerning the State budget and its execution.

25. The applicant submitted that he had been entitled under Article 10 of the Convention to receive information from the State authority in question. As to the purpose of the request and his role as the seeker of the information, the applicant noted that he was a lawyer and civil-society activist. He had worked on various projects in the Media Rights Institute and intended to contribute to that association’s project, which aimed “to monitor and report on the transparency of public bodies, and the policies and freedom‑of‑information practices of State bodies in the light of the requirements of the Law on Access to Information and transparency standards”. He further submitted that, in making the information requests, he had intended to study the transparency of the activities and the budget revenues and expenditures of public bodies. The results of the research were to be published in the Media Rights Institute’s annual report on the state of freedom of information in the country.

26. The applicant submitted that he had indicated the purpose of the information request at the domestic level. He argued that, by referring to the Presidential Order of 28 July 2007 in his information request (see paragraphs 5 and 15 above), he had “specified” the purpose of the request to the BDEA by reiterating its obligation to proactively disclose information of public interest to the public. Moreover, in his submissions to the domestic courts, he had mentioned that he was conducting “research into the activities and budgets of local executive authorities”.

27. Furthermore, the applicant argued that, in any event, subject to a few exceptions, the domestic law did not require a person requesting information to specify the purpose for which the information was requested. Neither did the domestic law require him to indicate his professional background or his affiliation with any association.

28. The applicant further submitted that the information sought had constituted a matter of public interest and that it had been ready and available for transmission by the BDEA.

29. For the above reasons, the applicant argued that he had a right of access to information held by the BDEA and that the denial of such access had constituted an unjustified interference with his right to freedom of expression.

2. The Court’s assessment

30. The Court reiterates that the question of the applicability of a Convention right pertains to the Court’s jurisdiction ratione materiae and the relevant analysis should normally 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, and Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, § 32, 30 January 2020). It finds that no such particular reasons appear to exist in the present case.

31. The Court reiterates that 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 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).

32. It is not disputed by the parties – and the Court accepts for the purposes of the present complaint – that the requested information could potentially constitute a matter of public interest. The Court also accepts, in the absence of any indication to the contrary, that the information was “ready and available”. However, for the reasons specified below, the Court considers that the other threshold criteria, namely the purpose of the information request and the role of the applicant, which are closely interlinked in the circumstances of the present case, have not been demonstrated to have been met.

33. As regards the purpose of the information requests, 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 in the first place before the relevant domestic authorities that the seeker of information must sufficiently explain the exact purpose of the request by specifying, inter alia, 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 v. Georgia (dec.), nos. 18865/11 and 51865/11, § 50, 19 January 2021, with further references).

34. Moreover, as to the purpose of the request, in order for Article 10 to come into play, it must be ascertained that the information sought was in fact necessary for the exercise of freedom of expression. The reason for recognising a request for access to the information held by a public authority is to enable the person concerned to exercise his or her freedom to “receive and impart information and ideas” to others. Thus, the Court has placed emphasis on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate (see Magyar Helsinki Bizottság, cited above, §§ 158-59). Furthermore, the particular role of the seeker of the information in “receiving and imparting” it to the public is of special importance. An important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”, which includes, but is not necessarily limited to, journalists, NGOs, academic researchers, authors of literature on matters of public concern, and, in certain circumstances, bloggers and popular users of social media (ibid., §§ 166-68).

35. The Court also refers to the principles on questions of proof and the assessment of evidence in the proceedings before the Court, which have been summarised in, among others, Baka v. Hungary ([GC], no. 20261/12, § 143, 23 June 2016), and Merabishvili v. Georgia ([GC], no. 72508/13, §§ 311-15, 28 November 2017). In particular, the Court reiterates that, when assessing evidence, it adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts in their entirety and from the parties’ submissions (see Merabishvili, cited above, § 315). In the context of a case like the present one and in relation to the factual arguments made by the applicant, it is for the applicant to substantiate those arguments with necessary evidence and relevant information.

36. The Court observes that the applicant omitted to explain the purpose of his request when seeking information from the BDEA. The Court cannot accept the applicant’s argument that he disclosed the purpose of the request by mentioning the Presidential Order of 28 July 2007, which was one of the domestic legal instruments cited by the applicant in the request. Mere reference to a legal instrument does not constitute an explanation of the purpose behind the request.

37. However, it is true that the applicant attempted to remedy that initial omission by providing the necessary arguments in the subsequent judicial proceedings. In particular, in his claim before the first-instance court, the applicant noted briefly that he was “currently conducting research into the activities of executive authorities and their budgets” (see paragraph 7 above). However, in his observations before the Court, he stated that he had intended to contribute to the Media Rights Institute’s project aiming “to monitor and report on the transparency of public bodies, and the policies and freedom‑of‑information practices of State bodies in the light of the requirements of the Law on Access to Information and transparency standards” (see paragraph 25 above). The Court cannot but notice that the descriptions of the alleged research indicated in the domestic claim and in the submissions before the Court were quite general and vague, making it difficult to discern what exactly the applicant was researching and whether he was researching it by himself or as part of a research team. Moreover, the applicant has not provided any detailed and relevant background information, such as whether he had been collecting any other data in connection with the claimed purpose of this particular information request or conducting any other related research activities. In sum, there is an insufficient amount of detail concerning the purposes for which the information was sought, and the applicant’s submissions in this regard, made before the domestic courts and the Court respectively, are incomplete and unsupported by any relevant material.

38. Furthermore, as to the role of the applicant in seeking the information in question, the Court must ascertain whether, when seeking that information, the applicant acted in the capacity of a “public watchdog” with the purpose of informing the public of a matter of public interest. In this connection, the Court notes that, although the applicant stated in his submissions before it that he worked as a lawyer for the Media Rights Institute and was preparing a contribution for publication in that NGO’s annual report (without, however, providing any more detailed information concerning that contribution, as noted above), the application before the Court was lodged by the applicant on his own behalf. Neither before the Court nor at the domestic level has the applicant presented any documentary material showing specific details of his affiliation with the Media Rights Institute in the context of that NGO’s primary activities, or of his authorisation to represent it before various institutions in relation to its activities (contrast Guseva v. Bulgaria, no. 6987/07, §§ 6 and 55, 17 February 2015). He applied to the BDEA in his personal capacity, providing his own personal contact details. Likewise, the applicant personally acted as the claimant in the domestic proceedings, and all the submissions and appeals were made by him on his own behalf. He never mentioned the Media Rights Institute in any of those submissions. In such circumstances, the Court considers that it cannot be established from the documentary material available in the case file that the information requested by the applicant was actually related to any research project he was purportedly conducting on behalf of the Media Rights Institute. For these reasons, the Court considers that it has not been demonstrated that the applicant was acting in the capacity of a “public watchdog” in this particular case.

39. Having regard to the above considerations, the Court finds that, even though the requested information could potentially constitute a matter of public interest and was “ready and available”, it cannot be established that the applicant requested the information in question with the purpose of conducting any genuine research on issues of public interest and that he was acting as a “public watchdog”. Having assessed the circumstances of the case as a whole, the Court considers that in the present case access to the requested information was not instrumental for the exercise of the applicant’s right to freedom of expression and that its denial did not constitute an interference with that right.

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

3. Alleged violation of Article 6 § 1 of the Convention

41. The applicant complained that the domestic courts had delivered unreasoned judgments, in breach of the requirements of Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

42. Neither party submitted any separate observations on the admissibility and merits of this complaint. In his submissions concerning the complaint under Article 10 of the Convention, the applicant argued that the domestic courts had misinterpreted and misapplied the provisions of the domestic law, in particular the relevant provisions of the Law on Access to Information.

43. The Court notes that the subject matter of the proceedings instituted by the applicant concerned the alleged breach of his right of access to information. It has found above that, in the circumstances of the present case, no such right arose under Article 10 of the Convention and that, accordingly, the applicant’s complaint under that provision was incompatible ratione materiae with the provisions of the Convention (see paragraphs 39-40 above). However, even assuming that Article 6 § 1 of the Convention 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, the Court considers that the complaint is in any event inadmissible for the following reasons.

44. The Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). It is not the Court’s task to take the place of the domestic courts and it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 186, 6 November 2018). The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017, with further references).

45. Turning to the present case, the Court notes that the applicant was given an opportunity to raise his factual and legal arguments before the domestic courts. Those arguments were examined by the domestic courts, which provided reasons for dismissing the applicant’s claim in their judgments. The Court refers, in particular, to the reasoning provided by the Baku Court of Appeal and the Supreme Court (see paragraphs 10 and 12 above). Even if the domestic courts’ reasoning might have arguably been brief, the Court considers that, in the circumstances of the present case, and having regard, in particular, to the absence of sufficient detail in the applicant’s own submissions before the domestic courts (see paragraphs 7 and 37 above), it has not been demonstrated that their findings were arbitrary or manifestly unreasonable to the point of prejudicing the fairness of the proceedings or resulting in a “denial of justice” (see Moreira Ferreira, cited above, §§ 85 et seq.). In such circumstances, the Court is not in a position to assume the role of a fourth-instance body by embarking on a review of any particular alleged errors of law committed by the domestic courts.

46. Accordingly, this complaint, being of a “fourth-instance” nature, 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 30 June 2022.

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Martina Keller Síofra O’Leary
Deputy Registrar President