TOKAREV proti Ukrajině

FIFTH SECTION

DECISION

Application no. 44252/13
Gennadiy Vladimirovich TOKAREV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 January 2020 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 10 January 2013,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Gennadiy Vladimirovich Tokarev, is a Ukrainian national, who was born in 1957 and lives in Kharkiv. He was represented before the Court by Ms M.G. Motorygina, a lawyer practising in Kharkiv.

1. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is a lawyer who at the time of events represented a certain Ch. in the criminal proceedings against him.

4. On 4 July 2011 the applicant filed a request with the Kharkiv Scientific and Research Center of Forensic Examination under the Main Department of the Ministry of the Interior in the Kharkiv Region (hereafter “the Forensic Center”), claiming to allow him to familiarise himself with the incoming correspondence register to see whether certain investigator’s rulings and respective material evidence had been received by the Forensic Center and whether the latter had sent any replies or conclusions concerning them to the investigator. The applicant stated that this request was made in order to “ensure the performance of his duties as defence counsel”. He referred to Article 48 of the Code of Criminal Procedure and Article 6 of the Law on Advocacy (see paragraphs 12 and 13 below). He further stated that the reply was requested within five days as required by the Law on Access to Public Information. In his application to the Court the applicant reiterated that the information was requested to perform his professional duties, and was necessary to disprove the charges against his client by showing that some evidence seized from his client had never been sent for expert examination.

5. On 5 July 2011 the Forensic Center replied that, according to the Code of Criminal Procedure, expert conclusions could not be disclosed without permission from the investigator or a prosecutor. It further noted that according to Articles 7 and 9 of the Law on Access to Public Information, expert conclusions and information contained in the incoming correspondence registers belonged to confidential information and information “for internal use only” respectively. These types of information could be disclosed if there were no legal grounds to restrict access to them, but in the present case it was for the investigation authority to decide whether such grounds existed.

6. The applicant challenged this refusal before the courts. He claimed that, even if the requested information was “for internal use only”, the refusal to provide it was unlawful, as under Articles 6 and 9 of the Law on Access to Public Information such information could still be disclosed conditional upon the application of a three-part test set out in section 2 of Article 6 of the said law (see paragraph 14 below). Neither of the conditions of this test was met in his case.

7. On 12 August 2011 the Kharkiv Circuit Administrative Court rejected the applicant’s claims. The court first examined whether the Law on Access to Public Information was applicable to the situation at stake. It found that, based on the definition of the public information contained in Article 1 of the law as the information received or created in the course of execution by the public authorities of their duties (see paragraph 14 below), the incoming correspondence registers could not be considered as public information as they “preceded” and “ensured” the execution of duties by the public authorities. The court further noted that the Law on Access to Public Information did not cover requests for information regulated by special laws. In this connection the applicant himself had stated that he had made his request in his capacity as defence counsel and under the Code of Criminal Procedure and the Law on Advocacy. Based on the above the court concluded that “the fact that [the applicant] had a right that needed protection within the framework of administrative justice procedure was not proved”.

8. The applicant appealed. He claimed that the court had erred in finding that the Law on Access to Public Information was not applicable to his case, in particular because this law did not contain any exceptions as to the type of public authority covered by it. He further referred to Ministry of the Interior Order no. 309 of 9 June 2011 adopting the list of information “for internal use only” within the system of the Ministry of the Interior which did not list the information requested by him. He also claimed that under the Code of Criminal Procedure and the Law on Advocacy he was indeed entitled to request information as defence counsel, but this right was limited so that to exclude information of which the secrecy was protected by the law. In the applicant’s view, it was the Law on Access to Public Information that ensured access to such information.

9. On 15 March 2012 the Kharkiv Administrative Court of Appeal rejected the applicant’s claims and upheld the lower court’s findings. The decision of the appellate court repeated, almost word for word, the decision of the local court.

10. The applicant appealed in cassation. He essentially repeated his arguments on the merits of the case, having also added that the courts failed to properly examine his arguments and provide reasons for their decisions.

11. On 12 July 2012 the Higher Administrative Court of Ukraine refused to open cassation proceedings as the applicant’s cassation appeal was ill‑founded and did not disclose any violations during trial.

2. Relevant domestic law
   1. Code of Criminal Procedure of 1960

12. Article 48 of the Code in force at the material time in its relevant parts read as follows:

Article 48. Duties and rights of defence counsel

“Defence counsel shall use remedies available under this Code and other legislative acts in order to ascertain the circumstances dispelling the suspicion or rebutting the charges, extenuating or excluding criminal liability on the part of the suspect, accused, defendant or convicted person, and shall provide them with the necessary legal assistance.

After having been permitted to provide legal representation in the proceedings, defence counsel shall have the right:

... (3) to get acquainted with the materials which substantiate the detention of a suspect or choice of preventive measure or indictment, and, after the conclusion of the pre-trial investigation - with all materials in the case file; ...

(13) to collect information on matters which can be used as evidence in the case, including to request and receive documents or their copies from individuals and legal persons; to familiarise himself with the necessary documents held by companies, organisations and citizens’ associations except if the secrecy of these documents is protected by the law; to receive written conclusions from experts on issues that require special knowledge; ...”

2. Law on Advocacy of 1992

13. Article 6 of the Law in force at the material time read as follows:

Article 6. Professional Rights of an Advocate

“When performing professional duties an advocate shall have the right:

(...) to gather information about the facts that may be used as evidence in civil and commercial cases as well as in criminal proceedings, in particular:

- to request and receive documents or their copies from companies, organisations and associations, and from citizens – upon their agreement;

- familiarize themselves with the documents necessary for the performance of his duties which are held by companies, organisations and citizens’ associations except if the secrecy of these documents is protected by the law; ...”

3. Law on Access to Public Information of 2011

14. Relevant provisions of the Law in force at the material time read as follows:

Article 1. Public Information

“1. Public information shall mean information that is reflected and documented by any means and on any information medium and which was received or created in the process of performance by public authorities of their duties envisaged by the legislation in force or which is in possession of the public authorities or other administrators of public information determined by this Law.

2. Public information shall be open except for the cases defined by law.”

Article 6. Public Information with Limited Access

“1. The following categories of information belong to information with limited access:

1) confidential information;

2) secret information;

3) information “for internal use only”.

2. Limitation of access to information shall be carried out in accordance with the law conditional upon the combination of the following requirements:

1) exclusively in the interests of the national security, territorial integrity or public order with the purpose of prevention of disorder or crimes, for protection of public health, for protection of the reputation or rights of others, to prevent the disclosure of information received confidentially or to maintain the authority and impartiality of justice;

2) disclosure of information can cause significant harm to these interests;

3) the harm from the disclosure of the information outweighs public interest in obtaining it.

...

4. Information with limited access must be provided by the information administrator if there are no lawful grounds to restrict access to such information that have previously existed.

...

7. Access shall be limited to information and not to the document. If document contains information with limited access, information access to which was not limited shall be made available for examination.”

Article 7. Confidential Information

“1. Confidential information shall mean information, access to which is limited by a natural person or legal entity, except for public authorities, and that may be disseminated at their wish and in the order and under the conditions set by them. Information specified in paragraphs 1 and 2 of Article 13 of this Law may not be referred to as confidential.

2. Information administrators, specified in paragraph 1 of Article 13 of this Law, who possess confidential information, may disseminate it only upon the consent of persons, who had limited access to this information; and if there is no such consent the information may only be disseminated in the interests of national security, economic wellbeing and human rights.”

Article 9. Information “for internal use only”

“1. According to paragraph 2 of Article 6 of this Law the following categories of information may belong to information “for internal use only”:

1) information contained in documents of public authorities, which constitute internal official correspondence, memoranda, recommendations if they are connected with the development of the activity direction of the institution or performance of control and oversight functions by the bodies of state power, or with the decision-making process, and precede public discussion and/or adoption of decisions;

2) information collected in the process of search and detective, counterintelligence activity, in the sphere of the country’s defence and which is not classified as state secret.

Documents that contain official information shall be assigned a stamp “For Official Use”. Access to such documents shall be provided in accordance with Paragraph 2 of Article 6 of this Law.

2. Documents that contain information “for internal use only” shall be assigned a stamp “For Official Use Only”. Access to such documents shall be provided in accordance with paragraph 2 of Article 6 of this Law.

3. Access to the list of information “for internal use only” which is compiled by the bodies of state power, bodies of local self-government, other public authorities, including in execution of delegated powers, may not be limited.”

COMPLAINTS

15. Under Article 6 of the Convention the applicant complained that the decisions of the local and appellate courts lacked reasoning and that the courts failed to analyse his arguments. He further stated that the Higher Administrative Court breached the legal certainty principle and his right of access to court by having refused to open cassation proceedings.

16. The applicant further complained under Article 10 of the Convention of the breach of his right to receive and impart information on account of the refusal to grant his request for information and the courts’ failure to remedy this situation.

THE LAW

1. Complaint under Article 10 of the Convention

17. The applicant complained that the refusal to grant his request for information and the courts’ failure to remedy this situation constituted a breach of his right to receive and impart information. He relied on Article 10 of the Convention which reads as follows:

“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.”

18. The Court notes at the outset that it has to examine whether Article 10 applies in the circumstances of the present case (see for a similar approach, Sioutis v Greece (dec.), no. 16393/14, 29 August 2017). In that regard, the Court reiterates that 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 the individual. However, such a right or obligation may arise, firstly where disclosure of the information has been imposed by a judicial order which has gained legal force (which is not the case in the present situation), 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, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 156, 8 November 2016).

19. In determining whether receiving the requested information was instrumental for the applicant’s exercise of his “freedom to receive and impart information”, and whether its denial constituted an interference with that right, the Court will be guided by the principles laid down in Magyar Helsinki Bizottság (cited above, §§ 149-80) and will assess the case in the light of its particular circumstances and having regard to the following criteria: the purpose of the information request, the nature of the information sought, the role of the applicant, and whether the information was ready and available.

20. In respect of the first criterion, the Court reiterates that a prerequisite, in order for Article 10 to come into play, is that the purpose of the person requesting access to the information held by a public authority is to enable his or her exercise of the 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. It must be ascertained whether the information sought was in fact necessary for the exercise of freedom of expression and whether withholding the information would hinder or impair the individual’s exercise of that right (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 28, 14 April 2009, and Roşiianu v. Romania, no. 27329/06, § 63, 24 June 2014).

21. Turning to the circumstances of the present case, the Court notes that the applicant clearly stated in his request that it was made in order to “ensure the performance of [his] duties as defence counsel” in a criminal case against his client. While in his request the applicant referred both to the respective provisions of the domestic legislation on advocate’s status in criminal proceedings and to the Law on Access to Public Information, which essentially regulates access to State-held information in the general interest (see paragraph 4 above), the Court is mindful of the applicant’s specific status as defence counsel and that his request was made clearly in the interests of his client. The Court finds no indication that the applicant was personally concerned by the relevant information. Furthermore, neither did the applicant request access to information to impart it to others in the sense of informing society and not only his client. With a view to the above, the Court fails to see that the purpose of the applicant’s request for access to the information held by a public authority was made to enable his exercise of the freedom to “receive and impart information and ideas” to others in the sense of Article 10 of the Convention.

22. This is also corroborated by the nature of the information sought. The Court reiterates that in order to prompt a need for disclosure under the Convention, the information, data or documents to which access is sought must meet a public-interest test. Such a need may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large. What might constitute a subject of public interest will depend on the circumstances of each case. In order to ascertain whether the information relates to a subject of general importance, it is necessary to assess it as a whole, having regard to the context in which it appears (see Magyar Helsinki Bizottság, cited above, §§ 161-62) but also in the light of the specific subject-matter of the information or document requested (see and compare Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung, no. 39534/07, §§ 35‑36 and 46, 28 November 2013, and Sioutis, cited above).

23. In this connection, the Court notes that in the present case the applicant wished to receive access to the incoming correspondence register of the Forensic Center to see whether certain investigator’s rulings and respective material evidence were received by the Forensic Center and whether the latter had sent any replies or conclusions to the investigator. This information related to the criminal proceedings against the applicant’s client and was allegedly needed to disprove the charges against him by showing that some evidence seized from his client had never been sent for expert examination (see paragraph 4 above). Neither before the domestic authorities nor before this Court did the applicant allege that this information was sought not only to disclose misconduct by the investigation authorities in the course of the applicant’s client’s case but also, for example, to prove that this was a common practice or repeated misconduct as a part of the broader public discussion. This enables the Court to conclude that the limited nature of the information sought could hardly be seen as being of the public-interest nature (compare and contrast with Magyar Helsinki Bizottság, cited above, § 177).

24. The Court further notes that while Article 10 guarantees freedom of expression to “everyone”, 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” (see Magyar Helsinki Bizottság, cited above, § 168). In the present case the applicant needed access to the information in order to perform his professional duties as defence counsel and they were not in any way assimilated to those of “public watchdogs” in so far as the protection afforded by Article 10 is concerned. The purpose of the applicant’s activities cannot therefore be said to have been an essential element of informed public debate.

25. In view of the above considerations, the Court does not find it necessary to rule on whether the information sought by the applicant in the present case was ready and available. It concludes that having access to the information requested was not instrumental to the applicant’s exercise of his freedom of expression. Article 10 did not, in the circumstances of the case, give the applicant the right to obtain such access, nor did it impose an obligation on the Government to impart such information to the applicant.

26. Having said that, the Court also notes that this case should be distinguished from the cases raising issues under Article 6 § 3 of the Convention where lawyers representing applicants in criminal proceedings were not given access to case file materials or some pieces of evidence (see, for example, Matyjek v. Poland, no. 38184/03, §§ 59 and 63, ECHR 2007‑V; Beraru v. Romania, no. 40107/04, § 70, 18 March 2014 and, in the context of undisclosed evidence, Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000‑II) as this provision guarantees defence rights for the accused.

Likewise, the present case shall be distinguished from the cases where the applicants sought access to information which was relevant to their private lives in such a way that this rendered Article 8 applicable (see, for example, Leander v. Sweden, 26 March 1987, § 48, Series A no. 116; Gaskin v. the United Kingdom, 7 July 1989, § 52, Series A no. 160; Guerra and Others v. Italy, 19 February 1998, § 57 Reports of Judgments and Decisions 1998‑I; and Roche v. the United Kingdom [GC], no. 32555/96, § 155-56, ECHR 2005‑X).

27. In the view of the above, the present application must be rejected as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. Other alleged violations of the Convention

28. The applicant further complained under Article 6 § 1 of the Convention that the decisions of the local and appellate courts lacked reasoning and that the courts failed to analyse his arguments. He also complained of the breach of the legal certainty principle and his right of access to court on account of the Higher Administrative Court’s refusal to open cassation proceedings.

29. The Court has examined the above complaints and considers that, even assuming that Article 6 of the Convention is applicable, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

30. It follows that these complaints must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention as manifestly ill-founded.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 February 2020.

Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President