Case of European Court of Human Rights, March 26, 2020 (case CENTRE FOR DEMOCRACY AND THE RULE OF LAW v. UKRAINE)

Defense:UKRAINE
Resolution Date:March 26, 2020
SUMMARY

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

 
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FIFTH SECTION

CASE OF CENTRE FOR DEMOCRACY AND THE RULE OF LAW v. UKRAINE

(Application no. 10090/16)

JUDGMENT

Art 10 • Freedom to receive and impart information • NGO denied access to information about education and work history contained in CVs of political leaders running in parliamentary elections • Convincing explanation by “watchdog” NGO of its need to check impugned information as presented by candidates in light of concern about their integrity • Information sought ready and available and meeting public-interest test • Disclosure of impugned personal data not entailing politicians’ public exposure to an unforeseen degree • Domestic courts’ failure to conduct an adequate balancing exercise, assessing the degree of potential harmful impact, if any, on the politicians’ privacy

STRASBOURG

26 March 2020

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Centre for Democracy and the Rule of Law v. Ukraine,

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

Síofra O’Leary, President,Gabriele Kucsko-Stadlmayer,Ganna Yudkivska,André Potocki,Yonko Grozev,Lәtif Hüseynov,Anja Seibert-Fohr, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 11 February 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 10090/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian NGO, the Centre for Democracy and the Rule of Law (Центр демократії та верховенства права – “the applicant organisation”), on 8 February 2016.

  2. The applicant organisation was represented by Ms V. Volodovska, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

  3. The applicant organisation alleged that the authorities had denied it access to the information it needed for its activities, in breach of Article 10 of the Convention.

  4. On 11 September 2018 notice of the application was given to the Government.

    THE FACTS

  5. The applicant organisation in a Ukrainian NGO. It has been active since 2005 and, when the application was lodged, was called Media Law Institute. It has its offices in Kyiv.

  6. On 26 October 2014 parliamentary elections were held in Ukraine. They followed presidential elections in May 2014.

  7. By law, as part of the registration to stand in elections all candidates for Parliament had to file their curricula vitarum (“CVs”) with the Central Election Commission (“the CEC”). Brief information about all candidates, extracted from the CVs, was then published on the CEC’s website (see paragraph 38 below).

  8. On 8 November 2014 the CEC finished counting the votes and announced that the electoral lists of six parties had crossed the electoral barrier and would be represented in Parliament.

  9. Of the six individuals in the first positions of the lists five had previously held public office:

    (i) Mr Y. Boyko, an MP from 2007 to 2010, Energy Minister and Deputy Prime Minister from 2010 to early 2014. He was the first on the list of the Opposition Bloc;

    (ii) mayor of Kyiv Mr V. Klitschko, who, prior to his election as mayor in June 2014, had been an MP and a leader of a parliamentary group since 2012 – the Petro Poroshenko Bloc’s list;

    (iii) Mr O. Lyashko, an MP since 2006 and a presidential candidate in 2014 – the Radical Party’s list;

    (iv) Ms Y. Tymoshenko, a former Prime Minister and candidate in the 2010 and 2014 presidential elections – the Batkivshchyna (“Fatherland”) Party’s list;

    (v) the then Prime Minister of Ukraine Mr A. Yatsenyuk, who, prior to his taking the office of Prime Minister in February 2014, had been an MP and who had been a presidential candidate in 2010 and, before that, the speaker of Parliament and Foreign Minister – the Narodny Front’s (“People’s Front”) list;

  10. The sixth was Ms G. Hopko, who was the first on the list of the Samopomich (“Self-reliance”) Party and who had never before occupied any public office.

  11. On 10 November 2014 the applicant organisation asked the Central Election Commission to provide it, by email, with copies of the CVs of the above six individuals. It relied on the Access to Public Information Act and the Parliamentary Elections Act, arguing that the CVs constituted public information. It provided no indication as to how the documents would be used.

  12. On 17 November 2014 the CEC refused to provide copies. Instead it provided only the information which had already been published on the CEC’s website. In a four-page decision the CEC cited the following grounds for the refusal:

    (i) the CEC referred to the broad definition of confidential information concerning private life contained in the Constitutional Court’s 2012 decision concerning respect for private life (see paragraphs 46 to 48 below);

    (ii) the Parliamentary Elections Act specified, in listing the information about candidates to be published on the CEC’s website (see paragraph 38 below), which information about candidates was public;

    (iii) under the Access to Public Information Act (see paragraphs 32 and 33 below) the CEC could only use the personal data provided to it for the purpose for which it had been provided and could only disclose confidential information with the consent of the persons whom it concerned;

    (iv) the CEC lacked the candidates’ consent for disclosure of any other information about them contained in their CVs, specifically: (a) work history, (b) history of any work for the public, including elected positions, (c) family, (d) address and (e) telephone number (see paragraph 37 below);

    (v) the applicant organisation’s information request did not identify any need to disclose that information without the candidates’ consent for reasons of national security, economic welfare and human rights.

  13. The applicant organisation appealed against that decision to the Kyiv Circuit Administrative Court. Its arguments are set out in paragraphs 14 to 19 below.

  14. The applicant organisation argued that the CVs constituted public information subject to disclosure under the Access to Public Information Act. It relied in particular on section 63 of the Parliamentary Elections Act, which defined all information submitted to the CEC by candidates as “open” (see paragraph 38 below). It also argued that just because not all information submitted by the candidates to the CEC had to be published on its website did not mean that, as public information, it did not have to be disclosed on request.

  15. The Access to Public Information Act and the Data Protection Act specified that information regarding performance of functions by public officials could not be designated as confidential (see paragraphs 31 and 40 below). The requested information concerning education, work history, history of work for the public and the families of the individuals concerned was crucial for assessing the level of their competence and potential conflicts of interest as MPs and so fell within the definition of information which the Data Protection Act exempted from being designated confidential (see paragraph 40 below).

  16. That information was also of public interest as it concerned the leaders of the most popular political parties. The applicant organisation, as the founder of the civic movement Chesno focused on transparency and integrity in the electoral process, and was interested in that data as it was engaged in constant supervision of the electoral process, and collection and dissemination of information about the candidates for elected office.

  17. The applicant organisation pointed out that, in any case, before the elections Mr Klitschko and Ms Hopko had themselves published their full CVs on the websites of their parties showing that they had not objected to their being disclosed.

  18. The applicant organisation also stated that it had tried to obtain this information about the candidates even prior to the elections but its email enquiries had been ignored so it had had to renew its request after the elections.

  19. The CEC had failed to engage in the three-step balancing exercise the Access to Public Information Act required in order to justify refusal of an information request (see paragraph 30 below).

  20. The CEC responded that the legislation it had applied had been the result of the implementation in domestic law of Articles 8 and 10 of the Convention. In examining the information request, the CEC had come to the conclusion that the applicant organisation had been interested in the entirety of the information contained in the CVs, including the confidential elements, namely addresses, telephone numbers, family, date and place of birth and work history.

  21. On 8 June 2015 the Circuit Court dismissed the applicant organisation’s claim for the reasons set out in paragraphs 22 to 24 below.

  22. Referring to section 11 of the Information Act (see paragraph 41 below) the court held that the information contained in the CVs was, as a general rule, confidential and could only be disclosed where the law specifically provided for this. The Information Act allowed disclosure of information which was in the public interest, notably where it was necessary for citizens to exercise their rights (see paragraph 42 below).

  23. On the facts, the applicant organisation had failed to prove that the information it had been seeking had been necessary for voters to exercise their right to vote effectively. Notably, information about candidates had been published on the CEC’s website as required by the Parliamentary Elections Act. Reading that Act in context (see paragraphs 37 and 38 below) it was evident that the candidates had provided consent only to the disclosure of the information the Act required to be published on the CEC website. This implied that there had been...

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