European Court holds that the mayor’s failure to provide sought information breaches the right to freedom of expression

On February 17, 2015 European Court of Human Rights delivered its judgment on the case “Guseva v. Bulgaria” (no. 6987/07).

In this case, the applicant, Lyubov Guseva, is a Bulgarian national who was born in 1951 and lives in Vidin. The case concerned the local mayor’s persistent failure to provide Ms Guseva with information she had requested despite three administrative court judgments ordering the mayor to do so.

Ms Guseva is a Board member of the Animal Protection Society in Vidin, Bulgaria. Between April 2002 and June 2003 she submitted three requests to the Mayor of Vidin for information related to the treatment and management of stray animals. The mayor refused to provide the information she requested in each instance, referring either to objections of the contracted companies involved in the process or to administrative procedures.

Ms Guseva challenged these refusals, eventually obtaining judgments in support of her three requests from the Supreme Administrative Court in 2004. However, Ms Guseva complains that she has still not received the information she sought.

Relying in particular on Article 10 (freedom of expression) of the Convention, Ms Guseva complained that the mayor’s failure to provide the information she requested had amounted to a violation of her right to receive and impart information of public interest. Further relying on Article 13 (right to an effective remedy) in conjunction with Article 10, she complained that she had not had an effective remedy for her complaint as the rulings of the Supreme Administrative Court had not been enforced.

The Court upheld further:

“B.  Merits

1.  The parties’ submissions

51.  The Government submitted that Article 10 had not been breached, given that the Supreme Administrative Court had upheld the applicant’s right to receive information in three final judicial decisions. However, the Government could not establish whether those final judgments had been implemented, because the municipal authorities had kept the administrative files for five years only, in accordance with the relevant regulations. The applicant had sought the information in 2004, which was more than five years before the application was communicated to the Government. The files were currently not preserved and no conclusive answer could be given to the question whether the judgments were enforced.

52.  The applicant reiterated her complaint that the failure of the mayor, after the final Supreme Administrative Court judgments, to provide to her the information she had sought breached her right to freedom of expression and information. The reason was that she could not exercise her role, as a representative of a non-governmental association active in the field of animal rights, to inform the public on a question of general societal interest.

2.  The Court’s assessment

(a)  Whether there has been an interference

53.  The Court recalls that it has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has emphasised that the most careful scrutiny on its part is called for when measures taken by the national authorities may potentially discourage the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern (see Társaság a Szabadságjogokért, cited above, § 26 with references to Observer and Guardian, cited above, § 59; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; see also Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999-III, where the Court held that the vital public interest in ensuring an informed public debate on the question of animal treatment outweighed the fishermen’s interest).

54.  Furthermore, the Court has held that the function of creating various platforms for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, whose activities are an essential element of informed public debate. The Court has accepted that non-governmental organisations, like the press, may be characterised as social “watchdogs”. In that connection their activities warrant similar protection under the Convention to that afforded to the press (see Társaság a Szabadságjogokért, cited above, § 27; Österreichische, cited above, § 34; Animal Defenders International [GC], cited above, § 103; Youth Initiative, cited above, § 20).

55.  Turning to the circumstances of the present case, the Court notes that the applicant brought the application in her own stead as an individual and that the association she represents is not an applicant before it. However, the purpose for which the applicant had sought the information was to inform the public, in the context of her work for the association, about the treatment of stray animals collected from the streets of the town of Vidin. Therefore, the information was directly related to her work as a member and representative of the association which was active in the field of animal defence. Consequently, the applicant was involved in the legitimate gathering of information of public interest for the purpose of contributing to public debate. According to the applicant, the three final judgments in her favour remained entirely unenforced. As the Government did not provide information capable of demonstrating the opposite, the Court sees no reason to find otherwise. Therefore, by not providing the information which the applicant had sought, the mayor interfered in the preparatory stage of the process of informing the public by creating an administrative obstacle (see, similarly, Társaság a Szabadságjogokért, cited above, § 28). The applicant’s right to impart information was, therefore, impaired.

56.  The Court considers it necessary to distinguish the situation in the present case from that of the case of Frăsilă and Ciocîrlan v. Romania, no. 25329/03, § 58, 10 May 2012, where it found that the authorities bore no direct responsibility for the restriction of the applicants’ freedom of expression. The reason was that in Frăsilă and Ciocîrlan, cited above, a private company, as opposed to a public authority, had prevented the applicants from gaining access to a newsroom which had been ordered in a final judgment in the applicants’ favour. As a result, the Court examined the responsibility of the State as a positive obligation to protect the exercise of the Article 10 rights of the applicants, two journalists, from interference by others. In the present case it was a public authority, the mayor of Vidin, who failed to act in order to implement the final judgments in the applicant’s favour (see paragraph 21 above) despite being bound to do so in law. Consequently, the mayor’s failure to act in accordance with the final judgments constitutes a direct interference with the applicant’s right to receive and ultimately to impart information as enshrined in Article 10 § 1 of the Convention (see Társaság a Szabadságjogokért, cited above, § 28; Österreichische, cited above, § 36; Kenedi, cited above, § 43).

(b)  Whether the interference was justified

57.  The Court reiterates that an interference with the applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether the interference was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph, and whether it was “necessary in a democratic society” in order to achieve those aims. More specifically in respect of the law, the Court has held that it has to be of a certain quality, namely that its provisions should be clear and accessible, and the consequences of its application foreseeable (see, among other authorities, Müller and Others v. Switzerland, 24 May 1988, § 29, Series A no. 133).

58.  Turning to the present case, the Court notes that at the time of the facts the mayor’s failure to provide the information after the final judgments ordered him to do so had no legal basis. On the contrary, according to the letter of the applicable law, final administrative court judgments were subject to immediate enforcement (see paragraph 24 above). The Court also notes that on this point the Supreme Administrative Court had held that, as the law did not provide time-limits within which the administrative body had to comply with final judgments, the decision as to when the judgment should be enforced was entirely in the hands of the administrative body concerned (see paragraph 25 above). The Court further observes that, similarly to the situation in Társaság a Szabadságjogokért, cited above, § 36, the information in the present case was in the mayor’s exclusive possession and readily available.

59.  Given that enforcement was due in domestic law (see paragraph 24 above), the failure of the mayor to act in order to implement the judgments was in breach of the law (see, mutatis mutandis, Youth Initiative, cited above, §§ 25-26, as well as Kenedi, cited above, § 45, in both of which the Court concluded that the obstinate reluctance of the administrative authorities to provide the information ordered in a judgment was in defiance of domestic law). Notwithstanding this, the national judicial practice had accepted that the law itself provided no clear time-frame for enforcement and the question was left to the good will of the administrative body responsible for the implementation of the judgment (see paragraph 25 above). The Court finds that such a lack of clear time-frame for enforcement created unpredictability as to the likely time of enforcement, which, in the event, never materialised. Therefore, the applicable domestic legislation lacked the requisite foreseeability capable of meeting the Court’s test under Article 10 § 2 of the Convention.

60.  In the light of the above, the Court is satisfied that the interference was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. It is therefore not necessary to examine further whether the remaining elements were met.

61.  There has accordingly been a violation of Article 10 of the Convention”.

Except that, some of judges’ distinctive opinions are also worth attention.

In particular, judge Wojtyczek considers that the majority implicitly differentiates between two categories of legal subjects: journalists and non-governmental organisations on one hand, and all other persons on the other. The first category enjoys stronger protection in respect of the right of access to information, whereas the second category does not enjoy the same protection. All this leads to an implicit recognition of two circles of legal subjects: a privileged elite with special rights to access information, and the “commoners”, subjected to a general regime allowing more far-reaching restrictions.

Mr. Wojtyczek states that the Court’s case-law concerning the rights of journalists and of the press was developed in 1970s and 1980s in a specific social context. At that time the right to access public information was not widely recognised and the press enjoyed a quasi-monopoly in gathering and imparting information. The development of technology and especially the Internet has led to a completely different situation today. The quantity of available information and the way it circulates in society have changed substantially. The press has lost its quasi-monopoly on imparting information and access to public debate has been democratised. The role of the press has evolved and its influence has declined considerably. From his point of view, it is no exaggeration to say that today we, the citizens of European States, are all journalists. We (at least many of us) directly access different sources of information, collect or request information from public authorities, impart information to other persons and publicly comment on matters of public interest. We directly participate in public debate through various channels, mainly through the Internet. We are all social watchdogs who oversee the action of the public authorities. Democratic society is – inter alia – a community of social watchdogs. The old distinction between journalists and other citizens is now obsolete. In this context, the case-law hitherto on the functions of the press seems out of date in 2015 and should be adapted to the latest social developments.

Mr. Wojtyczek agrees that the press and non-governmental organisations play an important role in the life of democratic society, but at the same time he considers that special rules cannot pertain to the “extra-conventional” but nonetheless fundamental right of access to information. He states: “I do not see why the two groups singled out by the majority should enjoy better-protected access to information. Access to information should not depend on the status of the person requesting information. Assuming that the claim-right to information is protected under Article 10, the distinction made in the reasoning is incompatible with the prohibition of discrimination enshrined in Article 14 of the Convention”.

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