ECHR decision of March 26, 2020 in the case "center for democracy and the rule of law (center for Democracy and the Rule of Law) v. Ukraine" (aplication N 10090/16).
In 2016, the applicant organization was assisted in preparing the aplication. The aplication was subsequently communicated to Ukraine.
The case successfully considered an aplication about the refusal to allow a non-governmental organization access to information about education and places of work contained in the biographies of political leaders who participated in the parliamentary elections. The case violated the requirements of article 10 of the Convention for the protection of human rights and fundamental freedoms.
The Central election Commission of Ukraine refused to provide the applicant organization (non-governmental organization) with copies of the full biographies of the heads of political parties who participated in the parliamentary elections, claiming that the required information was confidential in nature and could only be disclosed with the consent of interested parties. The applicant organization received only selected data from the required biographies, which were published on the organization's website. The organization unsuccessfully appealed the above refusal to provide information.
POINT OF LAW
Regarding compliance with article 10 of the Convention. Applicability. In the present case, the question of whether the violation complained of by the applicant organization fell within the scope of article 10 of the Convention was closely linked to the substance of the complaint. The present case also raised a new issue at the domestic level and was one of the first since the Grand Chamber of the European court of Justice Ruled in the case of the Hungarian Helsinki Committee V. Hungary (Magyar Helsinki Bizottság V. Hungary) of 8 November 2016, complaint No. 18030/11, which would address questions about the applicability of article 10 of the Convention in the context of access to information and the circumstances in which denial of access to certain information may be regarded as an interference with the right to freedom of expression guaranteed by the above-mentioned provision of the Convention. Consequently, the court decided to examine the applicability of article 10 of the Convention at the same time as examining the merits of the complaint.
Substance of the complaint. (a) the existence of the intervention, its legality and legitimate purpose. The applicant organization did not request specific data from the biography, but rather copies of the biographies themselves. However, she agreed that the residential addresses and phone numbers of parliamentary candidates could not be disclosed. As to the names of the family members, the applicant organization could not explain why this information could not be obtained from alternative sources. The applicant organization has therefore failed to submit a provable complaint in this respect concerning interference with the rights guaranteed by article 10 of the Convention. Consequently, the issue that the court had to resolve was whether the refusal to provide the applicant organization with information about education and professional activities (including work in state institutions) that political leaders included in their official biographies submitted to the Central election Commission of Ukraine as part of the election procedure interfered with or violated the organization's rights guaranteed by article 10 of the Convention. The European Court considered the question of interference, referring to the four criteria developed in the above-mentioned Judgment of the European Court of justice in the case "Hungarian Helsinki Committee V. Hungary" (Magyar Helsinki Bizottság V. Hungary).
(i) The purpose of the information request. The applicant organization expressed concern about the reliability of the personal data of candidates for high-level positions in the light of previous disputes regarding the appropriate education of senior officials. Although much of the information about the training and work of candidates for the Ukrainian Parliament was already available to the public, the applicant organization explained quite convincingly that it particularly needed information provided by the candidates themselves (first-hand) in order to compare it with information about assets. It was not disputed that this particular information could have been obtained from other sources at the time under review.
(ii) the Nature of the information requested. The public was interested in the candidates ' past and the reliability of their personal data, in the context of the period immediately following the election. Therefore, the requested information was of public interest.
(iii) the Special role of the requester in "receiving and distributing" information to third parties. The applicant organization played an important role as a"watchdog".
(iv) whether the requested information was ready and available. In this case, the information was ready and available.
Thus, by refusing to provide the applicant organization with information about the education and employment history of the main parliamentary candidates contained in the official biographies submitted by the candidates to the Central election Commission of Ukraine in preparation for the elections, the Ukrainian authorities violated the applicant organization's right to its freedom to receive and disseminate information in a manner that violated the very essence of the rights guaranteed by article 10 of the Convention.
The intervention was prescribed by law and had the legitimate purpose of protecting the privacy rights of others.
(b)"the Need for a democratic society". The persons whose interests were affected in this case, well-known public figures, submitted their biographies during the nomination of their candidates for participation in the state parliamentary elections. Accordingly, they inevitably provided information about their education and employment history for close public scrutiny. Moreover, they did so in a situation when the legislation of Ukraine at the time under review called the requested information "open". Although this information was personal data, its disclosure did not mean that political leaders would have been subjected to close public attention to an extent that they could not have foreseen when they registered as the first candidates of the parties participating in the parliamentary elections.
The Ukrainian courts did not do a proper job of balancing interests by comparing the harm that any potential disclosure could cause to politicians ' interest in non-disclosure of personal data with the consequences of the applicant organization's effective exercise of the right to freedom of expression. Noting also that the need for disclosure of information in relation to the effective exercise of the right to vote was not demonstrated, the Ukrainian authorities did not attempt to assess the extent of potential negative consequences, if any, for preserving the privacy of political candidates.
Although the applicant organization did not provide any reasons for its initial request, it did so later, when the Ukrainian courts considered the dispute. There is no evidence that domestic courts were unable, due to any provisions of Ukrainian legislation or for other reasons, to take this additional information into account and possibly review the conclusions of the Central election Commission of Ukraine in a new light.
Therefore, the decision to deny the applicant organization access to the requested information was not "necessary in a democratic society".
The case violated the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court of justice held that the finding of a violation of the Convention would in itself constitute sufficient just compensation for non-pecuniary damage.