On June 17, 2022, the European Commission defined 12 priorities for Georgia. The fulfillment of these priorities is necessary to obtain candidate status for the European Union. According to the 11th priority, the judiciary in Georgia must proactively ensure the incorporation of the standards established by the European Court of Human Rights (ECHR) into their own decisions concerning human rights.
This obligation can be considered fulfilled. On June 21, 2023, the European Commission presented a report to the ambassadors of the EU member states. In this report, the Commission noted that Georgia can be deemed to have fully fulfilled this priority.
On October 18, 2022, the Parliament of Georgia passed a package of legislative amendments related to the 11th priority with the third reading. It is worth mentioning that these amendments extend the obligation to apply the standards of the European Convention on Human Rights (ECHR) beyond general courts. Administrative bodies are now also obligated to take these standards into account when making decisions, including those related to public information, as specified in the General Administrative Code of Georgia.
Therefore, it becomes crucial to take into account the ECHR standards concerning public information and the case law of the court on whether and to what extent this right is safeguarded under the European Convention.
The right to access public information stands as a vital component of a democratic state. Access to information of high public interest empowers society to shape opinions about significant developments occurring in the country. Properly informed citizens are capable of exercising public oversight over the actions of the government.
The right to information is a fundamental aspect of the broader freedom of expression. The European Court of Human Rights has consistently emphasized that Article 10 of the Convention, which protects freedom of expression, safeguards not only the right of an individuals to share information and ideas but also upholds the "right of the public to be properly informed”(1). In modern democracies, a substantial part of the information necessary for the society to be "properly informed" is managed, stored and held in public institutions.
The self-government of the citizens and their political participation in modern democratic states heavily relies on the effective access to information that is held in public institutions. Taking the above into consideration, at the start of this century, international human rights protection mechanisms increasingly acknowledged this right as an integral component of the fundamental human rights framework. For example, in 2006, the Inter-American Court of Human Rights rendered a landmark ruling (2) that distinctly highlighted state's affirmative duty and elucidated that Article 13 of the American Convention on Human Rights (concerning freedom of opinion and expression) upholds an individual's right to request and receive access to information housed within a public institution. Furthermore, a significant document is the 34th General Comment of the UN Human Rights Committee regarding Article 19 of the International Covenant on Civil and Political Rights. This comment acknowledges that all branches of state power and other public institutions, whether at the national, regional, or local level, bear the responsibility to guarantee the effective exercise of the right to access information(3).
The case law of the European Court of Human Rights (ECHR) was not always consistent concerning whether access to public information falls under the protection of the Convention. It can be noted that it took a while for the court to include access to public information in the scope of Article 10. This delay may have been influenced by earlier case law where this right wasn't seen as an independent subject of protection. A pivotal decision in shaping the court's case law in this regard was the case of Magyar Helsinki Bizottság v. Hungary in 2016 (4). In this case, the ECHR solidified its position, acknowledging the right to access public information as a right protected under Article 10 of the Convention. Furthermore, it established specific standards for exercising this right.
To put it in other words, according to the most recent standards of the ECHR, the right to access public information falls within the protection of the European Convention and is acknowledged as an integral component of freedom of expression. Following the court's systematic approach, this right is derived from Article 10 and is closely connected, both in terms of its instrumental and substantive aspects, to the exercising the right to "receive and disseminate information” (freedom of expression).
In 2016, a landmark decision was delivered by the Grand Chamber of the ECHR in the case of Magyar Helsinki Bizottság v. Hungary. In this judgment, the Court clearly outlined its position regarding the role of the right of access to public information within the Convention and the degree of protection it should enjoy.
The case revolved around the disclosure of public information concerning the identities of lawyers associated with the Hungarian Legal Aid Service and the frequency of their visits to police facilities. The claimant NGO was denied the requested information on the grounds that it contained personal data, in accordance with Hungarian legislation and practice.
The non-governmental organization claimed that the denial of their request for public information amounted to a violation of the right protected under Article 10 of the Convention. In particular, the organization emphasized that acquiring information regarding the identities of lawyers associated with the Legal Aid Service and the frequency of their visits to police facilities was essential for enabling public oversight and conducting relevant research. This information could potentially uncover significant shortcomings within the system. Furthermore, this was intricately linked to the principle of ensuring a fair trial and carried significant public interest.
The Court referred to past legal precedents where it did not view Article 10 as obliging signatory states to collect and disseminate public information of its own motion. Instead, prohibited a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Nonetheless, the court highlighted that previous legal precedents (Leander (1987); Guerra and Others(1998); Gaskin(1989); Roche (2005) in the interpretation of Article 10 underscored that this Article did not grant individuals the right to access information nor did it impose an obligation on authorities to provide information to an individual under the circumstances presented in these cases. Therefore, the court has never excluded such an obligation when the case's circumstances indicate the need for it (5).
Later, the Court referenced to its ruling in Társaság a Szabadságjogokért v. Hungary (2009), where it explained that the right to obtain and share information, safeguarded under Article 10, encompasses the right for a "public watchdog" to gather information on issues of public concern. Consequently, a state that unjustifiably withholds public information from such watchdog organizations violates the freedom of expression protected by Article 10 of the Convention.
After a thorough review of case law and without damaging the consistency of legal precedents, the Court in this case definitively stated that the Convention protects the right to access public information under Article 10. However, it underscored that this right and the corresponding obligation of the state to provide information do not stand alone. Nevertheless, it occurs in situations when:
Disclosure of information has been imposed by a judicial order which has gained legal force.
Circumstances where access to 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”(6).
The right to receive public information does not exist in isolation but functions as an essential component for the exercise of the fundamental right, which is freedom of expression. The Court has established specific criteria for evaluating the circumstances in which a breach of the right to access public information may occur.
Access to the information would be considered necessary for the Court if ‘withholding it would hinder or impair the individual’s exercise of his or her right to freedom of expression (…), including the freedom to receive and impart information and ideas’(7). In other words, the information should be requested in order to contribute to the public debate.
For instance, in cases such as Sioutis v. Greece (2017) and Tokarev v. Ukraine (2020), the Court pointed out that the applicant had not invoked any specific reason why a copy of the decision was necessary to enable him to exercise his freedom to receive and impart information and ideas to others(8).
In contrast, in the case of Yuriy Chumak v. Ukraine (2021), the applicant, a journalist involved in human rights protection activities and a member of a well-known NGO working to protect human rights, vainly requested access to presidential decrees, which, according to him, had been unlawfully classified and the Court concluded that, in view of the applicant’s role, the information requested was necessary for the performance of his professional duties as a journalist (9).
The information, data, or document requested in the application must align with the criterion of serving the public interest. The applicant must seek information relevant to matters of public interest, and the evaluation of the public interest test should be conducted on an individual, case-specific basis. The concept of public interest exists „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(10).“
The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community (11). This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about (12). The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism. In order to ascertain whether a publication relates to a subject of general importance, it is necessary to assess the publication as a whole, having regard to the context in which it appears(13).
In the context of safeguarding access to public information, the European Court of Human Rights (ECHR) focuses on the recipient's role as a public watchdog within a democratic state.
„The manner in which public watchdogs carry out their activities may have a significant impact on the proper functioning of a democratic society. It is in the interest of democratic society to enable the press to exercise its vital role of “public watchdog” in imparting information on matters of public concern, just as it is to enable NGOs scrutinizing the State to do the same thing… Thus, the Court considers that 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”. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers and authors of literature on matters of public concern. It reiterates that a high level of protection also extends to academic researchers (see Başkaya and Okçuoğlu v. Turkey) and authors of literature on matters of public concern (Chauvy and Others v. France; Lindon, Otchakovsky-Laurens and July v. France). The Court would also note that given the important role played by the Internet in enhancing the public’s access to news and facilitating the dissemination of information, the function of bloggers and popular users of the social media may be also assimilated to that of “public watchdogs” in so far as the protection afforded by Article 10 is concerned(14).”
Another crucial criterion is that the requested information must be "ready and available," meaning that the authorities should have it readily accessible without the need for additional collection efforts(15).
In the case of Yuriy Chumak v. Ukraine (2021), the Court determined that despite the requested information spanning an extended period of approximately 11 years, it was, in principle, ready and available. There were no practical obstacles or undue burdens on the State to furnish this public information(16).
In another case, the applicant association’s aims were to research the impact of transfers of ownership of agricultural and forest land on society and to give opinions on relevant draft legislation. It requested information that was not confined to a particular document, but concerned a series of decisions issued over a period of time. The Court examined whether the reasons given by the domestic authorities for refusing the association’s request were “relevant and sufficient” and dismissed the argument put forward by one domestic authority which referred to the difficulties involved in gathering the relevant material, holding that much of the anticipated difficulty referred to by the body in question had been of its own making and resulted from its own choice not to publish any of its decisions (Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria)(17).
In the case Šeks v. Croatia (2022), where a former politician requested declassified presidential records, the Court noted that although the declassification of the requested documents may involve quite time-consuming work, there were no circumstances indicating that the requested information was not ready and available(18).
Therefore, according to the case law of ECHR, the right to access public information is indeed protected under the Convention. Nevertheless, the Court does not treat this right as an independent, standalone provision, rather, it views it as an integral component of other rights protected by the Convention.
Access to public information, closest to its classical form, is protected under the umbrella of freedom of expression. Specifically, this protection is invoked when the state hinders the accessibility of information which the applicant critically needs to exercise their freedom of expression, especially on the matters of high public interest. In this regard, the court has established four criteria for safeguarding this right 1. Purpose of the requested information; 2. Nature of the requested information; 3. Role of the applicant; 4. Ready and available information. It's important to note that these criteria should not be regarded as strictly defined prerequisites. The developing trends within the Court's case law and the increasing recognition of the right to access public information in international law undeniably indicate that the ECHR has still left the room for the advancement of its standards regarding public information.
In the process of acknowledging the right to access public information as a fully-fledged, standalone entitlement within the context of Article 10 of the Convention, the court may be hindered by the previously existing problematic case law and the court’s will to keep certainty of stay as close as it could to it. Nevertheless, even under the most recent standards set forth by the ECHR, this right is safeguarded by the Convention as an integral component of freedom of expression. Consequently, the stipulations of Article 10 are applicable to it, and so-called three part test for its legitimate restriction still applies:
are prescribed by law
pursuing a legitimate aim
Being “necessary in a democratic society”.
If the state cannot substantiate interference with the right to access public information based on the three mentioned criteria, it will violate the requirements of the Convention. At the same time, it should be noted that these criteria for assessing interference with the right pertain not only to situations where access to public information is denied but also to cases in which the information provided is inaccurate and/or incomplete (19).
Furthermore, from a systemic standpoint, access to public information under the ECHR will be safeguarded whenever obtaining such information is essential for the effective exercise of rights protected by other articles of the Convention. Therefore, the right to access public information may also stem from other rights (20).
ECHR establishes a minimum standard of the protection/recognition of the right. These minimum standards should be applied by national authorities/courts while not damaging the higher protections enshrined in the national law.
In accordance with the most recent standards of ECHR, access to public information is acknowledged as a right protected by the Convention and is an integral part of freedom of expression. Nevertheless, it is worth considering that access to public information, unlike other fundamental rights, such as the right to life or Prohibition of torture, inhuman or degrading treatment or punishment, is a comparatively "young" right not only within the ECHR, but in other international systems of human rights protection as well. Consequently, its protective standards are still evolving and in the process of development.
Therefore, generally, the domestic legislation provides higher protection for access to public information rather than the Convention or other international human rights protection instruments. This does not imply that national legislation contradicts the case law set by the ECHR, instead, it serves to complement the minimum standards set by the Court.
Nevertheless, the lack of accountability among public institutions in Georgia has reached unprecedented levels. For instance, in the first five months of 2023, IDFI received responses to merely 94 out of 1,255 public information requests submitted to ministries and affiliated agencies, constituting just 7% of the total requests. In response to this situation, on June 2, 2023, IDFI took the unprecedented step of simultaneously sending 89 administrative complaints,(12 Ministries/Offices of State Ministers and 77 agencies subordinate to them). It's worth noting that these agencies not only failed to provide public information but also completely disregarded the statements submitted by IDFI (21). This pattern of completely ignoring the right to access public information runs counter not only to the provisions of Georgian legislation but also contradicts the standards set by ECHR for the protection of this fundamental right.
The 11th priority of the European Union requires the full understanding of the spirit of ECHR’s case law and its proper implementation, all while ensuring that such implementation does not undermine the high protection standards provided by the Constitution and national laws of Georgia. In accordance with the legislative changes adopted by the ruling party, the addressee of this obligation are only general courts, but administrative bodies as well.
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"This material is supported by the Transition Promotion Program"
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