FIFTH SECTION
CASE OF ROVSHAN HAJIYEV v. AZERBAIJAN
(Applications nos. 19925/12 and 47532/13)
 
 
JUDGMENT
 
Art 10 • Freedom to receive and impart information • Journalist refused access to information of public interest concerning environmental and health impact of former military radar station • Failure to consider procedural requirements and to indicate any substantive grounds for denying access • Manifestly unreasonable interpretation and application of relevant domestic law
 
STRASBOURG
9 December 2021
 
FINAL
 
09/03/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rovshan Hajiyev v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 Lətif Hüseynov,
 Jovan Ilievski,
 Ivana Jelić,
 Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 19925/12 and 47532/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Rovshan Bahadur oglu Hajiyev (Rövşən Bahadur oğlu Hacıyev – “the applicant”), on 5 March 2012 and 10 January 2013 respectively;
the decision to give notice of the applications to the Azerbaijani Government (“the Government”);
the parties’ observations;
Having deliberated in private on 16 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applications, lodged under Articles 6 and 10 of the Convention, concern the denial of access to the information requested by the applicant from the relevant State authorities and the alleged lack of fairness of the domestic proceedings initiated in that regard by the applicant. THE FACTS
2. The applicant was born in 1961 and lives in Baku. He was represented by Mr R. Hajili and Mrs Z. Sadigova, lawyers based in Strasbourg and Baku respectively. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Relevant background
5. The applicant was a journalist and editor of the newspaper Azadlıq. 6. Gabala Radar Station, which first became operational in 1985, was a Soviet military early warning radar located in the Gabala region of Azerbaijan. It had a range of about 6,000 km and was designed to detect missile launches from as far away as the Indian Ocean. After the dissolution of the Soviet Union, the station became the property of Azerbaijan, but was operated by Russia under a lease agreement until 2012. In 2012, after the events of the present case, the station was closed and all equipment was transported to Russia. 7. By an order of 26 February 2001 the President of Azerbaijan appointed the Azerbaijani side of a joint Azerbaijani-Russian commission (“the Commission”) for the purpose of assessing the station’s impact on the environment and public health. The Minister of Healthcare was appointed as Chairman of the Commission. By an order of 20 June 2003 the President appointed the Azerbaijani side of a joint commission on monitoring public health and the environment in connection with the station’s activity, with the Minister of Healthcare as the chairman but with the rest of the commission’s composition different from that created by the order of 26 February 2001. 8. According to the applicant, independent studies showed that the station caused serious public-health problems in the Gabala District and nearby districts. Application no. 19925/12
9. On 27 July 2010 the applicant wrote, on his own behalf, to the Ministry of Healthcare, specifying that he was the editor of Azadlıq and, with reference to the Law on access to information of 30 September 2005 (“the Law on Access to Information”), requesting the following “information and documents”:
“– Is the State commission created for the purpose of assessing the Gabala Radar Station’s impact on the environment and public health ... still active?
– What reports ... have been drawn up and published by relevant State commissions created to date? (we request you to provide us with copies of those reports).”
10. The applicant also noted that the requested information was needed for analysis and discussion of the issues concerning the Gabala Radar Station’s environmental and public-health impact. 11. By a letter of 6 August 2010, the Ministry of Healthcare responded that a report prepared by the Commission pursuant to the presidential order of 26 February 2001 had been transmitted to the Cabinet of Ministers. 12. Considering that he had not been provided with the requested information and that the Ministry of Healthcare’s reply was in breach of the requirements of the Law on Access to Information, the applicant lodged an action with the Nasimi District Court, seeking a decision ordering the Ministry of Healthcare to provide a copy of the report. 13. In its submissions made before the court, the representative of the Ministry of Healthcare noted that it had no longer been in possession of the report at the time the applicant had made the request and argued that, in the circumstances, it had given a comprehensive reply to the request. 14. By a judgment of 3 February 2011 the Nasimi District Court dismissed the applicant’s claim. Referring to, inter alia, Article 27 of the Law on Access to Information, it noted that the Ministry of Healthcare was no longer in possession of the report and found that, by having informed the applicant of this fact and “having responded to the other questions”, it had fully complied with its obligation to disclose information under the Law on Access to Information. 15. Following an appeal by the applicant, on 2 May 2011 the Baku Court of Appeal upheld the first-instance court’s judgment, essentially reiterating its reasoning. In addition, referring to Article 17.2 of the Law on Access to Information, it noted that, as an “information owner” which had not been in possession of the requested information, the Ministry of Healthcare had assisted the applicant in locating the information in question, by informing him that the report had been transmitted to the Cabinet of Ministers. 16. Following a further appeal, on 5 September 2011 the Supreme Court upheld the lower courts’ judgments, essentially reiterating their reasoning. Application no. 47532/13
17. In the meantime, on 6 December 2010 the applicant wrote to the Cabinet of Ministers, providing the same information concerning himself and the purpose of the request as that submitted to the Ministry of Healthcare, and requesting specifically to be provided with a copy of the report prepared by the Commission pursuant to the presidential order of 26 February 2001. 18. The Cabinet of Ministers received but did not respond to the applicant’s request. 19. In February 2011 the applicant lodged an action against the Cabinet of Ministers with Baku Administrative Economic Court No. 1, arguing that the Cabinet of Ministers’ failure to respond was in breach of his rights under the Law on Access to Information and Article 10 of the Convention and seeking a decision ordering the Cabinet of Ministers to “execute the information request in accordance with the law”. 20. It appears that, while the first-instance proceedings were pending, in April 2011 the applicant repeatedly applied with the same request to the Cabinet of Ministers (no copy of this application is available in the file), but again received no response. 21. During the first-instance proceedings, as well as during the subsequent proceedings before the higher courts, the Cabinet of Ministers did not send any representatives to any of the court hearings and did not submit any written pleadings. 22. On 23 December 2011 Baku Administrative Economic Court No. 1 dismissed the applicant’s claim, reasoning as follows:
“The court notes that Article 29.1 of the [Law on Access to Information] does not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose. Therefore, the court considers that [the applicant’s] claim ... cannot be considered as well-founded.”
23. The applicant appealed, arguing that the first-instance court’s interpretation of Article 29.1 of the Law on Access to Information was incorrect. He submitted that that provision did not limit the scope of obligations of “information owners” to disclose information, but merely provided for a list of types of information that must be publicly disclosed by “information owners” of their own accord, in order to reduce the number of information requests from the public concerning those types of information. Any information which was not mentioned in that provision was required to be disclosed on the basis of an information request, unless access to it was lawfully restricted. The applicant argued that the report requested from the Cabinet of Ministers did not constitute restricted information in accordance with the Law on Access to Information and, therefore, should have been made available to him as information of public interest which he needed for professional reasons as a journalist in order to exercise his right to receive and impart information. 24. On 15 March 2012 the Baku Court of Appeal upheld the first‑instance judgment, reiterating the first-instance court’s reasoning and finding it lawful. Following a further appeal by the applicant, on 11 July 2012 the Supreme Court upheld the lower courts’ judgments, reiterating the same reasoning. RELEVANT LEGAL FRAMEWORK
25. The following is the summary of the relevant provisions of the Law on Access to Information, as applicable at the material time. 26. Article 3 provided:
Article 3 – Principal definitions
“... 3.0.5.  an information owner – state bodies, municipalities, legal entities irrespective of the ownership type, and individuals as determined by Article 9 of this Law to ensure the right of access to information;
3.0.6.  a request for information – a written or oral request to access information;
3.0.7.  a person making a request for information ... – a legal entity or individual applying in writing or verbally to access information;
3.0.8.  disclosure of information – without a request for information having been made, distribution of information via mass media, official publications, questionnaires or information booklets; placement of information on the internet; declaration of information at briefings, press-releases or conferences; notification of information during official or public events.”
27. According to Article 9, State bodies were among those considered as information owners. 28. Article 10 provided for an obligation of information owners to ensure everyone’s right of free, unimpeded access to information on equal conditions for all. An information owner was required, inter alia, to respond to information requests in the shortest possible time and in a manner most suitable for a person making the request (Article 10.4.1), disclose information which was required to be publicly disclosed in a manner stipulated in the Law (Article 10.4.4), inform the person making the request on restrictions imposed on access to information (Article 10.4.6), and protect the information restricted for access by law (Article 10.4.7). 29. According to Article 17.2, if an information owner to which an information request was addressed was not in possession of the requested information, it were to assist the person making the request with finding where the information in question was held. 30. According to Article 20, having examined a request for information, the information owner’s relevant official was required to take one of the following three decisions: refuse the request, grant the request, or forward the request to the relevant information owner. 31. An information owner could refuse to provide access to information in the following cases, inter alia: if access was restricted by law (Article 21.1.1); if it was not in possession of the requested information or had difficulties in determining the actual information owner (Article 21.1.2); if the volume of requested information was so large that providing it would significantly disrupt the information owner’s official activities or entail unnecessarily high expenses (Article 21.2.3); if responding to a request required systematisation, analysis and documentation of the information (Article 21.2.5). 32. According to Article 21.3, a refusal to provide access to information was to be written in a clear and substantiated manner, to include references to the relevant provisions of the applicable law and to mention the right of the person making the request to challenge the refusal in courts. 33. According to Article 23.1, if a State body or municipality was not in possession of the requested information, it was required to determine the relevant information owner and forward the information request to the latter without a delay, and in any event no later than five working days, and inform the person making the request about it accordingly. 34. Article 29.1 listed the types of information that information owners were obligated to “disclose” (the term defined in Article 3.0.8 cited in paragraph 26 above) to the public, “in order to meet the public interest in a simpler and more efficient manner and to reduce the number of requests for information”. The list, which consisted of thirty-four lines in total, included the following types of information: reports on activities of State bodies and municipalities; information on environment and environmental harm (Article 29.1.14); decisions and orders of State authorities and municipalities; list of information constituting State secrets; and so on. 35. The types of information listed in Article 29.1 could not be requested by way of an individual information request, subject to certain exceptions not relevant to the present case (Article 29.2). 36. According to Article 34.1, information was divided into two types: information open for general use and restricted information. Any information which was not restricted by law was considered open information (Article 34.2). Restricted information was either secret (məxfi), which included State secrets, or confidential (gizli (konfidensial)), which included various professional and commercial information and confidential investigative and court material (Articles 34.3 and 34.4). Private information could be either confidential or open (Article 34.4). 37. According to Article 35.1, an information owner could restrict access to certain information which it considered to be designated for official use (xidməti istifadə). Such restriction was limited in time and could apply to the following types of information, inter alia: information which, if disclosed prematurely, could hinder or potentially hinder formation, development or successful completion of State policies, until there was an agreement on completion of the relevant process (Article 35.2.3); information which, if disclosed prematurely, could disrupt or potentially disrupt processes involving an exchange of ideas and consultations within a State body, until a relevant final decision was taken (Article 35.2.5); documents originating from foreign States or international organisations, until a mutual agreement concerning their disclosure was obtained (Article 35.2.8); and “information endangering or potentially endangering the environment”, until the causes of such danger were eliminated (Article 35.2.9). In any event, the time-limit for restriction on access to information designated for official use could not exceed five years (Article 40.1). THE LAW
JOINDER OF THE APPLICATIONS
38. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
39. The applicant complained that the denial of access to the information sought by him from the relevant State authorities had been in breach of his right under Article 10 of the Convention to access information of public interest. Article 10 of the Convention 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.”
AdmissibilityThe parties’ submissions

40. The Government raised no objections as to the admissibility of the complaint, other than arguing that it was partly substantively unmeritorious (see paragraph 54 below). 41. The applicant submitted that Article 10 of the Convention was applicable to his complaint because the requested access to State-held information was instrumental for the exercise of his right to freedom of expression.

Article of the Convention at issue: Article 10
Outcome: violation