FIFTH SECTION   CASE OF LESHCHENKO v. UKRAINE(Applications nos. 14220/13 and 72601/13)    JUDGMENT       STRASBOURG21 January 2021 This judgment is final but it may be subject to editorial revision.In the case of Leshchenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Stéphanie Mourou-Vikström, President, Jovan Ilievski, Arnfinn Bårdsen, judges,and Martina Keller, Deputy Section Registrar,Having regard to:two applications (nos. 14220/13 and 72601/13) 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 national, Mr Sergiy Anatoliyovych Leshchenko (“the applicant”), on 19 February and 15 November 2013 respectively;the decision to give notice of the applications to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 10 December 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The applicant, a journalist, alleged, under Article 10 of the Convention, that his right to receive and impart information had been violated as he had been refused access to information and documentation he allegedly needed for his work.THE FACTS2. The applicant was born in 1980 and lives in Kyiv. As concerns the first application, the applicant was represented by Mr E. Markov, who at the time the observations and claims for just satisfaction were submitted, was a lawyer admitted to practise in Odessa. As concerns the second application, the applicant was first represented by Mr Markov and then by Ms T. Oleksiyuk, a lawyer practising in Kyiv.3. The Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. At the material time the applicant was a journalist with Ukrayinska Pravda, an online newspaper, and was well known for his investigative journalism and numerous publications concerning Ukrainian politics and allegations of corruption in the high echelons of power, most notably concerning the former President Viktor Yanukovych and his family.The first applicationBackground to the case6. Mezhyhirya was the residence of President Yanukovych, then in office, which had been allocated to him by the State in 2002. The estate comprises 140 hectares and was in State ownership until 2007, when most of it (136.6 hectares) was privatised by two companies. In 2010, Mr Yanukovych acquired as his private property 1.76 hectares of the Mezhyhirya land owned by the State.7. Following a journalistic investigation into the circumstances of the sale of the State residence, Ukrayinska Pravda published a number of documents allegedly showing a link between the two aforementioned companies and Mr Yanukovych’s family and close friends.Applicant’s information requests8. On 31 May 2011, relying on section 6(5) of the Access to Public Information Act (“the APIA”), which secured public access to information related to the use of state and municipal property (see paragraph 36 below), the applicant asked the Vyshhorod State Administration, the local authority for the district where Mezhyhirya was situated (hereinafter referred to as “the local administration”), to provide the following:(i)  documents and permissions given by the local administration which served as the basis for the land sale contract between Mr Yanukovych and the local administration in 2010;(ii)  the land sale contract itself; and(iii)  details of the price at which the land was sold to Mr Yanukovych.The applicant stated that he had determined that Mr Yanukovych had acquired the land in 2010 because in his income and assets declaration for 2009 he had declared it as rented while in the declaration for 2010 it was listed as owned.9. On the same date the applicant lodged a similar request with the Presidential Administration.10. On 29 June 2011 the local administration confirmed to the applicant that in 2010 a sale agreement for a plot of land of 1.76 hectares had been concluded between Mr Yanukovych and the local administration and stated that all permission procedures for the deal had been complied with. There was also a house owned by Mr Yanukovych on the plot. At the same time, the local administration refused to provide the applicant with any further information or documents. It further stated that the requested information concerned property and other rights and the protected interests of a third party and that it was prohibited by law to interfere with the private and family life of others. The local administration referred in that connection to Articles 8 and 17 of the Convention as well as to Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe (“the PACE Resolution”, see paragraph 42 below).11. Later, the applicant lodged two further requests with the local administration which were ultimately refused on similar grounds.12. On 6 June 2011 the Presidential Administration also refused to provide the applicant with the requested information, noting that the applicant’s request for information could be considered an interference with private life in breach of Article 32 of the Constitution (see paragraph 34 below). The applicant was called upon to respect the private lives of others. The reply referred to the PACE Resolution and the Convention.Proceedings before domestic courts13. The applicant instituted proceedings before the Kyiv Circuit Administrative Court against the local administration. The applicant sought to have the local administration’s refusal declared unlawful and to have it ordered to provide him with the information he had requested on 31 May 2011. The applicant emphasised that the requested information concerned the administration of State property and not the private life of Mr Yanukovych and, in this context, providing information on the conditions on which State land had been released to a person could not be seen as an interference with the private life of that person, all the more so where that person was the President.Relying on the extensive case-law of the Court on Article 10 of the Convention, the applicant submitted, inter alia, that the private sphere of politicians was smaller than that of ordinary citizens. He further referred to a number of the Court’s judgments concerning the right of the press to receive and impart information on matters of public interest. For instance, he pointed out that in Editions Plon v. France (no. 58148/00, ECHR 2004‑IV) the Court had found a violation of Article 10 on account of disproportionate measures taken to protect the privacy of a former president and his family. The applicant pointed out that the PACE Resolution referred to paparazzi-like activities and not to the legitimate collection of documents by journalists.14. On 19 December 2011 the first-instance court found against the applicant. It concluded that in the transactions in question the local administration had acted not as a public authority but as a party to a civil law transaction. In this context the court cited the definition of public information in section 1 of the APIA (see paragraph 36 below) and concluded that the administration had not “created” the information in question.Referring in particular to Article 32 of the Constitution, Article 301 of the Civil Code and section 11(2) of the Information Act (see paragraphs 34, 35 and 38 below), the court held that the requested information was confidential as it concerned the private life of an individual, Mr Yanukovych, and thus could not be released without his prior authorisation, which the applicant had not obtained. The court also drew attention to the fact that the legislation did not contain an exhaustive list of confidential information and pointed out that, under section 21 of the Information Act, information about individuals was confidential (see paragraph 38 below).With reference to the PACE Resolution, the court also noted that Article 10 of the Convention was not to be seen as allowing the press to interfere with the private lives of individuals under the pretext of society’s right to receive information about public persons. It further stated that the right to private life enshrined in Article 8 of the Convention should be protected not only from any interference by public authorities, but also against any interference by private persons or institutions, including the mass media. The extent of an individual’s freedom ended where the rights of another individual began. The court finally noted that the right to protection of private and family life was guaranteed to everybody, irrespective of the level of his or her prominence in society. It cited, in this connection, the constitutional provision guaranteeing the equality of all citizens (see paragraph 34 below).15. The applicant lodged an appeal, relying mainly on the same arguments as in his claim. He noted, in addition, that the first-instance court had failed to examine his key argument that the information and the documents he had requested concerned the administration of State property and thus that the local administration, as the holder of this information, was prohibited by law, under section 6(5) of the APIA, from denying the public access to it.He further complained that the first-instance court’s analysis of and reference to the domestic legislation and international documents had been incorrect. In particular, he stated that the constitutional provision guaranteeing the right to a private life relied on by the first-instance court made it clear that that right was not absolute. Moreover, despite concluding that the information in question had not been “created” by the local administration as a public authority, within the meaning of section 1 of the APIA, the court had failed to examine whether it nevertheless fell within the definition of public information under that provision because the information was, in any event, “held” by the administration (see paragraph 36 below).16. On 15 March 2012 the Kyiv Administrative Court of Appeal (“the Court of Appeal”) upheld the conclusions of the first-instance court, finding the requested information to be confidential. The reasoning given in the judgment was largely identical to that of the first-instance court.17. The applicant lodged an appeal on points of law, relying on essentially the same arguments.18. On 20 November 2012 the High Administrative Court, relying on the reasoning given by the lower courts, upheld their decisions.The second application19. On 3 July 2012 the Ukrainian Parliament adopted the Language Policy Act. The Act modified the rules concerning the use of Ukrainian, Russian and other languages and in particular extended the areas of public life in which the use of Russian was authorised. The Act and the issues regulated by it provoked intense public debate.20. In July 2012 the applicant published two articles concerning the political developments surrounding the debate over the bill, which eventually became the Act. Previously, in July 2011, the applicant had also published an interview with a former president of Ukraine, dedicated, in part, to language policy.21. Fifty-one members of parliament lodged two applications with the Constitutional Court for a review of the constitutionality of the Act. In the first application they argued primarily that the procedure which had led to the Act’s passage had been unconstitutional because the requirements set forth in the Rules of Parliament and the Parliamentary Committees Act had not been observed. In the second application, the members of parliament argued primarily that the substance of the Act was unconstitutional on the grounds that it had modified the status of the Ukrainian language set forth in the Constitution and misinterpreted and misapplied the European Charter for Regional or Minority Languages.22. In November 2012 the applicant asked the Constitutional Court to provide him with a copy of the application for review of the constitutionality of the Language Policy Act. It appears that the request concerned the first of the two above-mentioned applications. He stated that he was a journalist for Ukrayinska Pravda, working on journalistic investigations and publications on matters of public interest, and that he needed the information for his work on a publication (інформація необхідна для роботи над матеріалом). He added that the information sought would be of great public interest.23. The applicant’s request was made on the form made available by the Constitutional Court on its website, which contained the following fields to be completed: the requesting person’s name, address and contact details, and a description of the information requested.24. On 16 November 2012 the Registry of the Constitutional Court responded, stating that the requested information could not be provided since it concerned constitutional proceedings at a stage preceding the decision. By an order of 30 August 2011 (see paragraph 40 below), the President of the court, acting under section 6 of the APIA (see paragraph 36 below), had restricted access to that information.25. The applicant appealed to the administrative courts, seeking to have the Constitutional Court’s refusal declared unlawful. He argued that the information he had sought could not be considered “information for internal use”, within the meaning of section 9 of the APIA (see paragraph 37 below), because the application for constitutional review was not internal correspondence to which that provision was applicable and, in any event, it was not shown that harm from its disclosure would outweigh the public interest in it.The order of the Constitutional Court’s President, designating certain information as “information for internal use” only (see paragraph 40 below), did not mention applications for constitutional review. The order in general designated the information created by the Constitutional Court, its judges and its registry as “information for internal use”. That did not cover applications for constitutional review. There was no indication that there would be any harm in the disclosure of that information, which the applicant considered to be of great public interest. Therefore, the refusal constituted a breach of domestic law and of Article 10 of the Convention.26. On 25 January 2013 the Kyiv Circuit Administrative Court dismissed the applicant’s claim, holding that the Constitutional Court’s refusal had been lawful. The administrative court quoted sections 6 and 9 of the APIA (see paragraphs 36 and 37 below) and observed that the Constitutional Court’s refusal had been based on the order of its President (see paragraph 40 below), which was publicly accessible on the court’s website. The administrative court referred to item 1 of the list of information approved by that order and stated that applications for constitutional review contained personal data of individuals and were used as material in the preparation of the Constitutional Court’s decisions. The administrative court also referred to the provision of the Rules of the Constitutional Court to the effect that parties to constitutional review proceedings had the right to access the case-file material (see paragraph 39 below). The administrative court interpreted that provision to mean that only the parties to the proceedings could have such access. The administrative court reasoned that applications for constitutional review were an integral part of the case files concerning constitutional review proceedings and could not be separated from them.27. The applicant appealed. In his submissions before the higher courts, he relied essentially on the same arguments as before.28. On 30 January and 27 March 2013 the Constitutional Court rejected the applications for constitutional review concerning the Language Policy Act (see paragraph 21 above) without examining them on the merits. As for the first, “procedural” application, the Constitutional Court held that it was only competent to review compliance of Acts of Parliament with the Constitution; it could not review compliance with procedures envisaged by the Rules of Parliament and other ordinary legislation. As to the second, “substantive” application, the court found that the application amounted to an expression of policy concerns over the status of the Ukrainian language but contained no valid arguments showing that the Act was unconstitutional. The applicant submitted examples of three media publications dedicated to those decisions.29. On 21 March 2013 the Court of Appeal allowed the applicant’s appeal, quashed the first-instance court’s judgment, found the Constitutional Court’s refusal unlawful and ordered the Constitutional Court to provide the information requested. It reasoned that there were no grounds for treating applications for constitutional review as “information for internal use”. The application for constitutional review in question concerned a matter of public interest, namely language policy, and therefore access to that information could not be restricted. The text of the application was not an internal document of a public authority: it had been submitted by a party initiating constitutional review proceedings and, as such, had to be distinguished from other material that might be contained in the case file concerning constitutional review proceedings. This was evident from the wording of the order of the Constitutional Court’s President, which had designated only material produced by the court, its judges and the registry as “information for internal use”, thus not including applications for constitutional review. The Court of Appeal disapproved of the first-instance court’s reliance on the Rules of the Constitutional Court, finding that the matter of access of third parties to the case-file material was governed by the APIA.30. The Court of Appeal also relied on the Court’s judgment in Társaság a Szabadságjogokért v. Hungary (no. 37374/05, § 37, 14 April 2009), to the effect that denial of access to a copy of a constitutional complaint could not be considered necessary in a democratic society to protect the personal data of its authors, namely members of parliament.31. The Court of Appeal concluded that, because members of parliament had lodged the application for constitutional review in their official capacity, the information contained in it could not be considered confidential. Moreover, in any case, to the extent that the application contained such personal data as the addresses and telephone numbers of the authors, that information had to be redacted.32. The Court of Appeal found that refusal to disclose could not be justified by the concern to preserve the authority of the judiciary since that authority was unrelated to the grounds on which parties to the proceedings applied to courts. Release of that information could not have any impact on the court’s authority and impartiality.33. On 30 May 2013 the High Administrative Court allowed the Constitutional Court’s appeal, quashed the Court of Appeal’s decision and rejected the applicant’s claim. It held that the applicant, not being a party to the constitutional review proceedings, had no right to access case-file material which constituted “information for internal use”.RELEVANT LEGAL FRAMEWORK AND PRACTICERelevant domestic materialConstitution of 199634. The relevant provisions of the Constitution read:Article 24“Citizens have equal constitutional rights and freedoms and are equal before the law.There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics....”Article 32“No one shall be subjected to interference with his private life and family matters, except when such interference is provided for by the Constitution of Ukraine.The collection, storage, use, and dissemination of confidential information about a person without his consent shall not be permitted, except in cases determined by law and only in the interests of national security, economic well-being, and human rights. ...”Article 34“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”Civil Code of 200335. Article 301 of the Code provides that an individual has a right to a private life. He or she has the personal right to determine the extent of his or her private life and the possibility of others learning about it.Access to Public Information Act of 13 January 2011 (the APIA)36. The relevant provisions of the APIA read:Section 1 – Public Information“1. Public information is information that is reflected and documented by any means and through any medium and was received or created in the process of the performance by public authorities of their duties laid down in the legislation in force or which is held by public authorities or any other public-information handlers determined by this law.2. Public information is fully accessible by the public except in the cases established by law.”Section 6 – Public information with limited access“1. Information with limited access is:(i)  confidential information;(ii)  secret information; and(iii)  information for official use.2. A limitation on the access to information shall be imposed in accordance with the law when the following circumstances apply:(i)  where access to the information is limited exclusively 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;(ii)  disclosure of the information is capable of significantly harming those interests; and(iii)  the harm caused by the disclosure of the information outweighs the public interest in obtaining the information.3. Limited-access information shall be provided by an information-handler if he or she had legitimately disclosed it previously.4. Limited-access information must be provided by an information-handler if the legal grounds for limiting access to that information no longer exist.5. No limitations shall be placed on access to information about: the use made of budget funds; the possession, use and disposition of state and municipal property, including access to copies of the corresponding documents; the conditions of the receipt of such funds or property; and the names of physical persons and legal entities in receipt of such funds or property (не може бути обмежено доступ до інформації про розпорядження бюджетними коштами, володіння, користування чи розпорядження державним, комунальним майном, у тому числі до копій відповідних документів, умови отримання цих коштів чи майна, прізвища, імена, по батькові фізичних осіб та найменування юридичних осіб, які отримали ці кошти або майно). Under the terms laid down in subsection 2 above, this provision does not apply in cases where the disclosure or provision of such information may harm the interests of national security, defence, investigation or prevention of crimes.6. Income declarations made by the following categories of people, and members of their families, do not fall into the category of limited-access information:(i)  individuals who aspire to hold or who hold elected positions in bodies of power; and(ii)  State government and local government employees of the first or second tier.7. Limitations on access apply to information and not to documents as a whole. If a document contains information to which access is limited then any other information within that document, to which access is not limited, must be made available for examination.”Section 7 – Confidential information“2. Information-handlers ... who possess confidential information can disseminate it only with the consent of the person who limited the access to the information. If no such consent has been provided, the information can be disseminated only in the interests of national security, economic well-being, and human rights.”37. Section 9 provides that access can be restricted to information designated as “information for internal use” (для службового користування), namely internal letters, memoranda, recommendations concerning deliberations on the decisions to be taken by public authorities and concerning their decision-making process prior to the public discussion and the issuing of decisions. Requests for access to such information are to be examined pursuant to the three-part test set out in section 6(2) of the Act (see paragraph 36 above).Information Act of 199238. The relevant provisions of the Act read:Section 11 – Information about an individual“1. Information about an individual (personal data) is information or a set of data about an identified individual or an individual who can be identified.2. The collection, storage, use, and dissemination of confidential information about a person without his consent shall not be permitted, except in the cases determined by law and only in the interests of national security, economic well-being, and human rights. In particular, information concerning the person’s nationality, education, marital status, religion, and state of health as well as address, date and place of birth shall be considered confidential....”Section 21 – Restricted information“...2. Confidential information includes information about an individual as well as information to which access has been limited by an individual or legal entity other than a public authority. Confidential information can be disseminated with the consent of the person concerned, subject to any conditions that he or she applies, as well as in certain cases specified by law....”Rules of the Constitutional Court39. Rule 34 § 2 of the Rules of the Constitutional Court, as worded at the relevant time, stated that the participants in constitutional proceedings (defined in the Constitutional Court Act as those who apply for constitutional review and their representatives, as well as entities and officials, witnesses, experts and translators involved in the proceedings) had the right to access and study (ознайомлюватися) the case-file material.40. On 30 August 2011 the President of the Constitutional Court issued order no. 57/2011, approving the list of items of information to which access was restricted:“List of items of information created in the Constitutional Court of Ukraine which shall be designated as information for internal use1. Information concerning applications for constitutional review and constitutional interpretation at all stages preceding the decision:– analysis, summaries, memoranda, expert opinions, draft decisions, preliminary conclusions, judges’ requests for information and information obtained, decisions of the court’s panels, judges’ instructions concerning the drafting of rules and decisions and the material produced in accordance with such instructions, registers of the court’s decisions and other information produced by the court’s judges, units of the court’s registry, minutes of the court’s meetings;...”Items 2 to 4 of the list also designated as only “for internal use” certain other information, namely: (i) internal correspondence concerning the planning of the court’s activities; (ii) information concerning information security, security clearances, organisation of work with classified material and wartime mobilisation preparedness plans; and (iii) information concerning the guarding of the court’s premises and its secure telecommunication lines.41. On 24 July 2014 the President of the Constitutional Court approved a new list of “information for internal use”. The material concerning pending cases was removed from the list. The Constitutional Court started systematically publishing applications for constitutional review lodged by public figures (namely the President and members of parliament) on its website.Relevant international material42. Resolution of the Parliamentary Assembly of the Council of Europe of 25 December 2008 no. 1165 on the right to privacy reads, in the relevant part:“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.”THE LAWJOINDER OF THE APPLICATIONS43. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATIONS OF ARTICLE 10 OF THE CONVENTION44. The applicant complained that when the authorities denied him access to the information he had sought, they had breached his rights under Article 10 of the Convention, which provides:“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(a)   The Government(i)      No significant disadvantage: in respect of both applications45. The Government submitted that, in both cases, the applicant had not suffered a significant disadvantage. He was a well-known journalist and in the autumn of 2014 he had even become a member of parliament. While the information he had been seeking had aroused an interest in society, it had not been directly related to the applicant. He had been only one of many journalists who had wanted to obtain that information. Whether or not it had been disclosed to him could not have caused him any pecuniary or non-pecuniary damage.46. As far as the second application was concerned, the applicant’s conduct indicated that the information he had sought had been of little significance for him (see paragraph 50 below):47. There had also been objective conditions for applying the “no significant disadvantage” rule. In particular, there was established case-law on the question of the right to receive information and freedom of information. There had been a change of Government in Ukraine in 2014 as a result of “Euromaidan” protests in which the applicant had actively taken part. As a result of those changes the Mezhyhirya estate had been returned to the State and its former owner, former President Yanukovych, was wanted on criminal charges. As a result, the circumstances of the estate’s privatisation were not currently of “acute interest” to Ukrainian society.48. As far as the second application was concerned, the objective conditions were also met. While the Language Policy Act had indeed aroused public interest, the short-lived constitutional review proceedings in that respect had not. The applicant’s premature request for information on those proceedings had had no wider implications. In its case-law the Court had held that respect for human rights did not require it to continue applications where the relevant law had changed and the complaint before the Court was of merely historical interest (citing Léger v. France (striking out), no. 19324/02, § 51, 30 March 2009, and Ionescu v. Romania (dec.), no. 36659/04, § 39, 1 June 2010).(ii)     Applicability of Article 10 and alleged abuse of the right of application in respect of the second application49. The Government submitted that the applicant had pursued no genuine important purpose in requesting information from the Constitutional Court. In his information request the applicant had not identified any such purpose, beyond mentioning that the requested information constituted a matter of public importance (see paragraph 22 above). He had never explained specifically why the information had been necessary for the exercise of his freedom of expression. The applicant had not published on the issue in question and had rather been known for his articles critical of high-ranking officials. Where domestic law restricted access to particular information for a certain period of time, in this case for the duration of the constitutional proceedings, it was incumbent on the requested party to explain why the information was needed urgently. The applicant had failed to show any such urgency.50. The applicant’s request for information had been rejected because the relevant constitutional review proceedings had been at the pre-decision stage. It had remained open to the applicant to reapply once the proceedings in the case had ended or at least once the Constitutional Court had changed its rules on disclosure (see paragraphs 28 and 41 above); however, he had failed to do so. For the Government, this indicated that the applicant’s aim had not been to obtain the information but rather to “punish” the Constitutional Court for its original refusal by having a violation established by the European Court of Human Rights, obtaining compensation and using the European Court’s eventual judgment for political purposes. The Government submitted, therefore, that the applicant’s actions amounted to abuse of the right of individual application.(b)   The applicant51. The applicant submitted that, both from a subjective and an objective perspective, the “no significant disadvantage” criterion was not applicable to his case. Nor had there been an abuse of the right of application.52. The applicant had sought to obtain information to perform his work as a journalist and “public watchdog” on matters of great importance for society and had spent a great deal of time and money fighting cases in the courts to be able to do so. In particular, the matter of language policy was of particular social importance in Ukraine, where, since its independence in 1991, the status of the Russian language had been subject to intense public debate. It also raised the issue of the implementation in Ukraine of the European Charter for Regional or Minority Languages. Those issues had a particular impact on the media, in particular audiovisual media, which were subject to language policy regulations. The information the applicant had sought had been ready and available.53. As far as the subjective test was concerned, the applicant pointed out that at the material time he had been a well-known journalist, known for his work in the field of Ukrainian politics, and in particular corruption in the highest echelons of government. Information, including from official sources, was indispensable for that work. Between 2010 and 2012 he had had more than 200 articles published on Ukrayinska Pravda, the most popular Ukrainian online media outlet, and had also had pieces published concerning language policy.54. As concerns his first application, the applicant submitted that his suspicions that there might have been corruption in the course of the privatisation of the Mezhyhirya estate had been incapable of being substantiated because of the secrecy which had surrounded the transactions and because he had been denied access to the official information on the subject. While the applicant had not been the only journalist who had been interested in the matter, he had published the most on the subject and had been one of the best known of the journalists in question, and had been active in investigating the alleged corruption of former President Yanukovych. In fact, to the applicant’s knowledge, no other journalist had applied to the Court in this connection. In relation to the question of access to information by a journalist it would be wrong to require him to show that he had suffered any damage personally because it was a matter of principle and of him exercising the role of a public “watchdog”.55. As concerns his second application, the applicant disputed the Government’s assertion that he had not been interested in language policy, and referred to his publications on the topic (see paragraph 20 above). His request for information was not a spontaneous move but had rather been directly linked to his specialisation as a journalist. The refusal had prevented him from informing the public on how their elected representatives influenced language policy.56. As far as the objective test was concerned, there was indeed case-law on the subject of access to information, but it could not be said that it was well-established and, furthermore, there was no case-law in respect of Ukraine on that issue at the time the applications had been lodged. Certainly, the public interest in the issue had considerably decreased since 2014 when the estate in question had been returned to the State. Access to public information had also improved. However, it could not be said that there were no longer any problems in this respect in Ukraine or that Ukrainian practice complied with “international democratic standards”. In any case the change in the situation in 2014 could not change the way the authorities and the courts had rejected the applicant’s claims in this matter, which the applicant objected to as a matter of principle.57. The case raised a matter of general nature which meant that “respect for human rights” required its examination regardless of the assessment of the individual damage to the applicant.The Court’s assessment(a)   Application of Article 35 § 3 (b) of the Convention58. The issue raised by the present applications goes beyond the personal interests of the applicant and concerned an important matter of principle, namely access to information in the context of journalistic activity.

Outcome for Article 10: violation