CASE OF STUDIO MONITORI AND OTHERS v. GEORGIA

1. The case originated in two applications (nos. 44920/09 and 8942/10) lodged with the Court against Georgia under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 August 2009 and 2 February 2010 respectively. Application no. 44920/09 was lodged by Studio Monitori (“the first applicant”), a legal entity established under Georgian law on 14 December 2005, and Ms Nino Zuriashvili (“the second applicant”), a Georgian national born in 1968. Application no. 8942/10 was lodged by Mr Mamuka Nozadze (“the third applicant”), a Georgian national born in 1974.
2. The first and second applicants were represented successively by Ms S. Japaridze, Ms N. Katsitadze, Ms T. Abazadze, Mr P. Leach and Ms J. Evans, lawyers practising in Tbilisi and London. The third applicant was represented by Ms S. Abuladze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented successively by their Agents, Mr L. Meskhoradze and Mr B. Dzamashvili, of the Ministry of Justice.
3. The applicants alleged, in particular, that the relevant domestic judicial authorities had denied them access to information of public interest, in breach of Article 10 of the Convention.
4. On 24 February 2011 and 8 September 2016 notice of the applicants’ complaint under Article 10 of the Convention was given to the Government.
I. THE CIRCUMSTANCES OF THE CASES
5. The first applicant is a non-governmental organisation established with the aim of conducting journalistic investigations into matters of public interest. The second applicant is a journalist and one of its founding members.
6. On an unspecified date in 2007 the second applicant, acting on behalf of the first applicant, asked the registry of the Khashuri District Court to give her access to a case file concerning an unrelated criminal case brought against a certain T.E, and in which he had been convicted. She did not give any reasons for her request and briefly indicated that she intended to photocopy and photograph the criminal case material stored in the archives of the court registry.
7. By a decision of 3 August 2007 the court registry stated that the second applicant’s request could not be granted in its current form. More specifically, it invited her to specify exactly which information and/or documents she wished to consult and for what purpose, stating that it would review its decision upon receipt of the requested information. The registry advised the second applicant that the criminal case file in question contained certain classified investigative information, public disclosure of which was strictly prohibited (section 5 (1) and (2) of the Special Investigative Activities Act of 30 April 1999). It further advised her that the criminal case file contained personal data about T.E., as well as other parties to the criminal proceedings in question, and that public disclosure of that information was only possible with their explicit consent (Article 37 § 2 of the General Administrative Code).
8. The second applicant never provided the further clarification sought by the court registry. Instead, on 14 September 2007 she lodged a court action concerning the registry’s decision of 3 August 2007, requesting its annulment.
9. As confirmed by a statement of claim dated 14 September 2007 filed with the Borjomi District Court, the second applicant, acting on behalf of the first applicant, did not explain the purpose of her request to access the criminal case file in question. She merely claimed that the registry’s decision of 3 August 2007 had restricted her right of access to information of public interest, which was enshrined in Article 37 § 1 of the General Administrative Code.
10. According to the transcript of a hearing before the Borjomi District Court on 12 December 2007 attended by both parties, the second applicant briefly mentioned that she needed to obtain access to the criminal case file for the purposes of a journalistic investigation project. However, she did not give any details about the project in question and relied exclusively on the general argument that her right of access to public information should not be limited. She further provided extensive legal arguments as to why the respondent’s interpretation of the relevant provisions of the Special Investigative Activities Act and the General Administrative Code had been erroneous.
11. By a judgment of 12 December 2007 the Borjomi District Court dismissed the second applicant’s action as ill-founded. It confirmed that the respondent’s decision to withhold the criminal case material from the second applicant had been legitimate and based on a correct interpretation of section 5(1) and (2) of the Special Investigative Activities Act and Article 37 § 2 of the General Administrative Code.
12. On 30 January 2008 the second applicant appealed against the judgment of 12 December 2007, complaining that the first-instance court had incorrectly interpreted the relevant provisions of domestic law. In her statement of appeal, she focused exclusively on her right to have unfettered access to public information, without giving any details as to why she had sought access to the criminal case material.
13. According to the transcript of a hearing before the Tbilisi Court of Appeal on 12 June 2008 attended by both parties, the second applicant stated: “I, as a journalist, no longer need access to the criminal case material because the journalistic investigation has already been terminated, and its results have already been published.” However, she emphasised that what was important for her was the creation a legal precedent that would acknowledge the significance of the right to have unfettered access to information of public interest. She considered that a criminal case file was public information within the meaning of Article 37 § 1 of the General Administrative Code and that anyone was entitled to have access to it.
14. By a judgment of 19 June 2008 the Tbilisi Court of Appeal dismissed the second applicant’s appeal as ill-founded and upheld the judgment of the lower court. On 16 February 2009 the Supreme Court rejected an appeal on points of law lodged by the second applicant as inadmissible, terminating the proceedings.
15. The third applicant was a practising lawyer in Georgia. On 22 March 2006 he was convicted of fraud for stealing money entrusted to him by a client for the purpose of securing bail in criminal proceedings. He was sentenced to three years and six months in prison (for further details, see Nozadze v. Georgia (dec.) [Committee], no. 41541/05, §§ 4-14, 9 May 2017).
16. On 11 October 2007 the third applicant, while still in prison, asked the registry of Tbilisi City Court to send him a copy of all the court orders concerning the imposition of pre-trial preventive measures in six distinct and unrelated criminal cases. He did not specify why he was interested in that particular information.
17. On 10 October 2007 the registry of Tbilisi City Court sent the third applicant a copy of the operative parts of the relevant court orders, stating that, in accordance with Article 140 § 20 of the Code of Criminal Procedure (as in force at the material time), only the operative parts of detention orders could be disclosed.
18. On 1 November 2007 the third applicant brought a court action against the registry of the Tbilisi City Court, complaining that its refusal to provide him with a full copy of the relevant court orders had infringed his right under Article 37 § 1 of the General Administrative Code to have unfettered access to public information.
19. By a judgment of 19 December 2008 the Tbilisi Court of Appeal dismissed the applicant’s action as ill-founded. The court stated that the relevant Chapter of the General Administrative Code and, more specifically, Article 37 § 1 thereof, which provided for the right to receive public information from the State and regulated the procedure for the exercise of that right, did not apply, pursuant to Article 3 §§ 2 and 3 of the same Code, to the judiciary within the framework of the administration of justice. In that connection, the court attached significance to the fact that all six of the criminal cases about which the third applicant had tried to obtain information were still ongoing at that time.
20. On 27 July 2009 the Supreme Court of Georgia, sitting in camera, rejected an appeal on points of law lodged by the third applicant, terminating the proceedings. A copy of the final decision was served on the third applicant on 30 October 2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Special Investigative Activities Act of 30 April 1999
21. The relevant provisions of the Special Investigative Activities Act ( კანონი ოპერატიულ-სამძებრო საქმიანობის შესახებ ), as in force at the material time, provided as follows:
Section 1 –Special investigative activities
“1. Special investigative activities are a form of overt or covert activity carried out by special divisions of State agencies authorised by this Act (hereinafter “special investigative agencies”) within the scope of their powers, with a view to protecting the rights and freedoms of individuals and legal entities [and] public security against criminal offences and other types of wrongdoing.
Section 5 – Special investigative activities and public disclosure
“1. Special investigative activities are strictly classified. All documents, data and sources of information relating to such activities shall be accessible only to people possessing special qualifications who are authorised to do so by the present Act ...
2. The public disclosure of documents or other material relating to special investigative activities ... shall result in criminal prosecution for disclosure of State secrets.”
B. General Administrative Code of 25 June 1999
22. Under Article 2 of the General Administrative Code, not all types of information collected and stored by a public authority are considered to be “public information”. More specifically, under Article 2 (m), information collected or stored by a public authority is considered “classified” if it contains either “personal data about third parties” or relates to a “commercial or State secret”.
23. Under Article 3 §§ 2 and 3, only Chapter III of the Code is to apply with respect to the judiciary and only in connection with purely administrative or organisational functions.
24. Article 3 § 4 further specifies that the whole of the Code does not apply to bodies of the executive branch of State power concerned with conducting criminal investigations and prosecutions.
25. Articles 10 and 28 of the Code further specify that everyone has a right to obtain access to public information stored by a public authority “unless this information relates to a State, professional or commercial secret or contains personal data about third parties.”
26. Chapter III of the Code, of which Article 37 forms part, is dedicated to governing the procedure for the exercise of the right of access to public information. The relevant part of that provision reads as follows:
Article 37 – Request to access public information
“1. Everybody has the right to access public information, regardless of the form in which [it] has been stored. ...
2. An application to access public information shall be submitted in writing. ... If such an application may result in the disclosure of classified information, it shall be accompanied by a certified consent from the third party concerned. ...”
27. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment, in accordance with Rule 42 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
28. The applicants complained that the domestic judicial authorities had denied them access to information of general public interest. They relied on Article 10 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom ... to receive and impart information and ideas without interference by public authority and regardless of frontiers ...
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.”
29. The Government objected that application no. 44920/09 should be rejected as inadmissible under Article 35 § 3 (b) of the Convention as the first and second applicants had not suffered a significant disadvantage in connection with their complaints under Article 10 of the Convention. Thus, even in the absence of access to the relevant court decisions, the two applicants had been able to conduct their journalistic investigation and publish its results (see paragraph 13 above).
30. The Government did not make any objection to the admissibility of application no. 8942/10.
31. The first and second applicants disagreed with the Government’s objection relating to the admissibility of their complaints under Article 10 of the Convention, reiterating that the subject matter of the application was not whether or not they had been able to conduct their journalistic investigation, but rather the matter of principle that they had been unlawfully denied access to information of public interest.
32. While the Government have not raised an objection as regards the applicability of Article 10 of the Convention, the Court considers that it has to address this issue of its own motion. It recalls in this connection that questions relating to the applicability of Article 10 and the existence of interferences, the latter forming part of the merits of the relevant complaints, are often inextricably linked (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 71 and 117, 8 November 2016, and also, as regards the applicability of Article 8 of the Convention, see Denisov v. Ukraine [GC], no. 76639/11, § 92, 25 September 2018). As it has previously explained in the latter case concerning Article 8, since the question of applicability is an issue of the Court’s jurisdiction ratione materiae, as a general rule the relevant analysis should be carried out at the admissibility stage, unless there is a particular reason to join this question to the merits (ibid., § 93). In the present case, the Court considers that the significance of the fact that the first and second applicants were able to finalise their journalistic investigation for the purposes of which they had requested access to certain court decisions is closely linked with the question of whether there has been an interference with their rights under Article 10 of the Convention. More importantly, the present case raises a novel issue at domestic level and is one of the first cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság to test the limits to the right of access to information recognized in that judgment in certain circumstances and the applicability of Article 10 of the Convention in that regard. Accordingly, the Court decides to join the Government’s objection to the merits of application no. 44920/09. Furthermore, it decides to examine the question of applicability of Article 10 of the Convention together with that pertaining to the existence of interference under this provision on the merits of the present cases. That decision, however, does not detract from the general rule, referenced above, according to which issues relating to the applicability of Article 10 will normally fall to be examined in most cases at the admissibility stage.
33. The Court further observes that all three applicants’ complaints under Article 10 of the Convention are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. These complaints must therefore be declared admissible.
34. The first and second applicants (application no. 44920/09), relying on the relevant criteria developed by the Court in its judgment of Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 156 ‑ 170, 8 November 2016), first argued that their inability to have access to the relevant court decisions had constituted an interference with the exercise of their right to freedom of expression. They explained that they had sought access to the criminal case material because they believed that the person who had come forward as the victim in those criminal proceedings had, in actual fact, been an agent provocateur, and they had, at the material time, been working on a documentary exposing police misconduct. Acknowledging the fact that they had been able to finalise their journalistic investigation even in the absence of the solicited information (see paragraph 13 above and paragraph 36 below), the two applicants argued that the disclosure of that information would have allowed them to deliver an even better journalistic product. The first and second applicants argued that the relevant judicial authority’s refusal to grant them access to information of interest to them had been unlawful because the criminal case material had related not to an ongoing criminal case but one which had already been terminated. They claimed that since the Special Investigative Activities Act did not apply to closed criminal cases, section 5 should not have been relied on as the legal basis for withholding public information from them. The two applicants further argued that the interference with their right to receive information had not pursued any legitimate aim and had been disproportionate. Thus, with respect to those elements, the applicants argued, among other things, that since the criminal case material had already been examined openly and publicly in court, its non-disclosure could not possibly serve the interests of protecting either a State secret or personal data about the parties to the proceedings.
35. The third applicant (no. 8942/10), although not referring directly to the principles laid down in the case of Magyar Helsinki Bizottság (cited above), in substance provided arguments in line with the first two applicants’ submissions. He stated that he had not deemed it necessary to indicate to the domestic judicial authority the purpose of his request for access to the relevant court decisions because it was his understanding that the right enshrined in Article 37 § 1 of the General Administrative Code meant that public authorities were under an absolute obligation to divulge information held in their possession. He further stated that since all six of the criminal cases about which he had requested information had been directed against former high-ranking State officials, who had all been well ‑ known public figures, prosecuted for various corruption offences, the public had had the right to know all the details about those high-profile criminal proceedings. The third applicant further claimed that, generally speaking, full access to decisions issued by domestic courts promoted the general principles of transparency and accountability. Lastly, he claimed, in line with the first and second applicants’ submissions, that the interference with his right to receive information under Article 10 of the Convection had been unlawful and disproportionate.
36. As regards application no. 44920/09, the Government submitted that there had not been an interference with the first and second applicants’ right to receive information as, even in the absence of access to the court decisions of interest to them, they had been able to finalise their journalistic investigation and had published its results in the form of a video uploaded onto the first applicant’s official YouTube channel. Referring the Court to the web address of the video in question, the Government noted that it had already had more than thirty-seven thousand views, which could be taken as proof that the applicants had been successful in their investigation and that, consequently, there could be no room for suspecting that the State had interfered with their freedom of expression. Furthermore, the Government emphasised that the reply of the Khashuri District Court’s registry had not been absolute but conditional. The judicial authority had simply asked the applicants to provide further clarification, upon receipt of which it would review its position concerning the public disclosure of the relevant documents.
37. Alternatively, assuming that there had been an interference with the first and second applicants’ rights under Article 10 of the Convention, the Government submitted extensive arguments to show, by reference to various examples of relevant domestic legal practice, that the interference had been lawful and had pursued, in a proportionate manner, the legitimate aim of protecting from public disclosure information classified as State secrets and personal data.
38. With respect to application no. 8942/10, the Government submitted that the third applicant had requested access to the court decision in his capacity as an ordinary citizen. He was neither a journalist nor associated with any other “social watchdog”, and hence his freedom-of-expression rights had been more prone to restriction. The third applicant could not be said to have requested access to the relevant information in order to contribute to an informed public debate. Assuming that there had been an interference with the third applicant’s right to freedom of expression, the Government submitted extensive arguments to show that it had been lawful and proportionate.
(a) General principles regarding the applicability of Article 10 and the existence of interference
39. The Court reiterates that Article 10 of the Convention does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression. Whether and to what extent the denial of access to information constitutes an interference with an applicant’s freedom ‑ of ‑ expression rights must be assessed in each individual case and in the light of its particular circumstances (see Magyar Helsinki Bizottság, cited above, §§ 156-57). In order to determine whether Article 10 can be said to apply to a public authority’s refusal to disclose information, the situation must be assessed in the light of the following criteria: (a) the purpose of the information request; (b) the nature of the information sought; (c) the particular role of the seeker of the information in “receiving and imparting” it to the public; and (d) whether the information was ready and available (ibid., §§ 157 ‑ 70).
(b) Application of these principles to the circumstances of the present case
40. Turning to the circumstances of application no. 44920/09, the Court notes that, whilst the journalistic role of the first and second applicants was undeniably compatible with the scope of the right to solicit access to State ‑ held information (compare, for instance, Roşiianu v. Romania, no. 27329/06, § 61, 24 June 2014), the purpose of their information request cannot be said to have satisfied the relevant criterion under Article 10 of the Convention (see the preceding paragraph in fine ). This is because they failed to specify, in the relevant domestic proceedings, the purpose of their request for permission to consult the criminal case file. They never explained to the relevant court registry why the documents were necessary for the exercise of their freedom to receive and impart information to others (see paragraph 6 above, and contrast Cangı v. Turkey, no. 24973/15, § 32, 29 January 2019). Noting that omission, the domestic authority explicitly invited the applicants to address that gap by clarifying the purpose of their request. What is more, the authority expressed its readiness to reconsider its initial refusal upon receipt of the requisite information from the applicants. The latter, however, ignored that opportunity and instead decided to sue the authority for breaching their alleged right to have unrestricted access to State-held information of public interest (see paragraphs 7 and 8 above, and compare Sioutis v. Greece (dec.), no. 16393/14, § 27, 29 August 2017, and also, mutatis mutandis, Bubon v. Russia, no. 63898/09, § 47, 7 February 2017). However, it should be restated in this connection that Article 10 of the Convention does not confer on individuals an absolute right to access State ‑ held information (see Magyar Helsinki Bizottság, cited above, § 156).
41.  The Court further observes that, even in the absence of the information sought, the first and second applicants were able to proceed with their journalistic investigation. Thus, even without waiting for the outcome of the relevant proceedings which they themselves had initiated against the domestic judicial authority, they finalised the investigation and made its results accessible to the public (see paragraphs 13, 29 and 36 above). In other words, it can be inferred from the particular circumstances of the case at hand that the access sought by the first and second applicants to the relevant criminal case material was not instrumental for the effective exercise of their freedom-of-expression rights (see Magyar Helsinki Bizottság, cited above, § 159, and contrast Cangı, cited above, § 34). Indeed, the second applicant acknowledged herself before the domestic court that she, as a journalist, had not needed the information for the purposes of her journalistic activities and that it had been merely a matter of principle for her to obtain judicial acknowledgement of what she considered to be her unfettered right to have access to State-held public information (see again paragraph 13 above). As regards the first and second applicants’ argument regarding the correlation between the disclosure of the information of interest to them and the quality of their ultimate journalistic product (see paragraph 34 above), the Court observes that they have never voiced any similar argument before the domestic courts.
42.  As regards application no. 8942/10, it should be noted that the third applicant, like the first and second applicants, did not take the trouble to explain to the relevant court registry the purpose of his request to obtain a full copy of the relevant court decisions (see paragraph 16 above), which makes it impossible for the Court to accept that the information sought was instrumental for the exercise of his freedom-of-expression rights (contrast Cangı, cited above, §§ 33 and 34). Most importantly, it is unclear how the third applicant’s role in society was supposed to satisfy the relevant criterion under Article 10 of the Convention. Thus, the Court observes that the third applicant was neither a journalist nor a representative of a “public watchdog” (ibid., § 35). He did not clarify in the proceedings before the Court how he could enhance, by receiving a copy of detention orders in six criminal cases totally unrelated to him, the public’s access to news or facilitate the dissemination of information in the interest of public governance (compare Magyar Helsinki Bizottság, cited above, §§ 164‑68, and Sioutis, cited above, § 31). Nor is the Court persuaded that the information solicited from the domestic judicial authority by the third applicant met the relevant public‑interest test under Article 10 of the Convention (see Magyar Helsinki Bizottság, cited above, § 161). While acknowledging the significance of the principle that court decisions are to be pronounced publicly and should be, in some form, made accessible to the public in the interest of the good administration of justice and transparency (see, for instance, Fazliyski v. Bulgaria, no. 40908/05, § 64-66, 16 April 2013), the Court restates that the requirement that the information sought meet a public-interest test in order to prompt a need for disclosure under Article 10 of the Convention is different, as it refers to the specific subject‑matter of the document, in this case of the judicial orders (compare Sioutis, the decision cited above, § 29, and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, §§ 35‑36 and 46, 28 November 2013). In that connection, that is as regards the question of whether or not the specific subject-matter of the solicited documents involved public-interest considerations, the applicant limited his arguments to mentioning that the solicited judicial decisions concerned high-profile criminal cases instituted against former high-ranking State officials for corruption offences (see paragraph 35 above). However, the Court considers that the fact that the accused in those cases were well‑known public figures was not in itself sufficient to justify, under Article 10, disclosure of a full copy of the relevant judicial orders concerning the ongoing criminal proceedings, including the parts which did not constitute public information according to the domestic law applicable at the material time (see paragraphs 17 and 19 above), to a third party acting in a purely private capacity (compare, mutatis mutandis, with Sioutis, the decision cited above, §§ 29 and 30). Indeed, the public interest is hardly the same as an audience’s curiosity (compare, mutatis mutandis, Magyar Helsinki Bizottság, cited above, § 162).