FIFTH SECTION. Application no /13 Sergiy Anatoliyovych LESHCHENKO against Ukraine lodged on 19 February 2013 STATEMENT OF FACTS

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1 FIFTH SECTION Application no /13 Sergiy Anatoliyovych LESHCHENKO against Ukraine lodged on 19 February 2013 Communicated on 19 January 2015 STATEMENT OF FACTS The applicant, Mr Sergiy Anatoliyovych Leshchenko, is a Ukrainian national, who was born in 1980 and lives in Kyiv. He is a journalist of the Ukrayinska Pravda online newspaper and is known for his criticism of those in power and for his active involvement in awareness-raising in Ukraine as regards corruptions in the highest echelons of power. He is represented before the Court by Mr E.V. Markov, a lawyer practising in Strasbourg. A. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1. Background to the case The Mezhyhirya is a residence of V. Yanukovich, the former President of Ukraine, which was allocated to him in The residence comprises 140 hectares and was in State ownership until 2007, when most of it (136,6 hectares) was privatised by Tantalite and Vidrodzhennia Ukrainy firms. In 2010, V. Yanukovich acquired as his private property 1,76 hectares of the Mezhyhirya land owned by the State. Following a journalistic investigation into the circumstances in which the State residence had been sold, the Ukrayinska Pravda made available a number of documents allegedly showing the link between two above mentioned firms and V. Yanukovich s family and close friends.

2 2 LESHCHENKO v. UKRAINE STATEMENT OF FACTS AND QUESTIONS 2. Applicant s requests for the information On 31 May 2011, on the basis of Article 6 5 of the Law on Access to Public Information, which secured public access to information related to the use of state and communal property, the applicant submitted an inquiry to the Vyshhorod State Administration, the local authorities in the district where the Mezhygirya is situated (hereinafter referred to as local administration ), seeking the following information: i. documents and permissions given by the local administration which served a basis for the land sale contract between V. Yanukovich and the local administration in 2010; ii. the land sale contract itself; iii. the price at which the land was sold to V.Yanukovich. On an unspecified date, the applicant lodged a similar request with the Presidential Administration. On 29 June 2011 the local administration confirmed the applicant that in 2010 the sale agreement for a plot of land of 1.76 hectares had been concluded between V. Yanukovuch and the local administration and stated that all permission procedures for the deal had been complied with. At the same time, the applicant was refused any further information or documents. The authority further stated that the requested information concerned the property and other rights and protected interests of a third person and that it was prohibited by law to interfere with the private and family life of others. The authority also referred in this respect to Articles 8 and 17 of the Convention as well as to Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe (PACE). By a letter of 6 June 2011 the Presidential Administration refused to provide the applicant with the requested information, having noted that the applicant s demand to provide the requested information should be considered as an interference with private life in breach of Article 32 of the Constitution of Ukraine. The applicant was called upon to respect private life of others. The reply referred to Resolution 1165 (1998) and the Convention. Later, the applicant lodged two further requests to the local administration which were eventually refused on similar grounds. On 25 August 2011 the applicant instituted proceedings before the Kyiv District Administrative Court seeking to declare unlawful the refusal of the local administration to provide him the information on the land sale agreement concluded in 2010 between V. Yanukovich and the local administration. He further requested the court to oblige the local administration to provide comprehensive information in reply to his request of 31 May The applicant emphasized that the requested information concerned the administration of State property and not the private life of V. Yanukovich and, in this context, providing information on conditions on which the State land had been released to a person could not be seen as an interference with the private life of the latter, all the more so as the latter was the President of the State. 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 narrower than that of ordinary citizens. He further referred to a number of the Court s judgments

3 LESHCHENKO v. UKRAINE STATEMENT OF FACTS AND QUESTIONS 3 concerning the right of press to receive and impart information on matters of public interest. On 19 December 2011 the court found against the applicant. It concluded that the requested information was confidential as it concerned the private life (property status) of an individual, V. Yanukovich, and thus could not be released without his prior authorisation. With reference to Resolution 1165 (1998), the court also noted that the right set out in Article 10 of the Convention should not be seen as allowing the press to interfere with the private life 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 court finally noted that the right to protection of private and family life was guaranteed to everybody indiscriminately of the level of his/her publicity. On 5 January 2012 the applicant appealed noting, inter alia, that the court had failed to examine his key argument that the information and the documents he had requested concerned the administration of the State property and thus the local administration, as the handler of this information, was prohibited by law to deny public access to it. He further complained about the court s selective and incomprehensive analysis of and reference to the domestic legislation and international documents. On 15 March 2012 the Kyiv Administrative Court of Appeal upheld the conclusions of the first instance court, having found the requested information to be confidential. The reasoning given in the judgment is identical that of the first-instance court. On 20 November 2012 the High Administrative Court of Ukraine, having relied on the reasoning given by the lower courts, upheld their judgments and dismissed the applicant s cassation appeal. B. Relevant domestic law 1. Constitution of Ukraine of 1996 Article 32 No one shall be subjected to interference with his private life and family matters, except when such interference is stipulated 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 for the cases determined by law and only in the interests of national security, economic wellbeing, and human rights Law on Access to Public Information of 13 January 2011 Article 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 subjects of public authority of their duties envisaged in the acting legislation or which is possessed by the subjects of public authority, other public information handlers determined by this law. 2. Public information is open except for the cases established by the law.

4 4 LESHCHENKO v. UKRAINE STATEMENT OF FACTS AND QUESTIONS Article 6 - Public information with limited access 1. Information with limited access is: 1) Confidential information; 2) Secret information; 3) Information for official use. 2. Limitation of the access to information is imposed in accordance with the law under the combination of the following conditions: 1) Exclusively in the interests of the national security, territorial integrity and civil order with the purpose of prevention of unrests or crimes, protection of public health, protection of reputation and rights of other people, prevention of the disclosure of information received confidentially, promotion of the authority and impartiality of justice; 2) Promulgation of information can significantly harm these interests; 3) Harm from promulgation of this information overweighs public interest in its obtaining. 3. Limited access information shall be provided by an information-handler if he had legitimately promulgated it earlier. 4. Limited access information must be provided by an information-handler if there are no legal grounds for limitation of access to this information that previously existed. 5. Access to information about the use of budget funds, state and communal property, including access to copies of corresponding documents, conditions of the receipt of these funds or property, names of physical persons and legal entities that received these funds or property cannot be limited. Under the terms envisaged in part 2 of this Article, this provision does not apply to the cases, when promulgation or provision of such information may harm the interests of the national security, defense, investigation or prevention of crimes. 6. Income declarations of the following categories of people and members of their families do not belong to the limited access information: 1) Individuals, who aspire to or hold elected positions in the bodies of power; 2) State government and local government employees of first or second category. 7. Limited access applies to information and not the document. If the document contains information with limited access, information with unlimited access must be presented for consideration. Article 7 - Confidential information 1. Confidential information is information, access to which is limited by a person or legal entity, apart from the subjects of public authority, and that can be disseminated at their wish and under their conditions. Information specified in part 1 and 2 Article 13 of this Law cannot be considered confidential. 2. Information-handlers, specified in part 1 Article 13 of this Law, who possess confidential information, can disseminate it only upon consent of people, who limited access to information. If there is no such consent, the information can be disseminated only in the interests of national security, economic wellbeing, and human rights. Article 13 - Information-handlers 1. For the purposes of this Law, the information-handlers are: 1) Subjects of public authority bodies of state power, other state bodies, bodies of local self-government, bodies of the Autonomous Republic of Crimea, other subjects

5 LESHCHENKO v. UKRAINE STATEMENT OF FACTS AND QUESTIONS 5 that perform public management functions in accordance with legislation and whose decisions are mandatory for execution; The Data Act of Article 1 - Definitions 1. In the context of the law, the terms mentioned below shall be understood as follows:... Information any data that can be stored as paper or electronic file;... Article 11 - Information on an individual 1. Information about an individual (personal data) - information or 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 for the cases determined by law and only in the interests of national security, economic wellbeing, and human rights. In particular, information concerning the person s nationality, education, marital status, religion, state of health as well as address, date and place of birth shall be considered confidential.... Article 21 - Restricted information...2. Confidential information is information about an individual as well as information, access to which is limited by an individual or legal entity, apart from the subjects of public authority. Confidential information can be disseminated at the wish (consent) of the respective person under his/its conditions as well as in cases specified by law The Land Code of Article 17 - Powers Local State Administrations in the land matters Local State Administrations have the following powers in the land matters: а) administer the state land within the limits set by the present Code;[...] c) coordinate the land planning and state control over the land usage and protection; d) draft conclusions as to the provision or expropriation (rebuying) of land plots; Law on Principles of Preventing and Counteracting Corruption of Article 12 - Financial Supervision 1. Persons stipulated by clause 1 and sub-clause "а" of clause 2 in part one of Article 4 of this Law, shall be obliged to submit annually, by 1 April, at the place of their employment (service) a declaration on property, incomes, expenses, and obligations of a financial nature for the previous year according to the form appended to this Law Information provided in a declaration on property, incomes, expenses, and obligations of a financial nature for the previous year of the President of Ukraine..., shall be made public within 30 days after the date of its submission, by way of publishing in official printed editions of the relevant state authorities and local government bodies....

6 6 LESHCHENKO v. UKRAINE STATEMENT OF FACTS AND QUESTIONS COMPLAINT The applicant complains under Article 10 of the Convention that his right to receive and impart information was violated as he had been refused access to the information and documents on the issue of a great public interest, namely with respect to the sale of a parcel of State land to the President of Ukraine. QUESTIONS TO THE PARTIES 1. Has there been an interference with the applicant s freedom of expression, in particular his right to receive and impart information, within the meaning of Article 10 1 of the Convention? 2. If so, was that interference prescribed by law, did it pursue a legitimate aim and was it necessary, in terms of Article 10 2?