In March 2004, Nurbek Toktankunov, representing a Kyrgyz public association, requested the Ministry of Justice (MOJ) Corrections Unit to provide the number of individuals sentenced to death in a certain period. The Corrections Unit denied the request on the ground that this information is classified under Kyrgyz bylaws that are themselves not available to the public (paras. 2.1, 2.5). The MOJ asserted that a state secrets law restricted such information through secret lists and regulations (paras. 2.7-2.8). After the exhaustion of domestic remedies, the requester filed a complaint with the HRC. Kyrgyzstan did not respond on the merits, but submitted data on death sentences and prison mortality, stating that this was declassified “for service purposes” but confidential for the media (paras. 4.1-4.2).
The HRC declared admissible the Article 19 complaint as (1) the information sought is in the public interest; (2) criminal judgments are generally public; and (3) the ICCPR recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest (para. 6.3).
The HRC recognized a “right of access to state-held information”—including a duty of the government to disclose or to justify non-disclosure—grounded in ICCPR Article 19 regarding freedom of expression (para. 7.4). Any restriction on the right must be (a) according to law, and (b) necessary to (c) protect a legitimate interest. Kyrgyzstan violated Article 19 given that (1) the confidential regulations were not a “law” that can restrict the right; and (2) the disclosure of information concerning the death penalty is in the public interest and restrictions on the right to this information are not necessary to protect a legitimate interest (paras. 7.6-7.7). The state must provide the requester with an effective remedy, yet the information provided pursuant to the initiation of the complaint constituted an effective remedy (para. 9).
A concurrence expressed caution about subsuming RTI within the right to expression to avoid diluting the right to expression as RTI permits more limitations.
Decision of the Committee.