Youth Initiative for Human Rights (YIHR) is a non-governmental organization that “monitors the implementation of transitional laws with a view to ensuring respect for human rights, democracy, and the rule of law” (para. 5). On 31 October 2005, YIHR requested the intelligence agency of Serbia information on “how many people had been subjected to electronic surveillance by [the] agency in 2005” (para. 6). The agency refused, citing section 9(5) of the Serbian Freedom of Information Act 2004 (RTI Act), which provides that information of public interest “maybe refused, if its disclosure would disclose information or a document formally qualified as state, official or other secret.” YIHR appealed to the Serbian Information Commissioner, who found “that the intelligence agency had breached [the RTI Act] and ordered that the information requested be made available to the applicant within three days” (para. 9). The Supreme Court of Serbia dismissed the agency’s appeal for lack of standing (para. 9). The intelligence agency then informed YIHR that it did not hold the requested information (para. 10). YIHR complained to the European Court of Human Rights.
Rejecting the government’s claims against admissibility, the Court pointed to its previous decision in Társaság a Szabadságjogokért v. Hungary, which had held that the freedom to receive information “embraces a right of access to information” (para. 20). The Court also pointed to its previous decision in Animal Defenders International v. United Kingdom, which held that “when a non-governmental organisation is involved in matters of public interest, such as the present applicant, it is exercising a role as a public watchdog of similar importance to that of the press” (para. 20).
The Court found the government’s claim that the agency “did not hold the information requested” and that Article 10 “could not be construed as imposing on a State . . . positive obligations to collect and disseminate information of its own motion,” “unpersuasive in view of the nature of [the] information . . . and the agency’s initial response” (para. 25). Moreover, the refusal constituted “an interference with [YIHR’s] freedom of expression, as YIHR “was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate” (para. 24). Thus, the intelligence agency’s “obstinate reluctance” to comply with the Information Commissioner’s order was in defiance of domestic law and “tantamount to arbitrariness” (para. 26).
YIHR also alleged a violation of Article 6 of the Convention, but the Court found that “it [was] not necessary to examine the admissibility or the merits” of the Article 6 complaint, since the Article 10 complaint was substantially similar (para. 29).
Lastly, as a measure under Article 46 of the Convention, the Court ordered Serbia to ensure, within three months, in accordance with Article 44 § 2 of the Convention, that the intelligence agency of Serbia provide the applicant with the information requested.
In their concurring opinion, Judges Sajó and Vučinić encourage the Court to extend the scope of the right to information under Article 10 to include all citizens: “in the world of the Internet the difference between journalists and other members of the public is rapidly disappearing. There can be no robust democracy without transparency, which should be served and used by all citizens” (para. 1, concurring opinion).
Judgment of the Court.