The Media Law Institute has sent two applications to the European Court of Human Rights [ECHR] alleging violation of Article 10 of the European Convention on Human Rights (freedom of expression). The first is over rulings of domestic courts in cases of the Media Law Institute against the Verkhovna Rada over the latter’s failure to answer information requests. The second is over court rulings in the case against the Constitutional Court regarding refusals to provide information.

As reported here, in May 2010 the Media Law Institute sent a formal informal request asking the Verkhovna Rada how parliament is linked organizationally and financially with the private enterprise which publishes the newspaper of which the Verkhovna Rada is founder – Holos Ukrainy [Voice of Ukraine].  The questions related to the functions carried out by this enterprise called “The Editorial Board of Holos Ukrainy”, what basis they have been given powers, whether there was a procedure for state procurement and whether there is an editorial charter.

The Institute then filed a claim with the court over failure to provide the information.

The respondent’s representative mainly argued that there were no legal relations between the Media Law Institute and the Office of the Verkhovna Rada since the letter had been addressed directly to the Verkhovna Rada. They asserted that there were no legal acts placing the responsibility for answering information requests to parliament on the Office of the Verkhovna Rada.

The Media Law Institute however asserted that the lack of subordinate legislation should not obstruct implementation of the law and the Law on Information guarantees the right to submit an information request to the legislature and receive a response. Moreover in an analogous case, the High Administrative Court had found that it was specifically the Office of the Verkhovna Rada that bore responsibility in failure to act on information requests.

In May of this year the District Administrative Court in Kyiv issued a ruling in favour of the Office of the Verkhovna Rada.

Earlier  on 24 March 2011 Ukraine’s High Administrative Court upheld the decisions of the first and second instance courts refusing to initiate proceedings in an administrative case. This involved a suit lodged by the Media Law Institute with respect to the Constitutional Court regarding provision of information concerning a case examined by that court.

The lower instance courts found that such a case could not be examined as administrative proceedings since the claimant was appealing against the actions of the Constitutional Court carried out in connection with consideration of a court case. In its cassation claim the Media Law Institute stressed that the material it requested is already of an archival nature, yet the High Administrative Court finally established that a court appeal against the refusal to provide information is impossible.

On 17 May the Media Law Institute had submitted an information request to the Constitutional Court regarding the latter’s judgment from 6 April 2010 confirming the constitutionality of the newly-created parliamentary coalition.

The Constitutional Court in its explanation referred to the opinions of leading law institutes. It was specifically copies of the opinions giving the legal possessions of academics from the Lviv Ivan Franko National University; the Yaroslav Mudry National Law Academy and the Odessa National Law Academy which the Media Law Institute asked to receive.

Incredibly, the Constitutional Court stopped access to the legal opinions from these higher educational institutions. In its response to the information request, the Constitutional Court informed that such information was the private property of the universities, and the legal positions of the academics could be circulated only with the consent of the institutes.

At the time Taras Shevchenko, Director of the Media Law Institute, stated that the position of the Constitutional Court ran counter to legislation on information and that legal analyses, on the basis of which an extremely important and highly controversial judgment was passed should be on open access. He promised then that the refusal to provide access would be appealed.  Domestic courts have now forced the Institute to turn to the European Court of Human Rights.