Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Mixed Outcome
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The European Court of Human Rights rejected an application from an Armenian non-governmental organization to compel the production of information sought from the Armenian Central Election Committee. The Court explained that as there was a factual dispute over whether the organization had, in fact, filed the request for information that had not been clarified in the Armenian courts, the organization had failed to exhaust the available domestic remedies and the case was therefore inadmissible before the European Court of Human Rights.
This case analysis was contributed by Right2Info.org.
Geraguyn Khorhurd Patgamavorakan Akumb (the organization), an Armenian non-governmental organization, acted as an election observer during the parliamentary election held in Armenia on 25 May 2003 and subsequently applied to the Central Election Committee (CEC) via registered mail requesting copies of documents relating to those elections (paras. 3-4). The CEC did not furnish the organization with the requested documents, and the organization approached the Kentron and Nork-Marash District Court of Yerevan for relief (para. 8). The District Court dismissed the organization’s application, holding that there was no evidence of the organization’s initial request for information (para. 9). The organization appealed to the Court of Appeal and then the Court of Cassation, which both dismissed the application on the grounds that the copy of the post office receipt did not constitute sufficient evidence that the request had been made (paras. 14-17).
Relying on article 10 of the European Convention, the organization approached the European Court of Human Rights, arguing that its right to receive and impart information had been violated by the actions of the CEC. The Open Society Justice Initiative was granted leave to intervene in the proceedings (para. 36)
The European Court of Human Rights had to determine whether the lack of response from the CEC did constitute an infringement of article 10 of the European Convention.
The organization argued that by failing to provide the information it requested the CEC had infringed its right to receive and impart information (para. 29).
The Armenian government argued that article 10 did not apply to the facts of this case because it submitted that article 10 did “not impose a positive obligation on public authorities to impart or disclose information against their will” and did not “guarantee the right of access to information” (para. 30). In addition, the government persisted with the argument it had made in the domestic courts that the organization had not actually lodged the application for access to information with the CEC (para. 31).
The Open Society Justice Initiative argued that the right of access to information was “well-established in both European and international law and practice” and that “the right of access to government information was an integral element of freedom of expression and an actual prerequisite for the meaningful exercise of other political rights in a modern democracy” (para. 36).
The Court did not consider the applicability of article 10 to the circumstances of the case as it ruled that the organization had failed to exhaust domestic remedies before approaching the regional court (para. 41) because the organization had not settled the question of whether it had, in fact, submitted the requests to information to the CEC in the Armenian courts (para. 40). The matter was therefore inadmissible.
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