Case Summary and Outcome

The UN Human Rights Committee (UN HRC) determined that the Kyrgyz government violated freedom of information protected  by Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) by failing to provide data on the prison population in Kyrgyzstan as requested by the Youth Human Rights Group, a Kyrgyz NGO, from the Ministry of Justice several times. The Ministry of Justice refused on the basis that the information was a state secret. The NGO argued to the domestic courts and to the UN Human Rights Committee (UN HRC) that the information was relevant to human rights and fundamental freedoms and would not undermine national security, thus it should be public.

The HRC had to first decide whether “the refusal by the State [authorities]…to provide [Toktakunov] with information on the number of individuals sentences to death resulted in a violation of his right to seek and receive information guaranteed by article 19, paragraph 2, of the Covenant.”  The committee found that Toktakunov did have the right of access to information on public affairs. However, the committee noted that in certain circumstances restrictions on information are permitted and necessary: “(a) for respect of the rights or reputations of others; and (b) for the protection of national security or of public order, or of public health or morals.”  The committee found that information concerning death sentences does not have “any negative impact on defence capability, safety, or economic and political interests,” and therefore does not qualify for protection under article 19. Thus, the committee concluded that Toktakunov’s right under article 19 had been violated.

Facts

On March 3, 2004, the Youth Human Rights Group, where Nurbek Toktakunov works as a lawyer, requested information on the number of death row inmates from the Central Directorate of Corrections within the Ministry of Justice (MoJ). The MoJ refused to provide the information because it was classified confidential and top-secret. In June 2004, Toktakunov filed a complaint with the MoJ, arguing that the classification of top secret and confidential should not apply to the requested information as it is in the realm of fundamental human rights and its disclosure would not have a negative impact on the defense capabilities of Kyrgyzstan. The MoJ reiterated its position that the information shall not be public.

On December 7, 2004, Toktakunov filed a request for the information under Article 19 of ICCPR at a district court. The court dismissed the requests due to lack of jurisdiction. The district court’s decision was upheld on appeal.

In June 2005, Toktakunov again requested information on the prison population from the MoJ, however, the request was again refused. The MoJ further explained that it adopted a non-public internal decree on classification of information, which had been applied to the requested information. Thus, its refusal to provide Toktakunov with the requested information was lawful.

In July 2006, in response to Toktakunov’s complaint to the HRC for violations of Article 19, the Kyrgyz government submitted data to the HRC on the number of deaths in the penitentiary system in Kyrgyzstan, noting that the data is available for service purposes only and remains confidential for the press. In response to this, Toktakunov submitted a comment to the HRC, arguing that the information on the number of deaths cannot be considered declassified as long as the general public and the press have no access to it.

Decision Overview

The HRC first noted that the creation of forums for public debate and the forming of public opinions is not limited to the media or professional journalists, and can also be exercised by public associations and private individuals. The HRC also stated that the media should have access to information on public affairs, and also that this right is extended to individuals and public associations in the matters of legitimate public concern. Moreover, the HRC reiterated that the public has a legitimate interest in having access to information on the use of the death penalty.

The first issue before the committee was whether “the refusal by the State [authorities]…to provide [Toktakunov] with information on the number of individuals sentences to death resulted in a violation of his right to seek and receive information guaranteed by article 19, paragraph 2, of the Covenant.” [1] The committee found that Toktakunov did have the right of access to information on public affairs. However, the committee noted that in certain circumstances this right can be tempered. The decision stated that certain restrictions on information are permitted and necessary: “(a) for respect of the rights or reputations of others; and (b) for the protection of national security or of public order, or of public health or morals.” [2] The committee found that the regulations of information concerning death sentences does not have “any negative impact on defence capability, safety, or economic and political interests,” and therefore does not qualify for protection under article 19. [3] Thus, the committee concluded that Toktakunov’s right under article 19 had been violated.

[1] Para. 7.3 of the decision, http://www.bayefsky.com//pdf/kyrgyzstan_t5_iccpr_1470_2006.pdf

[2] Para. 7.5, id.

[3] Para 7.5, id.