Case Summary and Outcome

The European Court of Human Rights (ECtHR) held that Serbia violated Article 10 of the European Convention on Human Rights (ECHR) when it refused to grant access to information held by the Serbian Intelligence Agency at the request of the non-governmental organization, Youth Initiative for Human Rights (YIHR).

YIHR filed a request under the Serbian Freedom of Information Act, and an information commissioner ruled Serbia must release the records. The Serbian Supreme Court refused to hear an appeal, yet the government still did not release the records. The ECtHR ruled that the denial of access to information that was of public interest was preventing the organization from fulfilling its role as a social “watchdog.” The exercise of the right to access information can be subject to restrictions, but the ECtHR could not find any grounds for limiting this right in the present case.

Facts

The Belgrade-based non-governmental organization, Youth Initiative for Human Rights (YIHR), requested access to information held by the Serbian Intelligence Agency (Agency) concerning the number of people the Agency had electronically surveilled that year. The Agency rejected this request, claiming that it had the right to keep official information secret if justified by a legitimate interest under Section 9(5) of the Serbian Freedom of Information Act.

YIHR presented a complaint to the Information Commissioner, who ruled that the Agency had violated the law and should make the information available within three days. The Supreme Court rejected an attempt to appeal this decision. Despite this final and binding ruling by the Information Commissioner, the Agency refused to grant YIHR’s request, claiming that it did not possess the information.

Decision Overview

YIHR appealed to the European Court of Human Rights (ECtHR), claiming that the denial of access to information that was of public interest was preventing the organization from fulfilling its role as a social “watchdog.” The ECtHR recognized that the Agency’s refusal to comply with the Information Commissioner’s order to provide the information amounted to a violation of Article 10 of the European Convention on Human Rights.

The exercise of the right to access information can be subject to restrictions, but the ECtHR could not find any grounds for limiting this right in the present case. The Agency’s claim that it did not possess the information requested could not be considered reliable given the Agency’s initial refusal to provide the information for reasons of secrecy.

Judges Sayó and Vučinić submitted a separate, concurring opinion. While they agreed with the decision, they wished to emphasize issues that the jurisprudence of the ECtHR should address in the future. First, they invited the ECtHR to reflect upon the increasingly blurred distinction between journalists and citizens in the online world. Second, they advanced the claim that the lack of a prohibition of access might not be sufficient to ensure the enjoyment of the right to access information. Finally, they raised doubts as to the effectiveness of the distinction between accessing information of public interest and information of personal interest, which was a differentiation made by the ECtHR. These concerns are particularly relevant in the context of countries that, like Serbia, have made a recent transition from an authoritarian regime to a democratic one.