FIRST SECTION
DECISION
Application no. 22715/09
Ivica GRČAR
against Croatia
The European Court of Human Rights (First Section), sitting on
17 September 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 11 March 2009,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ivica Grčar, is a Croatian national, who was born in
1948 and lives in Zagreb. He was represented before the Court by
Ms A. Vuksan, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by
their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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GRČAR v. CROATIA DECISION
4. On 22 February 2007 the applicant, a freelance journalist, informed
the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske;
hereinafter “the Ministry”) by email that he was doing research on the
supervisory boards of certain companies in Croatia and requested
authorisation to have a list of the people who sat on two or more
supervisory boards printed out from the e-court register database.
5. The Ministry’s IT department replied to the applicant’s email on
26 February 2007, informing him that they had just received his request and
that it would take a couple of days to respond to a request, and asking him
whether he would still need the information.
6. On 5 March 2007 the applicant sent another email to the Ministry,
complaining that he had not received the information he had requested.
7. The applicant received an email from the Ministry on 6 March 2007,
in which he was informed that the information requested had not been
collected by any of the Ministry’s departments and that it had all been
publicly accessible through the Official Gazette’s (Narodne novine)
publications concerning business entities in Croatia and on the web page of
the court register of companies. The Ministry also explained that the
information requested had not existed as a single centralised database, and
that the IT department only had authorisation to provide information
concerning the business entities themselves but not personal information.
8. On 9 March 2007 the applicant complained to the Minister of Justice
that he had been unable to obtain information from the Ministry about the
people who sat on two or more supervisory boards. Relying on the Access
to Information Act (Zakon o pravu na pristup informacijama) he requested
the same information again.
9. On 2 April 2007 the applicant urged the Minister of Justice to decide
his request for access to information.
10. On 5 April 2007 a press officer from the Ministry refused the
applicant’s request on the grounds that the information about the people
who sat on two or more supervisory boards had been publicly accessible
and that the Ministry had not collected and analysed that information in a
single centralised database. She also cited the Personal Data Protection Act
(Zakon o zaštiti osobnih podataka) and held that the disclosure of further
personal information would violate the right to privacy of the individuals
concerned, since all the relevant information had already been available
through the Official Gazette’s publications concerning business entities in
Croatia and on the web page of the court register of companies.
11. The applicant lodged an appeal against the above decision with the
Minister of Justice, but on 18 May 2007 it was dismissed as ill-founded.
12. On 6 June 2007 the applicant brought an action in the Administrative
Court (Upravni sud Republike Hrvatske) contesting the above decision.
13. On 11 July 2007 the Administrative Court quashed the contested
decision and ordered the Ministry to re-examine the case. It held that the
GRČAR v. CROATIA DECISION
3
information sought was not personal information within the meaning of the
relevant domestic law and that the Personal Data Protection Act was
therefore inapplicable to the situation at issue. The Administrative Court
also found the reasoning of the Ministry’s decision contradictory, in that it
had found that the information sought had been publicly accessible, while at
the same time referring to the protection of privacy under the Personal Data
Protection Act.
14. The Administrative Court served its judgment on the Ministry and
on the applicant on 15 and 16 October 2007 respectively.
15. On the same day the Ministry received the judgment of the
Administrative Court, it provided the applicant with a list containing the
names of people who sat on two or more supervisory boards of companies
in Croatia.
16. However, the applicant was not satisfied with the scope of the
information obtained and he lodged an action with the Administrative Court
against the letter in which the Ministry had provided him with the relevant
information.
17. On 7 December 2007 the applicant complained to the Administrative
Court, relying on section 64(1) of the Administrative Disputes Act (see
paragraph 31 below), that the Ministry had failed to comply with that
court’s judgment of 11 July 2007 since it had only provided him with a list
of names, which he had been unable to match up with their respective
positions in the supervisory boards.
18. The Administrative Court dismissed the applicant’s complaint on
14 February 2008 on the grounds that by providing him with the list, the
Ministry had fully complied with the judgment of 11 July 2007. It also
pointed out that the applicant could always request additional information if
he considered the information received to be insufficient.
19. On 7 April 2008 the applicant requested the Ministry to provide him
with a list of the people who sat on two or more supervisory boards of
companies in Croatia, together with additional information about the exact
number of boards on which every individual sat.
20. On 10 April 2008 the Administrative Court declared the applicant’s
action against the letter of the Ministry of 15 October 2007 (see paragraphs
15 and 16 above) inadmissible on the grounds that it was not possible to
lodge an administrative action against a letter of a public authority.
21. On 26 May 2008 the applicant asked the President of the
Administrative Court whether that court had departed from its practice of
deciding a case concerning access to information within three months.
22. A spokesperson from the Administrative Court informed the
applicant on 3 June 2008 that the court had not departed from its practice of
deciding such cases within three months, since there was no such practice.
She also informed the applicant about the process by which such cases were
dealt with by the Administrative Court.
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GRČAR v. CROATIA DECISION
23. On 15 October 2008 the Supreme Court (Vrhovni sud Republike
Hrvatske) dismissed a request for protection of legality (zahtjev za zaštitu
zakonitosti) lodged by the State Attorney of the Republic of Croatia
(Državno odvjetništvo Republike Hrvatske) against the Administrative Court
judgment of 11 July 2007.
24. The Supreme Court endorsed the findings of the Administrative
Court that the Personal Data Protection Act was inapplicable to the case at
issue since the information sought had been publicly available on the
Ministry’s web page and the e-court register, as well as through the Official
Gazette’s publications. The Supreme Court, however, declined to deal with
the State Attorney’s argument that the Ministry had no obligation to collect
and systematise the information in order to facilitate individual research
because the Administrative Court had not been called upon to deal with that
matter.
25. On 21 November 2008 the Ministry informed the applicant that it
did not have the information he had requested on 7 April 2008 (see
paragraph 19 above) and forwarded his request to the President of the High
Commercial Court (Visoki Trgovački sud Republike Hrvatske), who under
the new Rules for Entry in the Court Register (which came into effect on
15 January 2008) was responsible for centralising all relevant information
concerning companies in Croatia.
26. On 10 April 2009 the President of the High Commercial Court
provided the applicant with a list of the people who sat on two or more
supervisory boards of companies in Croatia.
27. On 29 April 2009 the applicant requested the President of the High
Commercial Court to provide him with additional information about the
exact number of supervisory boards on which each individual sat, pointing
out that certain names had disappeared from the list.
28. On 15 May 2009 the President of the High Commercial Court
provided the applicant with the additional information and explained that
the information on the court register was constantly being updated and
therefore would not always be the same.
B. Relevant domestic law
1. Access to Information Act
29. The relevant provisions of the Access to Information Act (Zakon o
pravu na pristup informacijama, Official Gazette, no. 172/2003) read:
Application of the rules on administrative procedure
Section 9
“Unless this Act provides otherwise, the Administrative Procedure Act is applicable
in proceedings concerning access to information.”
GRČAR v. CROATIA DECISION
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Access to information
Section 10
“Public authorities are obliged to make access to information possible:
...
2) by directly providing information to an authorised person who has submitted a
request,
...
5) in any other way which enables the right of free access to information to be
exercised.”
...”
Additional and corrected information
Section 16
“(1) If the authorised person, on the basis of the evidence available, considers that
the information given on the basis of the request is inaccurate or incomplete, he may
request additional information or that it be corrected.
(2) The public authority is obliged to give a specific decision on the rejection of the
request if it considers that there are no grounds for supplying additional or corrected
information.”
Appeal and administrative proceedings
Section 17
(1) The applicant may lodge an appeal against the decision of the public authority to
the head of the competent public authority, within 8 days of the decision being served.
(2) The second-instance decision on the appeal must be given and served without
delay, and within no more than 15 days of the appeal being lodged.
(3) The applicant may lodge a complaint and thereby institute an administrative
action with the Administrative Court against the second-instance decision, namely the
final first-instance decision of the public authority dismissing the request, in
accordance with the provisions of the Administrative Disputes Act. The proceedings
under the complaint are regarded as urgent.”
2. Administrative Procedure Act and Administrative Disputes Act
30. Section 218(2) of the Administrative Procedure Act (Zakon o općem
upravnom postupku, Official Gazette no. 53/1991) provides that a party
whose application has not been decided and served within the relevant
time-limits (one month in simple and two in complex cases) may lodge an
appeal for failure to respond (žalba zbog šutnje administracije) as if his or
her application had been dismissed.
Under section 246(1) the second-instance authority deciding on the
appeal for failure to respond may order the first-instance authority to give a
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6
decision within one month or may, under section 246(2), decide the case
itself.
31. Section 64(2) of the Administrative Disputes Act (Zakon o upravnim
sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia
no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991,
9/1992 and 77/1992) provides that, following a judgment of the
Administrative Court whereby that court quashes a decision of a public
authority, that authority should issue a new decision immediately and within
no more than thirty days. Otherwise, a party may submit a specific request
for it to do so. If the authority does not issue a decision within seven days of
such a request, the party may apply to the Administrative Court again.
COMPLAINTS
32. The applicant complained, invoking Articles 6 § 1, 10 and 13 of the
Convention, about the prolonged non-compliance on the part of the
domestic authorities with the Administrative Court judgment of 11 July
2007, deciding on his right to receive and impart information.
THE LAW
33. The applicant relied on Article 6 § 1 of the Convention which, in so
far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
He also relied on Article 10 of the Convention which provides:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
Lastly, the applicant cited Article 13 of the Convention which reads as
follows:
GRČAR v. CROATIA DECISION
7
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
A. The parties’ arguments
34. The applicant contended that the administrative proceedings
concerning his request for access to information had been excessively long
and had lacked the necessary procedural guarantees. He also submitted that
he had not had an effective opportunity to enforce the Administrative Court
judgment of 11 July 2007 since he had been unable to obtain all the
information he had requested until 15 May 2009 when the High
Commercial Court had supplied him with certain information and had
informed him that the information at issue was constantly being updated.
On 26 May 2008 he had asked the President of the Administrative Court
about the progress of his proceedings and thus he had exhausted all
available remedies but to no avail.
35. The Government pointed out that in the course of the administrative
proceedings concerning his request for access to information, the applicant
had failed to lodge an appeal for failure to respond under section 218(2) of
the Administrative Procedure Act (see paragraph 30 above) and had failed
to institute the relevant procedure under sections 16 and 17 of the Access to
Information Act (see paragraph 29 above). In addition, the applicant had
had an opportunity to lodge a civil action for damages against the State, but
he had failed to avail himself of that remedy.
36. The Government further submitted that the Administrative Court had
not established any rights in favour of the applicant in the judgment of
11 July 2007 but had only quashed the decision of the Ministry not to
provide the applicant with a list of the people who sat on two or more
supervisory boards and ordered that his request be re-examined. The
Ministry had complied with that order on the same day it had received the
Administrative Court judgment and provided the applicant with the
requested information. The fact that on 7 April 2008 the applicant had
requested more detailed information concerning the exact number of
supervisory boards on which each individual sat had not concerned the
enforcement of the Administrative Court judgment of 11 July 2007 but
rather a new request for access to information. However, in respect of his
new request the applicant had failed to exhaust the relevant domestic
remedies.
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GRČAR v. CROATIA DECISION
B. The Court’s assessment
37. The Court finds it unnecessary to address all of the Government’s
objections, as the complaints are in any event inadmissible for the following
reasons.
38. The Court notes at the outset that the prolonged non-enforcement of
a court judgment concerning the right to receive and impart information of
public interest may raise an issue under Articles 6 § 1, 10 and 13 of the
Convention (see Kenedi v. Hungary, no. 31475/05, 26 May 2009).
39. The Court notes in the present case that in his initial request for
access to information of 22 February 2007 the applicant requested the
Ministry to provide him a list of the people who sat on two or more
supervisory boards of companies in Croatia (see paragraph 4 above).
40. After the Ministry dismissed his request, the applicant used the
available domestic remedies and on 6 June 2007 brought an action in the
Administrative Court. On 11 July 2007 the Administrative Court accepted
that action and ordered the Ministry to re-examine the applicant’s request.
The Ministry received the Administrative Court judgment on 15 October
2007 and on the same day complied with the order providing the applicant
with a list of the people who sat on two or more supervisory boards (see
paragraph 15 above). This was confirmed by the Administrative Court when
it dismissed the applicant’s non-compliance complaint (see paragraph 18
above) and the Court does not see any reason to hold otherwise.
41. Therefore, noting that the Administrative Court judgment of 11 July
2007 was enforced on the same day the Ministry received it, the Court is
unable to discern any relevant delays or lack of diligence on the part of the
domestic authorities in enforcing that judgment.
42. The Court therefore considers that the applicant’s complaint in this
regard is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
43. As regards the applicant’s allegation that he had received the
relevant information only on 15 May 2009 by the High Commercial Court,
the Court notes that this information concerned the exact number of boards
on which each individual sat. Request for such information was for the first
time set on 7 April 2008 (see paragraph 19 above) and it was not the subject
matter of the above-examined administrative proceedings which ended with
the Administrative Court judgment of 11 July 2007.
44. However, in the course of the administrative proceedings concerning
his request for access to this additional information the applicant never
attempted to use any of the available domestic remedies as suggested by the
Government, even though he never contested their effectiveness. In
particular, the applicant failed to use the appeal for failure to respond under
section 218(2) of the Administrative Procedure Act, which could have
provided him with an effective opportunity for ensuring that the
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9
administrative proceedings were expedited and his request decided (see,
among other authorities, Rauš and Rauš-Radanović v. Croatia (dec.),
no. 43603/05, 2 October 2008; Cokarić and Others v. Croatia (dec.),
no. 33212/02, 19 January 2006; and Štajcar v. Croatia (dec.), no. 46279/99,
20 January 2000). The mere fact that the applicant asked the President of the
Administrative Court about the progress of his proceedings did not dispense
him of the obligation to use the available domestic remedies before bringing
his complaints to the Court.
45. The Court therefore finds, even assuming that there is any issue to be
addressed in this regard, that the applicant’s complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of
domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach
Deputy Registrar
Isabelle Berro-Lefèvre
President