The European Court of Human Rights (ECHR) has ordered the Intelligence Agency of the Republic of Serbia to release information to the Youth Initiative for Human Rights (YIHR) on the number of persons, who were subjected to electronic surveillance in 2005. YIHR had filed a request for the information on October 31, 2005 to the Intelligence Agency.
The ECHR established that Serbia has breached Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which regulates the freedom to hold opinions and to receive and impart information.
The Intelligence Agency had denied the request citing Article 9 of the Law on Free Access to Information of Public Importance, stating that the information on the number of persons who were subjected to electronic surveillance represents a state secret and is exempted under the law.
In response to the denial, YIHR made a complaint to the Commissioner for Information of Public Importance. The Commissioner rendered a ruling on December 22, 2005 ordering the Intelligence Agency to deliver the requested information. As a way to dismiss the demand from the Commissioner claiming its illegality, the Intelligence Agency instituted administrative proceedings before the Supreme Court of Serbia. The Supreme Court dismissed this appeal on May 23rd, 2006.
Seeking recourse to its request for information, YIHR filed an application on May 29, 2006, with the Government of the Republic of Serbia to secure the execution of the decision of the Commissioner.
Receiving no positive outcome after exhausting all legal solutions from within Serbia, YIHR filed an application with the ECHR on November 29, 2006 due to the violation of the rights guaranteed under Article 10 and Article 6 (Paragraph 1) of the European Convention. The Intelligence Agency then replied YIHR in a letter dated September 23, 2008, stating that it did not hold the information requested.
The ECHR found that the response of the Intelligence Agency from September 2008, that it did not hold the information requested, is unpersuasive in view of the fact that from the very beginning the Intelligence Agency refused to release the information with the excuse that it was confidential.
The Court said that YIHR had legitimate interest in seeking the information for the purpose of presenting it to the public, thereby contributing to the public debate regarding this issue. It also stated that by the refusal to deliver the information requested, the Intelligence Agency breached the YIHR’s right to receive and impart information, which is guaranteed by Article 10 of the European Convention.
It concluded that by the refusal to comply with the decision of the Commissioner, which ordered the Intelligence Agency to deliver the information requested, the Intelligence Agency had breached local law, the Law on Free Access to Information of Public Importance in particular.