CASE OF GUSEVA v. BULGARIA
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva
6. The applicant was born in 1951 and lives in Vidin. She is a member of the Board of Directors of the Animal Protection Society in Vidin. On 16 September 2002 she was authorised to represent the organisation before any and all institutions in Bulgaria in relation to its activities. 7. On 11 April 2002 the applicant asked the mayor of Vidin for access to information about an agreement, concluded between the municipality and the municipal company “Cleanliness” EOOD, for the collecting of stray animals on the territory of Vidin municipality. 8. The mayor sought the explicit consent to that effect of the head of “Cleanliness” EOOD, considering that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. The head of “Cleanliness” EOOD refused to give consent on 28 May 2002. The mayor issued a decision on 4 June 2002 in which he refused to provide the applicant with access to the information she sought. The mayor referred to section 37 (1) (2) of the Access to Public Information Act 2000, which at the time listed the absence of a third interested party’s explicit written consent for the provision of information among the grounds for refusal to grant access to information. 9. The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003, finding that the information sought did not affect the rights of “Cleanliness” EOOD and therefore section 37 (1) (2) was not applicable. The court accordingly ordered the mayor to provide the information to the applicant. 10. Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not affected and the mayor’s decision denying access to information to the applicant was not reasoned. 11. On 20 January 2003 the applicant again asked the mayor of Vidin for information. This time the information she sought concerned the annual statistics for 2001 and 2002 about animals held in an animal shelter called “Municipal Care”. In particular she asked how many animals were placed there, how many of them died or were put to death, and how much their care had cost the municipal budget. 12. The mayor sought the explicit consent to that effect of the head of the public utilities company concerned, “Titan Sever” OOD, considering once again that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000. In a letter of 10 February 2003 the head of “Titan Sever” OOD refused to give consent. On 14 February 2003 the mayor refused to provide the applicant with access to the information, referring to section 37 (1) (2) of the Access to Public Information Act 2000. 13. The applicant brought court proceedings against the decision of the mayor refusing access to the information. The Vidin Regional Court allowed the applicant’s claim on 27 June 2003. It found that, if third parties objected to the provision of information concerning them, section 31 (4) of the Access to Public Information Act 2000 obliged the mayor to grant access to that information in a manner not disclosing the parts related to the third party. It then sent the case back to the municipality ordering it to provide the information to the applicant. 14. Following a cassation appeal by the mayor, the Supreme Administrative Court upheld the lower court’s judgment on 25 May 2004. It held that the information was of high public interest, the rights of third parties were not concerned and that, even if they were, the information could be provided without disclosing the parts concerning the third parties. Finally, that court found that the mayor’s decision denying access to information to the applicant was not reasoned. 15. On 17 June 2003 the applicant once again asked the mayor for information. The information concerned a public procurement procedure which had been organised by the mayor and aimed at reducing the number of stray dogs in Vidin. The applicant wanted to know the number of the organisations which had tendered for a contract with the municipality, which ones had passed the pre-selection stage, and - in respect of those who have - the following information: the type and number of qualified staff they employed; the infrastructure and facilities they had for humane catching and transportation of dogs; the proof they had presented for their capacity to deliver quality services; and, the price they asked for providing the services. 16. On 1 July 2003 the mayor refused to provide that information in a reasoned decision. The explanation he gave was that the information requested concerned solely the participating candidates in that procurement procedure and their bids in accordance with the Public Procurement Act 2004; that it was of an economic nature; that it was related to the preparation of the mayor’s administrative actions in relation to the procurement procedure; and, that it had no significance of its own. 17. The applicant brought court proceedings against the decision of the mayor refusing access to the information. On 10 December 2003 the Vidin Regional Court allowed the applicant’s claim and overturned the mayor’s refusal to provide the information sought. The court found that the information in question had not been classified, that the mayor’s decision was not issued within the statutory time-limit and that its content was not in conformity with the requirements of section 38 of the Access to Public Information Act 2000. The court sent the case back to the mayor, specifically ordering him to provide information to the applicant about the organisation which had won the municipal contract at the end of the public procurement procedure and the conditions of that contract. 18. Following a cassation appeal by the mayor, on 20 October 2004 the Supreme Administrative Court partly upheld the lower court’s judgment. It quashed the judgment’s part which ordered the mayor to provide the applicant with information about the organisation which had won the municipal contract and the conditions of that contract. It held that the mayor had to provide the rest of the requested information. 19. On 10 June 2004, referring to the two decisions of the Supreme Administrative Court of 25 May 2004 which concluded the proceedings in her first two requests for information, the applicant asked the mayor of Vidin to provide her with the information requested. 20. On 10 December 2004, referring to the decision of the Supreme Administrative Court of 20 October 2004 which concluded the proceedings in her third request for information, the applicant asked the mayor to provide her with the information requested. 21. On 27 December 2004, the mayor refused in a written decision to provide the information sought by the applicant following the Supreme Administrative Court’s judgment of 20 October 2004. In particular, he repeated the findings of the Supreme Administrative Court that he was not expected to provide information about the company which had won the municipal contract and remained silent in respect of the rest of the information he had been ordered to provide. It would appear that the mayor did not react to the applicant’s request for information following the two Supreme Administrative Court’s judgments of 25 May 2004. 22. In a letter of 15 September 2010, the applicant informed the Court that there were no further developments and the information she sought had not been provided to her.