The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 14 December, 2018 the Plenary Session of the Constitutional Court of Georgia adopted the judgement in the case of “N(N)LE “Green Alternative“ v. the Parliament of Georgia“ (constitutional complaint №752).

In this case, the subject of dispute was the constitutionality of the particular words of Article 29 of the Law of Georgia “On Subsoil” with respect to article 37(5) and article 41(1) of the Constitution of Georgia.

Pursuant to the disputed regulation, information on the geological structure of subsoil, mineral resource reserves and other resources, mining and technical conditions for the development of a mineral deposit, and on other properties or parameters, which is included in the State Information Fund, is the property of an entity, by whose means such information has been obtained. Therefore, it is prohibited to give mentioned information to other legal or natural persons without the consent of the owner of the information.

According to the complainant, subsoil is part of the environment and belongs to state property, public good. Respectively, information on the subsoil is not protected under private property right and everyone should have access to it, even though its extractor is not directly the state. Subsequently, the complainant argued that restriction of access for the public to such information violated everyone’s right to obtain information about environmental conditions (article 37(5) of the Constitution of Georgia) and the right to access to official documents stored in state institutions (article 41(1) of the Constitution of Georgia).

The respondent, the representative of the Parliament of Georgia, disagreed with the position of the claimant. According to them, article 41(2) of the Constitution of Georgia establishes state's obligation, not to disseminate the information entrusted to the latter in the manner that infringes the rights of owners of the information. The Respondent pointed out that information stipulated by the disputed regulation, is obtained by private persons, is their intangible property and has an economic value. Therefore, disclosure of the mentioned information would impose unjustifiable restrictions on the property owner’s rights and entrepreneurial freedom. Based on provided arguments, the Respondent considered that the constitutional complaint should not be upheld.

In the given case, the Plenary Session of the Constitutional Court of Georgia changed its wellestablished case-law, according to which, the right to access to the information stored in state institutions, which was related to health, finances, or other private matters of an individual, was not protected under article 41(1) of Constitution of Georgia. According to the Constitutional Court of Georgia, article 41(1) of Constitution of Georgia protects inter alia the right to access to the information stored in state institutions that is related to private issues of other persons. In turn, the right to be protected from disclosure of such information is recognised by article 41(2) of Constitution of Georgia, although this circumstance does not preclude mentioned information from the protected sphere of article 41(1) of the Constitution of Georgia. The court emphasised, that it is necessary, to determine the fair balance between these two confronted rights in every particular case.

The Constitutional Court acknowledged that article 41(1) of the Constitution of Georgia protects inter alia the right to access to information about subsoil, which according to the law is stored to the State Information Fund. Disputed regulation prohibited disclosure of the mentioned information to other persons without the consent of the owner of the information. Respectively, it constituted a restriction to the constitutional right to access to official documents stored in state institutions.

The Constitutional Court of Georgia indicated that the disputed regulation pursued to achieve valuable legitimate aims, such protection of the property rights, entrepreneurial freedom and freedom of competition of the owner of the information on the geological structure of subsoil, as well as ensuring rational use of minerals. The Constitutional Court of Georgia pointed out that in the absence of the disputed norm, any person would have access to the information about subsoil parameters, protected in the State Information Fund. This would have a negative effect on the rights of the owners of the information and would impede entrepreneurial activity related to mining, as well as the commercial interest in researching this field would be reduced and development of the sphere of usage of the subsoil would be hindered.

The Plenary Session of the Constitutional Court of Georgia further noted that possession of the information stipulated in the disputed norms is a commercial good itself. The value of such information is revealed not only in the use of it in the process of extraction of subsoil, but it is also useful for making significant commercial decisions. Access to such information would make it possible for third parties to use it for their own economic goals, which would cause the devaluation of information. Consequently, it would exclude interest in purchasing such information and it would become pointless to find such information by their own resources. Therefore, it was impossible to achieve legitimate aims of the disputed norm by the same effectiveness without closing the information. Finally, the Constitutional Court of Georgia determined that the right to access to information about the structure of subsoil was outweighed by the information owner’s property right, entrepreneurial freedom and the need to protect the interests of rational use of subsoil. Respectively, the Constitutional Court of Georgia found that there was a fair balance between private and public interests in the case.

In light of these reasons, the Constitutional Court of Georgia concluded that the restriction on the right to access to information stored in state institutions was justified and the disputed rule was constitutional with respect to article 41(1) of the Constitution of Georgia.

In the present judgement, the Constitutional Court of Georgia interpreted the scope of state’s obligation laid down in Article 37(5) of the Constitution of Georgia and underlined that this constitutional provision establishes the obligation of the state to collect, process and provide any interested person with complete and objective available information about environmental conditions. In the process of collection and ensuring the availability of this information, the state is authorized to select a form of obtaining and processing the information. In particular, the state has legitimate freedom to obtain the information itself and make it available to the public, as well as to provide access to the information collected by private individuals. At the same time, the state is not obliged to use any specific form to inform the public about environmental conditions.

The Constitutional Court of Georgia noted that the regulatory scope of the disputed norm did not include the rule and conditions for the implementation of the positive obligation of the state to collect information on the environment and to make available it to the public. The disputed norm prohibits to disclosure information, which is stored in the State Information Fund, without the consent of the owner of the information, however, it does not impede the possibility of the state to collect itself, process and make available to the public information about the environmental condition. Furthermore, for these purposes, the state is not restricted to the use of the information stored in the State Information Funds. As it was mentioned above, article 37(5) of the Constitution of Georgia does not establish the state’s obligation to inform the public about environmental conditions necessarily by disclosing the information, collected by private individuals.

In view of all the above-mentioned, the Constitutional Court of Georgia concluded that there had been no interference with the right to get information about environmental conditions, guaranteed by Article 37(5) of the Constitution of Georgia.