The Council of Europe Convention on Acces Official Documents (Tromsø Convention): New opportunities for Ukraine 

26 August 2020

On behalf of the Secretary General of the Council of Europe, I would like to express our appreciation to the “Center for Democracy and Rule of Law” for having organised this expert discussion on the Tromsø Convention on Access to Official Documents, in the framework of the Joint Programme “EU and Council of Europe working together to support freedom of media in Ukraine”. Welcome to you all to this important event.

Ukraine’s ratification of the Tromsø Convention is a very important and welcome step. First and foremost an important step for Ukraine itself as the ratification of the Convention will contribute to enhancing transparency in public affairs and good governance in the country.

The presence today of several high-level representatives from the Government and Parliament is a clear sign of the commitment of the Ukrainian authorities to deepen the democratic functioning of the country in line with the Council of Europe standards. I would like to thank them for having taken the time to join us.

But the ratification is also important for the Convention itself as it paves the way for its entry into force. I will come back to this later.

As our time is limited, I will only highlight some of the key principles enshrined in the Tromsø Convention and the democratic progression opportunities that it holds for all our member States.

        Let me start by underlining the importance of the Tromsø Convention for pluralist democracy.

        Access to official documents enables citizens to form an opinion on the state of the society in which they live and on the authorities governing them. It enables citizens’ awareness of public affairs and their informed participation in decision-making processes.

An administrative authority which operates on the basis of principles of openness will be significantly more efficient, as it knows that the results of its endeavours may be examined by all and, consequently, be better understood. It also realises that it will be held accountable for its actions.

A culture of openness is essential for asserting the legitimacy of the authority as a public service, developing a relationship of trust between public authorities and citizens and monitoring the integrity of civil servants by avoiding the risk of corruption.

        The current Covid 19 crisis has emphasized not only the need for good record- keeping but also the imperative of providing transparent, reliable and clear information by public authorities.

        The Tromsø Convention provides a framework of legal principles in respect of all these democratic goals, which I will briefly mention now.

A right accessible by everyone is enshrined in the Tromsø Convention.

• Building on Article 10 of the European Convention on Human Rights (ECHR) on freedom of expression, the Tromsø Convention expands the guarantees for the enjoyment of this freedom. My colleague Pavlo Pushkar will address this question later. At the same time, the Tromsø Convention goes beyond the guarantees and principles established by the European Court of Human Rights through its caselaw.
• The basic principle is that a broad right of access to official documents should be granted based on equality and in application of clear rules, whilst refusal of access must be the exception and duly justified.
• It is not a question of merely recognising the freedom of the public to have access to information which the authorities wish to give them, but rather to secure a genuine “right to know” for the public.

The Tromsø Convention sets out a number of basic guarantees regarding the right to access official documents, notably:

• No obligation to provide reasons

The applicant for an official document is not obliged to give reasons for having access to the official document and parties may give applicants the right to remain anonymous when disclosure of identity is essential in order to process the request. The formalities for requests should not exceed what is essential in order to process the request.

• Prompt processing of requests

A request for access to an official document should be dealt with promptly.

• Reasons for refusal of access

A request for access to an official document may be refused only in narrowly circumscribed cases, for example if, despite the assistance from the public authority, the request remains too vague to allow the official document to be identified; or if the request is manifestly unreasonable.

A public authority refusing access to an official document wholly or in part shall give the reasons for the refusal. The applicant has the right to receive a written justification from this public authority for the refusal.

• Free access or reasonable charges

Inspection of official documents on the premises of a public authority shall be free of charge. A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document. Tariffs of charges shall be published.

• Review procedure

An applicant whose request for an official document has been denied shall have access to a review procedure before a court or another independent and impartial body established by law.

A milestone towards the entry into force of the Tromsø Convention

Following the deposit by Ukraine of its instrument of ratification on 19 August, the Convention will enter into force on 1 December 2020.

Within one year after the entry into force, the Secretary General of the Council of Europe will convene a “Consultation of the Parties” in order to elect the members of the Group of Specialists which will be responsible for monitoring the implementation of the Convention. The monitoring will be based on reports submitted by the States Parties to the Convention on the legislative and other measures taken to give effect to the provisions of the Convention. An important point which I would like to underline is that, under Article 15 of the Convention, these reports shall be made public and therefore will be subject to public scrutiny.

I will not enter into greater details on theses aspects as the principles and standards of the Convention will be presented in a moment by Mr Goldberg.  

But the few principles I have just mentioned indicate that States Parties are expected to take effective measures to implement the Convention and give concrete effect to the rights it contains.

In conclusion, I would like to repeat that the Tromsø Convention is a building block for transparent governance and democracy, fostering a culture of pluralistic, democratic society and transparency of public authorities; fostering also the integrity, efficiency, effectiveness and accountability of these authorities.

The ratification of the Tromsø Convention by Ukraine speaks a lot in favour of the alignment of the goals of its public authorities with those of the Council of Europe, notably of this Convention. This deserves to be praised.

I would like to conclude by wishing you a fruitful exchange during this event. The excellent experts who have been invited, and who I would like to thank for accepting this invitation, will I am sure provide our Ukrainian friends with a lot of insight and food for thought in view on the implementation of the Convention.

Thank you for your attention!